Contents

1. 1 APPENDIX 
   1. 1.1 PETITIONER'S ANNEXURES 
   2. 1.2 RESPONDENT'S ANNEXURES 
2. 2 Order 

Whether the proceedings against the Chief Editor in respect of a defamatory publication made is maintainable or not?

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IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN 

FRIDAY, THE 30TH DAY OF AUGUST 2013/8TH BHADRA, 1935 

Crl.MC.No. 1424 of 2008 (T) 

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CC 503/2005 of J.M.F.C.-III,THIRUVANANTHAPURAM 

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PETITIONERS/1ST ACCUSED: 

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V.S.ACHUTHANANDAN, FORMER CHIEF EDITOR DESABHIMANI DAILY, MANJALIKULAM ROAD THIRUVANANTHAPURAM. 

BY ADVS.SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU 

RERSPONDENTS/COMPLAINANT AND STATE: 

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1. M.M.YACOOB, TCT/864 (I) ARAPPURA LANE, VATTIYOORKAVU, THIRUVANANTHAPURAM 

2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 

R1 BY ADVS.SRI.R.S.KALKURA SRI.M.AJAY (IRUMPANAM) R2 BY PUBLIC PROSECUTOR SRI.P.P.PADMALAYAN 

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-08-2013, THE COURT ON 30.8.2013 PASSED THE FOLLOWING: vk Crl.MC.No. 1424 of 2008 (T) 

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APPENDIX 

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PETITIONER'S ANNEXURES 

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ANNEXURE A-1. CERTIFIED COPY OF COMPLAINT. 

ANNEXURE A-2. COPY OF THE NEWS ITEM PUBLISHED IN DESABHIMANI DAILY ON 17.7.2002. 

ANNEXURE A3. COPY OF THE SWORN STATEMENT OF THE WITNESS EXAMINED. 

RESPONDENT'S ANNEXURES 

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ANNEXURE R1(a). COPY OF THE LAWYER'S NOTICE DATED 02.08,2002 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND 2 OTHERS. 

ANNEXURE R1(d). COPY OF THE REPLY NOTICE DATED 15.08.2002 ISSUED BY THE GENERAL EDITOR, DESABHIMANI DAILY. 

/ TRUE COPY / P.A. TO JUDGE VK 

K.RAMAKRISHNAN, JJ. 

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Criminal MC No.1424 of 2008 

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Dated this, the 30th day of August 2013 

Order 

The first accused in CC No.503/05 on the file of the Judicial First Class Magistrate Court-III, Thiruvananthapuram, has filed this application, to quash the proceedings against him in the above case, under Section 482 of the Code of Criminal Procedure.

2. The case of the petitioner, in the petition was that he was the former Chief Editor of Deshabhimani daily and he has received summons from the court on 25.08.2007 to appear before that Court and on enquiry, it was revealed that the case was taken on file on the basis of Annexure-A1 private complaint filed by the first respondent herein against the petitioner and two others, showing them as the Chief Editor, the Printer and Publisher and the Reporter of Deshabhimani daily. It relates to a publication made in the said daily dated 17.7.2002, alleging that the publication contained defamatory statement against him and the said defamatory publication was produced as Annexure-A2. It is alleged in the petition that the petitioner, at the relevant time, was the Leader of Opposition of the Kerala Legislative Assembly and a Politburo member of the Communist Party of India (Marxist). He was also designated as the Chief Editor of the Deshabhimani daily, by his Party. He is, in no way, concerned or involved in the selection of any news item or the publication of the same in the daily. In fact, the post he held was only for a name sake, in the capacity as the Politburo Member of the Party. The person responsible for selection and publication of news in the daily is the person, who is declared as such, under the Press and Registration of Books Act. Law does not confer any responsibility as a Chief Editor for the various news items published in the daily, unless it is specifically alleged and proved that a Chief Editor had personal knowledge about the libel news and responsibility for its publication. There was no allegation in the complaint that the Chief Editor has any role in the publication of the disputed news item and he had even knowledge about the publication. The sworn statement, which is recorded on the reverse page of the complaint itself, only shows that the harmful statement appeared in the daily, of which the petitioner is the Chief Editor. Annexure-A3 is the certified copy of the deposition of the witness examined on the part of the complainant, who also did not mention anything about the role of the petitioner in the publication of the alleged news item. So, there is no allegation made against the petitioner so as to infer that he had committed any offence under Section 499 of the Indian Penal Code and the learned Magistrate should not have taken cognizance of the case as against the petitioner and the prosecution against the petitioner is an abuse of the process of Court and as such, the case against the petitioner has to be quashed. Hence the petition.

3. The first respondent appeared and filed a counter affidavit, denying the allegations in the petition. He had also stated that the defamatory statement made in the news item was published with the knowledge of the petitioner and he, along with the other accused persons, are responsible for the selection and publication of the news item. Further, the allegation made against the petitioner and certain innuendos made will also go to show that they are per se defamatory. There is no statutory immunity to the Chief Editor against prosecution for publication of any defamatory statement. The petitioner cannot claim that he has no control over the newspaper, which is the official organ of the Party of which, he is holding a high position. Though a presumption as strong as the one available against the Editor is not available, the petitioner is also liable as the complainant had made clear averment as to the role played by the petitioner and there are no ambiguities regarding the same. When the news item was brought to the notice of the first respondent, he sent Annexure R1(a) notice to which, Annexure R1(b) reply notice was sent in which, there is no denial that he has no role in the publication of the news item in the disputed daily. But, according to them, the allegations were justified by truth and made in public interest and no offence has been committed by them. So, in the absence of any such denial, it can also be presumed that he was also responsible for the publication and the other things are matters for evidence. Necessary allegations are there in the complaint, which are prima facie sufficient to proceed against the petitioner. At this stage, this Court need not go into the question as to whether the allegations are sufficient to warrant conviction at the time of trial. So, this is not a fit case, where the power under Section 482 of the Code of Criminal Procedure has to be invoked. He, therefore, prayed for dismissal of the petition.

4. Heard the learned counsel for the petitioner, the learned counsel for the first respondent and also the learned Public Prosecutor.

5. The counsel for the petitioner submitted that in order to attract the offence under Section 499 of the Indian Penal Code, it must be alleged in the complaint that the person publishing the news item had a mala fide intention to defame the person mentioned therein and with that intention, the publication has been made. There was no such allegation in the complaint. Further, neither in the complaint nor in the sworn statement of the complainant and his witness, any allegation has been made against the petitioner regarding his role in the selection or publication of the news item in the daily. The Chief Editor has no role in the selection of the news item in the publication of the same. He is not the person declared as the person responsible for the publication as required under the provisions of the Press Regulation Act. Further, the entire news item has to be looked into and a portion of the publication alone cannot be taken for the purpose of ascertaining as to whether it is defamatory or not. The purpose for which the publication was made has to be looked into as a whole and certain portions of the publication alone cannot be extracted as done in this case to allege that the allegations are false and that amounts to defamation. Even assuming that the publication was made, it was made in good faith and it was justified by truth as well. Under such circumstances, there is no offence made out against the first accused, who is the petitioner herein and the learned Magistrate should not have taken cognizance of the complaint against the petitioner and the further proceedings therein as against the petitioner has to be quashed.

6. On the other hand, the learned counsel for the first respondent submitted that there are necessary allegations in the complaint to prima facie attract the offence under Section 499 of the Indian Penal Code as against the petitioner. In the reply notice sent by the first accused as instructed by the alleged Managing Editor of the publication, there is no denial that he had no role in making the publication. On the other hand, they have reiterated that the allegations are true and they are justified by truth. It is a matter to be proved by evidence. If the allegations are to be proved by evidence, then, the power under Section 482 of the Code of Criminal Procedure cannot be invoked and the petitioner is not entitled to the reliefs claimed by him. He, therefore, prayed for dismissal of the petition.

7. The learned Public Prosecutor supported the stand taken by the first respondent.

8. I have considered the rival contentions of both parties in detail.

9. The question to be decided is whether the proceedings against the Chief Editor in respect of a defamatory publication made is maintainable or not. In the decision reported in K.M.Mathew v. State of Kerala (1992 (1) KLT 1), it has been observed as follows : S.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(l). 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. S. l(l) of the Act defines `Editor', to mean `the person who controls the selection of the matter that is published in a newspaper'. S.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. But, this decision has been overruled on other aspects by the decision reported in Adalat Prasad v. Rooplal Jindal (2004 (3) KLT 382 (SC). The main question that was considered in K.M.Mathew's case (supra) was whether there was any bar to drop the proceedings on a later stage after the process has already been issued, if it is found that a complaint on the very face of it does not disclose any offence against the accused and the Honourable Supreme Court, in that decision, held that it was possible. But, that aspect was overruled in the subsequent decision of a Three Judges' Bench of the Honourable Supreme Court in Adalat Prasad's case (supra).

10. In the decision reported in V.S. Achuthanandan v. Kamalamma (2008 (3) KLT 346), it has been observed that in the absence of any positive evidence, implicating the Chief Editor for selection, printing and publishing the so-called defamatory article, no complaint will lie against him. In the same decision, it has been held that in the absence of any specific allegation of mala fide intention, no offence under Section 499 of the Indian Penal Code is disclosed. It is also held in the same decision that the defamatory text has to be read as a whole and not to isolate certain lines or passage from same and say that it is defamatory. It is further observed in the same decision that the Fundamental Rights guaranteed by the Constitution of India is treated as the soul of Democratic society and Government. Article 19(1)(a) of the Constitution of India, confer right to freedom of speech and expression. Freedom of speech and expression includes freedom of press. Freedom of press is not used in Article 19. It is inclusive within Article 19(1)(a). If a news item is published in public interest, then, it will not amount to defamation. The same view has been reiterated in the decision reported in Mammen Mathew v. Radhakrishnan ILR (2007(4) Kerala 406).

11. In the decision reported in Chellappan Pillai v. Karanjia (1962(2) CRL. L. J. 142), a Division Bench of this Court has held as follows : "To bring the publication of a scandalous imputation under the Penal law, it is not necessary to prove that it was done out of any ill-will or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences, which normally follow from his act. A Journalist of some standing can very well be presumed to know or to have reason to believe that the imputation published by him would harm the complainant's reputation ............................To maintain a prosecution for defamation in a particular court, there must be publication of the libel within the limits of the jurisdiction of the court. Where it is a publication of a newspaper containing the libel, it is sufficient to prove that the paper was delivered within the territorial jurisdiction of the court and it need not be proved that the libellous matter was seen or read by any particular person as in the case of a letter. Newspaper is a commodity printed for the purpose of being read and it can be presumed that it was read." This decision has not been referred to in Kamalamma's and Mammen Mathew's cases (supra). It is clear from the above decisions that in the case of libellous or scandalous publications, it is not necessary that it must necessarily affect the reputation of the person in respect of whom, such a publication has been made or intended to be made. It is enough on the part of the publisher or the person responsible for publishing such a news item that it is likely to cause loss of reputation to the person is sufficient. It is not necessary that the article must be read by persons as well, in order to attract the offence under Section 499 of the Indian Penal Code against the persons, who were responsible for publishing the news item.

12. In the decision reported in Mathew v. Abraham (2002 (3) KLT 282 (SC), the question regarding initiating proceedings against the Chief Editor was considered and it was held as follows : 

"There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. 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 selection 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 S.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. In the instant appeals, the complainant in each case has alleged that these appellants who are either Managing Editor or Chief Editor or Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper publications. Moreover, in none of these cases, the 'Editor' had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter for evidence in each case. If the complainant is allowed to proceed against 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. We are not unmindful of the powers of the court under S.319 of the Code of Criminal Procedure, but such powers are circumscribed by limitations." 

The presumption under Section 7 of the Press and Registration of Books Act, 1867 is applicable only to the Editor of the newspaper, whose name has been published in the newspaper. This was so held in the decision reported in C.H.Mohammed Koya v. T.K.S.M.A.Muthukoya (1978 KLT 699) wherein it has been held that it is a rebuttable presumption.

13. Further, in the decision reported in Mathew v. Abraham (2002(3) KLT 282 (SC), it has been held that if the complainants have specifically alleged that the appellants including the Chief Editor had knowledge of the publication of the allegations of defamatory matter and they were responsible for such publication, then, if the Magistrate is satisfied that there is prima facie case against those persons, there is nothing wrong for the Magistrate taking cognizance of the case as against that person. Further, in the same decision, it has been held that at the stage of cognizance, it is not open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. (See State of Bihar v. Rajendra Agrawalla JT 1996(1) SC 60). In the same decision, it has been further observed that though a similar presumption under Section 7 of the Press and Registration of Books Act, 1867 cannot be drawn against the Chief Editor, Resident Editor or Manging 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.

14. In this case, in para 7 of the complaint, it has been stated as follows : 

"7. Accused 1 to 3 herein who are the Chief Editor, Printer and Publisher and Reporter respectively conjoint together and got it published in the said newspaper which is having very wide circulation, popularity and extensive readership and the same is done knowing fully well that it was false with the sole mala fide intention for defaming the complainant herein." 

Further, in paragraph 8, it has been stated as follows : 

"The complainant humbly submits that the said publication has been made by the accused 1 to 3 with the sole intention of harassing and vexing the complainant by defaming and derogating him among the general public and especially among the business and political committee to which the complainant belong and to bring him to contempt and ridicule in the minds of the right thinking people." 

In paragraph 10 of the complaint, it has been specifically mentioned as follows :

"10. The complaint humbly submits that the aforesaid imputations have been based on absolute false facts and the accused 1 to 3 have acted maliciously without any reasonable or probable cause." 

Further, in paragraph 11, it has been stated thus : 

"The said imputations and allegations made by accused 1 to 3 have been made knowingly and deliberately and they are fully aware that the said imputations are false and baseless." 

So, it cannot be said that there is no allegation made against the petitioner in the complaint regarding his knowledge about the publication so as to exculpate him from the proceedings at this stage.

15. The complainant had issued Annexure R1(a) notice before filing Annexure A1 complaint in which he had stated that all the three accused persons were responsible for the publication. In the reply notice, namely, Ext.R1(b), there is nothing mentioned about the role of the petitioner in the selection, printing or publication of the matter. There is no specific denial that he was not responsible for the publication. On the other hand, they have sent a joint reply through the General Editor of the Deshabhimani daily, stating that it was not defamatory and it was not intended to be so and it was done in public interest and in good faith and no offence was committed by the Chief Editor, Printer, Publisher and Reporter. So, there is no specific denial in the reply notice that the present petitioner had no role in effecting the publication. On the other hand, a joint defence was taken in the reply notice that it was done in good faith and the allegations made are not defamatory as well. Under such circumstances, it cannot be said that there was no specific allegations in the complaint that the first accused was also responsible for making the publication as the notice and reply notice were also produced along with the complaint. Whether he had active role or not, is a matter for evidence.

16. Regarding the defamatory statement, the statement published in the newspaper reads thus : 

'' ( ( . . ( ( . ( (   .'' 

17. It is true that the entire report has to be considered to find out whether a particular statement is defamatory or not, if the entire news item relates to a particular person. But, when a general report has been given in respect of a particular person in which some defamatory statements were made in respect of another person, then, only those portions relating to that person alone need be looked into to consider the question whether that is defamatory or not as against the person, who filed the complaint. A perusal of the statement extracted above will go to show that it is per se defamatory and it relates to the present complainant. So, it cannot be said that the news item relating to the complainant is not per se defamatory and no action will lie on that basis. Further, the question whether the petitioner is entitled to rely on the defence of good faith or public interest are matters to be pleaded and proved by adducing evidence (See the decision in Rumugan v. Kittu (2009(1) KLT Suppl.841 SC).

18. It is settled law that if there are prima facie allegations to proceed against the accused, and other matters are matters to be proved by evidence, then, the complaint cannot be quashed at the threshold, invoking the power under Section 482 of the Code of Criminal Procedure (See the decision in Arun Bhandari v. State of UP (2013 (1) Supp. 131). In this case, the alleged news item is per se defamatory and there are allegations in the complaint that all the three accused persons are responsible for the publication of the news item and it was published by the three accused persons jointly with an intention to defame the complainant. Under such circumstances, it cannot be said that there is no specific allegation in the complaint against the petitioner and all other things alleged are matters for evidence and the Magistrate was perfectly justified in taking cognizance of the case against the present petitioner as well and the proceedings are not liable to be quashed, invoking Section 482 of the Code of Criminal Procedure and the petitioner is not entitled to get the relief claimed in the petition and the petition is liable to be dismissed. 

In the result, the Criminal Miscellaneous Case is dismissed. However, it is made clear that the observations in this order are made only for the purpose of considering the question as to whether there is prima facie evidence for proceeding against the petitioner or not and the Magistrate will be at liberty to consider the entire matter afresh at the time of trial on the basis of evidence and dispose of the same in accordance with law. The parties are directed to appear before the court below on 30.09.2013. Interim stay granted by this Court is vacated. If the petitioner applies for personal exemption, the court may consider the same and pass appropriate orders thereon in accordance with law.

Office is directed to communicate this order to the court below at the earliest. 

K.RAMAKRISHNAN,JUDGE 

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