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2015 DIGILAW 258 (JHR)

Kamal Kumar Goenka v. State of Jharkhand

2015-02-18

RONGON MUKHOPADHYAY

body2015
JUDGMENT :- RONGON MUKHOPADHYAY, J. 1. Heard Mr. Deepak Bharti, learned counsel for the petitioners. No one appears either on behalf of State or on behalf of O.P. No. 2. 2. In this application, the petitioners have prayed for quashing the entire criminal proceedings in connection with Complaint Case No. 314 of 1997, (T.R. No. 360 of 2001) including the order dated 10.03.1999, passed by learned Sub Divisional Judicial Magistrate, Hazaribagh, whereby and whereunder cognizance has been taken under section 500 of the Indian Penal Code. 3. A complaint was instituted by the opposite party no. 2, in which it was stated that the accused no. 1 in collusion with the other accused persons got a news item printed and published in the daily newspaper “Prabhat Khabar” on 20.07.1997, which news item was deliberately published in order to defame the complainant and to lower down his prestige and reputation in the eyes of people of Hazaribagh district. It has been alleged that the father of the complainant had purchased land through auction and had perhaps sold more than he had purchased. It has further been alleged therein that with respect to the alleged land of Cemetery, several defamatory allegations were made in the newspaper resulting in filing of the complaint case by the opposite party no. 2. 4. After the complaint case was filed and after conducting an inquiry, cognizance was taken by the learned Sub Divisional Judicial Magistrate, Hazaribagh on 10.03.1999 for the offence punishable under section 500 of the Indian Penal Code. 5. Learned counsel for the petitioners has submitted that the entire allegations have been levelled against the accused no. 1 and the present petitioners being the Printer and Publisher of Prabhat Khabar and Chief Editor of Prabhat Khabar respectively were not in any way responsible for publication of the said news item. He has further submitted that selection of news and its publication thereof is not in control of either of the petitioners, rather the entire news items, which are published are within the domain of the editor of the local newspaper. He has also submitted that the complaint petition was instituted after a considerable delay. He has also submitted that the complaint petition reveals that basically the case revolves around a land dispute and no specific allegations have been levelled against the petitioners. He has also submitted that the complaint petition was instituted after a considerable delay. He has also submitted that the complaint petition reveals that basically the case revolves around a land dispute and no specific allegations have been levelled against the petitioners. Continuing with his argument, learned counsel for the petitioners has submitted that the newspaper ‘Prabhat Khabar’ has not been made a party and in absence of the concept of vicarious liability in criminal law, the petitioners cannot be made liable even if it is assumed that the news item, which was published in newspaper was defamatory in nature. An alternative remedy lies with the complainant under section 14 of the Press Council of India Act and therefore it has been submitted that the present criminal proceeding is be liable to be quashed. He has also referred to the judgments rendered in the case of Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi & Others, (1996) 6 SCC 263 ; Rajesh Rangarajan vs. Crop Care Federation of India, (2010) 15 SCC 163 and Gambhirsinh R. Dekare vs. Falgunbhai Chimanbhai Patel and Another, (2013) 3 SCC 697 . 6. After hearing learned counsel for the petitioners and after going through the record, I find that in the complaint petition, petitioner no. 1 has been arrayed as a Printer and Publisher of Prabhat Khabar whereas the petitioner no. 2 has been arrayed as Chief Editor of Prabhat Khabar. The news item was published in Prabhat Khabar on 20.07.1997 and the complaint petition was filed on 8.8.1997. Apart from the petitioners, one Md. Moin Khan and the reporter of Prabhat Khabar were made accused. It appears from the complaint petition that the accused no. 1 has been fastened with the main allegations with respect to the land of the cemetery, which is substantiated by the allegations made in paragraph 9 of the complaint petition and which reads as follows:- "That it may be further mentioned here that there was no land for Masjid and for Kabristan at village Barkakane but out of love for Muslim people and seeing that they are facing difficulties for prayer and they have no place for burying dead body, father of the complainant orally gave 8 decimals of lands of khata no. 78 plot no. 710 for Mosque and lands of Khata no. 64, plot no. 648 area 2.11 Acres at village Barkakane, P.S. Patratu, District-Hazaribagh for Kabristan. 78 plot no. 710 for Mosque and lands of Khata no. 64, plot no. 648 area 2.11 Acres at village Barkakane, P.S. Patratu, District-Hazaribagh for Kabristan. Even after giving the said lands, Muslims could not construct Masjid till today rather they further encroached 4 decimals of raiyati land of plot no. 711 of this complainant and even then complainant did not take any action against the encroachment." 7. Thus, it is seen that the entire dispute is centered around the land of the cemetery and with that respect the main allegations have been levelled against the accused no. 1. Since the news item with respect to the aforesaid fact was published in newspaper, as such the Printer and Publisher as well as the Chief Editor have been made accused with the allegation that it was the accused no. 1 who had got the said news item published in newspaper in collusion with other accused persons. 8. In the case of K.M. Mathew vs. State of Kerala and Another, (1992) 1 SCC 217 , it was held as follows:- "9 In the instant case there is no averment against the Chief Editor except the motive attributed to him. Even the motive alleged is general and vague. The complainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act, 1867 (‘the Act’). But Section 7 of the Act has no applicability for a person who is simply named as ‘Chief Editor’. The presumption under Section 7 is only against the person whose name is printed as ‘Editor’ as required under Section 5(1). There is a mandatory (though rebuttable) presumption that the person whose name is printed as ‘Editor’ is the Editor of every portion of that issue of the newspaper of which a copy is produced. Section 1(1) of the Act defines ‘Editor’ to mean ‘the person who controls the selection of the matter that is published in a newspaper’. Section 7 raises the presumption in respect of a person who is named as the Editor and printed as such on every copy of the newspaper. The Act does not recognise any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under Section 7 of the Act. [State of Maharashtra vs. Dr. The Act does not recognise any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under Section 7 of the Act. [State of Maharashtra vs. Dr. R.B. Chowdhary; D.P. Mishra vs. Kamal Narain Sharma; Narasingh Charan Mohanty vs. Surendra Mohanty and Haji C.H. Mohammad Koya vs. T.K.S.M.A. Muthukoya." 9. In the case of K.M. Mathew vs. K.A. Abraham and Others, (2002) 6 SCC 670 , it was held as follows:- "20 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." 10. In the case of Gambhirsinh R. Dekare vs. Falgunbhai Chimanbhai Patel and Another, (2013) 3 SCC 697 , it was held as follows:- "19.2. In K.M. Mathew case the accused was the Chief Editor of Malayalam Manorama and there was no allegation against him in the complaint regarding knowledge of the objectionable character of the matter published. In the absence of such allegation, the Magistrate decided to proceed against the Chief Editor. On an application by the Chief Editor, the process issued against him was recalled. The High Court, however, set aside the order of the Magistrate and when the matter travelled to this Court, it set aside the order of the High Court. This Court made distinction between “Editor” and “Chief Editor”. In no uncertain terms the Court observed that the Press and Registration of Books Act recognises “Editor” and the presumption is only against him. The Act does not recognise any other legal entity viz. Chief Editor, Managing Editor, etc. for raising the presumption. They can be proceeded against only when there is specific allegation." 11. In no uncertain terms the Court observed that the Press and Registration of Books Act recognises “Editor” and the presumption is only against him. The Act does not recognise any other legal entity viz. Chief Editor, Managing Editor, etc. for raising the presumption. They can be proceeded against only when there is specific allegation." 11. With respect to non impleadment of the newspaper as an accused, which has been strenuously argued by learned counsel for the petitioners that petitioners cannot be made responsible in absence of the newspaper itself having not been made a party and in this context, he has referred to the cases of Thermax Limited & Others vs. K.M. Johny and Others, (2011) 13 SCC 412 and Aneeta Hada vs. Godfather Travels and Tours Pvt. Ltd. (2012) 5 SCC 661 . 12. The complaint petition discloses that neither the newspaper Prabhat Khabar was made a party nor there was any averment in the complaint petition so as to show that it was the petitioners who were responsible for selection and publication of news item. Allegations have only been levelled with respect to petitioners being the Printer and Publisher and Chief Editor of the newspaper and there is no allegation beyond the same so as to show that it was the petitioners who were responsible for the choice of the matter, which are published in the newspaper. Press & Registration of Books Act recognizes “Editor” and does not recognize a Chief Editor or for that mater a Printer and Publisher in raising the presumption under section 7 of the Press & Registration of Books Act. In absence of any specific averments or allegations in the complaint petition against the petitioners with respect to publication of the news item alleged to have defamed the complainant, the same cannot make the petitioners liable to face criminal prosecution. Even otherwise, at the cost of repetition, it can be concluded that the complaint petition also does not reveal any specific role of the petitioners in publication of the said news item and in absence of the foundational aspects with respect to the role of the petitioners in publication of the news item in their capacity as Printer and Publisher and Chief Editor of the newspaper, they cannot be proceeded against in the present criminal proceedings. 13. In view of the discussion made hereinabove, I do find merit in the application. 13. In view of the discussion made hereinabove, I do find merit in the application. This application is allowed and the entire criminal proceedings in connection with Complaint Case No. 314 of 1997, (T.R. No. 360 of 2001) including the order dated 10.03.1999, passed by learned Sub Divisional Judicial Magistrate, Hazaribagh, whereby and whereunder cognizance has been taken under section 500 of the Indian Penal Code, are hereby quashed.