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TMI Blog2007 (1) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... dual Resident Editors. On or about 10/12/1997 the applicant received the summons (without a copy of the complaint) to appear on 19/12/1997 before the learned JMFC, A.C. Court, at Pune in Criminal Case No. 1912 of 1997. The said case was filed by the present respondent no. 2 on or about 16/7/1997 and on verification, the learned Magistrate had issued process under Section 500 read with Section 34 of IPC. 3. It was stated in the said complaint by the respondent no. 2 that on 20/5/1997 a news item was published in the Pune Edition of Loksatta newspaper alleging defamatory and malicious imputations against the complainant and by the said publication the accused had acted to defame him. The present applicant was impleaded as accused no. 1 while accused nos.2 to 4 were arraigned in the said complaints on the grounds that accused no. 2 Shri George Varghese was the Printer and Publisher, accused no. 3 Shri Aroon Tikekar was the Editor of all editions and accused no. 4 Shri Anil Takalkar was the Resident Editor of Loksatta, Pune Edition and that by the said publication they had committed an offence punishable under Sections 500 to 502 read with Section 34 of IPC. As noted earlier, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizance of the offence against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. In the absence of any positive averments against the Chief Editor, the Magistrate was not justified in issuing the order of process and the said order has resulted in the abuse of the judicial process. It is also alleged that the order of issuance of process was passed without application of mind and in a casual manner. The applicant has stated that following Criminal Applications were filed against the Managing Editor and/or Chief Editor and the proceedings came to be stayed: (a) Criminal Application No. 2548/93 (b) Criminal Application No. 1755/93 (c) Criminal Application No. 602/93 (d) Criminal Application No. 907/95 (e) Criminal Application No. 1562/95 (f) Criminal Application No. 191/96 (g) Criminal Application No. 192/96 (h) Criminal Application No. 184/96 5. During the course of the arguments, Mr.Chitnis the learned Senior Counsel has invited my attention to the provisions of Section 499 of IPC and more particularly to the Fourth Exception thereunder, which reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist the accused nos.5 and 6 and as per their statements and interviews with the said accused on 20/5/1997. He also stated in the complaint that the accused nos.1 to 4 were aware that by such publication of the news, he would be defamed. As per him substantially true reporting is not sufficient and it is necessary for the newspaper to verify the correctness of allegations made in the plaint before it is reported in the newspaper. It was also submitted that if the defendants reply was not available before the court concerned in the suit proceedings denying the allegations made in the plaint, it was necessary for the accused nos.1 to 4 to contact the complainant and obtain his side of the story or his reply to the said allegations. Mr. Joshi also referred to the judgment in the case of K.M. Mathew v. K.A. Abraham and Ors. 2002CriLJ4111 (hereinafter referred to as Mathew-II) in support of his contentions that the law laid down in Mathew-I in the year 1992 is no more a good law and a presumption against the Editor or Resident Editor cannot be drawn unless it is specifically rebutted and this rebuttal can be by only leading evidence. Mr. Joshi, therefore, urged that the applicant-accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and responsible for the day to day reporting and, therefore, so long as the Editor and/or Printer and Publisher has impleaded as accused, the Managing Editor cannot be made to face prosecution in such a complaint of defamation, and (b) So long as the reporting in the newspaper is substantially a true version of the court proceedings or a judgment/order of a court of law or tribunal, it would not amount to defamation within the meaning of Section 499 in view of the fourth exception thereunder. If the applicant succeeds on the first point, I need not venture to decide the second issue, which in any case is awaiting adjudication in Writ Petition Nos.974 and 975 of 2002. 11. Section 7 of the Act reads as under: 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 or 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 its as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7 of the Act has no applicability for a person who is simply named as Chief Editor. The presumption under S. 7 is only against the person whose name is printed as Editor as required under S. 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 S. 7 of the Act...... 10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the Editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 of the Act, and in case such Editor succeeds in proving that he was not the Editor having control over the selection of the alleged libellous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit.... 12. It is thus clear that in Mathew-II, a further clarification has been given on scanning the provisions of Section 7 of the Act and more particularly that the presumption against the editor is rebuttable which implies that by leading evidence an editor could prove that though his name was mentioned or printed as editor on the newspaper, he was, in fact, not responsible for the day to day reporting in the news paper or the articles published and someone else was responsible and in such a situation if the Managing Editor or the Chief Editor is allowed to be discharged at the threshold by setting aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing their respective responsibilities for the Pune edition of Loksatta as well as the accused no. 3 claiming himself to be responsible for all the editions of the Marathi Daily Loksatta and, therefore, the law laid down in Mathew-II (Supra) cannot be made applicable to this case. 15. On the other hand, the facts of this case could be compared with the facts in the case of State of Maharashtra v. Dr. R.B. Chowdhary and Ors. 1968CriLJ95 . The Public Prosecutor, West Khandesh, Dhulia with the previous sanction of the State Government filed a complaint against four persons who were members of the Editorial Board of a Marathi Weekly named Maharashtra under Section 500 of the Indian Penal Code alleging that in the issue of Maharashtra dated 30/10/1959 an article was published which tended to the defame one M.A. Deshmukh I.A.S. Collector and District Magistrate, West Khandesh in respect of his conduct in the discharge of his public functions. The editor of the said Weekly was one Mr.Madane and it was registered as a newspaper and a declaration in Form 1 under Article 3 of the Act was also filed. The copy of the Weekly in which the alleged documentary article appeared be over the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person so named under the provisions of the Press Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper.... It would thus be clear that under Section 5(1) of the Press Act the legal requirement is that every newspaper shall contain the name of the owner and the editor printed clearly, so that there is no confusion in the minds of the people on this account. Sub-section (2) of Section 5 of the Press Act makes it incumbent on the printer and the publisher to appear before the authorities mentioned in that section and make a declaration.... The intention of the rule is merely to clarify who the editor of the paper is and once this is shown then there is a substantial though not a literal compliance of the rule. Secondly, the Press Act does not recognise any other legal entity except the editor in so far as the responsibilities of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r accused no. 2 and/or the editor of all the editions of Loksatta i.e. accused no. 3. On the face of these averments made on oath by the accused nos.2 to 4, the law laid down in the case of Mathew-I will be squarely applicable in the instant case and, therefore, it will have to be held that the responsibility for the publication of the newspaper on 20/5/1997 would be that of the Resident Editor, Printer and Publisher and/or the Editor of all editions of Loksatta and the final outcome of the complaint will be subject to the evidence that may be adduced before the trial court, so far as the first issue under consideration in this application is concerned. There is no scope for the Resident Editor and/or the Editor to rebut the presumption contemplated under Section 7 of the Act in this case and therefore the ratio in the case of Mathew-II is not applicable. As far as the applicant is concerned, in view of the presumption drawn under Section 7 of the Act against accused nos.2 to 4 or any one of them, there is no case for the present applicant to face the trial and hence it is not necessary to answer the second issue as framed earlier for considerations. Undoubtedly, the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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