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Reportable  

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  

 Versus   

Prakash K.        … Respondent  

J U D G M E N T       Chelameswar, J.   

1. Leave granted.  

2. The sole respondent is admittedly the owner of a Kannada  

Daily Newspaper by name “Jaya Kirana” published from  

Mangalore, Karnataka.  On 16.12.2013, the said newspaper  

carried a news item containing certain allegations against the  

appellant herein.  According to the appellant, the allegations are  

highly defamatory in nature.  

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3. The appellant lodged a report with the Panambur Police,  

Mangalore, Dakshina Kannada District on 17.12.2013 against  

the respondent and another person who was editor of the  

abovementioned newspaper.  Police did not take any action.   

Thereafter, the appellant filed a private complaint against the  

respondent and the editor of the abovementioned newspaper  

before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which  

eventually came to be numbered as CC No.1252 of 2014.  The  

learned Magistrate took cognizance of the matter on 15.04.2014  

for the offences punishable under Section 500, 501 and 502 of  

the Indian Penal Code, 1860.  

4. Aggrieved by the order dated 15.04.2014, the respondent  

carried the matter in Revision Petition No.219 of 2014 before the  

Sessions Judge, Dakshina Kannada, Mangalore.  By the order  

dated 06.11.2015, the respondent’s revision was dismissed.  

Respondent further carried the matter in Criminal Petition  

No.8679 of 2015 to the Karnataka High Court invoking Section  

482 of the Code of Criminal Procedure, 1973.  By an order dated  

23.11.2016, the said petition was allowed and the proceedings in  

CC No.1252 of 2014, insofar as they pertained to the respondent,  

were quashed.

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5. Both in his revision as well as the petition under Section  

482 Cr.P.C., the respondent urged various grounds which  

according to him render the order dated 15.04.2014 illegal.  The  

details of those various grounds are not necessary for our  

purpose.    

6. The judgment under appeal is very cryptic.  The first three  

paragraphs of the judgment under appeal (running into a short  

one and a half page) purport to take note of only one submission  

of the respondent.    

“Para 2.  The learned Counsel for the petitioner would point out  that there can be no vicarious liability insofar as the criminal  law is concerned.  The complainant’s allegation of the  defamatory material published in the newspaper against him,  even if it is established, can only be sustained against the editor  of the newspaper and not the owner of the newspaper.  The  petitioner admittedly was the owner.  The newspaper carries a  legend that the newspaper is edited and published on behalf of  the petitioner and there is no dispute in this regard.”  

7. It appears from the judgment under appeal that the  

appellant herein argued that in view of the law laid down in K.M.  

Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s  

objection could not be sustained.  High Court rejected the  

submission of the appellant.    

“Para 3.  Though the learned Counsel for the respondent would  seek to contend that the question is no longer res integra and is  covered by a judgment of the Supreme Court in the case of K.M.  Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however  noticed that the said decision was in respect of a managing

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editor, resident editor or a chief editor of respective newspaper  publications, who were parties therein.”   

 The learned Judge recorded that the judgment in K M Mathew’s  

case could be distinguished and, therefore, opined that the  

respondent’s petition is required to be allowed.   

“Para 3.  … Therefore, at the outset, it can be said that the said  case could be distinguished from the case on hand, as, the  petitioner is not claiming as an editor, who had any role in the  publication of the newspaper.  Therefore, it is a fit case where  the petition should be allowed.”   

 It is unfortunate that the High Court did not choose to give any  

reason whatsoever for quashing the complaint except a grand  

declaration that “it would lead to a miscarriage of justice”.   

“Accordingly, though the criminal proceedings can go on against  the editor of the newspaper, the petitioner cannot be proceeded  with, as it would lead to a miscarriage of justice.”         

Hence, the appeal.  

8. Before us the appellant appeared in person.  Inspite of the  

service of notice, the respondent neither chose to appear in  

person nor through a counsel. In view of the fact that a  

substantial question of law is involved in the matter, we thought  

it appropriate to request Shri M.N. Rao, learned Senior Advocate  

to assist the Court in this matter.  

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9. Heard Shri M.N. Rao, learned Senior Advocate for the  

appellant.    

 10. Section 499 IPC defines the offence of defamation.   It  

contains 10 exceptions and 4 explanations.   The relevant portion  

reads;  

“Section 499. Defamation.— Whoever, by words either spoken or  intended to be read, or by signs or by visible representations,  makes or publishes any imputation concerning any person  intending to harm, or knowing or having reason to believe that  such imputation will harm, the reputation of such person, is  said, except in the cases hereinafter expected, to defame that  person.”   

11. An analysis of the above reveals that to constitute an  

offence of defamation it requires a person to make some  

imputation concerning any other person;  

(i) Such imputation must be made either   

(a) With intention, or  

(b) Knowledge, or  

(c) Having a reason to believe     

that such an imputation will harm the reputation of the person  

against whom the imputation is made.  

(ii) Imputation could be, by  

(a) Words, either spoken or written, or

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(b) By making signs, or  

(c) Visible representations  

(iii) Imputation could be either made or published.  

The difference between making of an imputation and  

publishing the same is:  

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation.  

If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the  

imputation.    

The essence of publication in the context of Section 499 is  

the communication of defamatory imputation to persons other  

than the persons against whom the imputation is made.1  

12.  Committing any act which constitutes defamation under  

Section 499 IPC is punishable offence under Section 500 IPC.  

Printing or engraving any defamatory material is altogether a  

different offence under Section 501 IPC. Offering for sale or  

selling any such printed or engraved defamatory material is yet  

another distinct offence under Section 502 IPC.  

                                                        1  Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)   

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13. If the content of any news item carried in a newspaper is  

defamatory as defined under Section 499 IPC, the mere printing  

of such material “knowing or having good reason to believe that  

such matter is defamatory” itself constitutes a distinct offence  

under Section 501 IPC.  The sale or offering for sale of such  

printed “substance containing defamatory matter” “knowing that  

it contains such matter” is a distinct offence under Section 502  

IPC.   

14. Whether an accused (such as the respondent) against whom  

a complaint is registered under various Sections of the IPC  

(Sections 500, 501 & 502 IPC) could be convicted for any of those  

offences depends upon the evidence regarding the existence of  

the facts relevant to constitute those offences.    

15. In the context of the facts of the present case, first of all, it  

must be established that the matter printed and offered for sale  

is defamatory within the meaning of the expression under Section  

499 IPC. If so proved, the next step would be to examine the  

question whether the accused committed the acts which  

constitute the offence of which he is charged with the requisite  

intention or knowledge etc. to make his acts culpable.   

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16. Answer to the question depends upon the facts. If the  

respondent is the person who either made or published the  

defamatory imputation, he would be liable for punishment under  

Section 500 IPC.  If he is the person who “printed” the matter  

within the meaning of the expression under Section 501 IPC.   

Similarly to constitute an offence under Section 502 IPC, it must  

be established that the respondent is not only the owner of the  

newspaper but also sold or offered the newspaper for sale.    

17. We must make it clear that for the acts of printing or selling  

or offering to sell need not only be the physical acts but include  

the legal right to sell i.e. to transfer the title in the goods - the  

newspaper.  Those activities if carried on by people, who are  

employed either directly or indirectly by the owner of the  

newspaper, perhaps render all of them i.e., the owner, the  

printer, or the person selling or offering for sale liable for the  

offences under Sections 501 or 502 IPC, (as the case may be) if  

the other elements indicated in those Sections are satisfied.  

18. Whether the content of the appellant’s complaint constitutes  

an offence punishable under any one or all or some of the  

abovementioned sections was not examined by the High Court for  

quashing the complaint against the respondent.  So we need not

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trouble ourselves to deal with that question.   We presume for the  

purpose of this appeal that the content of the appellant’s  

complaint does disclose the facts necessary to establish the  

commission of one or all of the offences mentioned above.   

Whether there is sufficient evidence to establish the guilt of the  

respondent for any one of the abovementioned three offences is a  

matter that can be examined only after recording evidence at the  

time of trial. That can never be a subject matter of a proceeding  

under Section 482 Cr.P.C.   

19. From the judgment under appeal, it appears that before the  

High Court it was argued on behalf of the respondent that there  

is no vicarious liability in criminal law and therefore the owner of  

a newspaper cannot be prosecuted for the offences of defamation.  

“2.  The learned counsel for the petitioner would point out that  there can be no vicarious liability insofar as the criminal law is  concerned.  The complainant’s allegation of the defamatory  material published in the newspaper against him, even if it is  established, can only be sustained against the editor of the  newspaper and not the owner of the newspaper.  The petitioner  admittedly was the owner.  The newspaper carries a legend that  the newspaper is edited and published on behalf of the petitioner  and there is no dispute in this regard.”  

 20.   It appears from para 3 of the judgment that the appellant  

herein submitted in response to the above extracted contention of  

the respondent that the question is no longer res integra and is

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covered by a judgment of this Court in K.M. Mathew v. K.A.  

Abraham & Others.2    

 The High Court rejected the submission holding:  

“…….it is however noticed that the said decision was in respect  of a managing editor, resident editor or a chief editor of  respective newspaper publications, who were parties therein.   Therefore, at the outset, it can be said that the said case could  be distinguished from the case on hand, as, the petitioner is  not claiming as an editor, who had any role in the publication  of the newspaper.  Therefore, it is a fit case where the petition  should be allowed.”    

The High Court concluded that prosecution of the respondent  

would lead to miscarriage of justice.  A conclusion without any  

discussion and without disclosing any principle which forms the  

basis of the conclusion.    

FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:     21. K.M. Mathew was the “Chief Editor” of a daily called  

Malayalam Manorama.  When he was sought to be prosecuted for  

the offence of defamation, he approached the High Court under  

Section 482 Cr.P.C. praying that the prosecution be quashed on  

the ground that Section 7 of the Press and Registration of Books  

Act, 1867 only permits the prosecution of the Editor but not the  

Chief Editor.  The High Court rejected the submission.    

                                                        2 (2002) 6 SCC 670

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22. Even before this Court, the same submission was made.3   

This Court rejected the submission holding:  

“16. The contention of these appellants is not tenable.  There  is no statutory immunity for the Chief Editor against any  prosecution for the alleged publication of any matter in the  newspaper over which these persons exercise control.”    

It was further held that though the presumption under Section 7  

of the Press and Registration of Books Act, 1867 is not applicable  

to somebody whose name is printed in the newspaper as the  

Chief Editor, the complainant can still allege and prove that  

persons other than the Editor, if they are responsible for the  

publication of the defamatory material.  

“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.”  

23. K.M. Mathew’s case has nothing to do with the question of  

vicarious liability.  The argument in K.M. Mathew’s case was  

that in view of Section 7 of the Press and Registration of Books  

                                                        3 The contention of the appellants in these cases is that they had not been shown as Editors in these publications  and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor”  and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in  that newspaper. [Para 15 of K.M. Mathew’s case]

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Act, 1867 only the Editor of a newspaper could be prosecuted for  

defamation. Such a submission was rejected holding that Section  

7 does not create any immunity in favour of persons other than  

the Editor of a newspaper. It only creates a rebuttable  

presumption that the person whose name is shown as the editor  

of the newspaper is responsible for the choice and publication of  

the material in the newspaper.  K.M. Mathew’s case made it  

clear that if a complaint contains allegations (which if proved  

would constitute defamation), person other than the one who is  

declared to be the editor of the newspapers can be prosecuted if  

they are alleged to be responsible for the publication of such  

defamatory material.   

  The High Court, in our opinion, without examining the ratio  

of K.M. Mathew’s case chose to conclude that the decision is  

distinguishable. The judgment of the High Court is absolutely  

unstructured leaving much to be desired.  

 24. Vicarious liability for a crime is altogether a different matter.   

In England, at one point of time, the owner of a newspaper was  

held to be vicariously liable for an offence of defamation (libel).  

The history of law in this regard is succinctly stated by Lord

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Cockburn in The Queen v. Holbrook.4  Though there appears to  

be some modification of the law subsequent to the enactment of  

Lord Campbell’s Act i.e. the Libel Act 1843 (6&7 Vict C 96).  

Lord Campbell’s Act did not apply to India.  The Press and  

Registration of Books Act (Act XXV of 1867) is made applicable to  

British India and continues to be in force by virtue of the  

declaration under Article 372 of the Constitution of India.  There  

are material differences between the scheme and tenor of both  

the enactments.  In Ramasami v. Lokanada, (1886) ILR 9 Mad  

692, it was held:  

“… But we cannot hold that the provisions of that Statute (Ed.  Lord Campbell’s Act) are applicable to this country, and we must  determine whether the accused is or is not guilty of defamation  with reference to the provisions of the Indian Penal Code.  We  consider that it would be a sufficient answer to the charge in this  country if the accused showed that he entrusted in good faith the  temporary management of the newspaper to a competent person  during his absence, and that the libel was published without his  authority, knowledge or consent.  As the Judge has, however,  misapprehended the effect of Act XXV of 1867, we shall set aside  the order of acquittal made by him and direct him to restore the  appeal to his file, to consider the evidence produced by the  accused and then to dispose of the appeal with reference to the  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 the  Criminal Law of England is not necessarily the same as the  Criminal Law of India as contained in the Indian Penal Code …”  

                                                        4  L.R. 3 QBD 60

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 25. The extent of the applicability of the principle of vicarious  

liability in criminal law particularly in the context of the offences  

relating to defamation are neither discussed by the High Court in  

the judgment under appeal nor argued before us because the  

respondent neither appeared in person nor through any  

advocate.  Therefore, we desist from examining the question in  

detail.  But we are of the opinion that the question requires a  

serious examination in an appropriate case because the owner of  

a newspaper employs people to print, publish and sell the  

newspaper to make a financial gain out of the said activity.  Each  

of the abovementioned activities is carried on by persons  

employed by the owner.   

26. Where defamatory matter is printed (in a newspaper or a  

book etc.) and sold or offered for sale, whether the owner thereof  

can be heard to say that he cannot be made vicariously liable for  

the defamatory material carried by his newspaper etc. requires a  

critical examination.    

27. Each case requires a careful scrutiny of the various  

questions indicated above. Neither prosecutions nor the power

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under Section 482 CrPC can be either conducted or exercised  

casually as was done in the case on hand.     

28. The judgment under appeal cannot be sustained for the  

reasons indicated above.  The same is, therefore, set-aside and  

the appeal is allowed.  The trial court will now proceed with the  

case in accordance with law.   

….....................................J.                          (J. CHELAMESWAR)        

….....................................J.                         (S. ABDUL NAZEER)    New Delhi  December 4, 2017