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2020 DIGILAW 733 (GAU)

Shailendra Konwar Dutta v. Chaifuddin Ahmed

2020-10-21

MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. By this petition under Section 482 Cr.P.C., the petitioners have prayed for setting aside the order dated 11/04/2017, whereby the learned Magistrate took cognizance of the offence u/s. 500 IPC against the petitioners and the subsequent orders issuing warrant of arrest and also for quashing the entire proceedings in CR Case No. 204/2016 pending in the Court of Judicial Magistrate, Bajali. 2. Learned counsel for the petitioner, Mr. B.K. Mahajan and learned counsel for the respondent, Mr. I.H. Laskar for the respondent were heard. 3. The respondent lodged a complaint before the Sub-Divisional Judicial Magistrate, Bajali against the petitioners and two others u/s. 500 Cr.P.C. alleging therein, that a defamatory news item was published in the Assamese Daily "Axomiya Kabar" in its issue dated 28/08/2016, under the heading "durghotanak loi Baksar saudarbhitha khudra prathamik saista kendrat uttopta paristhiti". The complainant alleged that the aforesaid news item was false, defamatory and the same has hampered reputation of the complainant/respondent. On the basis of the said complaint, the learned Magistrate took cognizance and issued process against all the accused persons named in the complaint including the present petitioners. 4. Aggrieved by the order of the learned Magistrate taking cognizance and issuing process, the petitioners have preferred the instant application praying for quashing the proceeding basically on the ground, that the complaint did not disclose any offence against the petitioners, inasmuch, there was no specific allegation against the petitioners in the complaint, nor in the statement of complainant and the witnesses recorded u/s. 200/202 Cr.P.C. 5. During pendency of this criminal petition, the petitioner No. 2, Rantu Das died and therefore, only the petitioner No. 1, Sailendra Konwar Dutta, Managing Director, is before this Court. 6. Learned counsel for the petitioners, Mr. B.K. Mahajan would submit, that the petitioner, Sailendra Konwar Dutta, was the Managing Director of the newspaper concerned and as such he could not be held vicariously liable for the offence committed by the editor, publisher etc. Mr. Mahajan further contends that there was no positive averment or any specific allegation attributed to the petitioner to show that the petitioner had any role in publication of the alleged news item. Mr. Mahajan further contends that there was no positive averment or any specific allegation attributed to the petitioner to show that the petitioner had any role in publication of the alleged news item. Even the complainant and the witnesses examined at the time of taking cognizance did not take any specific allegation against the present petitioner to rope in with the commission of offence alleged in the complaint. Mr. Mahajan also contends, that even if there may be rebuttable presumption against the editor, printer, publisher etc. of the newspapers for publication of any objectionable news item in view of Section 7 of the Press and Registration of Books Act, 1867 (for short Press Act), the managing director, who apparently had no role in selecting or choosing the news for publication, no presumption u/s. 7 of the Press Act is available against the managing director. However, learned Magistrate mechanically took cognizance and issued process against the petitioner without applying judicial mind and as such, the impugned orders as well as the criminal proceedings against the present petitioner deserves to be quashed. In support of his submission, Mr. Mahajan placed reliance on the following authorities:- 1. (1992) 1 SCC 217 (K.M. Mathew Vs. State of Kerala & Anr.) 2. (2002) 6 SCC 670 (K.M. Mathew Vs. K.A. Abraham & Ors.) 3. 2014 (2) GLT 93 (Jayanta Baruah and Anr. Vs. Dilip Baruah) 4. 2017 (2) GLT 354 (Shri Ghisalal Agarwalla & Ors. Vs. State of Assam & Ors.) 7. Learned counsel for the respondent, Mr. I.H. Laskar would submit, that the managing director or the owner of the newspaper is also liable for the offence u/s. 500 Cr.P.C. Learned counsel for the respondent further submitted that the High Court should not interfere with the criminal proceedings u/s. 482 Cr.P.C., where the allegations or accusations are required to be proved by way of adducing evidence and as such, the criminal proceedings cannot be quashed at the threshold without giving an opportunity to the complainant to prove the case in the trial and only in rarest of the rare case, the inherent power u/s. 482 Cr.P.C. should be exercised. To bolster his submissions, Mr. Laskar placed reliance on the following decisions:- 1. (2018) 1 SCC 615 Mohd. Abdulla Khan Vs. Prakash K. 2. Criminal Appeal No. 675 of 2019 (SC) Md. Allauddin Vs. State of Bihar & Ors. 3. To bolster his submissions, Mr. Laskar placed reliance on the following decisions:- 1. (2018) 1 SCC 615 Mohd. Abdulla Khan Vs. Prakash K. 2. Criminal Appeal No. 675 of 2019 (SC) Md. Allauddin Vs. State of Bihar & Ors. 3. Criminal Appeal No. 1082 of 2019 Chilakamarshi and Anr. Vs. State of Andhra Pradesh. 4. Criminal Appeal No. 175 of 2020 (arising out of SLP(Criminal) No. 172/2017) State of Madhya Pradesh Vs. Yogendra Singh Jadon & Anr. 8. Section 5(2) of the Press Act provides that the printer and the publisher of every newspaper shall give a declaration as per Rule (2) of the Press Act. Section 7 of the Press and Registration of Books Act, 1867 (for short Press Act) provides that "in any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration u/s. 5(2) as 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 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 (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." Thus, under Section 7 of the Press Act there is a rebuttable presumption against the editor of the newspaper, whose name is published in the newspaper as editor as well as against the printer and publisher as per declaration u/s. 5(2) of the Press Act. 9. In K.M. Mathew Vs. State of Kerala (supra), the accused was the chief editor and there was no positive averment or allegation attributed to him. 9. In K.M. Mathew Vs. State of Kerala (supra), the accused was the chief editor and there was no positive averment or allegation attributed to him. Therefore, the Apex Court observed, that though, a rebuttable presumption u/s. 7 of the Press Act is available against the editor, whose name is printed in the newspaper as editor, for the reason, that he controls the selection of the news to be published, such a presumption is not available against the chief editor and as such, he cannot be proceeded against for publication of a defamatory news item in absence of specific allegation or positive averment that he had the knowledge or connivance in publishing the defamatory news. The Apex Court held in paragraph 9 and 10 as under:- 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 rising 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. See State of Maharashtra v. Dr. R.B. Chowdhary & Ors., [1967] 3 SCR 708 U.P. Mishra v. Kamal Narain Sharma & Ors.,[1971] 3 SCR 257, Narasingha Charan Mohanty v. Surendra Mohanty, [1974] 2 SCR 39 and Haji C.H. Mohamad Koya v. T.K.S.M.A. Muthukoya, [1979] 1 SCR 664. 10. See State of Maharashtra v. Dr. R.B. Chowdhary & Ors., [1967] 3 SCR 708 U.P. Mishra v. Kamal Narain Sharma & Ors.,[1971] 3 SCR 257, Narasingha Charan Mohanty v. Surendra Mohanty, [1974] 2 SCR 39 and Haji C.H. Mohamad Koya v. T.K.S.M.A. Muthukoya, [1979] 1 SCR 664. 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." 10. In K.M. Mathew Vs. K.M. Abraham (supra), the Apex Court observed that there was no statutory immunity for the managing editor, resident editor or chief editor for publication of the matter in the newspaper over which these persons exercise control. Though the presumption u/s. 7 of the Press Act cannot be drawn against the chief editor, resident editor or managing editor etc, nevertheless, the complainant can still allege and prove that they had the knowledge and they were responsible for publication of the defamatory news item. The Apex Court therefore, made it clear that if the complaint contains allegation, which if proved would constitute an offence against any person other than the accused against whom presumption u/s. 7 is available, such persons can be prosecuted if they are alleged to be responsible for the publication of the objectionable news item. The Apex Court further held, that Magistrate, while taking cognizance, should be satisfied that there is prima facie case against the accused and judicial process should not be an instrument of oppression or needless harassment. 11. This Court in Jayanta Baruah and Anr. Vs. The Apex Court further held, that Magistrate, while taking cognizance, should be satisfied that there is prima facie case against the accused and judicial process should not be an instrument of oppression or needless harassment. 11. This Court in Jayanta Baruah and Anr. Vs. Dilip Baruah (supra) dealing with the criminal liability for publication of defamatory news item in respect of the person against whom there is no statutory presumption u/s. 7 of the Press Act held as under: "(16) A perusal of Section 7 would go to show that under Section 7 of the Act in any legal proceeding, civil as well as criminal, unless the contrary is proved, production of a declaration or in the case of the editor, a copy of the newspaper containing the name of the editor, shall be held to be sufficient evidence that the persons whose name appear in the declaration as the printer or publisher, or printer and publisher are the printer or publisher, or the printer and publisher and the name of the editor as printed in the newspaper is the editor of every portion of that issue of the newspaper. Thus, presumption can be drawn against the editor, publisher and printer with regard to publication of a news item. In view of the aforesaid, the persons declared as editor, publisher and printer are liable for any defamatory imputation in any news item in a newspaper as presumption as to awareness of contents of news item can be raised against them. It is to be noted that selection of news item cannot amount to making of news. Editor selects the news and the printer and publisher publish the news item. Publication of imputation alone constitutes an offence under Section 499 IPC. 17. There is no presumption that an owner of a newspaper is responsible for the publication of any defamatory matter published in his newspaper. A liability for publication can be fastened on him if there are some materials to show that he had prior knowledge or that he was somehow connected with the publication of the defamatory news item. Same is the position with regard to the proprietor of a press where an alleged defamatory article or news item is printed." 12. In Shri Ghisalal Agarwalla & Ors. Vs. State of Assam & Ors. Same is the position with regard to the proprietor of a press where an alleged defamatory article or news item is printed." 12. In Shri Ghisalal Agarwalla & Ors. Vs. State of Assam & Ors. (supra), this Court held that "in the absence of specific averments in the complaint and evidence to support those averments, nobody except the printer, publisher and editor of the newspaper can be presumed to be responsible for the contents of the newspaper and cannot be prosecuted for the offence of defamation". 13. In Mohd. Abdullah Khan Vs. Prakash K. (supra), the Apex Court, though, expressed the view, that whether the owner or the persons employed by the owner for printing, selling or offering for sale of the newspaper are liable for the offence u/s. 501 or 502 IPC requires critical examination, in an appropriate case, did not lay down any ratio on the vicarious liability for publication of objectionable news item, the Apex Court held as under: - "16. We must make it clear that for the acts of printing or selling or offering to sell need not only be the physical acts but include the legal right to sell i.e. to transfer the title in the goods - the newspaper. Those activities if carried on by people, who are employed either directly or indirectly by the owner of the newspaper, perhaps render all of them i.e., the owner, the printer, or the person selling or offering for sale liable for the offences under Sections 501 or 502 IPC, (as the case may be) if the other elements indicated in those Sections are satisfied. 17. Whether the content of the appellant's complaint constitutes an offence punishable under any one or all or some of the abovementioned sections was not examined by the High Court for quashing the complaint against the respondent. So we need not trouble ourselves to deal with that question. We presume for the purpose of this appeal that the content of the appellant's complaint does disclose the facts necessary to establish the commission of one or all of the offences mentioned above. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the abovementioned three offences is a matter that can be examined only after recording evidence at the time of trial. Whether there is sufficient evidence to establish the guilt of the respondent for any one of the abovementioned three offences is a matter that can be examined only after recording evidence at the time of trial. That can never be a subject matter of a proceeding under Section 482 Cr.P.C. 25. The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the abovementioned activities is carried on by persons employed by the owner. 26. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination." 14. What therefore, follows is that the person like chief editor, or managing editor, or managing director or the owner of the newspaper against whom statutory presumption u/s. 7 of the Press Act is not available, may also be liable for publication of any defamatory news item, provided there is positive averment or specific 96 against them attributing prior knowledge or connivance or any role in publication of the defamatory news item. The petitioner in the present case is the managing director against whom the statutory presumption u/s. 7 of the Press Act is not available. Therefore, in order to proceed against the petitioner, the complaint must contain positive averment or specific allegation against the petitioner, showing his role or responsibility in publication of the defamatory news item or that the defamatory news item was published with his knowledge or connivance. 15. Therefore, in order to proceed against the petitioner, the complaint must contain positive averment or specific allegation against the petitioner, showing his role or responsibility in publication of the defamatory news item or that the defamatory news item was published with his knowledge or connivance. 15. A perusal of the complaint makes it appear, that there is no allegation whatsoever or any positive averment against the petitioner to show even prima facie that the petitioner being a managing director had any prior knowledge or he had any role in the publication of the alleged objectionable news item. Two witnesses were examined during the enquiry u/s. 200/202 Cr.P.C. Even the statement of the complainant and the witnesses examined u/s. 200/202 Cr.P.C. do not reflect any specific allegation against the present petitioner to show that he had any role in publication of the news item or he had any prior knowledge of the publication of the objectionable news item. 16. The principle of exercising inherent power u/s. 482 Cr.P.C. for quashing a criminal proceeding at the threshold is well established by long line of authorities of the Apex Court. The Apex Court in State of Haryana and Others Vs. Bhajan Lal 1992 (Suppl.) (1) SCC 335, the lead case, held in para 102(1) and (3) that the inherent power u/s. 482 Cr.P.C. should be exercised -- "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused" and "(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." 17. As already indicated above, neither the allegation made in the complaint, nor the statement recorded u/s. 200/202 disclosed even prima facie any offence against the present petitioner. Therefore, Magistrate cannot be held to be justified in proceeding against the present petitioner for offence u/s. 500 IPC for publication of the alleged news item. 18. The Apex Court in K.M. Mathew Vs. Therefore, Magistrate cannot be held to be justified in proceeding against the present petitioner for offence u/s. 500 IPC for publication of the alleged news item. 18. The Apex Court in K.M. Mathew Vs. A.R. Abraham (supra) also observed that the judicial process should not be an instrument of oppression or needless harassment and the Magistrate while taking cognizance should be satisfied that there is 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. 19. In Pepsi Food Ltd. and Anr. Vs. Special Magistrate and Ors. reported in (1998) 5 SCC 749 , the Apex Court had observed as under:- "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 20. In view of the above, this Court is of the considered opinion that in absence of any positive averment or specific allegation against the petitioner being managing director either in the complaint or in the testimony of the witnesses examined u/s. 200/202 Cr.P.C., learned Magistrate fell in error by taking cognizance of offence u/s. 500 IPC and issuing process against the petitioner. Therefore, the impugned order dated 11/04/2017 taking cognizance against the petitioner by the learned Magistrate as well as the criminal proceedings in C.R. Case No. 204/2016 as against the petitioner Sailendra Konwar Dutta are quashed. 21. The criminal petition stands allowed to the extent as indicated above.