2016 (12) TMI 1774 - SC - Indian Laws

Negative remarks against the individuals in the newspapers based on statement of authority after search - Whether impugned publications make out a case for offence under the aforesaid provisions of the Indian Penal Code? HELD THAT - Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Code of Criminal Procedure was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. Appeal allowed.

Issues Involved:
1. Compliance with Section 202 of the Code of Criminal Procedure (Cr.P.C.)
2. Vicarious liability in criminal defamation.
3. Applicability of the Press and Registration of Books Act, 1861 (Press Act).
4. Freedom of speech and the role of the press.
5. Issuance of process by the Magistrate.
6. Quashing of proceedings against A-2 by the High Court.

Detailed Analysis:

1. Compliance with Section 202 of the Code of Criminal Procedure (Cr.P.C.):
The appellant argued that the Magistrate did not comply with the mandatory provisions of Section 202 Cr.P.C., which requires an inquiry or investigation before summoning an accused residing beyond the Magistrate's jurisdiction. The Court emphasized the amendment in Section 202 Cr.P.C. in 2005, which mandates this inquiry to prevent harassment of innocent persons by unscrupulous complainants. The Court noted that the Magistrate's order lacked any indication of such an inquiry, thereby failing to meet the mandatory requirement. The Court cited precedents, including Vijay Dhanuka v. Najima Mamtaj (2014) and Mehmood Ul Rehman v. Khazir Mohammad Tunda (2016), to underline the necessity of this procedural safeguard.

2. Vicarious Liability in Criminal Defamation:
The appellant contended that there is no vicarious liability in criminal defamation, meaning a person can only be held liable for their own acts with the necessary mens rea (criminal mind). The Court referred to Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd. (2010) to support this argument, emphasizing that vicarious liability must be explicitly provided for in the statute. The appellant argued that A-1, being in a similar position as A-2, should also have had the process quashed on the same reasoning.

3. Applicability of the Press and Registration of Books Act, 1861 (Press Act):
The appellant argued that under the Press Act, responsibility for wrongful acts in publications primarily lies with the person declared as the 'editor' in the statutory declaration. The Court noted that the declaration under Section 7 of the Press Act creates a rebuttable presumption regarding the editor's responsibility but does not automatically impose criminal liability on others like the printer or publisher. The Court highlighted that the description of A-1 as "Managing Director Editor" does not suffice to establish liability without further inquiry.

4. Freedom of Speech and the Role of the Press:
The appellant emphasized the importance of freedom of speech and the press, arguing that the publications were based on statements made by the Lokayukta of Karnataka, a former Supreme Court Judge, during a press conference. The appellant argued that the press has a duty to report such statements and that prosecuting the newspaper for doing so would deter the exercise of this fundamental right. The Court acknowledged the significance of protecting press freedom but also recognized the need to balance it against the right to reputation.

5. Issuance of Process by the Magistrate:
The Court examined whether the Magistrate followed the correct procedure while issuing the process against A-1 and A-2. It found that the Magistrate's order lacked the necessary inquiry or investigation as mandated by Section 202 Cr.P.C. The Court noted that the Magistrate did not apply his mind to whether there was sufficient ground to proceed against A-1 and A-2, particularly given their lack of direct involvement in the publication as indicated by the absence of their names in the statutory declaration under the Press Act.

6. Quashing of Proceedings Against A-2 by the High Court:
The High Court had quashed the proceedings against A-2 on the grounds that he was only shown as the Chairman and not actually associated with the publication. The Supreme Court found that the High Court did not provide cogent reasons for this conclusion. The Court directed the Magistrate to conduct a proper inquiry to determine whether A-2 was actually associated with the publication, thereby allowing the complainant an opportunity to present evidence on this matter.

Conclusion:
The Supreme Court allowed the appeal of A-1, quashing the notice dated 24th November 2009, and directed the Magistrate to take up the matter afresh, following the procedure under Section 202 Cr.P.C. Similarly, the Court allowed the complainant's appeal regarding A-2, directing the Magistrate to hold an inquiry and apply his mind to whether notice should be issued against A-1 and A-2. The Court emphasized the need for careful application of mind and adherence to procedural requirements to prevent misuse of the criminal justice system. No orders as to costs were made.

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