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2016 DIGILAW 32 (GAU)

Tilak Hazarika v. Jagat Narayan Yadav

2016-01-19

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER Paran Kumar Phukan, J. By this application under Section 482 of the Cr.P.C., the petitioners have prayed for setting aside and quashing of the proceedings of C.R. Case No.168/2004, which is now pending for disposal in the Court of the learned Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar. 2. The petitioner No.1, herein, is the Editorial Adviser of the daily newspaper "Asomiya Pratidin", which is published from Guwahati, the petitioner No.2 is the owner of the said newspaper and petitioner No. 3 is the Executive Editor. The Opposite Party as complainant filed a complaint in the Court of the Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar alleging commission of offence under Section 500 of the IPC against the petitioners and three others. 3. The facts of the case as projected in the complaint petition is that the complainant is a reputed contractor of Hojai and is also associated with different organisations and a life member of "Axom Sahitya Sabha" and he was also an active member of the "Bharatiya Janata Party" and was the president of the said party. 4. The daily newspaper referred to above, published a news item in its issue dated 20.02.2004 alleging that the complainant not only misappropriated the ancestral property by depriving his brothers but also indulged in corruption and fabricated records in the revenue office, Hojai in collusion with the staff of the said office and to achieve the said objectives, he even manipulated and changed the name of his father. 5. The learned Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar, on examination of the complainant and his witnesses having found a prima-facie case under Sections 500/501/34 of the IPC, issued process against the petitioners and others named in the complaint. Being aggrieved, the petitioners have preferred this petition for quashing of the proceedings against them. 6. Mr. P Kataki, learned counsel for the petitioners has urged that there is no specific allegation against the petitioners in the complaint petition and they have been implicated as accused persons due to the fact that the petitioner No.1 is the Editorial Adviser, the petitioner No. 2, the Owner-cum-Printer and Publisher and petitioner No.3, the Executive Editor of the newspaper. 7. Learned counsel further submitted that no presumption can be drawn against the Editorial Adviser, the Owner and the Executive Editor, when there is defamatory imputation in a newspaper. 7. Learned counsel further submitted that no presumption can be drawn against the Editorial Adviser, the Owner and the Executive Editor, when there is defamatory imputation in a newspaper. In this connection, he has referred to Section 7 of the Press and Registration of Books Act, 1867 (hereinafter called the "Act"). 8. It is submitted that since the Editor, Printer and Publisher and Reporter against whom, presumption can be drawn, have been arrayed as accused persons in the complaint, taking cognisance against the present petitioners in absence of any averment in the complaint about their knowledge or role in the publication of the news item is not sustainable in law for which the impugned proceeding cannot stand against the petitioners. 9. The learned counsel has relied on the decision of the Apex Court in the case of Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthu Koya reported in AIR 1979 SC 154 , wherein, the Apex Court while discussing the object of the Press Act observed as follows: "The object of the Press Act was to regulate printing presses and newspaper in order to preserve copies of newspapers and books. Moreover, in order to avoid multi-city of suits and uncertainties of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person so named under the provisions of the Press Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper." "The term of 'editor' as defined in S.I.(I) of the Act means a person who contorts the selection of the matter that is published in a newspaper. Where a person's name is printed in the newspaper as its editor as required by Section 5(I) Section 7 of the Act raises a rebuttable presumption only against such editor. He can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news reports. But where a person is not shown in the paper to be its editor no such presumption under Section 7 of the Press Act can be drawn but it must be held that he has no concern with the publishing of the articles. But where a person is not shown in the paper to be its editor no such presumption under Section 7 of the Press Act can be drawn but it must be held that he has no concern with the publishing of the articles. AIR 1969 SC 110 . AIR 1971 SC 856 and AIR 1974 SC 47 . Rel. on." 10. In the instant case, there is no denial by the owner that the accused No. 2 in the complaint, Haidar Hussain was the Editor of the newspaper and it is to be presumed that as Editor, he was responsible for publication of the news items in the newspaper, but the presumption is a rebuttable one and he can rebut the presumption by showing that he had nothing to do with the publication of the news reports. 11. The owner of the newspaper is the petitioner Jayanta Barua and he has authorised Sri Jatin Choudhury to act as Printer and Publisher and Jatin Choudhury has been shown as Printer and Publisher of the newspaper in the newspaper itself. "Section 1 (i) of the Press and Regulation of Books Act, 1867 provides that "Editor" means a person who controls the Selection of the matters that is published in a newspaper. Section 7 of the said Act provides that "in any legal proceeding whether civil or criminal, the production of a copy of such a declaration as is aforesaid, attested by the seal of the same Court empowered by this Act to have custody of such declaration or (in case of Editor, a copy of the newspaper containing his name printed on it as that of editor) shall be held (unless contrary is proved) to be sufficient evidence, as against the person whose name shall be subscribed in 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) or every portion of every newspaper whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration (or) the Editor or every portion of that issue of the newspaper of which a copy is produced. In view of the above where a person's name is printed in the newspaper as it's Publisher and Printer and Editor as required by Section 5(1), Section 7 of the Act raises a refutable presumption only against such persons. But where a person is not shown in the paper to be it's Editor no such presumption under Section 7 of the said Act can be drawn but it must be held that he has no concern with the publishing of the Article. This view was held by the Supreme Court in its judgment reported in Haji C.H. Mohammad koya (supra)." 12. As per provisions of the Act referred to above, the Editor & Printer and Publishers are the persons to be held responsible for publication of any defamatory items along with the reporter, if any, and no liability can be fastened on the owner of the newspaper, the Editorial Adviser and Executive Editor unless it is shown that they have played any specific role in the publication of the said defamatory item in the newspaper. In the complaint, there is no such specific allegations brought against them and as such, the complaint is liable to be quashed so far the present petitioners are concerned. 13. In view of the above, the criminal proceedings initiated against the present petitioners stands quashed. However, the case will proceed against the other accused persons in accordance with law. Send down the LCR along with a copy of this judgment for information and necessary action.