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Gauhati High Court · body

2015 DIGILAW 1493 (GAU)

Samir Agarwala v. State of Assam

2015-12-04

P.K.SAIKIA

body2015
JUDGMENT AND ORDER P.K. Saikia, J. - This proceeding U/s 482 of Cr.P.C has been initiated by the petitioners seeking quashment of the proceeding which was registered as C.R. Case No. 3329c/2014, now, pending in the court of the learned Judicial Magistrate, Ist Class, Kamrup (M), Guwahati in so far as the present petitioners are concerned. 2. I have heard Mr. D. Chakraborty, learned counsel for the petitioners and Mr. A.M. Bora, learned counsel appearing for respondent No. 2 as well as Mr. N.J. Dutta, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 3. The facts, necessary for disposal of the present petition, in short, are that one Sri Pradyut Kr. Bhuyan, respondent No.2 herein, has filed a complaint before the learned Chief Judicial Magistrate, Kamrup, Guwahati which was registered as C.R.No.3329c/2014 and which was subsequently came to be transferred to the file of the learned Judicial Magistrate, Ist Class, Kamrup, Guwahati. 4. Said complaint was lodged with the allegation that the publication of a news item in an Assamese Daily News Paper, run under the name and styled 'Amar Asom' on 22.11.2014 and 23.11.2014 as well as the publication of such news item in English Daily News Paper, run under the name and styled 'The North East Times' on 22.11.2014 and 23.11.2014 as well as the publication of same news item in Hindi Daily News Paper, run under the name and styled 'Purvanchal Prahari' on 22.11.2014 and 23.11.2014 concerning petitioner herein are totally false and frivolous. 5. It has also been alleged that such news items gave an impression that the present petitioner, who is a renowned political personality in the state of Assam and beyond, has been carrying on the business of running coal syndicate most illegally. But such news items are not only enormously false but defamatory as well causing huge damage to the reputation of the petitioner, apart from causing him to suffer huge mental agony. 6. On the receipt of such complaint, learned Magistrate took cognizance of offence and examined the complainant and one witness in terms of Section 200 CrPC and thereafter was pleased to issue summons U/s. 499/500/501/12(B) of IPC against all the accused persons therein, they being 1). Sri Prasant Rajguru, Executive Editor of 'Amar Asom', 2). Sri P.Lal, Printer and Publisher of 'Amar Asom', 3). Samir Agarwala, Director, GL Publication Ltd, and 4). Sri Prasant Rajguru, Executive Editor of 'Amar Asom', 2). Sri P.Lal, Printer and Publisher of 'Amar Asom', 3). Samir Agarwala, Director, GL Publication Ltd, and 4). Neha Agarwala, Director, G.L. Publication Ltd., vide order dated 22.01.2015 rendered in CR Case No. 3329c/2014. 7. Being aggrieved, by the aforesaid order, the petitioner No. 1 and 2 herein who were arraigned as accused No. 3 and 4 in the aforesaid complaint case had approached this Court by way of present application U/s. 482 of Cr.P.C. contending that the complaint in respect of the present petitioners as well as the order under which cognizance of offences U/s. 500/34 IPC has been taken against the petitioners herein are unsustainable in law. 8. In that connection, it has been stated that the present petitioners are no way responsible for the publication of the aforesaid statements, alleged to be defamatory. In support of such contention, it has also been stated that the petitioner No.1 and 2, being the Directors of G.L. Publication Ltd, have no knowledge about the publication of alleged defamatory statements and as such, in terms of Section 7 of the Press and Regulations of Books Act, 1867 (in short 'Act 1867') they cannot be prosecuted. 9. Referring to Section 7 of the Act of 1867, the learned counsel for the petitioners submits that only such person who is shown as owner or editor of publication in question and whose names are printed in the concern news paper as owner or editor of such news paper can be prosecuted. The Director of the News publications whose name is not printed in the news paper in terms of Section 5 of the Act of 1867 cannot be prosecuted for publication of any defamatory news item. 10. Since the present petitioners, who are admittedly the Directors of the aforesaid news publications, were not shown either as owners or the editors of such news papers or whose names have not been printed in such news paper as either as Editor or Printer, so, they cannot be prosecuted in view of law, laid down in Section 7 of the Act of 1867. 11. He further submits that there is nothing on record to show that the petitioners as Directors of publications in question had any knowledge about the publications of alleged defamatory statement. 11. He further submits that there is nothing on record to show that the petitioners as Directors of publications in question had any knowledge about the publications of alleged defamatory statement. Being so, cognizance of offence u/s 500/34 IPC could not have been taken against the petitioners herein, much less, their having been summoned by the court below to face the trial for aforesaid offences. 12. In support of such contention, my attention has been drawn to the decision, rendered by the Apex Court in the case of K.M. Mathew v. State of Kerala reported in (1992) 1 SCC 217 as well as the decision of the Apex Court in the Case of Indrajit V. Lankesh v. K.T. Dhanu Kumar, reported in (2015) 4 SCC 598 . He, therefore, urges this court to quash the aforesaid proceeding in respect of the petitioners are concerned. 13. In K.M. Mathew v. State of Kerala and Anr., Hon'ble The Apex Court held as follows:- "Para-10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside." 14. Such contention of the learned counsel for the petitioners was opposed to by the learned counsel for the respondents stating that in normal circumstances, the presumption contemplated in Section 7 of the 'Act 1867' needs to be drawn against the persons whose names are printed in the publications as owner and editors thereof for publication of statements alleged to be defamatory. But then, this does not mean that under no circumstances, the Director whose name is not printed in the publication can be prosecuted. 15. But then, this does not mean that under no circumstances, the Director whose name is not printed in the publication can be prosecuted. 15. According to him, a perusal of Section 7 of the 'Act 1867' would reveal that if there is evidence to show that the Director of a publication who has knowledge about the publication of defamatory statement in the news paper of which he is Director can be prosecuted for publication false and defamatory statement. A perusal of Section 7 of the 'Act 1867' in between the lines would make such position clear. 16. The learned counsel for the petitioner submits that when there is positive and clear statements in the complaint/FIR to show that the Director whose name has not been printed in the publication in question as owner or editor of the same may still be prosecuted if he has information and knowledge about the publication of defamatory statement in the news paper in question. 17. According to Mr. A. M. Bora, the learned counsel for the respondents, the complaint petition, particularly para-8 thereof, gave sufficient information that the petitioners herein, are not only the Directors of the publication in question but also the creators of defamatory statements in question. Being so, they were equally responsible for publication of the news item in 'Amar Asom', 'The North East Times' and 'Purvanchal Prahari' on 22.11.2014 and 23.11.2014 although their names were not printed in such publications as owners/editors of the same. 18. It has further been contended that there are materials to show that all the accused persons in C.R. Case No. 3329c/2014 in collusion with one another had published the defamatory items against the complainant in the aforementioned news papers. Being so, the contention that there is no positive statement in the complaint to show the involvement of present petitioners in the publication of news items in question is without any substance. In support of such contention, my attention has been drawn to the decision of Hon'ble Apex Court in the case K.M. Mathew v. K.A. Abraham and Ors., reported in (2002) 6 SCC 670 . 19. I have considered the rival submissions, advanced by the learned counsel for the petitioner. Before proceeding further, I find it necessary to have a look at the decision, rendered in K.M. Mathew v. K.A. Abraham and Ors. 19. I have considered the rival submissions, advanced by the learned counsel for the petitioner. Before proceeding further, I find it necessary to have a look at the decision, rendered in K.M. Mathew v. K.A. Abraham and Ors. The relevant pat of the judgment is reproduced below:- "15 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. 16 The contention of these appellants is not tenable. There is no statutory 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. 22. 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 under Section 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 Section 319 of the Code of Criminal Procedure, but such powers are circumscribed by limitations. 20. We are not unmindful of the powers of the Court under Section 319 of the Code of Criminal Procedure, but such powers are circumscribed by limitations. 20. A careful reading of the aforementioned judgment clearly reveals that the persons, who are shown as Editor and Printer of a paper publication, are responsible for publication of statements alleged to be defamatory in terms of law laid down in Section 7 of the Act, 1867. But if there is positive material on the complaint or FIR to show that other person/persons, who are not shown as owner or editor of a news paper, can still be prosecuted if they have knowledge about the publication of alleged defamatory statement. 21. According to learned counsel for respondent No. 2 herein, there are enough materials in the complaint to show that the petitioners herein, who are admittedly the Directors of the aforementioned publications in question, had knowledge about the publications of alleged defamatory statement and as such, they are liable to be prosecuted for the offences aforementioned. 22. In support of such contention, my attention has been drawn to Para- 8 of the complaint. Such Para-8 of the complaint is reproduced below:- "Para 8. That the charged accused persons Nos. 1,2,3 and 4 being the Executive Editor, Printer/publisher and Directors of G.L. Publication Ltd respectively of the aforesaid Assamese daily newspaper and they are wholly responsible for all publications of news items published in the said newspaper including the news item published on last 22/11/2014 and 23/11/2014 against the complainant. The charged accused persons are the creator of said defamatory news item and also published the same by conspiring with each other against the complainant to defame the complainant with some malicious intention". On reading para 8 of the complaint between the lines aforementioned, I have found that there is positive evidence in respect of the present petitioners as well. Since it has been stated that in para 8 accused persons are responsible, they also published the same with conspiracy with one another. In the event of such statement, there is no statement about the crime in question." 23. On a perusal of the complaint, it is found that there are materials in the complaint which prima facie show that the petitioners herein have knowledge about the publication of the alleged defamatory statements in the aforesaid news papers. 24. In the event of such statement, there is no statement about the crime in question." 23. On a perusal of the complaint, it is found that there are materials in the complaint which prima facie show that the petitioners herein have knowledge about the publication of the alleged defamatory statements in the aforesaid news papers. 24. Such revelations, when considered in the light of arguments, advanced by learned counsel for the parties alongside the decisions relied on by the parties, would make it clear that present proceeding lacks merit and same is liable to be dismissed. 25. Accordingly, it is dismissed.