IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Crl.MC.No. 866 of 2009(C) ------------------------------------ CC.NO.658/2008 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA. .................... PETITIONER/ACCUSED NO.2: ------------------------------------------ E.P.JAYARAJAN, PRINTER AND PUBLISHER OF THE DESHABHIMANI DAILY, DESHABHIMANI OFFICE, THIRUVANANTHAPURAM. BY ADVS. MR.K.BALACHANDRAN (MANGALATH), MR.RAJESH NAIR, MR.BIJOY CHANDRAN. RESPONDENTS/COMPLAINANT AND THE STATE: ----------------------------------------------------------------------- 1. G.SURENDRAN, S/O.LANTIL GOVUNDAN, CO-OPERATIVE EMPLOYEE, PRALEYAGIRI, THOKODE DESOM, CHEMMARUTHY VILLAGE. CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.P.N.MOHANAN, R2 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.866 OF 2009 =========================== Dated this the 13th day of November,2009 ORDER Petitioner the printer and publisher of Deshabhimani Daily, the second accused in C.C.658/2008 on the file of Judicial First Class Magistrate Court I, Varkala filed this petition under section 482 of Code of Criminal Procedure to quash the complaint as against him contending that it is only an abuse of process of the court. First respondent filed Annexure A complaint before Judicial First Class Magistrate Court, Varkala against petitioner and one Sundaresan alleging that they committed an offence under section 499 punishable under section 500 of Indian penal Code. It was taken cognizance by the learned Magistrate. The allegation in the complaint is that first accused called a Press Conference on 4.7.2007 Crl.M.C.866/2009 2 and made defamatory allegations against first respondent and it was published in Deshabhimani Daily and petitioner as printer and publisher is responsible for publication of the news and therefore both the accused committed the offence. The allegations as against the petitioner is that without finding out the correctness of the allegations in the defamatory statement made by the first accused, petitioner with the intention to defame first respondent published the defamatory statement in Deshabhimani Daily dated 5.7.2007 and thereby committed the offence. It is contended that first respondent was a member of the political party and petitioner is a political leader and due to the difference of opinion, first respondent had resigned from the party and due to the enemity the defamatory statements were published and by reading the news from the Deshabhimani Daily, first respondent found that persons were avoiding him and looking him with Crl.M.C.866/2009 3 contempt. This petition is filed under section 482 of Code of Criminal Procedure contending that as disclosed in the complaint itself, the Press Conference was telecasted in ACV new channel live and it was retelecasted and still no action was taken against the persons responsible for telecasting it in ACV channel and hence prosecution of the petitioner is an abuse of process of the court and that too out of political reasons. It is also contended that petitioner is only the printer and publisher and as he is not selecting news items, which is the duty of the Editor, and still no action was taken against the Editor and therefore the proceedings as against the petitioner is without bona fides and is to be quashed. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. Learned counsel relying on the decision of the Apex Court in C.H.Mohammed Koya v. T.K.S.M.A. Muthukoya (1978 KLT 699) and the decisions of a Crl.M.C.866/2009 4 learned single of High Court of Karnataka in Editor, Deccan Herald v. M.S.Ramaraju( 2005(2) KLD (Crl)356) and a learned single Judge of this court in Achuthanandan V.S. v. V.G.Kamalamma (2008(2)KHC 562) argued that being the printer and publisher, petitioner is not responsible for selection of the news items and as it is the duty of the editor, petitioner cannot be prosecuted for publishing the news item selected by the editor and therefore the prosecution is to be quashed. Learned counsel also argued that if the grievance of the petitioner is about publication of the statement made by the first accused, which according to first respondent is defamatory, the publication was first by ACV channel and the fact that no action is taken against ACV channel shows that petitioner has no grievance against publication of the statement made by the first accused and petitioner is being prosecuted only because first respondent was earlier a member of the political party and he was Crl.M.C.866/2009 5 ousted from the party and due to that enemity and therefore continuation of the prosecution as against the petitioner is only an abuse of process of the court. Learned counsel appearing for the petitioner also pointed out that not only that first respondent did not prosecute the ACV channel or the persons responsible for telecasting in the channel but cited the person responsible for telecasting as a witness, which implies that there is no grievance against publication of the statement by ACV channel and if that be so, petitioner cannot be prosecuted for publishing the same news item. 4. Learned counsel appearing for the first respondent argued that there is allegation in the complaint that petitioner because of his enemity with the first respondent, published the statement made by first accused with the knowledge that they are not true and by its publication reputation of the first respondent was badly affected and Crl.M.C.866/2009 6 therefore petitioner is liable. It is argued that in view of Section 7 of the Press and Registration of Books Act, publisher is presumed to have knowledge about the matters published in the newspaper and question whether the publication was made without his knowledge, though it is a defence can only be decided at the time of trial and therefore based on the defence the case cannot be quashed. Reliance was placed on the decision of the Apex Court in Mathew v. Abraham (2002(3) KLT 282) wherein with respect to a plea for quashing of a complaint by the Chief Editor, it was held by the Apex Court that it is a matter for evidence and cannot be quashed invoking the powers under section 482 of Code of Criminal Procedure. 5. Though learned counsel appearing for the petitioner relying on the decision of the Apex Court in C.H. Muhammed Koya's case (supra) and the decision of the Karnataka High Court in Editor, Deccan Herald's case (supra) and the decision of Crl.M.C.866/2009 7 the learned single Judge in Achudanandan’s case (supra)argued that in the absence of the allegation in the complaint that petitioner is responsible for selecting the news item, with respect to the Press Conference made by the first accused, petitioner cannot be prosecuted in view of Section 7 of the Press and Registration Books Act, I cannot accept the submission. It is more so, in view of the decision of the Apex Court in Mathew's case (supra). It is seen that while considering Achudanandan’s case (supra), the decision of a Division Bench of this court in Chellappan Pillai v. Karanjia (1962(2) Crl.L.J 142) was not brought to the notice of the learned single Judge. The question considered by the Division Bench was exactly the same question. Their Lordships held:- “12. That publication of a photograph with a false caption would amount to defamation cannot be Crl.M.C.866/2009 8 disputed. Reference may be made to the decision in Cassidy v. Daily Mirror Newspapers Ltd. 1929-2 KB 331 a case of a publication of a photograph with a caption which was said to have defamed the plaintiff. The defendants published in a newspaper a photograph of one M.C.and a Miss X together with the words “Mr.M the race horseowner, and Miss X, whose engagement has been announced”. The plaintiff was, and was known among her friends as the lawful wife of M.C. The plaintiff alleged that she had Crl.M.C.866/2009 9 suffered damage through the above publication in as much as it was intended, and by several people understood, to mean that Cassidy was not the plaintiff's husband but was living with her in immoral cohabitation. It was held that the publication was capable of conveying a meaning defamatory of the plaintiff and the jury having found that it conveyed to reasonably minded people an aspersion on her moral character, she was entitled to damages. 13. The question whether the alleged libel was Crl.M.C.866/2009 10 published with the knowledge that it would apply to the complainant is also of no consequence. Since the decision in E.Hulton and Co.v. Jones, 1910 AC 20 it is impossible for the person publishing a statement which, to those who know certain facts is capable of a defamatory meaning in regard to A to defend himself by saying : “ I never heard of A and did not mean to injure him” If he publishes words reasonably capable of being read as relating directly or indirectly to A and, to whose who know the facts Crl.M.C.866/2009 11 about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words. If publishers of newspapers who have no more rights than private persons, publish statements which may be defamatory of other people, without inquiry as to their truth, in order to make their paper attractive, they must take the consequences if on subsequent inquiry, their statements are found to be untrue or capable of defamatory inferences.” Crl.M.C.866/2009 12 6. Section 7 of the Press Registration Books Act reads:- “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 of 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 it as that of the editor) shall be held (unless the contrary be proved) to be sufficient evidence as against the person whose name shall be subscribed to such declaration, (or printed on such newspaper, as the case may be) that the Crl.M.C.866/2009 13 said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every (newspaper) whereof the title shall correspond with the title of the (newspaper) mentioned in the declaration (or the editor of every portion of that issue of the newspaper of which a copy is produced.” In view of Section 7 petitioner who is admittedly the editor of Deshabhimani Daily which published the news item is presumed to be responsible for the publication of that news items, unless the contrary is proved. Though petitioner at the time of trial could prove that the publication was made without his knowledge or information and if it is proved, Crl.M.C.866/2009 14 petitioner as printer and publisher may not be liable for the offence. But without proving that the publication was made without his knowledge or permission, the proceedings cannot be quashed on the ground that there is no specific allegation that he is responsible for publication of the news item. Similarly for the reason that first respondent did not prosecute the editor or Chief Editor, whose duty is to select the news item, a publisher cannot be absolved from the liability at the initial stage, as sought for. Therefore based on the decisions relied on the proceedings cannot be quashed as against the petitioner. 7. But the question whether the proceedings is an abuse of process of the court as against the petitioner is a question which is to be seriously considered. The complaint itself establish that the Press Conference made by the first accused was telecasted live by ACV channel and it was retelecasted. Therefore even according to first Crl.M.C.866/2009 15 respondent, the publication in the news item of Deshabhimani Daily on the next day was after it was telecasted live and retelecasted by ACV channel. If the grievance of the first respondent is that by publication of the news item, reputation of the first respondent is badly affected, it is mainly affected by the first publication i.e. by live telecast and its retelecast. If that be so, without proceeding against the persons responsible for the live telecast and its retelecast, prosecution against the second accused, who is only the publisher of the newspaper, when that publication was only on the next day, is clearly an abuse of process of the court. If the grievance of the first respondent with regard to the publication that the defamatory statement adversely affected his reputation is true, first respondent should have first proceeded against the news channel or its officials who are responsible for the live telecast and its Crl.M.C.866/2009 16 retelecast. So also the fact that eventhough it is the Chief Editor or the Editor who in the ordinary course responsible for selecting the news item, first respondent is not prosecuting the Editor or Chief Editor. It shows that prosecution as against the second accused is out of malice and not bona fide. In such circumstances, it is not in the interest of justice to continue the prosecution as against the petitioner. Petition is allowed. C.C.658/2008 on the file of Judicial First Class Magistrate Court, Varkala as against the petitioner the second accused is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006