C.R. Sarma, J.-
Heard Mr. P. Kataki, learned counsel, appearing for the petitioners. Also heard Ms. N. Sakia, learned counsel, appearing for the sole respondent.
2. Perused the case record, received from the trial court.
3. By this application, filed under Sections 401/ 397 Cr.P.C., the petitioners, who are accused persons in C.R. Case No. 23637 2003 under Sections 500/501 IPC, pending in the court of the learned Sub-Divisional Judicial Magistrate No. II, Kamrup at Guwahati, have challenged the proceeding aforesaid and prayed for quashing the same.
4. The respondent, as complainant, filed a complaint, being complaint case No. 23637 2003 before the learned Chief Judicial Magistrate, Kamrup, Guwahati against the petitioners, alleging therein, that the petitioners, being the proprietor, the Chief Editor and the Editor respectively of the weekly news paper, namely 'Sadin' in their publications, dated 09.05.2003,16.05.2003, 23.05.2003,06.06.2003 and 13.06.2003, affecting the reputation of the complainant, had published defamatory and malicious news items. The publications were made in connection with the complainant's business establishment. On receipt of the said complaint, the learned SDJM, after examining the complainant under Section 200 Cr.P.C. and her witnesses under Section 202 Cr.P.C. and considering the statement made in the complainant concluded that there existed aprimafacie case under Sections 500/501 IPC against the accused persons and accordingly, the learned Magistrate took cognizance of offence under the said sections and issued summons to the accused persons, requiring their appearance.
On receipt of the summons, the accused persons appeared before the court and they were released on PR bond.
After their appearance, the accused persons by filing a petition, being No. 6032, prayed for dropping the said proceeding and the charges brought against the petitioners, namely Shri Jayanta Baruah and Shri Tilak Hazarika on the ground that no prima fade case under Sections 500/ 501 IPC was made out against them. The learned SDJM No. II, Kamrup, by the impugned order, dated 3.4.2004, declined to drop the proceeding and posted the case for explanation of offences.
5. Aggrieved by the said order, the above named accused persons, as petitioners, have come with this criminal revision petition. The contention raised by the petitioners are that in view of the provision, prescribed by Section 7 of the Press and Registration of the Books Act, 1867 (hereinafter referred to as the 'Act of 1867'), the petitioners being the proprietor and the Chief Editor of the Newspaper cannot be held responsible for publication of the said news items, inasmuch as, complying with the statutory provision, the names of the printer and publisher were notified. The another contention, advanced by the petitioners is that, in the absence of any positive averments regarding knowledge of the petitioners in respect of said publication, the petitioner cannot be held responsible. In view of the above, the petitioners have pleaded that the cognizance taken against the petitioners was bad and as such, the proceeding is liable to be set aside and quashed.
6. Mr. P. Kataki, learned counsel, appearing for the petitioners has submitted that the petitioners, being the owner and the Chief Editor had no knowledge and control in respect of the publication of the said news items and that they are no way involved with the alleged offences. It is also submitted that in view of the provisions laid down in Section 7 of the Act of 1867 no presumption can be drawn against the present petitioners in respect of the publication of the said defamatory statement. Mr. Kakati has also submitted that the leaned SDJM committed error by refusing to drop the proceeding by his order dted 3.4.2004 and as such this is a fit case to interfere with the impugned order and quash the proceeding aforesaid.
In support of his contention, the learned counsel for the petitioner has relied on the decision held in the case of K.M. Mathew vs. K.A. Abraham and others, reported in (2002) 6 SCC 670.
7. Refuting the said arguments, advanced by Mr. Kataki, learned counsel for the petitioners, Ms. N. Saikia, learned counsel, appearing for the respondent/ complainant has submitted that in the complaint, at paragraph 4, it has been specifically stated that the accused persons i.e. the petitioners and another had systematically published the said malicious and defamatory statement and that despite issuance the clarification/ rejoinder by the respondent, the petitioners had repeatedly published defamatory and malicious news items in their news paper, affecting the reputation of the complainant.
8. Supporting the impugned order, Ms. N. Saikia, the learned counsel for the respondent submitted that in view of the specific allegations made against the petitioners, the learned trial Judge committed no error by refusing to drop the proceedings. The learned counsel for the respondent has relied on the decisions held in the cases of Chaman Lal vs. State of Punjab, reported in AIR 1970 SC 1372, Sukra Mahto vs. Basudeo Kumar Mahto & anthers, reported \nAIR1971 SC 1567 and in Sewakmm Sobhani vs R.K. Karanjiya, Chief Editor and others, reported in AIR 1981 SC 1514.
9. Having heard the leaned counsel for both the parties and I have carefully perused the complaint, the statements made by the complainant and her witnesses under Sections 200 and 202 Cr.P.C. and the impugned order dated 3.4.2004.
10. The first contention raised on behalf of the petitioners is that in view of the provisions of Section 7 of the Act of 1867, no presumption can be drawn against the present petitioners involving their responsibilities in connection with the publication of the news items aforesaid and that the names of the printer and the publisher of the news paper has been declared.
11. In the case of K.M. Mathew (supra) the Supreme Court observed that Section 7 only enables the court to draw a presumption that the person whose name was printed as editor was the editor of such newspaper, if the publication produced in the court shows to that effect. The presumption contained in Section 7 is a rebuttable presumption and it will be deemed as sufficient evidence unless the contrary is proved. 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.
12. Section 7 of the Press and Registration of the Books Act, 1867, 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 declaration, or, in the case of the editor, a copy of the news paper 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 printed or publisher, or printed 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."
13. In the case of Chaman Lal vs. State of Punjab (supra) the appellant pleaded justification under exception 1, 8 and 9 of section 499ipc. The Supreme Court held that public good is a question of fact and good faith is also to be established as a fact. In the present case, no such plea has been taken.
14. In the case of Sukra Mahto vs. Basudeo Kumar Mahto & anthers (supra) the appellant pleaded that the statement made in the written statement were true. The Supreme Court, referring to the exception 9 of section 499 ipc observed that in order to claim exception it must be established that the imputation was made in good faith for protection of the interest of the person making it or of any other person for the public good.
15. In the case of Sewakrarn Sobhani vs. R.K. Karanjiya, Chief Editor and others (supra) wherein an editor of a newspaper was prosecuted under Section 500 IPC for publication of news items which was per se defamatory. He claimed protection under Section 499 Exception 9. The Supreme Court observed that journalists are in no better position than any other person. The Court also observed
"Even the truth of an allegation does not permit a justification under first exception, unless it is proved to be in public good. The question whether or not it was for public good is a question of fact like any other relevant fact in issue."
16. There is no dispute that in the present case the names of the petitioners have been shown as the proprietor and the Chief Editor alongwith the editor, printer and publisher. The said declaration does not per se imply that the proprietor and the Chief Editor had no knowledge or control in respect of the publication. The question involved in the present case is as to whether the news items were published with the knowledge of the petitioners. Admittedly, there is an editor of the news paper and the said editor has also been made accused in the complaint aforesaid. The editor has not approached this court.
17. In the above cited case, the Supreme Court, referring to the case of KM. Mathew vs. State of Kerala, reported in 1992 SCC (Cri) 88, observed:
"19. Another decision relied upon is KM. Mathew vs. State of Kerala. Here the accused was the Chief Editor and in the complaint against him there was no averment except the motive attributed to him. That too was of general nature. This court held that the appellant who was the Chief Editor of the daily newspaper in question was responsible for the general policy of that daily and as the complaint did not contain any positive averments as to the knowledge of the Chief Editor about the objectionable character of the matter, the Chief Editor could not be proceeded against. Like the first two decisions relied upon by the appellants, this decision also is of no assistance to them."
18. In the case at hand the complainant, at paragraph 4, specifically stated that the accused persons in the most systematic manner started publication of malicious news item targeting the complainant and her company. It has also been stated in the complaint as well as in the statements made under Section 200 Cr.P.C. that despite approach, made by the complainant and publication of rejoinder, the petitioners again published defamatory news items. There is no dispute that news items, as alleged by the complainant, have been published in the said weekly newspaper. The said allegation indicates the involvement of all the concerned persons. The term accused persons, as mentioned in the complaints implies the petitioners also. Therefore, it cannot be said, at this stage that no averments have been made against the petitioners. By the said allegation that the accused persons in a most systematic manner had published the news items the complainant indicated that the petitioners had knowledge about the said publication.
19. In view of the above, I find no difficulty in understanding that the complainant averred that the petitioners had knowledge about the publication of the said news items. The truth as to whether the said news items were published with the full knowledge and control of the petitioners or not are the question of facts which can be unearth at the trial. The materials on record, indicate a prima facie case against the petitioners under Sections 500/501IPC.
20. In view of the above and considering the entire aspect of the matter I have no hesitation in holding that the leaned SDJM No. II, Kamrup at Guwahati committed no error by refusing to drop the proceeding. Therefore, I find no sufficient merit in this petition requiring interference with the impugned order, in exercise of jurisdiction under Sections 4017 397 Cr.P.C. Hence, this revision petition is dismissed.
Return the LCR.
21. The parties are directed to appear before the learned SDJM, No. II, Kamrup, Guwahati within a period of 30 days from this date.
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