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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.433 OF 2013
(@SPECIAL LEAVE PETITION (CRL.) NO. 3475 OF 2008)
GAMBHIRSINH R. DEKARE … APPELLANT
VERSUS
FALGUNBHAI CHIMANBHAI PATEL
AND ANR. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The petitioner Gambhirsinh R. Dekare, at the
relevant point of time was serving as Taluka
Mamlatdar and an Executive Magistrate in Vadodara
Taluka in the State of Gujarat.
A Gujarati daily
newspaper “Sandesh” is published from different
places i.e., Surat, Valsad, Bharuch, Vadodara and
other cities of India.
Navinbhai Chauhan is the
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Resident Editor of Vadodara edition of “Sandesh”
whereas Falgunbhai Chimanbhai Patel is the Editor of
“Sandesh”.
The newspaper published a news item in
its Vadodara issue dated 28.09.1999 that the
petitioner “is in love and keeping illicit relations
with the wife of a doctor at Ajwa Road with the
following headlines:
“Mamlatdar Shri Gambhirsinh Dhakre is
caught red handed by the youngstersMamlatdar is indulged in illicit
relations with the wife of Doctor who
is residing at Ajwa Road- attempts to
conceal the matter- why the Government
is not taking any action against the
Mamlatdar?”
According to the petitioner (hereinafter referred
to as “the complainant”), the allegation published in
the newspaper is false and defamatory.
Accordingly,
he filed complaint in the Court of Chief Judicial
Magistrate, Vadodara.
The complainant alleged that
the news items are printed in the newspaper “as per
the instructions and directions of the accused
persons”.
In paragraph 3 of the complaint the
complainant alleged as under:
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“3. The Accused No. 1 and 2 of this
case have deliberately published the
news in the Page No. 12 of their daily
newspaper ‘Sandesh’ dated 28/9/99
which is quite defaming and offending
to us. The accused persons were in
the knowledge that we the complainant
shall be defamed in the Society due to
publishing of such news and with a
view to vilify us as the person having
bad character, the accused persons, in
collusion with each other, have
published the following news in the
newspaper deliberately.”
The complainant termed those allegations to be
false and stated that the Editor and the Resident
Editor have tried to prove him a characterless person
in the society and because of that he had faced
shameful and disgraceful situation amongst the family
members and friends.
The news item further brought
him in disrepute in the Department and the public.
It has been alleged that the accused persons have
published the news item without any evidence or
proof.
The complainant denied to have any illicit
relation with the doctor’s wife. The complainant was
examined on solemn affirmation in which he reiterated
the allegation.
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The Chief Judicial Magistrate, taking into
account the allegation made in the petition of
complaint and the statement of the complainant on
solemn affirmation, took cognizance of the offence
under Section 500, 501, 502, 506, 507 and 114 of the
Indian Penal Code and issued process against both the
accused.
Accused no. 2, Falgunbhai Chimanbhai Patel, the
Editor of “Sandesh”, aggrieved by the order taking
cognizance and issuing process, filed an application
before the High Court seeking quashing of the
complaint filed before the Chief Judicial Magistrate,
Vadodara on 08.10.1999.
He sought quashing of the
complaint on the ground that he is the Editor of the
newspaper, stationed at Ahmedabad and the offending
news item was published in the Vadodara Edition of
the newspaper, of which Navinbhai Chauhan, accused
no. 1, is the Resident Editor.
It was further
contended that he was not aware of the offending news
item being published in the newspaper or for that
matter he had any role to play in selection of such
item for publication.
The High Court by the impugned
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order allowed the application and while doing so
observed as follows:
“6. In the complaint itself, the
petitioner is described as editor of
the newspaper and his address is shown
at Ahmedabad. Original accused No. 1
is described as a resident editor of
Baroda of the same newspaper. It is
not in dispute that the newspaper in
question has its registered office at
Ahmedabad and Baroda edition of the
newspaper is being separately
published from Baroda. It is also not
in dispute that offending news item
was carried in Baroda edition of the
newspaper only.”
The High Court further went on to observe as
under:
“10. In the present case also, I find
that there is nothing in the complaint
to suggest that the petitioner herein
was aware about the offending news
item being published or that he had
any role to play in selection of such
item for publication. In absence of
any material disclosed in the
complaint and in view of the admitted
fact that the petitioner is an editor
of the newspaper stationed at
Ahmedabad and the news item was
carried in its Baroda edition alone
where the newspaper has a separate
resident editor, the petitioner cannot
be proceeded against for the offence
of defamation of the complaint.”
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The High Court came to the conclusion that
prosecution of accused no. 2 would amount to
miscarriage of justice and, accordingly, quashed the
complaint and the process issued against him.
It is against this order that the complainant has
preferred this special leave petition.
Leave granted.
Mr. Huzefa Ahmadi, Senior Advocate appears on
behalf of the complainant (appellant herein) whereas
accused no. 2 (Respondent no. 1 herein) is
represented by Mr. Dushyant Dave, Senior Advocate.
Mr. Ahmadi, submits that according to the
complainant, accused no. 2 was the Editor stationed
at Ahmedabad and there is specific allegation against
him that the news items are published in the
newspaper “as per the instructions and directions of
the accused persons”. The complainant has further
alleged in the complaint that both the accused i.e.
the Editor (accused no. 2) and the Resident Editor
(accused no. 1) had deliberately published the news
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in their Gujarati daily newspaper “Sandesh” which is
defamatory. The complainant went on to say that the
“accused persons were in the knowledge that the
complainant shall be defamed in the society due to
publication of such news”. In the face of the
aforesaid allegation, Mr. Ahmadi points out that the
High Court committed a serious error by observing
that “there is nothing in the complaint to suggest
that” accused no. 2 “was aware about the offending
news item being published or that he had any role to
play in selection of such item for publication”. Mr.
Dave, however, submits that, according to the
complainant’s own showing, accused no. 2 was the
Editor of the newspaper stationed at Ahmedabad and
the offending news item having been published at
Vadodara for which there is admittedly a separate
Resident Editor, it has to be assumed that the
accused no. 2 was not aware of the same and had no
role to play in the selection of such item for
publication.
We have bestowed our consideration to the rival
submission and we do not find any substance in the
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submission of Mr. Dave. Complainant has specifically
averred in the complaint that the news item was
printed in the newspaper as per the instructions and
directions of the accused persons. The complainant
had specifically alleged that accused nos. 1 and 2
have deliberately published the offending news and it
was within their knowledge. At this stage, it is
impermissible to go into the truthfulness or
otherwise of the allegation and one has to proceed on
a footing that the allegation made is true. Hence,
the conclusion reached by the High Court that “there
is nothing in the complaint to suggest that the
petitioner herein was aware of the offending news
item being published or that he had any role to play
in the selection of such item for publication” is
palpably wrong. Hence, in our opinion, the High
Court has quashed the prosecution on an erroneous
assumption of fact which renders its order illegal.
Mr. Ahmadi, further submits that the impugned
order is vulnerable on another count. He points out
that according to the complainant, the present
accused was the Editor and his name has been printed
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as such in the publication and, therefore, he is
responsible for the publication of the news item.
Mr. Dave, however, submits that there being Resident
Editor for the Vadodara Edition of the newspaper, the
present accused, who is the Editor and stationed at
Ahmedabad, cannot be held responsible for the
publication. He emphasizes that it would be the
Resident Editor who shall be responsible for the
contents of the Vadodara Edition. In support of the
submission he has placed reliance on a decision of
this Court in the case of K.M. Mathew v. State of
Kerala, (1992) 1 SCC 217.
A news item has the potentiality of bringing
doom’s day for an individual. The Editor controls
the selection of the matter that is published.
Therefore, he has to keep a careful eye on the
selection. Blue-penciling of news articles by any
one other than the Editor is not welcome in a
democratic polity. Editors have to take
responsibility of everything they publish and to
maintain the integrity of published record. It is
apt to remind ourselves the answer of the Editor of
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the Scotsman, a Scottish newspaper. When asked what
it was like to run a national newspaper, the Editor
answered “run a newspaper! I run a country”. It may
be an exaggeration but it does reflect the well known
fact that it can cause far reaching consequences in
an individual and country’s life.
The scheme and scope of Press and Registration of
Books Act, 1867 (hereinafter referred to as “the
Act”) also brings forward the same conclusion.
Section 1 of the Act is the interpretation clause and
the expression “Editor” has been defined as follows:
“1. Interpretation-clause.-(1)In this
Act, unless there shall be something
repugnant in the subject or context,-
xxx xxx xxx
"editor" means the person who controls
the selection of the matter that is
published in a newspaper;”
Section 5 of the Act provides for rules as to
publication of newspapers and prohibits its
publication in India except in conformity with the
rules laid down. Section 5 (1) of the Act which is
relevant for the purpose reads as follows:
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“5. Rules as to publication of
newspapers.-No newspaper shall be
published in India, except in
conformity with the rules hereinafter
laid down:
(1)Without prejudice to the provisions
of section 3, every copy of every such
newspaper shall contain the names of
the owner and editor thereof printed
clearly on such copy and also the date
of its publication.
xxx xxx xxx”
From a plain reading of the aforesaid provision,
it is evident that every copy of every newspaper
published in India is mandated to contain the names
of the owner and Editor thereof. It is in the light
of the aforesaid obligation that the name of the
accused no. 2 has been printed as Editor. Section 7
of the Act makes the declaration to be prima facie
evidence for fastening the liability in any civil or
criminal proceeding on the Editor. Section 7 of the
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
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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.”
Therefore, from the scheme of the Act it is
evident that it is the Editor who controls the
selection of the matter that is published in a
newspaper. Further, every copy of the newspaper is
required to contain the names of the owner and the
Editor and once the name of the Editor is shown, he
shall be held responsible in any civil and criminal
proceeding. Further, in view of the interpretation
clause, the presumption would be that he was the
person who controlled the selection of the matter
that was published in the newspaper. However, we
hasten to add that this presumption under Section 7
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of the Act is a rebuttable presumption and it would
be deemed a sufficient evidence unless the contrary
is proved. The view which we have taken finds
support from the judgment of this Court in the case
of K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670, in
which it has been held as follows:
“20. The provisions contained in the
Act clearly go to show that there
could be a presumption against the
Editor whose name is printed in the
newspaper to the effect that he is the
Editor of such publication and that he
is responsible for selecting the
matter for publication. Though, a
similar presumption cannot be drawn
against the Chief Editor, Resident
Editor or Managing Editor,
nevertheless, the complainant can
still allege and prove that they had
knowledge and they were responsible
for the publication of the defamatory
news item. Even the presumption under
Section 7 is a rebuttable presumption
and the same could be proved
otherwise. That by itself indicates
that somebody other than editor can
also be held responsible for selecting
the matter for publication in a
newspaper.”
Now reverting to the authority of this Court in
the case of K.M. Mathew v. State of Kerala, (1992) 1
SCC 217, relied on by Mr. Dave, in our opinion, same
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instead of supporting his contention, goes against
him. In the said case it has been observed as
follows:
“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 raising 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.”
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In this case the accused was the Chief Editor of
Malyalam Manorama and there was no allegation against
him in the complaint regarding knowledge of the
objectionable character of the matter published.
In
the absence of such allegation, the Magistrate
decided to proceed against the Chief Editor. On an
application by the Chief Editor, the process issued
against him was recalled.
The High Court, however,
set aside the order of the Magistrate and when the
matter travelled to this Court, it set aside the
order of the High Court.
This Court made distinction
between ‘Editor’ and ‘Chief Editor’.
In no uncertain
terms the Court observed that the Press and
Registration of Books Act recognizes ‘Editor’ and
presumption is only against him.
The Act does not
recognize any other legal entity viz., Chief Editor,
Managing Editor etc. for raising the presumption.
They can be proceeded against only when there is
specific allegation.
We may here observe that in this case, this Court
has held that the Magistrate has the power to drop
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proceeding against an accused against whom he had
issued process in the following words:
“8. It is open to the accused to plead
before the Magistrate that the process
against him ought not to have been
issued. The Magistrate may drop the
proceedings if he is satisfied on
reconsideration of the complaint that
there is no offence for which the
accused could be tried. It is his
judicial discretion. No specific
provision is required for the
Magistrate to drop the proceedings or
rescind the process. The order issuing
the process is an interim order and
not a judgment. It can be varied or
recalled. The fact that the process
has already been issued is no bar to
drop the proceedings if the complaint
on the very face of it does not
disclose any offence against the
accused.”
However, this Court
in Adalat Prasad v. Rooplal
Jindal (2004) 7 SCC 338, has specifically overruled
K.M. Mathew (Supra) in regard to the power of the
Magistrate to recall its order issuing process.
It
has been observed as follows:
“15. It is true that if a Magistrate
takes cognizance of an offence, issues
process without there being any
allegation against the accused or any
material implicating the accused or in
contravention of provision of Sections
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200 and 202, the order of the
Magistrate may be vitiated, but then
the relief an aggrieved accused can
obtain at that stage is not by
invoking Section 203 of the Code
because the Criminal Procedure Code
does not contemplate a review of an
order. Hence in the absence of any
review power or inherent power with
the subordinate criminal courts, the
remedy lies in invoking Section 482 of
the Code.
16. Therefore, in our opinion the
observation of this court in the case
of K.M. Mathew v. State of Kerala,
1992 (1) SCC 217, that for recalling
an erroneous order of issuance of
process, no specific provision of law
is required, would run counter to the
scheme of the Code which has not
provided for review and prohibits
interference at interlocutory stages.
Therefore, we are of the opinion, that
the view of this Court in Mathew’s
case (supra) that no specific
provision is required for recalling an
erroneous order, amounting to one
without jurisdiction, does not lay
down the correct law.”
Thus our reference to K.M. Mathew (supra) may not
be construed to mean that we are in any way endorsing
the opinion, which has already been overruled in
Adalat Prasad (supra).
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Thus the impugned judgment of the High Court is
indefensible both on facts and law. Any observation
made by us in this judgment is for the decision in
this case. It does not reflect on the merit of the
allegation, which obviously is a matter of trial.
In the result, the appeal is allowed, the
impugned judgment of the High Court is set aside and
the court in seisin of the case shall now proceed
with the trial in accordance with law.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)
…….….……….………………………………..J.
(V. GOPALA GOWDA)
NEW DELHI,
MARCH 11, 2013
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