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2015 DIGILAW 462 (CAL)

Sudeshna Chakravarty v. Promit Sen

2015-06-05

SUBRATA TALUKDAR

body2015
ORDER : In this revisional application the petitioner seeks the quashing of proceedings in Complaint Case No. C-1133 of 2012 pending before the Ld. 7th Judicial Magistrate, Alipore under Sections 499/500 of the Indian Penal Code (for short IPC) including all orders connected thereto. 2. The complaint was filed on 5th March, 2012 by the present Opposite Party (for short OP) against the petitioner and others. The accused No.1 is the estranged wife of the OP and presently a Tollywood film actress of repute. The accused Nos. 2 to 6 have been described as editors, publishers and journalists attached to a publication by the name and style of 'Savvy' magazine. The present petitioner is the accused No. 6 in the complaint. 3. The OP-complainant, inter alia, has alleged in the complaint that he is himself a reputed musician held in high esteem by connoisseurs of Rabindra Sangeet all over the world. The OP has several music albums to his credit. The OP was also married to the accused No.1 and between them they have a daughter. 4. Sometime in November, 2009 the OP came across an article captioned 'I Believe' which was purported to be an interview of the accused No.1-estranged wife of the OP given to the petitioner. From reading the article the OP-complainant was utterly shocked to discover that several personal details of the relationship between the OP and the accused No.1 have been stated in the article which has caused acute pain to the OP. The contents of the purported interview have also tarnished the reputation of the OP in the public eye and therefore the OP claims to have been defamed and has initiated the instant complaint proceeding against his estranged wife and others being the editors, publishers and journalists of the said 'Savvy' magazine. 5. By order dated 5th March, 2012 the Ld. Chief Judicial Magistrate, Alipore was pleased to take cognizance of the complaint and transferred the case to the docket of the Ld. 7th Judicial Magistrate at Alipore. Vide order dated 25th April, 2012 the Ld. Magistrate was pleased to examine the OP-complainant under Section 200, CrPC and was pleased to notice that a prima facie case has been made out to proceed against the accused persons under Section 500, IPC. Accordingly, the Ld. Magistrate was pleased to issue process against the accused persons under Section 204, CrPC. 6. Magistrate was pleased to examine the OP-complainant under Section 200, CrPC and was pleased to notice that a prima facie case has been made out to proceed against the accused persons under Section 500, IPC. Accordingly, the Ld. Magistrate was pleased to issue process against the accused persons under Section 204, CrPC. 6. The present application being CRR 1201 of 2014 was filed thereafter by the petitioner alleging, inter alia, that the Ld. Magistrate erred in issuing process after examining only one witness and recording, inter alia, that no other witness is present on behalf of OP-complainant vide the order dated 25th April, 2012. 7. By order dated 16th April, 2014 passed in the present CRR an Hon’ble single Bench was pleased to take judicial notice of the fact that since no other witness was examined before issuance of process to demonstrate that the publication of the article in question had lowered the reputation of the OP-complainant before the public at large, prima facie, the issuance of process was defective. After noticing a judgment of this Court reported in 2010 (1) CHN 270 (Cal), the Hon’ble single Bench was pleased to admit the matter and stay the proceedings in the complaint case initially for a period of nine weeks. 8. Aggrieved by the order of stay dated 16th April, 2014 the OP-complainant preferred a vacating application being CRAN 2316 of 2014. 9. Sri. Krishnendu Gooptu, Ld. Counsel appearing for the OP-complainant at the very outset sought a relief of vacating the interim order dated 16th April, 2014. Ld. Counsel for the OP pointed out that on the 25th of April, 2012 another witness on behalf of the OP-Complainant namely, one Tapan Kumar Gupta was also examined under Section 200, CrPC and such examination inadvertently failed to be reflected in the order dated 25th April, 2012. Upon inspection of the orders of the Ld. Trial Court an application was moved on behalf of the OP-Complainant before the Ld. Magistrate for inclusion of the deposition of the said Tapan Kumar Gupta in the order dated 25th April, 2012. Therefore, Sri Gooptu argues that the interim order dated 16th April, 2014 was based on an erroneous premise and, in view of the admitted examination of a supporting witness to the complaint by the Ld. Magistrate, such interim order can no longer be sustained. 10. Therefore, Sri Gooptu argues that the interim order dated 16th April, 2014 was based on an erroneous premise and, in view of the admitted examination of a supporting witness to the complaint by the Ld. Magistrate, such interim order can no longer be sustained. 10. However, in view of the further fact that both the parties expressed the keen desire to get the CRR ultimately heard out on merits both the CRR and connected CRAN were taken up for final hearing. 11. Sri. Soumopriyo Chowdhury, Ld. Counsel appearing for the petitioner urges this Court to consider that the relief of quashing claimed by the petitioner is required to be tested on settled legal propositions. Drawing the attention of this Court to Section 7 of the Press and Registration of Books Act, 1867 (for short the 1867, Act), Sri Chowdhury, Ld. Counsel strongly argues that the legal presumption of culpability does not apply qua the petitioner since she is not the editor of ' Savvy' magazine. Section 7 of the 1867, Act reads as follows:- '7. Office copy of declaration to be prima facie evidence. 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 declarations, [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 suficient 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 (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].' 12. Sri. Chowdhury, Ld. Counsel also takes this Court to the definition of the word 'Editor which is given in Section 1 of the Interpretation Clause of the 1867, Act. An 'Editor is described as the person who controls the selection of the published matter. 13. Ld. Sri. Chowdhury, Ld. Counsel also takes this Court to the definition of the word 'Editor which is given in Section 1 of the Interpretation Clause of the 1867, Act. An 'Editor is described as the person who controls the selection of the published matter. 13. Ld. Counsel argues that although the petitioner has been described as ' resident editor journalist working at Magna Publishing Company Limited' at paragraph 2 of the CRR, there is no imputation or description in the complaint that the petitioner was responsible for selecting the matter which was published in the November, 2009 issue of ' Savvy magazine. From the caption of the article, a copy whereof was produced before this Court by Sri. Chowdhury, it was pointed out that the petitioner has never been described as the interviewer. Therefore, she has no other or further role in the selection of the contents of the publication in question and the presumption of culpability attached to Section 7 of the 1867, Act does not axiomatically apply to the petitioner. 14. In support of his arguments Sri. Chowdhury relies upon several decisions which are as follows:- Sk. Alagh v. State of Uttar Pradesh & Ors., reported in 2008 (5) SCC 662 (at paras 19 & 20) : ( AIR 2008 SC 1731 at paras 20 & 21). Maksud Saiyed v. State of Gujarat & Ors., reported in 2008 (5) SCC 668 (at para 13) Aajkal Publisher Pvt. Ltd. & Anr. v. Commercial Tax Officer, Manicktola Charge & Ors., reported in 94 CWN 281. K. N. Mathew v. State of Kerala & Anr., reported in 1992 (1) SCC 217 (at para 9) : ( AIR 1992 SC 2206 ). Haji C. H. Mohammad Koya v. T.K.S.M. A. Muthukoya, reported in 1979 (2) SCC 8 (at paras 19 & 35) : ( AIR 1979 SC 154 at paras 19 & 36). 15. Ld. Counsel for the petitioner by relying on the above noted decisions makes the point that the penal law of the country as embodied in the Indian Penal Code does not provide for imposing vicarious liability on a party who is not directly charged for commission of an offence unless such allegation specifically appears in the complaint or is created under a special statute such as The Essential Commodities Act, The Negotiable Instruments Act, The Employees Provident Funds and Miscellaneous Provisions Act, 1952 etc. 16. Ld. 16. Ld. Counsel for the petitioner further points out that both Sk Alagh and Maksud Saiyed ( AIR 2008 SC 1731 ) (supra) are authorities on the above point. It was therefore the duty of the Ld. Magistrate that prior to issuing process he ought to have satisfied himself that the materials placed before this Court are prima facie enough to point to the vicarious liability or, the culpability of the accused in the offence complained of. Ld. Counsel reiterates the observations of the Hon’ble Apex Court in Pepsi Foods Limited v. Special Judicial Magistrate, reported in 1998 (5) SCC 749 : (AIR 1998 SC 128) as quoted in Maksud Saiyed (supra) that summoning an accused in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course. 17. Further relying upon K. N. Mathew ( AIR 1992 SC 2206 ) and Haji C. H. Mohammad Koya ( AIR 1979 SC 154 ) (supra) Sri Chowdhury emphatically argues that it must be examined by the Ld. Magistrate that the presumption under Section 7 of the 1867, Act can be only drawn if the accused was an Editor within the meaning of Section 1 of the 1867, Act. Therefore, conversely if it is found that the accused was in no way responsible for controlling the selection of the matter in question for publication in the magazine despite the designation of the accused, mechanical issuance of process against the petitioner constitutes a gross error of law. Ld. Counsel for the petitioner argues that since the petitioner merely acted as an agent carrying the interview for selection and final publication by the editors in charge of the magazine, no vicarious role can be attributed to her. Therefore, the petitioner cannot be held responsible for publication of any defamatory materials as much as the stars in the night sky can be held responsible for the moon light. 18. Per contra, Sri Gooptu, Ld. Counsel for the OP-Complainant also referring to the decisions cited by Sri .Chowdhury and, in addition relies upon a decision of the Hon’ble Apex Court, reported in AIR 2002 SC 2989 in the matter of K. M. Mathew v. K. A. Abraham & Ors. 18. Per contra, Sri Gooptu, Ld. Counsel for the OP-Complainant also referring to the decisions cited by Sri .Chowdhury and, in addition relies upon a decision of the Hon’ble Apex Court, reported in AIR 2002 SC 2989 in the matter of K. M. Mathew v. K. A. Abraham & Ors. After noticing the judgments in K. M. Mathew v. State of Kerala ( AIR 1992 SC 2206 ) and Haji C. H. Mohammad Koya ( AIR 1979 SC 154 ) (supra), the Hon’ble Apex Court proceeds to distinguish the same by, inter alia, holding that although in respect of libellous publication in a newspaper there arises a presumption under Section 7 of the 1867 Act to the effect that the ' Editor is the person who controls selection of the matter published, such presumption does not give statutory immunity to the Managing Editor, Resident Editor or Chief Editor when allegations are made in the complaint that they have knowledge of the publication and exercised control qua the publication in one way or the other. 19. Therefore, at paragraphs 13 and 15 the Hon’ble Apex Court held as follows:- ' 13. A conjoint reading of these provisions will go to show that in the case of publication 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. 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 as printed as Editor was the Editor of such newspaper, if the publication produced in the court shows to that effect. 15. 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.' 20. Having heard the rival submissions and considering the materials on record this Court notices at the very outset that the petitioner has described herself in the CRR at paragraph 2 as a resident editor journalist working at Magna Publishing Company Limited being the publisher of ' Savvy magazine. In addition to her role as a resident editor journalist the petitioner is admittedly the interviewer of the accused No.1. Admittedly, the interview contains several details of the personal life between the OP-complainant and his estranged wife. 21. To the further mind of this Court having regard to the entire conspectus of facts and circumstances, this Court finds itself unable to be persuaded to hold that the petitioner acted as a mere agent conveying the interview and had no control over the contents of the article sufficient to disprove the presumption under Section 7 of the 1867 Act read with the ratio of AIR 2002 SC 2989 (supra). As the resident editor and the interviewer she does have knowledge of the publication including the selection of the matter published and therefore cannot claim automatic statutory immunity. As the resident editor and the interviewer she does have knowledge of the publication including the selection of the matter published and therefore cannot claim automatic statutory immunity. The defence of the petitioner cannot rest on law before this Court in an application under Section 482, CrPC but, requires to be tested on evidence in the trial. 22. For the above reasons, CRR 1201 of 2014 stands dismissed. In view of the dismissal of CRR 1201 of 2014, the interim order dated 16th April, 2014 also does not survive. CRAN 2316 of 2014 is accordingly disposed of. 23. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. Petition dismissed.