Criminal Appeal No 711 of 1991
From the Judgment and Order dated 2871988 of the Kerala High Court in Crl
RP No 59 of 1988
Kapil Sibal and EMS Anam for the Appellant
ASNambiar and KR Nambiar for the Respondent
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
We grant special leave and proceed to dispose of the matter
This appeal against a decision of the Kerala High Court raises an important question concerning the power of the Magistrate to drop proceedings against an accused in a summons case after process is issued
The facts are simple
KMMathew appellant is the Chief Editor of Malayala Manorma
It is a daily newspaper with wide circulation the State of Kerala and seems to be the largest language newspaper in India
Separate editions of the newspaper are published from different centresnamely Trivendrum Kottayam Cochin and Calicut
At each of these section there is a separately Editor who is responsible for selection and publication to the items The chief editor is based at Kottayam and he is responsible for the genaral policy of the Daily and various other publicalions of the Manaroma group of publications
Respondent No 2 is an case was that the news item published in the Daily
His case was that the news item was published with the sole object of ridiculing and defaming him
He lodged a complaint before the court of Addi 367 tional Judicial Magistrate against the Chief Editor the Printer and Publisher of the newspaper alleging that they have committed an offence punishable under Sections 500  34 IPC
The learned Magistrate examined the complainant on oath and took the complaint on file as CC 496 85
He issued summons to the accused
The accused upon service entered appearance and pleaded not guilty
Before the evidence was recorded the Chief Editor requested the Magistrate to drop the proceedings against him He contended that the complainant has not alleged that the Chief Editor was responsible for selection of the news item and publication thereof
There was not even an averment in the complaint that the Chief Editor has perused the material or edited before its publication or that it was published with his knowledge or consent
After hearing the parties the Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him
To be more precise the Magis trate directed that the complaint so far as it relates to the Chief Editor could not be proceeded with
The complainant took up the matter to the High Court in revision
The High Court allowed the revision and set aside the order of the Magistrate
The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor
The High Court rested its conclusion solely on the procedural requirements of the trial of a summons case
It has been pointed out that in any private complaint triable as a summons case the Magistrate after taking cognizance of the offence and issuing process has no jurisdiction to drop proceedings against the accused
He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance
He will have to state the partic ulars of the offence and record the plea of the accused
When the accused pleads not guilty he will have to hear the prosecution and take all such evidence produced in support of the prosecution
Then he will have to hear the accused and take all such evidence produced in support of the de fence
The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties
There is no question of discharging the accused at an intermediate stage
There is no provision in the Code for dropping the proceedings against any ac cused
So stating the High Court has directed the Magistrate to proceed with the trial of all the accused
The High Court seems to be too technical in this regard
If one reads carefully the provisions relating to trial of summons cases the power to 368 drop proceedings against the
accused cannot be
denied to the Magistrate Section 204 of the Code indicates 
the proceedings before the Magistrate commmences upon taking cognizance of the offence and the issue of summons to the accused
When the accused enters apperance in response to the summons the Magistrate has to take proceedings under Chapter XX of the Code
But the need to try the accused arises  when they is allegation in the comnplaint that the accused has commited the crime If there is no allegation in the complaint involving the accused
in the commission of the crime it is implied that the Magistarte has no jurisdlction to proceed against the accused
It is open to the accused to plead bfore the Magis tarate that the process against him ought
no to have been issued
The Magistrate may drop the proceedings if he is statisfied on reconsideration of the complaint that there is no offence for which the accuseed could be tried
It is his judicial desetion 
No specific provision required for the Magistrate t0 drop the proceedings or rescind the proc ess The order issumg the process is an interim order and not a judgment
It can be varied or recalled
The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused In the instant case there is no averment against the Chief Editor except the motive attributed to him
Even the motive alleged is general and vague
The complainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act 1867  the Act 
But Sec tion 7 of the Act has no applicability for a person who is simply named as Chief Editor 
The presumption under Sec tion 7 is only against the person whose name is printed as editor  as required under Section 51
There is a mandato ry 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 11 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 rrising the presumption
Even if the name of the Chief Editor is printed in the newspaper
there is no presumption against him under Section 7 of the Act
See State of Maharashtra vs Dr RB
Chowdhary  Ors  UP Mishra vs Kamal Narain Sharma  Ors 1971 3 SCR 257 Narasingha Charan Mohanty vs Surendra Mohanty  and haji CH mohamad Koya vs TKSMA Muthukoya  369 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 allegation the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with
To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive
No person should be tried without a prima facie case
The view taken by the High Court is untenable
The appeal is accordingly allowed
The order of the High Court is set aside
VPR Appeal allowed


Summary:
Appellant was a tenant under the respondents
Action for eviction against the appellant was initiated on the pleas that there was wilful default in the matter of payment of rent and that the lease was residential but it had been used partly for commercial activity
At the time of filing of the petition for eviction three months  rent had fallen due
The appellant s case was that rent was not being collected every month and every two to three months the respondents landlords used to come and collect rent at their convenience and that mixed use of the premises was the basis of the tenancy
The original authority dismissed the petition
In appeal it was reversed
The High Court upheld the reversal holding that there was no case of wilful default and that the prem ises had been rented out also for business use
In the appeal by special leave the tenant appellant contended that there was no case of wilful default and that the premises had been rented out also for business use and the change of user was since 1973
Allowing the appeal of the tenant this court HELD 1
In the several statutes operating in the different states regulating the law relating to landlord and tenant wilful  default has been made the ground of eviction while default is not
205 E 204 2
A situation where the landlord had consented to collect rent for two to three months a time non payment of rent for three months cannot constitute wilful default
205 F 3
It is not disputed that from 1973 there had been change of use
The petition for eviction was of 1980
It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought conversion was made the second ground
In these circumstances the landlords accepted the user to be also other than residential
205 C D section Sundaram Pillai  Ors
VR Pattabiraman  Ors
   Premchand Banka vs
A Vasanthrai Khatod  Ors CANo 1367 of 1991 decided on 2731991 referred to