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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.433 OF 2013   (@SPECIAL LEAVE PETITION (CRL.) NO. 3475 OF 2008)

GAMBHIRSINH R. DEKARE      … APPELLANT

VERSUS

FALGUNBHAI CHIMANBHAI PATEL AND ANR.      …RESPONDENTS

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

The petitioner 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.   Navinbhai  Chauhan  is  the

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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  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  is not taking any action against the  Mamlatdar?”

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  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:

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

The complainant termed those allegations to be  

false 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 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.   

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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  

accused.

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  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  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  

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order  allowed  the  application  and  while  doing  so  

observed as follows:

“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 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.”

The  High  Court  further  went  on  to  observe  as  

under:

“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 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  resident editor, the petitioner cannot  be proceeded against for the offence  of defamation of the complaint.”

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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 against him.   

It is against this order that the complainant has  

preferred this special leave petition.

Leave granted.

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.

Mr.  Ahmadi,  submits  that  according  to  the  

complainant, 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 (accused no. 2) and the Resident Editor  

(accused no. 1) had deliberately published the news  

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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 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  

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  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  for  

publication.

We have bestowed our consideration to the rival  

submission and we do not find any substance in the  

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submission 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 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  

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 of such item for publication” is  

palpably  wrong.   Hence,  in  our  opinion,  the  High  

Court  has  quashed  the  prosecution  on  an  erroneous  

assumption of fact which renders its order illegal.   

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  

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as  such  in  the  publication  and,  therefore,  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 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  

Kerala, (1992) 1 SCC 217.

A  news  item  has  the  potentiality  of  bringing  

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  

responsibility  of  everything  they  publish  and  to  

maintain the integrity of published record.  It is  

apt to remind ourselves the answer of the Editor of  

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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 known  

fact that it can cause far reaching consequences in  

an individual and country’s life.

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 interpretation clause and  

the expression “Editor” has been defined as follows:

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

  xxx  xxx xxx

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

Section 5 of the Act provides for rules as to  

publication  of  newspapers  and  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:

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“5. Rules  as  to  publication  of  newspapers.-No  newspaper  shall  be  published  in  India,  except  in  conformity with the 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 and also the date  of its publication.

xxx  xxx xxx”

From a plain reading of the aforesaid provision,  

it  is  evident  that  every  copy  of  every  newspaper  

published in India 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 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  as  is  aforesaid,  attested  by  the  seal  of  some  Court  empowered  by  this  Act  to  have  the  custody of such declarations, or, in  

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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  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.”

Therefore,  from  the  scheme  of  the  Act  it  is  

evident  that  it  is  the  Editor  who  controls  the  

selection  of  the  matter  that  is  published  in  a  

newspaper.  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.  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  

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of the Act is a rebuttable presumption and it would  

be deemed a sufficient evidence unless the contrary  

is  proved.   The  view  which  we  have  taken  finds  

support from the judgment of this Court in the case  

of K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670, in  

which it has been held as follows:

“20. The provisions contained in the  Act  clearly  go  to  show  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,  Resident  Editor  or  Managing  Editor,  nevertheless,  the  complainant  can  still allege and prove that they had  knowledge  and  they  were  responsible  for the publication 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  somebody  other  than  editor  can  also be held responsible for selecting  the  matter  for  publication  in  a  newspaper.”

Now reverting to the authority of this Court in  

the case of K.M. Mathew v. State of Kerala, (1992) 1  

SCC 217, relied on by Mr. Dave, in our opinion, same  

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instead  of  supporting  his  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 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  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’  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  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.”  

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In this case the accused was the Chief Editor of  

Malyalam Manorama and there was no allegation against  

him  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 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 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.

We may here observe that in this case, this Court  

has held that the Magistrate has the power to drop  

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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.  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. 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.”

However, this Court in  Adalat Prasad v. Rooplal  

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:

“15. It is true that if a Magistrate  takes cognizance of an offence, issues  process  without  there  being  any  allegation against the accused or any  material implicating the accused or in  contravention of provision of Sections  

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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  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.

16.  Therefore,  in  our  opinion  the  observation of this court in the case  of  K.M. Mathew v. State of Kerala,  1992 (1) SCC 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 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.”

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  

Adalat Prasad (supra).

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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.

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.  

……………………..………………………………..J.  (CHANDRAMAULI KR. PRASAD)

…….….……….………………………………..J.                        (V. GOPALA GOWDA)

NEW DELHI, MARCH 11, 2013  

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