GAMBHIRSINH R. DEKAREversusFALGUNBHAI CHIMANBHAI PATEL AND ANR.

                    (2013] 4 S.C.R. 719


                GAMBHIRSINH R. DEKARE                             A
                              v.
      FALGUNBHAI CHIMANBHAI PATEL AND ANR.
          (Criminal Appeal No. 433 of 2013)
                     MARCH 11, 2013
                                                                  B
          [CHANDRAMAULI KR. PRASAD AND
               V. GOPALA GOWDA, JJ.]

     Code of Criminal Procedure, 1973 - s.482 - Defamatory
news item - In local edition of a newspaper - Complaint against C
Editor and Resident Editor alleging defamation - Magistrate
took cognizance of the offence and issued process against
both the accused - Editor sought quashing of the complaint
on the ground that he was not aware of offending news item
as he was stationed at different place - High Court quashed D
the complaint against the Editor - Held: High Court quashed
the prosecution on erroneous assumption of fact - In view of
the scheme of Press and Registration of Books Act and in
view of presumption provided u/s. 7 thereof, Editor is
responsible for publication of a news item - Press and E
Registration of Books Act, 1867 - s. 7.

      A news item was published in a newspaper alleging
illicit rlation of the appellant with a lady. Appellant filed a
complaint against Accused Nos.1 and 2 who were
Resident Editor and Editor of the Newspaper respectively.         F
Chief Judicial Magistrate took cognizance of the offence
u/ss. 500, 501, 502, 506, 507 and 114 IPC and issued
process against both the accused.

     Accused-respondent No.1 (the Editor) filed                   G
application seeking quashing of the complaint on the
ground that he was the Editor of the Newspaper and
stationed at Ahmedabad and the offending news item
was published in the Vadodara Edition of the newspaper
                         719                                      H
   720     SUPREME COURT REPORTS              [2013] 4 S.C.R.


A of which accused No.1 was the resident Editor. Thus he
  was not aware of the publication of the offending news
  item. High Court quashed the complaint and process
  against the accused-respondent No.1. Hence the instant
  appeal by the complainant.
B
      Allowing the appeal, the Court

       HELD: 1. Complainant had specifically averred in the
  complaint that the news item was printed in the
  newspaper as per the instructions and directions of the
C accused persons. The complainant had specifically
  alleged that accused nos. 1 and 2 deliberately published
  the offending news and it was within their knowledge. At
  this stage, it is impermissible to go into the truthfulness
  or otherwise of the allegation and one has to proceed on
D a footing that the allegation made is true. Hence, the
  conclusion reached by the High Court that "there is
  nothing in the complaint to suggest that the petitioner
  herein was aware of the offending news item being
  published or that he had any role to play in the selection
E of such item for publication" is palpably wrong. Hence,
  the High Court has quashed the prosecution on an
  erroneous assumption of fact which renders its order
  illegal. [Para 12] [725-F-H; 726-A-B]

       2. A news item has the potentiality of bringing
F doom's day for an individual. The Editor controls the
  selection of the matter that is published. Therefore, he has
  to keep a careful eye on the selection. Blue-penciling of
  news articles by any one other than the Editor is not
  welcome in a democratic polity. Editors have to take
G responsibility of everything they publish and to maintain
  the integrity of published record. The scheme and scope
  of Press and Registration of Books Act, 1867 also brings
  forward the same conclusion. From the scheme of the
  Act, it is evident that it is the Editor who controls the
H selection of the matter that is published in a newspaper.
GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 721
                    PATEL
Further, every copy of the newspaper is required to          A
contain the names of the owner and the Editor and once
the name of the Editor is shown, he shall be held
responsible in any civil and criminal proceeding. Further,
in view of the interpretation clause, the presumption
would be that he was the person who controlled the           B
selection of the matter that was published in the
newspaper. However, this presumption u/s.7 of the Act
is a rebuttable presumption and it would be deemed a
sufficient evidence unless the contrary is proved. [Paras
14, 15 and 18] [726-E-F, H; 728-D-F]                         c
     K.M. Mathew v. K.A. Abraham (2002) 6 SCC 670: 2002
(1) Suppl. SCR 662 - relied on.

     K.M. Mathew v. State of Kera/a (1992) 1 SCC 217: 1991
(2) Suppl. SCR 364; Ada/at Prasad v. Roop/al Jindal (2004)   D
7 sec 338 - referred to.
                    Case Law Reference:
    2002 (1) Suppl. SCR 662     relied on       Para 18
                                                             E
    1991 (2) Suppl. SCR 364     referred to     Para 19
    (2004) 7 sec 338            referred to     Para 22
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 433 of 2013.                                             F
    From the Judgment & Order dated 12.10.2007 of the
High Court of Gujarat at Ahmedabad in Criminal Misc.
Application No. 5605 of 2001.

    Huzefa Ahmadi, Ejaz Maqbool, Tanima Kishore for the      G
Applellant

    Dushyant A. Dave, Suk Sagar, Bina Madhavan, Sanjiv
Dave, Anindita Pujari (For Lawyer's Knit & Co.), Hemantika
                                                             H
    722      SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A Wahi, Kamal Deep, Shubhada Deshpande, Nandini Gupta for
  the Respondents.

          The Judgment of the Court was delivered by

       CHANDRAMAULI KR. PRASAD, J. 1. The petitioner
B Gambhirsinh R. Dekare, at the relevant point of time was
  serving as Taluka Mamlatdar and an Executive Magistrate in
  Vadodara Taluka in the State of Gujarat. A Gujarati daily
  newspaper "Sandesh" is published from different places i.e.,
  Surat, Valsad, Bharuch, Vadodara and other cities of India.
C Navinbhai Chauhan is the Resident Editor of Vadodara edition
  of "Sandesh" whereas Falgunbhai Chimanbhai Patel is the
  Editor of "Sandesh". The newspaper published a news item in
  its Vadodara issue dated 28.09.1999 that the petitioner "is in
  love and keeping illicit relations with the wife of a doctor at
D Ajwa Road with the following headlines:

          "Mamlatdar Shri Gambhirsinh Dhakre is caught red
          handed by the youngsters- Mamlatdar is indulged in illicit
          relations with the wife of Doctor who is residing at Ajwa
          Road- attempts to conceal the matter- why the Government
E
          is not taking any action against the Mamlatdar?"

        2. According to the petitioner (hereinafter referred to as
  "the complainant"), the allegation published in the newspaper
  is false and defamatory. Accordingly, he filed complaint in the
F Court of Chief Judicial Magistrate, Vadodara. The complainant
  alleged that the news items are printed in the newspaper "as
  per the instructions and directions of the accused persons". In
  paragraph 3 of the complaint the complainant alleged as under:

G         "3. The Accused No. 1 and 2 of this case have deliberately
          published the news in the Page No. 12 of their daily
          newspaper 'Sandesh' dated 28/9/99 which is quite
          defaming and offending to us. The accused persons were
          in the knowledge that we the complainant shall be defamed
          in the Society due to publishing of such news and with a
H
GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 723
     PATEL [CHANDRAMAULI KR. PRASAD, J.]

    view to vilify us as the person having bad character, the        A
    accused persons, in collusion with each other, have
    published the following news in the newspaper
    deliberately."

     3. The complainant termed those allegations to be false
                                                                     B
and stated that the Editor and the Resident Editor have tried
to prove him a characterless person in the society and because
of that he had faced shameful and disgraceful situation amongst
the family members and friends. The news item further brought
him in disrepute in the Department and the public. It has been       C
alleged that the accused persons have published the news
item without any evidence or proof. The complainant denied to
 have any illicit relation with the doctor's wife. The complainant
was examined on solemn affirmation in which he reiterated the
allegation.
                                                                     D
     4. The Chief Judicial Magistrate, taking into account the
allegation made in the petition of complaint and the statement
of the complainant on solemn affirmation, took cognizance of
the offence under Section 500, 501, 502, 506, 507 and 114 of
the Indian Penal Code and issued process against both the            E
accused.

     5. Accused no. 2, Falgunbhai Chimanbhai Patel, the Editor
of "Sandesh", aggrieved by the order taking cognizance and
issuing process, filed an application before the High Court
                                                                     F
seeking quashing of the complaint filed before the Chief Judicial
Magistrate, Vadodara on 08.10.1999. He sought quashing of
the complaint on the ground that he is the Editor of the
newspaper, stationed at Ahmedabad and the offending news
item was published in the Vadodara Edition of the newspaper,
of which Navinbhai Chauhan, accused no. 1, is the Resident           G
Editor. It was further contended that he was not aware of the
offending news item being published in the newspaper or for
that matter he had any role to play in selection of such item for
 publication. The High Court by the impugned order allowed the
 application and while doing so observed as follows:                 H.
    724       SUPREME COURT REPORTS                   [2013] 4 S.C.R.


A         "6. In the complaint itself, the petitioner is described as
          editor of the newspaper and his address is shown at
          Ahmedabad. Original accused No. 1 is described as a
          resident editor of Baroda of the same newspaper. It is not
          in dispute that the newspaper in question has its
B         registered office at Ahmedabad and Baroda edition of the
          newspaper is being separately published from Baroda. It
           is also not in dispute that offending news item was carried
           in Baroda edition of the newspaper only."

          6. The High Court further went on to observe as under:
c
          "10. In the present case also, I find that there is nothing in
          the complaint to suggest that the petitioner herein was
          aware about the offending news item being published or
          that he had any role to play in selection of such item for
D         publication. In absence of any material disclosed in the
          complaint and in view of the admitted fact that the
          petitioner is an editor of the newspaper stationed at
          Ahmedabad and the news item was carried in its Baroda
          edition alone where the newspaper has a separate
E         resident editor, the petitioner cannot be proceeded against
          for the offence of defamation of the complaint."

         7. The High Court came to the conclusion that prosecution
    of accused no. 2 would amount to miscarriage of justice and,
    accordingly, quashed the complaint and the process issued
F   against him.

         8. It is against this order that the complainant has preferred
    this special leave petition.

G         9. Leave granted.

         10. Mr. Huzefa Ahmadi, Senior Advocate appears on
    behalf of the complainant (appellant herein) whereas accused
    no. 2 (Respondent no. 1 herein) is represented by Mr. Dushyant
    Dave, Senior Advocate.
H
     GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 725
          PATEL [CHANDRAMAULI KR. PRASAD, J.]
..     11. Mr. Ahmadi, submits that according to the complainant,       A
 accused no. 2 was the Editor stationed at Ahmedabad and
 there is specific allegation against him that the news items are
 published in the newspaper "as per the instructions and
 directions of the accused persons". The complainant has further
 alleged in the complaint that both the accused i.e. the Editor         B
 (accused no. 2) and the Resident Editor (accused no. 1) had
 deliberately published the news in their Gujarati daily
 newspaper "Sandesh" which is defamatory. The complainant
 went on to say that the "accused persons were in the
 knowledge that the complainant shall be defamed in the society         c
 due to publication of such news". In the face of the aforesaid
 allegation, Mr. Ahmadi points out that the High Court committed
  a serious error by observing that "there is nothing in the
  complaint to suggest that" accused no. 2 "was aware about the
 offending news item being published or that he had any role to         D
 play in selection of .such item for publication". Mr. Dave,
  however, submits that, according to the complainant's own
  showing, accused no. 2 was the Editor of the newspaper
  stationed at Ahmedabad and the offending news item having
  been published at Vadodara for which there is admittedly a
                                                                        E
  separate Resident Editor, it has to be assumed that the
  accused no. 2 was not aware of the same and had no role to
  play in the selection of such item fo~ publication.

           12. We have bestowed our consideration to the rival
     submission and we do not find any.substance in the submission      F
     of Mr. Dave. Complainant has specifically averred in the
     complaint that the news item was printed in the newspaper as
     per the instructions and directions of the accused persons. The
     complainant had specifically alleged that accused nos. 1 and
     2 have deliberately published the offending news and it was        G
     within their knowl~dge. At this stage, it is impermissible to go
     into the truthfulness or otherwise of the allegation and one has
     to proceed on a footing that the allegation made is true. Hence,
     the conclusion reached by the High Court that "there is nothing
     in the complaint to suggest that the petitioner herein was aware   H
    726     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A   of the offending news item being published or that he had any
    role to play in the selection of such item for publication" is
    palpably wrong. Hence, in our opinion, the Htgh Court has
    quashed the prosecution on an erroneous assumption of fact
    which renders its order illegal.
B
       13. Mr. Ahmadi, further submits that the impugned order
  is vulnerable on another count. He points out that according to
  the complainant, the present accused was the Editor and his
  name has been printed as such in the publication and, therefore,
C he is responsible for the publication of the news item. Mr. Dave,
  however, submits that there being Resident Editor for the
  Vadodara Edition of the newspaper, the present accused, who
  is the Editor and stationed at Ahmedabad, cannot be held
  responsible for the publication. He emphasizes that it would be
  the Resident Editor who shall be responsible for the contents
D of the Vadodara Edition. In support of the submission he has
  placed reliance on a decision of this Court in the case of K.M.
  Mathew v. State of Kera/a, (1992) 1 SCC 217.

       14. A news item has the potentiality of bringing doom's day
E for an individual. The Editor controls the selection of the matter
  that is published. Therefore, he has to keep a careful eye on
  the selection. Blue-penciling of news articles by any one other
  than the Editor is not welcome in a democratic polity. Editors
  have to take responsibility of everything they publish and to
F maintain the integrity of published record. It is apt to remind
  ourselves the answer of the Editor of the Scotsman, a Scottish
  newspaper. When asked what it was like to run a national
  newspaper, the Editor answered "run a newspaper! I run a
  country". It may be an exaggeration but it does reflect the well
G known fact that it can cause far reaching consequences in an
  individual and country's life.

         15. The scheme and scope of Press and Registration of
    Books Act, 1867 (hereinafter referred to as "the Act") also
    brings forward the same conclusion. Section 1 of the Act is the
H
GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 727
     PATEL [CHANDRAMAULI KR. PRASAD, J.]
interpretation clause and the expression "Editor" has been              A
defined as follows:

    "1. lnterpretation-clause.-(1 )In this Act, unless there shall
    be something repugnant in the subject or context,-

           xxx                                        xxx               B

     "editor'' means the person who controls the selection of the
     matter that is published in a newspaper;"

     16. Section 5 of the Act provides for rules as to publication      C
of newspapers a.nd prohibits its publication in India except in
conformity with the rules laid down. Section 5 (1) of the Act
which is relevant for the purpose reads as follows:

     "5. Rules as to publication of newspapers.-No newspaper
     shall be published in India, except in conformity with the         D
     rules hereinafter laid down:

     (1)Without prejudice to the provisions of section 3, every
     copy of every such newspaper shall contain the names of
     the owner and editor thereof printed clearly on such copy          E
     and also the date of its publication.

           xxx                      xxx               xxX'
     17. From a plain reading of the aforesaid provision, it is
evident that every copy of every newspaper published in India           F
is mandated to contain the names of the owner and Editor
thereof. It is in the light of the aforesaid obligation that the name
of the accused no. 2 has been printed as Editor. Section 7 of
the Act makes the declaration to be prima facie evidence for
fastening the liability in any civil or criminal proceeding on the      G
Editor. Section 7 of the Act reads as follows:

     "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
                                                                        H
    728       SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A         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
B         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 said person was
          printer or publisher, or printer and publisher(according as
          the words of the said declaration may be) of every portion
c         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."

         18. Therefore, from the scheme of the Act it is evident that
D it is the Editor who controls the selection of the matter that is
  published in a Qewspaper. Further, every copy of the
  newspaper is required to contain the names of the owner and
  the Editor and once the name of the Editor is shown, he shall
  be held responsible in any civil and criminal proceeding.
E Further, in view of the interpretation clause, the presumption
  would be that he was the person who controlled the selection
  of the matter that was published in the newspaper. However,
  we hasten to add that this presumption under Section 7 of the
  Act is a rebuttable presumption and it would be deemed a
F sufficient evidence unless the contrary is proved. The view
  which we have taken finds support fron:i the judgment of this
  Court in the case of K.M. Mathew v. K.A. Abraham, (2002) 6
  sec 670, in which it has been held as follows:
          "20. The provisions contained in the Act clearly go to show
G         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 selecting the matter for publication. Though, a similar
          presumption cannot be drawn against the Chief Editor,
H
GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 729
     PATEL [CHANDRAMAULI KR. PRASAD, J.]

    Resident Editor or Managing Editor, nevertheless, the           A
    complainant can still. allege and prove that they had
    knowledge and they were responsible for the publipation
    of the defamatory news item. Even the presumption under
    Section 7 is a rebuttable presumption and the same could
    be proved otherwise. That by itself indicates that              B
    somebody other than editor can also be held responsible
    for selecting the matter for publication in a newspaper."
     19. Now reverting to the authority of this Court in the case
of K.M. Mathew v. State of Kera/a, (1992) 1 SCC 217, relied
on by Mr. Dave, in our opinion, same instead of supporting his      C
contention, goes against him. In the said case it has been
observed as follows:
    "9. In the instant case there is no averment against the
    Chief Editor except the motive attributed to him. Even the
                                                                    0
    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
    Section 7 of the Act has no applicability for a person who
    is simply named as 'Chief Editor'. The presumption under
    Section 7 is only against the person whose name is              E
    printed as 'Editor' as required under Section 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'      F
    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           G
    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 Section 7 of the Act."
    20. In this case the accused was the Chief Editor of
Malyalam Manorama and there was no allegation against him           H
    730      SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A in the complaint regarding knowledge of the objectionable
  character of the matter published. In the absence of such
  allegation, the Magistrate decided to proceed against the Chief
  Editor. On an application by the Chief Editor, the process
  issued against him was recalled. The High Court, however, set
B aside the order of the Magistrate and when the matter travelled
  to this Court, it set aside the order of the High Court. This.Court
  made distinction between 'Editor' and 'Chief Editor'. In no
  uncertain terms the Court observed that the Press and
  Registration of Books Act recognizes 'Editor' and presumption
c is only against him. The Act does not recognize any other legal
  entity viz., Chief Editor, Managing Editor etc. for raising the
  presumption. They can be proceeded against only when there
  is specific allegation.
       21. We may here observe that in this case, this Court has
D held that the Magistrate has the power to drop proceeding
  against an accused against whom he had issued process in
  the following words:
          "8. It is open to the accused to plead before the Magistrate
          that the process against him ought not to have been issued.
E         The Magistrate may drop the proceedings if he is satisfied
          on reconsideration of the complaint that there is no offence
          for which the accused could be tried. It is his judicial
          discretion. No specific provision is required for the
          Magistrate to drop the proceedings or rescind the process.
F         The order issuing 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 the
          proceedings if the complaint on the very face of it does
          not disclose any offence against the accused."
G       22. However, this Court in Ada/at Prasad v. Roop/a/ Jindal
    (2004) 7 SCC 338, has specifically overruled K.M. Mathew
    (Supra) in regard to the power of the Magistrate to recall its
    order issuing process. It has been observed as follows:

H         "15. It is true that if a Magistrate takes cognizance of an
GAMBHIRSINH R. DEKARE v. FALGUNBHAI CHIMANBHAI 731
     PATEL [CHANDRAMAULI KR. PRASAD, J.]
    offence, issues process without there being any allegation        A
    against the accused or any material implicating the
    accused or in contravention of provision of Sections 200
    and 202, the order of the Magistrate may be vitiated, but
    then the relief an aggrieved accused can obtain at that
    stage is not by invoking Section 203 of the Code because          B
    the Criminal Procedure Code does not contemplate a
    review of an order. Hence in the absence of any review
    power or inherent power with the subordinate criminal
    courts, the remedy lies in invoking Section 482 of the
    Code.
                                                                      c
     16. Therefore, in our opinion the observation of this court
     in the case of K.M. Mathew v. State of Kera/a, 1992 (1)
     sec 217, that for recalling an erroneous order of issuance
     of process, no specific provision of law is required, would
     run counter to the scheme of the Code which has not
     provided for review and prohibits interference at                D
     interlocutory stages. Therefore, we are of the opinion, that
     the view of this Court in Mathew's case (supra) that no
     specific provision is required for recalling an erroneous
     order, amounting to one without jurisdiction, does not lay
     down the correct law."                                           E
     23. Thus our reference to K.M. Mathew (supra) may not
be construed to mean that we are in any way endorsing the
opinion, which has already been overruled in Ada/at Prasad
(supra).
                                                                      F
      24. Thus the impugned judgment of the High Court is
indefensible both on facts and law. Any observation made by
us in this judgment is for the decision in this case. It does not
reflect on the merit of the allegation, which obviously is a matter
of trial.
                                                                      G
     25. In the result, the appeal is allowed, the impugned
judgment of the High Court is set aside and the court in seisin
of the case shall now proceed with the trial in accordance with
law.
K.K.T.                                           Appeal allowed.      H