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2013 DIGILAW 480 (RAJ)

Shekhar Bhatiya v. Dinesh Kumar

2013-02-27

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant miscellaneous petition has been filed by the petitioners seeking quashing of the proceedings of Cr. Case No. 336/2007 Dinesh vs. Shekhar & Ors. pending in the Court of Judicial Magistrate No. 3, Bhilwara for the offence under Section 500 IPC. 2. Succinctly stated the facts of the case are that the respondent No. 1 Dinesh Kumar Pareek filed a complaint in the Court of Judicial Magistrate No. 3, Bhilwara against the petitioners for the offences under Sections 500 and 501 I.P.C. The allegation levelled in the complaint was that a news article was published in Hindustan Times, Jaipur Edition on 29.11.2005 the caption whereof was "Corrupt Manager that the respondent No. 1 Dinesh Kumar Pareek being to Assistant Manager in the R.F.C. was convicted by the Special Court at Udaipur and was sentenced to one year R.I. and a fine of Rs.. 1000/-. 3. The complainant filed the complaint with the specific allegation that the news article referred to in the complaint was published in the daily news paper Hindustan Times Jaipur Edition was defamatory and false. It was alleged that Shekhar Bhatia being its Editor, Rakesh Sharma, being the Printer and Publisher as well as the manager of the Surya Offset Printer were responsible for printing the defamatory news article in their news paper mentioning therein that the complainant was convicted by the Special Court whereas the fact of the matter was that at the conclusion of the trial of Cr Case No. 146/1997 the Special Judge (Prevention of Corruption Act Cases) Udaipur vide judgment dated 8.11.2005, had acquitted the complainant. Along with the complaint, the complainant filed the relevant page of the news paper wherein the news item was published, the notice issued to the accused demanding damages from them towards loss of reputation and the copy of the judgment passed by the Special Judge, (Prevention of Corruption Act Cases) Udaipur. The complainant examined himself and one Som Dutt Sharma in support of the complaint. Thereafter the learned Magistrate by a detailed order dated 16.6.2007 directed issuance of process against the petitioners herein. The aforesaid order dated 16.6.2007 issuing process has been challenged by the petitioners by way of the instant miscellaneous petition. 4. Mr. The complainant examined himself and one Som Dutt Sharma in support of the complaint. Thereafter the learned Magistrate by a detailed order dated 16.6.2007 directed issuance of process against the petitioners herein. The aforesaid order dated 16.6.2007 issuing process has been challenged by the petitioners by way of the instant miscellaneous petition. 4. Mr. Sunil Mehta, learned counsel for the petitioners contends that the complainant, in support of his evidence has filed only one page of the news paper and a bare perusal thereof does not prima facie establish that the petitioners herein are the editor and printer or publisher respectively of the news paper in relation whereto the complaint has been filed. He submits that there is no averment in the complaint that either of the petitioners was res-ponsible for printing of the news item. He thus contends that the order issuing process passed by the learned Judicial Magistrate amounts to a gross abuse of the process of Court. In support of his submissions he has placed reliance on the decision of the Supreme Court in K.M. Mathew vs. K.A. Abraham reported in (2002) 6 SCC 670 and urges that the order impugned and all the proceedings sought to be taken against the petitioners deserve to be quashed. 5. Mr. Usman Gani, learned counsel for the respondent No.1, on the other hand, supported the order passed by the trial court. He submits that the complainant cannot be precluded from leading evidence in support of his complaint. He further submits that the relevant page of the news paper has already been filed by the complainant on record. He contends that the complainant has a legal right to bring on record, the complete news paper because evidence is yet to be led at the trial. He has placed reliance on a decision of the Supreme Court in Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. reported in AIR 2011 SC 20 in support of his contentions. He thus prays that the order issuing process is just and legal and calls for no interference by this Court in the exercise of its inherent powers. 6. Heard and considered the arguments advanced at the bar. Perused the order impugned and the record. 7. The most outstanding feature available on record of the case is the notice Annexure P-3 issued by the complainant to the petitioners. 6. Heard and considered the arguments advanced at the bar. Perused the order impugned and the record. 7. The most outstanding feature available on record of the case is the notice Annexure P-3 issued by the complainant to the petitioners. The notice specifically refers to the status/designation of the petitioners in the news paper and the role played by them in the printing of the defamatory news item. The petitioner No. 1 is referred to as the Editor of the news paper and the petitioner No. 2 is referred to as the Printer thereof. The relevant page of the news paper in original has been filed on record of the complainant. The petitioners have admittedly not responded to the notice dt. 27.12.2005. Therefore, at this stage it cannot be said that the complaint lacks in particulars regarding the role/status of the petitioners in the printing and publication of the disputed news item. The Hon'ble Apex Court in the case of Iridium India Telecom Ltd. vs. Motorola Incorporated (supra) has held that the inherent powers should be exercised very sparingly to stifle a prosecution at the initial stage. The Hon'ble Apex Court held in para 44 as below:- "...The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. In the present case, the parties are yet to place on the record the entire material in support of their claims. The issues involved are of considerable importance to the parties in particular, and the world of trade and commerce in general." 8. If the facts of the case in hand are appreciated in the light of the principles laid down by the Apex Court in the case of Iridium India Telecom Ltd., then the argument of the petitioner's counsel that the complainant cannot file the whole of the news paper on record is not tenable. If such a view is adopted, then it would virtually amount to precluding the complainant from leading complete evidence at the trial. From the facts stated above it is apparent that the complainant has given sufficient evidence in support of his complaint for prosecuting the petitioners herein as being the editor and publisher respectively of the news paper in question. If such a view is adopted, then it would virtually amount to precluding the complainant from leading complete evidence at the trial. From the facts stated above it is apparent that the complainant has given sufficient evidence in support of his complaint for prosecuting the petitioners herein as being the editor and publisher respectively of the news paper in question. A legal notice for demand of damages has been sent by the complainant to the petitioners specifically mentioning their status in the news paper and no reply has been given thereto. The relevant page of the news paper which was considered sufficient by the trial Court for issuing process has already been filed on record. What inference is to be drawn from the lack of response to the notice would be for the trial court to appreciate when the case is at the conclusive stage. However, at this stage it would not be justifiable for this Court to hold that the complainant's case is lacking in material particulars or is shorn of evidence stifle the prosecution at the inception by exercising inherent powers of this Court. 9. Section 7 of the Press and Registration Act reads as belows:- "7. In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some court empowered by this act to have the custody of such declaration [or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, [or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher or printer and publisher (according as the words of the said declaration may be) of every portion of every [newspaper] whereof the title shall correspond with the title of the [newspaper] mentioned in the declaration [or the editor of every portion of that issue of the newspaper of which a copy is produced.]" 10. From a bare reading of the said provision it becomes apparent that there exists a presumption of law against publisher, editor, or printer that they were the printer, publisher or editor for every portion of the news paper. From a bare reading of the said provision it becomes apparent that there exists a presumption of law against publisher, editor, or printer that they were the printer, publisher or editor for every portion of the news paper. Meaning thereby that whenever a declaration is made in the news paper setting out the names and details of certain persons as the editor, publisher or printer then a presumption is to be drawn regarding such persons being responsible for each and every news article printed and published in the news paper. The Apex Court in the case of K.M. Mathew vs. K.A. Abraham (supra) considered the scope and applicability of the said section as regards the liability of Managing Editor, Chief Editor, or Resident Editor of news paper and held as below:- "13. A conjoint reading of these provisions will go to show that in the case of publication of any newspaper, each copy of the publication shall contain the names of the owner and the editor who have printed and published that newspaper. Under Section 7 of the Act, there is a presumption that the Editor whose name is printed in the newspaper as Editor shall be held to be the Editor in any civil or criminal proceedings in respect of that publication and the production of a copy of the newspaper containing his name printed thereon as Editor shall be deemed to be sufficient evidence to prove that fact, and as the `Editor' has been defined as the person who controls the selection of the matter that is published in a newspaper, the presumption would go to the extent of holding that he was the person who controlled the selection of the matter that was published in the newspaper. But at the same time, this presumption contained in Section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. Therefore, it is clear that even if a person's name is printed as Editor in the newspaper, he can still show that he was not really the Editor and had no control over the selection of the matter that was published in the newspaper. Section 7 only enables the court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect. 14. Section 7 only enables the court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect. 14. The contention of the appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as 'Editor' and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in that newspaper. 15. The contention of these appellants is not tenable. There is no statu-tory immunity against Managing Editor, Resident Editor or Chief editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. In all these cases, the complainants have specifically alleged that these appellants had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrates who had taken cognizance of the offence held that there was prima facie case against these appellants. It was under such circumstances that the summonses were issued against these appellants. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper. ......... 20. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper. ......... 20. It is true that judicial process should not be an instrument of oppression or needless harassment and the Magistrate while taking cognizance should be satisfied that there is a prima facie case against the accused and at that he should be circumspect and judicious in exercising discretion and should take all relevant facts into consideration before issuing process and that vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice and it shall not be the means to wreak vengeance, but, at the same time, "the inherent power of the Court under Section 482, Cr.P.C. should be very sparingly and cautiously used and only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. "So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out." [See State of Bihar vs.Rajendra Agrawalla (1996) 8 SCC 164 ]. "Unless grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind Section 465, Cr.P.C., Any or every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Frequent interference by superior Courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. Frequent interference by superior Courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system." [See: Santosh De and Anr. vs. Archna Gupta and Ors. (1994) 2 SCC 420 .] 21. In the instant appeals, the complainant in each case has alleged that these appellants who are either Managing Editor, Chief Editor or Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper publications. Moreover, in none of these cases, the `Editor' had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the 'Editor' whose name is printed in the newspaper against whom there is a statutory presumption u/Sec. 7 of the Act, and in case such 'Editor' succeeds in proving that he was not the `Editor' having control over the selection of the alleged libellous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit. We are not unmindful of the powers of the Court under Sec. 319 of the Code of Criminal Procedure, but such powers are circumscribed by limitations. 22. We do not find any convincing reasons to quash the proceedings initiated against these appellants and the Criminal Appeals are devoid of merits. They are dismissed and the proceedings initiated against the appellants be continued in accordance with law." 11. Upon testing the case at hand on the touchstone of the principles laid down by the Hon'ble Apex Court in the case of K.M. Mathew vs. K.A. Abraham (supra), this Court is of the opinion that there are specific averments of the complainant in the complaint regarding the part played by each of the respective accused in the printing of the defamatory news article in the news paper and the complaint cannot be thrown out at this stage on the ground that it is lacking in particulars. 12. Resultantly, the miscellaneous petition being bereft of any force is rejected. 12. Resultantly, the miscellaneous petition being bereft of any force is rejected. The accused shall be at liberty to raise the plea of innocence and to raise all defences available to them before the court below at the appropriate stage. The stay application is also rejected.