The newly impleaded 3rd accused in C.M.P.No.6092/2012 in C.C.No.158/2004 on the file of the Judicial First Class Magistrate Court, Mattannur, is the revision petitioner herein. The first respondent had filed a complaint before the Judicial First Class Magistrate Court, Mattannur, when a news item seen in the Deshabhimani Daily, projecting him as a blade mafia in the locality, alleging that, that publication has affected his reputation and that was made with an intention to defame him among the public, against the present revision petitioner, originally as 2nd accused in the capacity of Chief Editor and against the 3rd accused, as printer and publisher of the daily with the first accused, as the person alleged to have made complaint on the basis of which the publication was effected. After taking evidence, the learned magistrate had taken cognizance of the case, as C.C.No.158/2004 against 3 accused persons, including the present revision petitioner. This was challenged by the revision petitioner before this court, along with the original 3rd accused as Crl.M.C.No.3830/2005 and this court by Annexure-A1 order dated 28.08.2008, quashed the proceedings, as against the present revision petitioner and permitted to proceed against the original 3rd accused, who was shown as 2nd petitioner in that petition. Thereafter, the complainant (first respondent herein) filed an application to implead the present revision petitioner as 3rd accused in the capacity of editor of the daily and that petition was dismissed for default by the learned magistrate and that was challenged by the complainant (first respondent herein) by filing Crl.M.C.No.2327/2009 before this court and this court by Annexure-A3 order, dismissed the application leaving open the right of the petitioner to move under Section 319 of the Code later or leaving open the right of the magistrate to consider, as to whether on the basis of evidence, the present revision petitioner also committed any offence, to implead him or to make him as accused invoking the power under Section 319 of the Code. Thereafter, the complainant was examined and documents were marked and thereafter he filed Crl.M.P.No.6092/2012 under Section 319 of the Code, to implead the present revision petitioner as 3rd accused and the learned magistrate has allowed the application and issued summons to the revision petitioner, which is being challenged by the petitioner, by filing the revision. 2. It is seen from the proceedings paper that, it was not formally admitted, though notice was issued in the delay petition and after condoning the delay, this court felt that, the revision can be admitted and disposed of on merit, after hearing the counsel for the revision petitioner, the first respondent and the Public Prosecutor.
3. The counsel for the revision petitioner submitted that, there is no allegation in the complaint that the present petitioner was responsible for the publication of the alleged defamatory statement. Further there is no allegation that, there was a malafidie intention to defame him and no personal animosity was mentioned in the complaint. Further the documents produced is of the year 1999, in which the revision petitioner was shown as editor and merely because he is an editor, he cannot be made responsible for the publication and even if the entire allegation is accepted, there is no prima facie case made out to make the present petitioner as an accused for the offence under Section 499 read with Section 500 of the Indian Penal Code. Further the publication was made in good faith and in public interest, so no offence is attracted.
4. On the other hand, the counsel appearing for the first respondent submitted that, in the complaint, it was specifically mentioned that, original accused Nos.2 and 3 were responsible for the publication and they have made the publication without making any enquiry regarding the truthfulness of the allegations and a reading of the publication will go to show that, it is per se defamatory and other things are matter for evidence and the defence need not be considered at that stage. Further being an editor, he is primarily responsible for the publication and there is a statutory presumption available under Section 7 of the Press and Books Registration Act.
5. It is an admitted fact that, there was a news item published in Deshabhimani Daily dated 15.02.2004, stating that, first accused had made a complaint against the complainant that, he is acting as a blade mafia and the illegal activities of the blade mafia has become rampant in that area and he filed a complaint before the Magistrate Court Mattannur, stating that, the accused shown therein including the present revision petitioner, who was shown earlier as Chief Editor of Deshabhimani Daily, were responsible for making the defamatory statement and thereby committed the offence under Section 500 read with Section 34 of the Indian Penal Code.
6. It is also admitted that, after taking sworn statement of the complainant, the case was taken on file as C.C.No.158/2004 against three accused persons mentioned in the complaint including the present revision petitioner, which was challenged by the present revision petitioner by filing Crl. M.C.No.3830/2005 along with the original 3rd accused in the case and as per Annexure-1 order, this court has quashed the proceedings against the revision petitioner alone, stating that, he being the Chief Editor, he is not responsible for the publication and there is no allegations connecting him in the publication, in the position of Chief Editor. Thereafter, it is also seen from the documents produced by the revision petitioner himself that, the complainant filed Crl.M.C.No.2327/2009, when his application to implead the present revision petitioner as 3rd accused in the capacity of editor of the daily on the basis of the documents obtained by him was dismissed by the court below and that was challenged by the complainant by filing the above petition and this court by Annexure-A3 order, dismissed that application, but it was specifically mentioned that, the dismissal of the petition will not affect the right of the magistrate to proceed against the 2nd respondent, who is the present revision petitioner under Section 319 of the Code at a later stage, if warranted. Thereafter, the complainant was examined as PW1 and Exts.P6 and P7 were marked as additional document and thereafter he filed Crl.M.P.No.6092/2012 under Section 319 of the Code and after considering the materials on record, the learned magistrate decided to issue summons to the revision petitioner as 3rd accused, invoking the power under Section 319 of the Code.
7. Section 319 of the Code of Criminal Procedure reads as follows:
319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed
(4) Where the Court proceeds against any person under the sub-section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
8. It is clear from the above provision that, during trial, if the court is satisfied on the materials available that, any other person other than the person arrayed as accused had involved in the commission of the crime, then court can array him an accused and proceed with trial of the case, against the newly impleaded accused along with the accused. Even in a case, where the accused was discharged on the basis of the materials available on the earlier stage, even then, the power under Section 319 of the Code is not restricted or affected for the court to implead that person on a later stage, if the evidence adduced on the side of the prosecution prima facie shows the involvement of that person in the commission of the crime.
9. Earlier the present revision petitioner was shown as Chief Editor and the apex court has in some decisions observed that, the presumption available under Press and Books Registration Act, as regards the editor is not applicable to Chief Editor, unless there are allegations made in the complaint regarding the involvement of the Chief Editor in the selection and publication of the materials in the news item published in the daily. Even in those cases, the Hon'ble Supreme Court has observed that, if there are allegations in the complaint and the evidence prima facie shows that, the involvement of such person, then he can be arrayed as an accused for the alleged defamatory news item being published in the daily and whether it was done in good faith and in any public interest etc., are all matters to be proved by the accused by adducing evidence at the later stage and that cannot be a ground for quashing the proceedings as against those persons against whom the allegations were made.
10. Further for the purpose of invoking power under section 319 of the Code, court need not go into the question as to whether the allegations are sufficient to convict an accused. But the court need only consider, whether there is a prima facie evidence, if it is un-rebutted would end in conviction, that satisfaction alone is required for the court at the time when invoking the power under Section 319 of the Code of Criminal Procedure to implead a new accused in the case. The power of the court to implicate the person as an accused under Section 319 has been considered by the Supreme Court by the Constitution Bench in the decision reported in (2014(1) KLT 336) (S.C) Hardeep Singh v. State of Punjab and in that case, the Hon’ble Supreme Court has observed that, even if the police did not implicate him as an accused, at the time of taking cognisance, if the court is satisfied that, persons other than the persons arrayed in the final report were also involved, the court can issue notice to him also. Further, even the Sessions Court can implicate a new accused at the time of taking cognisance after committal, on the basis of material available or at the later stage, on the basis of evidence invoking the power under Section 319 of the Code. So the powers of the court has been clearly explained in that decision as well. It is true that, while invoking the power under Section 319 of the Code, the court must be very cautious and must be satisfied that, there is prima facie case made out against the accused.
11. In this case, Exts.P6 and P7 produced by the complainant along with the evidence adduced by him will go to show that, the present revision petitioner has been shown as the editor of the daily in the application filed by them for registration under the above mentioned Act. By virtue of showing him as editor, the statutory presumption under Section 7 of that Act will be attracted, making him responsible for the publication of item in the daily. In view of the statutory presumption and also in view of the documents produced by the complainant that, the present revision petitioner is the editor of the daily, which published the alleged defamatory statement the court below was perfectly justified in arraying as an accused, invoking the power under Section 319 of the Code and it cannot be said that, the court below had committed any illegality in exercising the power under Section 319 of the Code to implicate the revision petitioner as accused on the basis of the evidence available on record.
12. The question whether it was done with a public interest and in good faith etc., are matter for evidence and it is a defence that can be taken by the accused to get acquittal and that need not be considered by the court at the time of invoking the power under Section 319 of the Code. Further in the complaint, it was specifically mentioned that, the news item was published with the connivance of both the accused, without making any proper enquiry regarding the genuineness of the allegations made with an intention to defame him. So it cannot be said that, at this stage, there is no allegation in the complaint as well. Whether that is sufficient to attract conviction is matter to be considered by the court on the basis of evidence adduced by both parties at a later stage.
So under the circumstances, there is no merit in the revision and the same is liable to be dismissed. However it is made clear that, any observation made in the case will not prevent the court to consider the involvement of the present revision petitioner in the publication of the news item on the basis of evidence and come to an independent conclusion during trial, as to whether he is liable to be punished for the offence under Section 500 read with Section 34 of the Indian Penal Code along with that persons. Considering the age of the present petitioner after appearance and taking bail, if he applies for personal exemption, then court below is directed to consider and dispose of the application in accordance with law.
With the above observations and direction, the revision petition is dismissed.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss