1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Writ Petition No. 570 of 2010 Sayeed Mohammed v. Ashfaque and anr -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Asif M. Rizwy, Adv for applicant Mr M. Mohtesim Badar, Adv for respdt no.1 Ms K. Deshpande, APP for respdt no.2 Coram: A. P. Bhangale, J Dated: 14th June 2011 1. Heard learned counsel for the parties. By this petition, the petitioner (original accused) seeks to quash and set aside the order dated 1.7.2008 passed by the Judicial Magistrate, First Class, Akola in Summary Criminal Case No. 2603 of 2008 issuing process against the petitioner. 2. Respondent no.1/complainant filed complaint under Sections 499 and 500 of the Indian Penal Code before the Judicial Magistrate, FC, Akola, registered as Summary Criminal Case No. 2603 of 2008. Complainant averred in his complaint that he is “Imam” of Mominpura Masjid, Akola since last several years. He is highly qualified and scholar person. He holds good moral character and due to his cooperative nature, he has got wide recognition in the society. Complaint case was originally filed against present petitioner as also against one Engineer Mohammad Hamid. However, order of issuance of process 2 against Engineer Mohammad Hamid has been set aside by the Additional Sessions Judge, Akola in Criminal Revision No. 300 of 2008 by order dated 23rd July 2010 and, process issued as against the present petitioner was confirmed in Revision. 3. It is stated in the complaint that accused no.1 (present petitioner) is Chief Editor of “Iman Ki Awaz”, a Hindi weekly published from Nagpur. In its issue of 16.5.2008, a news item is published on front page under the title “Hkkjr es oDQ cksMZ ds tfj;s QSy jgk vkradokn” in which it is, inter-alia, published that complainant is terrorist belonging to SIMI branch of Jamate Islami terrorist outfit who was in jail for one year in the State of Gujarath for his illegal activities and instigating riots in many areas and involved into religious riots. He was ratified as President of Wakf Board in Akola on 5.3.2008. Besides, it is alleged that the complainant has entangled several Sunni muslims and thereafter has blackmailed them. Complainant has averred that the news item published is baseless, without any foundation and has caused harm to his reputation and has lowered down his image in the society at large. He prayed that the accused be punished for the offences of defamation punishable under Sections 499, 500 of the Indian Penal Code. 4. After recording verification statement of the complainant, learned Magistrate vide order dated 1.7.2008 issued process against accused persons. Order of issuance of process was challenged by both the accused before the Additional Sessions Judge, Akola vide Criminal Revision No. 300 3 of 2008. The revisional court, as aforesaid, vide order dated 23rd July 2010 set aside the process against original accused no. 2, but maintained the order in respect of applicant/original accused no. 1. 5. It is not in dispute that before initiation of complaint, complainant did not issue any previous notice to the petitioner, Chief Editor; Editor Mohammad Ibad and Joint Editor Dr Mohammad Mursalin or Printer. Learned counsel for the petitioner argued that the complainant has no where stated in the complaint that the contents of article are false and there is also no denial regarding the non-involvement of the respondent with banned organization which is designated by the Government of India as Terrorist Organization. He further urged that the news item was published with a view to warn the governmental organization from associating with persons of dubious character and it was not intended to defame respondent no. 1 and as such it is covered under exception to Section 499 IPC since it was made in good faith. Learned counsel for petitioner further contends that respondent no.1 never sought for any clarification nor produced any material to be published by the petitioner in the Hindi weekly “Iman Ki Awaz” so as to publish clarification that the article was false and defamatory. Learned counsel submits that both the Courts below should have appreciated that it is not defamation to impute anything which is true concerning any person if it be for the public good that such imputation should be made or published whether or not it 4 is for public good is a question of fact. It is contended that the petitioner is covered under freedom of press and even though he holds the position of Chief Editor, he had no knowledge as to the objectionable material published. Learned counsel for the petitioner lastly contended that there is clear-cut note published on page no.2 of the news paper that grievance, if any, are subject to local jurisdiction of the Nagpur Court and, therefore, Court at Akola has no jurisdiction to entertain, try and decide the complaint. 6. Learned counsel for respondent no. 1 supported the impugned order of issuance of process by the learned Magistrate and order of the revisional Court. 7. As regards the jurisdiction of the Court at Akola, complainant has stated in the complaint that the news paper “Iman Ki Awaz” was circulated in Akola also and several people inquired with him about the veracity of news item. Petitioner does not claim that though the news paper is published and printed at Nagpur, it is not circulated at Akola or any other part of the region. It is settled position of law that where a newspaper containing a defamatory article is printed and published at one place and is circulated or sold at other places by or on behalf of the accused responsible for the printing and publishing the newspaper, then there would be publication of defamatory article in all such other places and the jurisdictional Magistrate can entertain the complaint for defamation. Hence, petitioner cannot be heard to say that the Court at Akola had no 5 jurisdiction to entertain the complaint. No publisher can limit the jurisdiction of the Court by merely printing a note in his newspaper. 8. Learned counsel for the petitioner has pressed into service judgment of this Court in Vijay Darda and ors v. Laxmikanth C. Gupta and anr reported in 2005 Cri.L.J. 1886 wherein it is held since the complaint did not indicate that the Chief Editor and publisher had the knowledge of objectionable character of matter, process could not have been issued against them. Learned counsel further relied on Haji v. H. v. TKSMA Muthukoya reported in AIR 1979 SC 154. In the said case, the Apex Court has observed that the term “editor” as defined in Section 1 (1) of the Press and Registration of Books Act means a person who controls the selection of the matter that is published in a newspaper. Where a person’s name is printed in the newspaper as its editor as required by Sections 5(1) and 7 of the Act raises a rebuttable presumption only against such editor. He can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news reports. 9. In my opinion, ratio laid down in the above cases would not be applicable to the case at hand in the facts and circumstances stated. On perusal of the news item in question it is apparent that there is no name of the person who acted as representative “Reporter” thereof. Respondent no.1 is not expected to know the name of such representative reporter unless there is specific mention of such name. Contention of the 6 petitioner that in absence of knowledge of objectionable character of the news attributed to him in the complaint, order of issuance of process should be cancelled, cannot be accepted. In this regard, paragraphs 8 and 9 of the complaint may be seen, which read thus: “8. It is submitted that after the publication of this weekly news paper which was circulated every where so also at Akola several people have enquired with the complainant about the veracity of the article and has thereafter on several occasion in presence of the elite has enquired as to the involvement of complainant with SIMI. In this way, the accused people have by publishing defamatory article has tarnished the image of the complainant as people are making doubt of the character complainant and are trying to avoid the company of complainant. By the publication of the imputation against the complainant the attempt has been made to lower the image of the complainant in the estimation of common man with the malafide of ruining the career of complainant. 9. It is submitted that both the accused are solely liable and responsible being the Chief Editor of Iman Ki Awaz the weekly Hindi newspaper, for the defamatory imputations against by complainainant. Therefore, by this complaint the Hon’ble Court is requested to punish the accused for making defamation of the complainant”. 10. In view of the aforesaid pleading, ratio laid down by the Apex Court in K.M. Mathew v. K.A. Abraham and ors reported in (2002) 6 SCC 670 would be applicable in the present case, which reads thus : “.... There is no statutory immunity for the Managing 7 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. In these cases, the complainants have specifically alleged that these appellants had knowledge of the publication of the alleged defamatory matter and they were responsible for such publication; and the Magistrates who had taken cognizance of the offence held that there was prima facie case against these appellants. It was under such circumstances that the summonses were issued against these appellants.” 11. Even though the complainant (respondent no.1) does not deny that he was in jail for about a year, it is contended on his behalf that no Court in India has so far convicted him and sentenced him to jail. The complainant stated that other part of the news item that he is active member of banned terrorist organization SIMI has prima facie no foundation. There is no prima facie material furnished by the petitioner to show that there is no veracity in the allegation made by the complainant. Process was issued after considering the contents of complaint and the verification on prima facie view of the matter. There is no any infirmity whatsoever in the order for issuance of process against the petitioner-accused. 12. For the reasons stated above, there is no merit in the present criminal writ petition. No interference is called for in 8 the impugned orders. Petition deserves to be dismissed and it is accordingly dismissed. Rule discharged. No order as to costs. JUDGE joshi