IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2059 OF 2017
(Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)
Mohammed Abdulla Khan … Appellant
Prakash K. … Respondent
1. Leave granted.
2. The solitary respondent is admittedly a owners of a Kannada Daily Newspaper by name “Jaya Kirana” published from Mangalore, Karnataka. On 16.12.2013, a pronounced journal carried a news object containing certain allegations opposite a Signature Not Verified appellant herein. According to a appellant, a allegations are rarely insulting in nature.
3. The appellant lodged a news with a Panambur Police, Mangalore, Dakshina Kannada District on 17.12.2013 opposite a respondent and another chairman who was editor of a abovementioned newspaper. Police did not take any action. Thereafter, a appellant filed a private censure opposite a respondent and a editor of a abovementioned journal before a J.M.F.C.-II, Mangalore in PCR No.24/2014 that eventually came to be numbered as CC No.1252 of 2014. The schooled Magistrate took believe of a matter on 15.04.2014 for a offences punishable underneath Section 500, 501 and 502 of a Indian Penal Code, 1860.
4. Aggrieved by a sequence antiquated 15.04.2014, a respondent carried a matter in Revision Petition No.219 of 2014 before a Sessions Judge, Dakshina Kannada, Mangalore. By a sequence antiquated 06.11.2015, a respondent’s rider was dismissed. Respondent serve carried a matter in Criminal Petition No.8679 of 2015 to a Karnataka High Court invoking Section 482 of a Code of Criminal Procedure, 1973. By an sequence antiquated 23.11.2016, a pronounced petition was authorised and a record in CC No.1252 of 2014, insofar as they pertained to a respondent, were quashed.
5. Both in his rider as good as a petition underneath Section 482 Cr.P.C., a respondent urged several drift that according to him describe a sequence antiquated 15.04.2014 illegal. The sum of those several drift are not compulsory for a purpose.
6. The visualisation underneath interest is really cryptic. The initial 3 paragraphs of a visualisation underneath interest (running into a brief one and a half page) outcome to take note of usually one acquiescence of a respondent.
“Para 2. The schooled Counsel for a postulant would indicate out that there can be no sympathetic shame insofar as a rapist law is concerned. The complainant’s claim of a insulting element published in a journal opposite him, even if it is established, can usually be postulated opposite a editor of a journal and not a owners of a newspaper. The postulant admittedly was a owner. The journal carries a fable that a journal is edited and published on interest of a postulant and there is no brawl in this regard.”
7. It appears from a visualisation underneath interest that a appellant herein argued that in perspective of a law laid down in K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670 a respondent’s conflict could not be sustained. High Court deserted a acquiescence of a appellant.
“Para 3. Though a schooled Counsel for a respondent would find to contend that a doubt is no longer res integra and is lonesome by a visualisation of a Supreme Court in a box of K.M. Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however beheld that a pronounced preference was in honour of a handling editor, proprietor editor or a arch editor of particular journal publications, who were parties therein.” The schooled Judge available that a visualisation in K M Mathew’s box could be renowned and, therefore, opined that a respondent’s petition is compulsory to be allowed.
“Para 3. … Therefore, during a outset, it can be pronounced that a pronounced box could be renowned from a box on hand, as, a postulant is not claiming as an editor, who had any purpose in a announcement of a newspaper. Therefore, it is a fit box where a petition should be allowed.” It is hapless that a High Court did not select to give any reason whatsoever for quashing a censure solely a grand stipulation that “it would lead to a miscarriage of justice”.
“Accordingly, nonetheless a rapist record can go on opposite a editor of a newspaper, a postulant can't be proceeded with, as it would lead to a miscarriage of justice.” Hence, a appeal.
8. Before us a appellant seemed in person. Inspite of a use of notice, a respondent conjunction chose to seem in chairman nor by a counsel. In perspective of a fact that a estimable doubt of law is endangered in a matter, we suspicion it suitable to ask Shri M.N. Rao, schooled Senior Advocate to support a Court in this matter.
9. Heard Shri M.N. Rao, schooled Senior Advocate for a appellant.
10. Section 499 IPC defines a corruption of defamation. It contains 10 exceptions and 4 explanations. The germane apportionment reads;
“Section 499. Defamation.— Whoever, by disproportion possibly oral or dictated to be read, or by signs or by manifest representations, creates or publishes any indictment concerning any chairman intending to harm, or meaningful or carrying reason to trust that such indictment will harm, a repute of such person, is said, solely in a cases hereinafter expected, to denounce that person.”
11. An research of a above reveals that to consecrate an corruption of insult it requires a chairman to make some indictment concerning any other person;
(i) Such indictment contingency be finished either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an indictment will mistreat a repute of a chairman opposite whom a indictment is made.
(ii) Imputation could be, by
(a) Words, possibly oral or written, or
(b) By creation signs, or
(c) Visible representations
(iii) Imputation could be possibly finished or published. The disproportion between creation of an indictment and edition a same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a rapist – ‘X’ creates an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a rapist – ‘X’ publishes a imputation.
The hint of announcement in a context of Section 499 is a communication of insulting indictment to persons other than a persons opposite whom a indictment is made.1
12. Committing any act that constitutes insult underneath Section 499 IPC is punishable corruption underneath Section 500 IPC. Printing or cast any insulting element is altogether a opposite corruption underneath Section 501 IPC. Offering for sale or charity any such printed or engraved insulting element is nonetheless another graphic corruption underneath Section 502 IPC. Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)
13. If a calm of any news object carried in a journal is insulting as tangible underneath Section 499 IPC, a small copy of such element “knowing or carrying good reason to trust that such matter is defamatory” itself constitutes a graphic corruption underneath Section 501 IPC. The sale or charity for sale of such printed “substance containing insulting matter” “knowing that it contains such matter” is a graphic corruption underneath Section 502 IPC.
14. Whether an indicted (such as a respondent) opposite whom a censure is purebred underneath several Sections of a IPC (Sections 500, 501 & 502 IPC) could be convicted for any of those offences depends on a justification per a existence of a contribution germane to consecrate those offences.
15. In a context of a contribution of a benefaction case, initial of all, it contingency be determined that a matter printed and charity for sale is insulting within a definition of a countenance underneath Section 499 IPC. If so proved, a successive step would be to inspect a doubt possibly a indicted committed a acts that consecrate a corruption of that he is charged with a claim goal or believe etc. to make his acts culpable.
16. Answer to a doubt depends on a facts. If a respondent is a chairman who possibly finished or published a insulting imputation, he would be probable for punishment underneath Section 500 IPC. If he is a chairman who “printed” a matter within a definition of a countenance underneath Section 501 IPC. Similarly to consecrate an corruption underneath Section 502 IPC, it contingency be determined that a respondent is not usually a owners of a journal yet also sole or charity a journal for sale.
17. We contingency make it transparent that for a acts of copy or charity or charity to sell need not usually be a earthy acts yet embody a authorised right to sell i.e. to send a pretension in a products – a newspaper. Those activities if carried on by people, who are employed possibly directly or indirectly by a owners of a newspaper, maybe describe all of them i.e., a owner, a printer, or a chairman charity or charity for sale probable for a offences underneath Sections 501 or 502 IPC, (as a box might be) if a other elements indicated in those Sections are satisfied.
18. Whether a calm of a appellant’s censure constitutes an corruption punishable underneath any one or all or some of a abovementioned sections was not examined by a High Court for quashing a censure opposite a respondent. So we need not difficulty ourselves to understanding with that question. We assume for a purpose of this interest that a calm of a appellant’s censure does divulge a contribution compulsory to settle a elect of one or all of a offences mentioned above. Whether there is sufficient justification to settle a shame of a respondent for any one of a abovementioned 3 offences is a matter that can be examined usually after recording justification during a time of trial. That can never be a theme matter of a move underneath Section 482 Cr.P.C.
19. From a visualisation underneath appeal, it appears that before a High Court it was argued on interest of a respondent that there is no sympathetic shame in rapist law and therefore a owners of a journal can't be prosecuted for a offences of defamation.
“2. The schooled warn for a postulant would indicate out that there can be no sympathetic shame insofar as a rapist law is concerned. The complainant’s claim of a insulting element published in a journal opposite him, even if it is established, can usually be postulated opposite a editor of a journal and not a owners of a newspaper. The postulant admittedly was a owner. The journal carries a fable that a journal is edited and published on interest of a postulant and there is no brawl in this regard.”
20. It appears from para 3 of a visualisation that a appellant herein submitted in response to a above extracted row of a respondent that a doubt is no longer res integra and is lonesome by a visualisation of this Court in K.M. Mathew v. K.A. Abraham & Others.2 The High Court deserted a acquiescence holding: “…….it is however beheld that a pronounced preference was in honour of a handling editor, proprietor editor or a arch editor of particular journal publications, who were parties therein. Therefore, during a outset, it can be pronounced that a pronounced box could be renowned from a box on hand, as, a postulant is not claiming as an editor, who had any purpose in a announcement of a newspaper. Therefore, it is a fit box where a petition should be allowed.” The High Court resolved that assign of a respondent would lead to miscarriage of justice. A end yet any row and yet disclosing any element that forms a basement of a conclusion.
FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:
21. K.M. Mathew was a “Chief Editor” of a daily called Malayalam Manorama. When he was sought to be prosecuted for a corruption of defamation, he approached a High Court underneath Section 482 Cr.P.C. praying that a assign be quashed on a belligerent that Section 7 of a Press and Registration of Books Act, 1867 usually permits a assign of a Editor yet not a Chief Editor. The High Court deserted a submission. (2002) 6 SCC 670
22. Even before this Court, a same acquiescence was made.3 This Court deserted a acquiescence holding:
“16. The row of these appellants is not tenable. There is no orthodox shield for a Chief Editor opposite any assign for a purported announcement of any matter in a journal over that these persons practice control.” It was serve reason that nonetheless a hypothesis underneath Section 7 of a Press and Registration of Books Act, 1867 is not germane to somebody whose name is printed in a journal as a Chief Editor, a complainant can still lay and infer that persons other than a Editor, if they are obliged for a announcement of a insulting material.
“20. The supplies contained in a Act clearly go to uncover that there could be a hypothesis opposite a Editor whose name is printed in a journal to a outcome that he is a Editor of such announcement and that he is obliged for selecting a matter for publication. Though, a identical hypothesis can't be drawn opposite a Chief Editor, Resident Editor or Managing Editor, nevertheless, a complainant can still lay and infer that they had believe and they were obliged for a announcement of a insulting news item. Even a hypothesis underneath Section 7 is a rebuttable hypothesis and a same could be valid otherwise. That by itself indicates that somebody other than editor can also be reason obliged for selecting a matter for announcement in a newspaper.”
23. K.M. Mathew’s box has zero to do with a doubt of sympathetic liability. The justification in K.M. Mathew’s box was that in perspective of Section 7 of a Press and Registration of Books The row of a appellants in these cases is that they had not been shown as Editors in these publications and that their names were printed possibly as Chief Editor, Managing Editor or Resident Editor and not as “Editor” and there can't be any rapist assign opposite them for a purported slanderous announcement of any matter in that newspaper. [Para 15 of K.M. Mathew’s case] Act, 1867 usually a Editor of a journal could be prosecuted for defamation. Such a acquiescence was deserted holding that Section 7 does not emanate any shield in foster of persons other than a Editor of a newspaper. It usually creates a rebuttable hypothesis that a chairman whose name is shown as a editor of a journal is obliged for a choice and announcement of a element in a newspaper. K.M. Mathew’s box finished it transparent that if a censure contains allegations (which if valid would consecrate defamation), chairman other than a one who is announced to be a editor of a newspapers can be prosecuted if they are purported to be obliged for a announcement of such insulting material.
The High Court, in a opinion, yet examining a ratio of K.M. Mathew’s box chose to interpretation that a preference is distinguishable. The visualisation of a High Court is positively unstructured withdrawal most to be desired.
24. Vicarious shame for a crime is altogether a opposite matter. In England, during one indicate of time, a owners of a journal was reason to be vicariously probable for an corruption of insult (libel). The story of law in this courtesy is succinctly settled by Lord Cockburn in The Queen v. Holbrook.4 Though there appears to be some alteration of a law successive to a dramatization of Lord Campbell’s Act i.e. a Libel Act 1843 (6&7 Vict C 96).
Lord Campbell’s Act did not request to India. The Press and Registration of Books Act (Act XXV of 1867) is finished germane to British India and continues to be in force by trait of a stipulation underneath Article 372 of a Constitution of India. There are element differences between a intrigue and effort of both a enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad 692, it was held:
“… But we can't reason that a supplies of that Statute (Ed.
Lord Campbell’s Act) are germane to this country, and we contingency establish possibly a indicted is or is not guilty of insult with anxiety to a supplies of a Indian Penal Code. We cruise that it would be a sufficient answer to a assign in this nation if a indicted showed that he entrusted in good faith a proxy government of a journal to a efficient chairman during his absence, and that a defame was published yet his authority, believe or consent. As a Judge has, however, misapprehended a outcome of Act XXV of 1867, we shall set aside a sequence of exculpation finished by him and approach him to revive a interest to his file, to cruise a justification constructed by a indicted and afterwards to dispose of a interest with anxiety to a foregoing observations.”
and reiterated in Emperor v. Bodi Narayana Rao and G. Harisarvothama Rao, (1909) ILR 32 Mad 338:
“Lord Campbell’s Act, of course, is not in force in India, and a Criminal Law of England is not indispensably a same as a Criminal Law of India as contained in a Indian Penal Code …”
L.R. 3 QBD 60
25. The border of a qualification of a element of sympathetic shame in rapist law quite in a context of a offences relating to insult are conjunction discussed by a High Court in a visualisation underneath interest nor argued before us since a respondent conjunction seemed in chairman nor by any advocate. Therefore, we terminate from examining a doubt in detail. But we are of a opinion that a doubt requires a vicious hearing in an suitable box since a owners of a journal employs people to print, tell and sell a journal to make a financial benefit out of a pronounced activity. Each of a abovementioned activities is carried on by persons employed by a owner.
26. Where insulting matter is printed (in a journal or a book etc.) and sole or charity for sale, possibly a owners thereof can be listened to contend that he can't be finished vicariously probable for a insulting element carried by his journal etc. requires a vicious examination.
27. Each box requires a clever inspection of a several questions indicated above. Neither prosecutions nor a energy underneath Section 482 CrPC can be possibly conducted or exercised accidentally as was finished in a box on hand.
28. The visualisation underneath interest can't be postulated for a reasons indicated above. The same is, therefore, set-aside and a interest is allowed. The hearing justice will now ensue with a box in suitability with law.
(S. ABDUL NAZEER)
New Delhi Dec 4, 2017