Common questions arise for consideration in the captioned Criminal Miscellaneous Cases filed by the petitioners who are respectively accused numbers 1 to 24 in C.C.Nos.460/2012, 459/2012 and 730/2012 on the files of the Court of the Judicial First Class Magistrate-II, Kollam. The first respondent in all these cases are the respective defacto complainants in the said Calender Cases. For the sake of convenience hereinafter in this judgment the first respondent in these cases are referred to as complainants unless otherwise specifically mentioned. The complainants filed Annexure-A1 complaints in the aforementioned calender cases alleging commission of offences punishable under sections 500 and 501 r/w section 34 of the Indian Penal Code against the petitioners herein. The learned magistrate took cognizance and taken them on file and numbered as C.C. Nos. 460, 459 and 730 of 2012. The learned counsel for the petitioners and the learned counsel for the first respondent in these cases, the complainants, would admit that Annexure-A1 complaint in each of these cases carries allegations of the same nature. The allegation is that petitioners 1 to 3 respectively are the Printer and Publisher, Chief Editor and Editor in Charge of 'Rashtra Deepika' daily and the 4th petitioner herein is the Vicar of Pullichira Parish and petitioners 5 to 24 are members of the administrative and financial committees of the said Parish. The respective first respondent in the captioned cases are members of the said Parish and they are also members of a society registered in the name and style 'Pullichira Edavaka Samrakshana Samithi'. The case of the first respondent in these cases is that a news item came published in the aforesaid daily dated 22.7.2011 at its page No.3 under the caption ' O ]\ÿ]r ] ] L ] ] L ] \ V O' (judgment against the Pullichira Parish is stayed by the Highcourt). It is alleged that the said news item carried defamatory statements published with the malicious intention to lower their reputation in the assessment of the common public and especially the parishioners. In the complaints the alleged defamatory statements have been extracted. Summons was issued to each of the petitioners by the learned magistrate. It is in the said circumstances that the petitioners who are aggrieved by the commencement and continuance of prosecution proceedings against them filed the captioned criminal miscellaneous cases raising various contentions. 2. I have heard the learned counsel for the petitioners, the learned counsel for the first respondent in all these cases and the learned Public Prosecutor.
3. The learned counsel for the petitioners submitted that though the petitioners jointly filed these cases the case of the petitioners 1 to 3 and that of the petitioners 4 to 24 call for consideration in different perspective. Before considering such contentions it is only apposite to consider the common contentions raised by the petitioners. Going by the very complaints filed against the petitioners the allegations against petitioners 1 to 3 is that they are respectively the Printer and Publisher, Chief Editor and Editor in Charge of the aforementioned daily and they in its edition dated 22.7.2011 at page No.3 made the alleged libelous publication with the malicious intention to ruin the reputation of the first respondent in all these cases in the eyes of common public especially the parishioners. A common contention has been taken by the petitioners to the effect that even if the allegations in the complaints are taken in entirety as true they would not attract and constitute the alleged offences against them. The contention is that feeling aggrieved by the order of the District Court granting leave on a suit filed for framing a scheme by the complainants and certain others the matter was taken up before the High Court and in that case an interim order was passed by this Court staying the operation of the order passed by the learned District Judge. According to the petitioners the order of the learned District Judge granting leave was given very wide publicity by the complainants and the others and therefore, pursuant to the order of this Court such a statement was made in the said publication to explain and make it known to all parishioners that the High Court made an observation that the allegations made by the complainants are prima facie without any basis. It is stated therein thus:-
“ O ]\ÿ]r ] ] L ] ] L ] \ V O
U U ] ] ÿ]r ] ] ] ] ] ] ~ ] ÿ ] ] V ] .
] ÿ]r U ] ] N ] V ] ] V V, ] V N r] . V. ] , ] V U ]. .N ] V, N ] V ] V ] V ] ] ] V V.
] ÿ ] ] ] U ] ÿ ÿ V ] ]
N ] ] ] ] ÿ .
~ ] ]N ] ] U ] N ] ] ] U ] ] ] ] ] ]& ] ] ] r .
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L U, ] L O ] ] L U, L OoO ] ] ] L V O o V U ] O L ] L L ] \ ] L ].
] oL O U L ] V \ V V ] L L ] gL o U o ] O OU \ O ] O ] O V O ] } L L ] O O L ] L ] O o o OU o] ] L L ] oL ].
1200 O OU O O ]\ÿ]r ] 49 O OU ] O O V. ] ] V L ] } ] ] O \rO OU
O OoL O ] o] ] L V ] O V.
o] ] ] N ] O L r OoO V. o] ] O LU } OoL V L oN L r Oo ] OU U } L OU oL ] ] L V L L ] OoL ] \] U O OU o] ] L L ] r O o ] } VgL N OU ] ] V ] UN ] O OoL ] O N V ] OU ] O V ] OU L L O } N oL ] O O L ] L O V L ] O OU o] ] \ V ] L ]. “
4. The complainants alleged in their respective complaints that by making such a publication carrying incorrect statement to the effect that the High court had made the aforementioned observation the petitioners who were fully aware of the incorrectness and untruthfulness of it made it with the malicious intention to malign and lower their reputation in the assessment of the common public and more particularly among the parishioners. Now, the contention made on behalf of petitioners 1 to 3 herein is that the newspaper dated 22.7.2011 carrying the details regarding the Printer and Publisher as also the Editor, mandatorily to be printed in each edition was not produced along with the complaints in terms of provisions under section 7 of the Press and Registration of Books Act, 1867. In such circumstances and in the absence of specific allegation that they had selected the news items in question for publication there cannot be any remote possibility for a successful prosecution of petitioners 1 to 3. Therefore, according to them, the prosecution against them would tantamount to abuse of process of court. In otherwords, according to the learned counsel in the absence of such specific averment and in view of the failure to produce the relevant page carrying such details the complaint as against the petitioners 1 to 3 are liable to the quashed. No specific averments have been made against the 4th petitioner as also against the petitioners 5 to 24, it is further contended. In the circumstances, it is contended that, the respective Annexure-A1 complaint is liable to be quashed against petitioners 4 to 24, as well. Per contra, the learned counsel for the first respondent in all these cases contended that when it is specifically averred that petitioners 1 to 3 are respectively the Printer and Publisher, Chief Editor and Editor in Charge of the aforesaid daily in the complaint no further specific averments need be made in the complaint to make it maintainable especially when the details regarding the alleged defamatory publications have been specifically mentioned in the manner they were made in the daily dated 22.7.2011 in the complaint. In otherwords, the learned counsel contended that by virtue of the aforesaid offices held by the petitioners 1 to 3 in the management of the said Daily they cannot be heard to say that they were not controlling the publication and therefore they could not wriggle out of the liability for the publication of the news item concerned containing defamatory statement. That apart, it is contended that as against petitioners 4 to 24 it is stated that with a view to malign their reputation and to lower it among the parishioners petitioners 4 to 24 had distributed copies of the daily that carried alleged defamatory news item among the parishioners and by such action they had committed the alleged offences. In short, according to the respondents the learned magistrate has rightly taken cognizance of the offences on the complaints and issued summons to the petitioners and therefore the petitioners are liable to stand the trial. At any rate, it is contended that this is not a fit case for invoking the inherent jurisdiction under section 482 Cr.P.C. to terminate the criminal proceedings against the petitioners by quashing the respective Annexure 1 complaint.
5. The learned counsel for the petitioners made contentions based on sections 1 and 7 of the Press and Registration of Books Act, 1867 (for short 'the Act') and to lend support to the said contention relied on decision of the Hon'ble Apex Court in State of Maharashtra v. Dr.R.B.Chowdary & Others (1968 KHC 389), K.M.Mathew v. Nalini (1988 KHC 576), Balakrishnan v State (1957 KLT 1230) and Madhavi Amma v. Sheriff (1985 KHC 68). In the said circumstances for a proper disposal of these cases it is apposite to refer to the provisions under section 1 and 7 of the Act. In section 1(1) the term Editor has been defined as hereunder:-
““Editor” means the person who controls the selection of the matter that is published in a news paper.”
Section 7 reads thus:-
“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, 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].”
6. Section 5 of the Act deals with publication of newspapers and Rules 5(2) mandates for making a subscription in duplicate containing the declaration thereunder. The definition of Editor itself would reveal that going by the duties attached to the post he is the person who controls the selection of the matters which are to be being published in a newspaper. At the same time, no where in the said Act the duties, responsibilities and functions to be performed by the Chief Editor have been specified. Now, relying on the definition of section 1 and the provisions under section 7 it is contended that the presumption available under section 7 of the Act could be drawn only if the person concerned is an 'editor' within the meaning of section 1 of the Act and that too only if the page carrying the declaration is produced in the manner provided thereunder. It is contended that petitioners 1 and 2 will not fall under the definition of editor and therefore, owing to the failure to produce the relevant page of the newspaper dated 22.7.2011 in the manner provided under section 7 of the Act and in the absence of any material or specific allegation that they had a role in selecting the particular news item, alleged to be defamatory, no culpability could be attributed on them. In the case of the third respondent it is submitted that the failure on the part of the first respondent in the above petitions to produce the relevant page carrying the details regarding declaration along with the complaints is fatal and therefore proceedings could not be continued against him capable of drawing the prima facie evidence under section 7. Per contra, the learned counsel for the first respondent in all these cases contended that as long as the contention was specifically made in the complaint to the effect that the alleged defamatory statement was published without verifying the correctness or truthfulness of the same the petitioners 1 to 3 also cannot be heard to say that there is no complicity in the matter. In Madhavi Amma's case (supra) while considering the contention that the complaint in a defamation case is equivalent to the charge in a case the following passage from the decision in Balakrishnan's case (supra) was virtually quoted with approval:-
“11. I have already adverted to the gist of the accusation contained in Exts. P1 to P3. The contention of the accused is that the complaint in a defamation case is equivalent to the charge in a case. In this connection he relied on the decision in Balakrishnan v. State (1957 KLT 1230) wherein it was laid down:
“The purpose of a charge is to tell an accused person as precisely and concisely as possible of the matter with which he is charged and S.221 to 224 of the CrPC, give clear and explicit directions as to how a charge should be drawn up. The framing of a proper charge is vital to a criminal trial and this is a matter on which the judge should bestow the most careful attention. (In this case) the charge against each of the accused is a long rambling document cluttered with irrelevant detail telling him not merely what he himself but also what the other accused persons did in the course of the transaction, but at the same time failing to tell him and it is here that the objection lies of the matters making out the offences with which he was eventually convicted,”
After quoting the above extracted portion this Court continued to consider the said aspect in Madhavi Amma's case as hereunder:-
“12. In a defamation case, the only paper containing the accusation of offences given to the accused is the complaint. What he is called upon to answer are the accusations in the complaint. Absence of necessary allegations in the complaint cannot be made good by the evidence adduced during trial. Cause of action is the allegation in the complaint alone. What is required further is only adducing evidence in support of those allegations. Accused is entitled to know what are the allegations against him. Then only he will be able to answer the allegations and shape his defence. For that purpose, he cannot be asked to look into the evidence, oral or documentary. Such evidence is intended only as proof of accusations. Defect in the complaint cannot be allowed to be made good by evidence adduced during trial. In this case by going through Exts.P1 to P3, the accused may be aware of the imputations. Even otherwise, he may be aware of them because the publications came in his paper. But that is not the question. From the complaint itself, he is entitled to know what are the accusations which formed the basis of the complaint.
13. According to the decided English cases dealing with libel the actual words alleged to be used must be stated in the indictment. In our country such a strict standard is not insisted while dealing with cases of defamation by spoken words. That may be because spoken words are difficult to be understood and remembered for reproduction in first person. But we are dealing with a case of written accusation that came in the papers and not spoken words. Even according to the law followed in country it is desirable to reproduce the defamatory words in first person to the extent possible. When the defamatory statements are not unreasonable lengthy so as to make them impossible or difficult of reproduction in first person, law insist such reproduction. The object is to enable the accused to understand and answer the allegations against him. Even in cases of impossibility of reproduction in first person, law insists on a substantial account of the accusations being included in the complaint. Otherwise the complaint is considered defective. “ In the light of the said decisions it was contended that since a complaint carrying allegation of defamation is to be treated as a charge all the allegations which the concerned accused have to defend should contain in complaint itself and in this case in Annexure-1 itself. Bearing in mind the same I will consider the case.
7. I will deal firstly with the case of petitioners 1 to 3 in these cases. Evidently, the very case of the first respondent in these cases is that the petitioners 1 to 3 in these cases are respectively the Printer and Publisher, Chief Editor and Editor in charge of 'Rashtra Deepika' daily. The decision in K.M.Mathew v. Nalini reported in 1988 KLT 576 and other decisions are relied on to canvass the position that in the absence of material to show that the Printer and Publisher as also the Chief Editor are responsible for selecting the material no imputation can be made against them and if that be so, the proceedings cannot be continued against them. As regards the Chief Editor of a newspaper he cannot be held responsible for selecting the materials for publication going by the provisions under the Act, it is contended. I am afraid the said contention cannot be upheld in the light of the decision in K.M.Mathew v. K.A.Abraham reported in AIR 2002 SC 2989. Going by the said decision even the Managing Director, Resident Editor or Chief Editor of a newspaper cannot be said to be immune from prosecution of libelous material published in a newspaper concerned. Though a presumption as under section 7 of the Act is not available against the Managing Editor, Resident Editor or Chief Editor it can still be alleged and proved that they had knowledge and responsibility for the publication of the defamatory news items. True that, in this case admittedly along with Annexure A1 complaint (Annexure A1 in all these cases) newspaper dated 22.7.2011 was not produced in the manner provided under section 7 of the Act.
Still, in the light of the decision in K.M.Mathew v. K.A.Abraham reported AIR 2002 SC 2989, failure to produce the newspaper or the declaration as provided under section 7 of the Act would not give any statutory immunity to the Printer and Publisher as also to the Editor from a prosecution for libelous publication. The failure to produce the copy of the declaration or newspaper in the manner provided under section 7 of the Act does not mean that they are immune from prosecution in such circumstances the impact is that there cannot be any presumption in such cases in terms of section 7 of the Act. But then, for asking them to face the prosecution there must be materials to show a prima facie case against them going by the decisions in Madhavi Amma's case (supra) and Balakrishnan's case (supra). In the light of the above situation, in this case the question is whether as against the petitioners 1 and 2 there is any specific allegation in the complaint to the effect that they had knowledge and they were responsible for the publication of the defamatory news item. As against the first petitioner, a scanning of Annexure A1 complaint, in all these cases, would reveal that apart from the statement that he is the Printer and Publisher of 'Rashtra Deepika' daily there is absolute absence of any specific allegation relating knowledge and responsibility for the publication of the alleged defamatory news item. In the case of the Chief Editor except the following no other specific allegation was made against him with respect to the knowledge and responsibility for publication of the alleged defamatory news item.
“ ] ] 2 U U N ] ] L N ] V } ] O ] O oO V L V L L oL L ] ] ] ] V ] L ] O ] L L ] r ] ] O L oL L V ] L ] O ] L LrL L L V O L L ] Or]\ÿO L OU ] V L O N O L N L L L N ] V } ]\ÿ] O V. “ Except the above extracted bald statement no specific averment was made in any of the complaints to the effect that the second petitioner had any role for selecting the matter for publication or had any knowledge or any role in the publication of the alleged defamatory news item. When in the absence of specific averments as regards a Printer and Publisher and also against the Chief Editor in the matter of publication of an alleged defamatory statement in a newspaper they cannot be made to stand trial. Though the learned counsel for the respondents made an earnest attempt to resist the said contentions requisite allegations in regard to publication of the alleged defamatory news item against petitioner Nos. 1 and 2 they could not be brought to my notice. In fact, such allegations are absolutely absent against petitioner Nos.1 and 2. In such circumstances, in the interest of justice and to avoid abuse of process of court invocation of the power under section 482 Cr.P.C. in so far as petitioner Nos. 1 and 2 are concerned have become inevitable. Though, similar contentions have been raised in the case of the third petitioner I am of the view that the said contention cannot be upheld. True that, the first respondent in these cases had failed to produce the concerned newspaper daily dated 22.7.2011 as such in the manner prescribed to invite drawing of the presumption under section 7 of the Act still, I do not think that the third petitioner is entitled to get the same relief as in the case of petitioners 1 and 2. Evidently, the third petitioner is the news editor in charge of the 'Rashtra Deepika' newspaper and in the light of the definition of the term 'editor' and the undisputed position that he was the editor-in-charge at the relevant point of time prima facie it is to be taken that he was the person who controlled the selection of materials for publication. In the complaint there is specific allegation, as extracted above to the effect that the third petitioner prior to the publication of the alleged libelous matter failed to verify the correctness of the alleged news item. In the said circumstances I am of the view that whether the action on the part of the third petitioner could culminate in a successful prosecution on the allegation of commission of the offence of defamation depends upon further evidence to be adduced by both parties. In otherwords, the case of the third petitioner is not a fit case to be quashed by invoking the inherent power under section 482 Cr.P.C. In the case of 4th petitioner who is the 'Vicar' of the parish and petitioners 5 to 24 who are the members of the administrative and finance committee of the parish and the allegation is that with a view to malign the reputation and lower the same in the assessment of the parishioners they had distributed the copies of 'Rashtra Deepika' daily dated 22.7.2011 carrying the aforementioned alleged defamatory statement among the parishioners who attended prayers. It is also stated therein that they had done so with the intention to defame the first respondent in these cases and by virtue of their actions in the assessment of the parishioners their reputation was also lowered. Some of those who had gone through the said daily dated 22.7.2011 asked the petitioner about it and at the same time, they had not cared to listen to the explanations of the complainants. In the said circumstances, I am of the view that it is a matter of evidence and this Court will not be justified in abruptly terminating the prosecution against the petitioners 4 to 24 as well, by invoking the inherent jurisdiction. At the same time, it is made clear that it will be open to the petitioners to take up the plea of discharge in accordance with law, at any stage, if the case against them is being tried as a warrant case or if it is a summons case it is converted at a later point of time as a warrant case. In the result, this Criminal M.Cs. are allowed in part to the extent it pertains to petitioners 1 and 2 and in otherwords in the case of petitioners 1 and 2 Annexure 1 complaint in C.C.Nos.460/2012, 459/2012 and 730/2012 on the files of the Court of the Judicial First Class Magistrate-II, Kollam and all further proceedings against them based on the said complaints are quashed. As against the others this Crl.M.C. will stand dismissed subject to the above observations.
Sd/-
C.T.RAVIKUMAR,JUDGE.
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