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2022 DIGILAW 1042 (DEL)

R. Sunder v. State of NCT of Delhi

2022-05-02

CHANDRA DHARI SINGH

body2022
ORDER 1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C."), has been filed on behalf of the petitioners seeking quashing of private criminal complaint no. 343/01/2002 filed by the respondent no.2 and the summoning order dated 26th June 2007 passed against the petitioners, amongst others, under Section 499/500/501/502/34 of the Indian Penal Code, 1860. 2. The respondent no.2, in its complaint, has accused 16 persons, including the instant petitioners, and the accused Company M/s Bennett Coleman & Co. Ltd. of having committed an offence of defamation by publishing the statement that "FIITJEE uses questionable tactics to attract students", in its publication Education Times of the Times of India, Delhi Edition on 18th February, 2002 and Lucknow Edition on 25th February, 2002. The petitioner no. 1/accused no. 4 was an employee of the accused Company, M/s Bennett Coleman & Co. Ltd., from 1979 to 2015 and petitioner no. 2/accused no. 15 from 1986 to 2004. Based on the complaint filed by the respondent no. 2, the accused persons, including the petitioners, were summoned vide order dated 26th June, 2007. The petitioners are assailing the said order as well as the complaint filed qua them. 3. Learned counsel appearing on behalf of the petitioners submitted that the petitioners have nothing to do with the publication or selection, printing or publication of any news item in any of the publications of the accused Company. It is submitted that there is no material against the petitioners either in the complaint or in the summoning order, including the pre-summoning evidence. The summoning order was passed without giving heed to the facts of the matter and the law and has been passed after 5 years of filing of the complaint. 4. It is submitted that the petitioners are in their second round of litigation in the instant matter as earlier they had approached this Court in Crl M.C. 1320/2013 and Crl M.C. 4183/2014. In both the said petitions, a coordinate bench of this Court by a common order/judgment dated 9th March, 2016 directed that as per the judgment of Arvind Kejriwal & Ors. vs. Amit Sibal & Anr. In both the said petitions, a coordinate bench of this Court by a common order/judgment dated 9th March, 2016 directed that as per the judgment of Arvind Kejriwal & Ors. vs. Amit Sibal & Anr. , 2014 SCC OnLine Del 212, the Magistrate shall be empowered to discharge/drop the proceedings against the petitioners as per the directions as laid down in the judgement, which accordingly the petitioners complied with, but the application of the petitioners was declined by the learned Magistrate on account of the reversal of the said judgment in the same case by the Hon'ble Supreme Court in Amit Sibal vs. Arvind Kejriwal , (2018) 12 SCC 165 reiterating that the learned Magistrate had no power to discharge the accused, and on account of law laid down by the Hon'ble Supreme Court in the case of Adalat Parshad vs. Roop Lal Jindal & Anr. , 2004(7) SCC 338 . 5. It is submitted that the respondent no. 2 had filed the complaint alleging that the defamatory content was published in retaliation by the accused persons and Company, since, the respondent no. 2 stopped approaching it for publication of its advertisements when the Company refused to give them a discount. The petitioner no.1 was arraigned as an accused on the ground that the Chairperson and Managing Director of the accused Company took decisions regarding tariffs for the advertisements to be published only after consulting accused no. 4, petitioner no. 1 herein, accused 3 and 6. Further, petitioner no. 2 was arraigned for the reason that he approached the respondent no. 2 for negotiating the terms regarding tariff for the respondent no. 2 and gave him the impression that decision relating to tariffs for advertisement would be taken only by accused no. 2 and 5, after consultations with accused nos. 3 and 5 and petitioner no. 1. It is submitted that there is no act of defamation attributable to the petitioners and the learned Metropolitan Magistrate failed to appreciate that essential ingredients of intention to defame are missing in the complaint and ingredients of offence and not made out. 6. It is vehemently submitted that, as per Section 7 of the Press and Registration of Books Act, 1867, only the Editor of a publication is responsible to select the material for publication in the newspaper and thus liable for any publication made. 6. It is vehemently submitted that, as per Section 7 of the Press and Registration of Books Act, 1867, only the Editor of a publication is responsible to select the material for publication in the newspaper and thus liable for any publication made. No other person is responsible to be held liable for such a publication, as has been reiterated by the Hon'ble Supreme Court it is submitted that neither of the petitioners is the Editor of the publication of the accused Company and hence, no liability against them could arise in view of the above provision. The learned counsel for the petitioner relied upon a certificate issued by the accused Company dated 18th September, 2013 to submit that the petitioner no. 1 has never been a member of the Board of Directors. It is further submitted that on the same ground the complaint and the summoning order have already been quashed qua accused no. 2 and 5 by a coordinate bench of this Court vide order dated 20th March, 2012 and 18th October, 2012, which remains unchallenged and hence, has achieved finality. It is submitted that in light of the above made arguments the complaint and the summoning order are liable to be quashed. 7. Per Contra , Mr. Panna Lal Sharma, learned APP for the State, and Mr. P.K. Dubey, learned senior counsel appearing on behalf of respondent no. 2 vehemently opposed the instant petition. 8. Learned senior counsel for the respondent no. 2 submitted that summoning order passed by the learned Metropolitan Magistrate is legal and proper and the instant petition is not maintainable. It is submitted that there are specific averments with regard to the role of the petitioners in the complaint filed by respondent no. 2 that they acted in connivance with the other accused persons and the Company, as mentioned in Paragraphs 9, 14 and 15 of the complaint. 9. It is submitted that the petitioner no. 1 was the Director and petitioner no. 2 the Chief Manager-Response of the accused Company at the relevant time and were involved in the publication and circulation of the defamatory articles. They played an active role in negotiations and subsequent decision making at the point of negotiations for tariffs for advertisements. It is averred that when respondent no. 1 was the Director and petitioner no. 2 the Chief Manager-Response of the accused Company at the relevant time and were involved in the publication and circulation of the defamatory articles. They played an active role in negotiations and subsequent decision making at the point of negotiations for tariffs for advertisements. It is averred that when respondent no. 2 withdrew its advertisements from the accused Company, the accused persons, acting in malice, published the impugned articles with the intention to defame respondent no. 2 and hurt its commercial interests and overall image in the eyes of the public. Learned senior counsel relied upon the statement CW2 who elaborated the role of the petitioners and established the that they were involved in the alleged offence. Reliance has been placed upon the judgment of the Shobhana Bhartia v. NCT of Delhi , 2007 SCC OnLine Del 1301. 10. It is submitted that in light of the ratio laid down above, besides persons declared as Editor, Printer and Publisher of a newspaper, even other persons can be prosecuted for an action of defamation provided specific and clear allegations have been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. This burden has been sufficiently satisfied in the present matter in as much the complaint contains clear and specific averments to the effect that the petitioners were involved in the publication and circulation of the defamatory articles and had played a pivotal role in the conspiracy. It is further submitted that Section 7 of the Press and Registration of Books Act does not grant blanket liability to the petitioners. 11. Learned senior counsel opposed the averment of the petitioners that while disposing of Crl M.C. 1320/2013 and Crl M.C. 4183/2014 and sending it back to the learned Magistrate, the coordinate bench of this Court did not suggest any particular course to be taken by the learned Magistrate, and in fact this Court had rejected the arguments made on behalf of the petitioners. Learned senior counsel for the respondent no. 2 submitted that the quashing of complaint and summoning order against the accused no. 2 and 5 does not have any bearing on the merits of the instant petition, and a similar observation has been noted by the coordinate bench in the above mentioned Crl M.C. petitions. 12. Learned senior counsel for the respondent no. 2 submitted that the quashing of complaint and summoning order against the accused no. 2 and 5 does not have any bearing on the merits of the instant petition, and a similar observation has been noted by the coordinate bench in the above mentioned Crl M.C. petitions. 12. It is submitted that prima facie an offence of defamation is made out against the petitioners and at the stage of summoning only prima facie satisfaction of the Trial Court is required. The learned Metropolitan Magistrate had perused and appreciated the pre-summoning evidence before it and formed a calculated opinion that a case was made out against the petitioners and thereafter passed the summoning order. It is submitted that the petitioners need to face trial for proper adjudication of the matter. 13. It is submitted that the jurisdiction under Section 482 of the Cr.P.C. is to be invoked sparingly and in the rarest of the rare cases, and since, the instant petition has failed to satisfy the ingredients, it is liable to be dismissed. 14. Heard learned counsel for the parties at length and perused the record. 15. In the considered opinion of this Court, the primary issue to be considered in the instant matter at this stage is whether the petitioners, in their capacity as Director and Chief Manager-Response of the accused Company, were responsible and liable for the publication of the allegedly defamatory content against respondent no. 2, especially in light of Section 7 of the Press and Registration of Books Act, 1867. 16. Section 7 of the Press and Registration of Books Act, 1867 is reproduced hereunder: "7. 2, especially in light of Section 7 of the Press and Registration of Books Act, 1867. 16. Section 7 of the Press and Registration of Books Act, 1867 is reproduced hereunder: "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, 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]. 17. The Act also defined the term editor as under: ""editor" means the person who controls the selection of the matter that is published in a newspaper;" 18. In State of Maharashtra v. Dr. R.B. Chowdhari , AIR 1968 SC 110 the Hon'ble Supreme Court, with reference to Section 7 of the Press and Registration of Books Act, 1867, observed as under: "6....The term "editor" is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor as a person who is responsible for selection of the material Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question. On the whole therefore the order of discharge made by the learned Single Judge appears to be proper in the circumstances of the case and we see no reason to interfere." 19. Further, reference is deemed appropriate to be made to observations made in Shobhana Bhartia v. NCT of Delhi , 2007 SCC OnLine Del 1301, by a coordinate bench of this Court, as is reproduced hereunder: "53. Primarily, a Reporter is responsible for his act of defamation. Then, vicarious liability is fastened on the printer, publisher and editor of the newspaper under the Press and Registration of Books Act, 1967. 55. In view of provisions of Press and Registration Act, 1867, particularly Section 7 unless the contrary is proved, the persons declared as Printer, Publisher and Editor of the newspaper are presumed to be responsible for the contents of the newspaper. 56. Whether any person other than the Printer, Publisher and Editor can be prosecuted for a defamatory article? 58. From the afore-noted judicial pronouncements, legal position which emerges is as follows: (i) Besides persons declared as Editor, Printer and Publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant. (ii) The Chairman or the Managing Director of the company owning a newspaper is neither the Editor, nor the Printer nor the Publisher and therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, incharge of, and responsible to, the company for the conduct of its business." 20. The abovementioned observations and principles emanate from the judgments of Hon'ble Supreme Court in State of Maharashtra vs. R.B. Chowdhari (Supra) and T.K.S. Muthukoya vs. Haji C.H. Mohammad Koya , (1979) 2 SCC 8 and of Kerala High Court in K.M. Mathew vs. State of Kerala , 1992 CriLJ 3779, that essentially discussed the implications of criminal liability of a person who is not an Editor. 21. A joint reading of the aforesaid provisions and the judgments stated above indicates that a copy of newspaper containing the name of the editor, being printed as it is of an editor, is sufficient evidence that such person is the printer and/or publisher, of every portion of a newspaper that bears such name and it is the editor, printer and/or publisher, against whom the presumption goes when there is any publication made that has allegedly offended the rights of a person and against no other person such presumption may be made. The petitioners before this Court are admittedly the Director and Chief Manager and not the Editors of the publication of the accused Company. They have appended the declaration of the newspaper in question and it does not bear the name of either of the petitioners. It is found that in the capacity of Director and Chief Manager-Response a responsibility and corresponding liability does not arise vicariously against the petitioners for any impugned publication. They were not responsible, at any stage, for selecting, printing or publishing the allegedly defamatory contents in the said publication. Even in the complaint, averments are made with respect to the position they held in the Company, but not with regard to the offence of defamation itself nor to the effect that the petitioners had the knowledge of or were responsible for the impugned publication in the capacity of their job designations. 22. Even in the complaint, averments are made with respect to the position they held in the Company, but not with regard to the offence of defamation itself nor to the effect that the petitioners had the knowledge of or were responsible for the impugned publication in the capacity of their job designations. 22. Keeping in view the above circumstances, the instant petition is allowed and the criminal complaint no. 343/01/2022 is quashed qua the instant petitioners, that is, accused no. 4 and 15. The summoning order dated 26th June 2007 passed by learned Metropolitan Magistrate, Patiala House Court, New Delhi is also set aside qua the petitioners. 23. Accordingly, the petition is disposed of with pending applications, if any.