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PETITIONER: K.M. MATHEW

       Vs.

RESPONDENT: STATE OF KERALA AND ANR.

DATE OF JUDGMENT19/11/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) YOGESHWAR DAYAL (J)

CITATION:  1992 AIR 2206            1991 SCR  Supl. (2) 364  1992 SCC  (1) 217        JT 1991 (4)   464  1991 SCALE  (2)1045

ACT:       Indian     Penal    Code,     1860---Sections     500, 34--Charges  under-Complaint   Case--No  pritma  facie  case against Chief Editor----Proceedings to be dropped.       Code  of Criminal Procedure, 1973--Section  204---Com- plaint case--Absence of allegation involving accused in  the commission  of the offence--Magistrate cannot  try---Reasons indicated.      Code    of    Criminal    Procedure,    1973----Section 204---Complaint  case--Magistrate’s  power to drop  proceed- ings-Nture and scope of--Order issuing process--Nature o J:      Code of Criminal procedure, 1973----Section  204--Cotn- plaint case against   Chief  Editor--Taking  cognizance   of offence   by Magistrate--Requirements.      Press  and  Registration of  Books  Act.  1867--Section 7---Complaint   case  against   Chief   Editor---Presumption under--Applicability of.

HEADNOTE:      The  appellant---the  Chief Editor of a  leading  daily newspaper  was arrayed as an accused in the  complaint  case initated  by the respondent no.2, an advocate, who  was  ag- grieved by a news item published in the newspaper before the Additional Judicial Magistrate, u/ss. 500 and 34 I.P.C.      The Magistrate issued summons to the accused-appellant, who  pleaded not guilty. The appellant requested the  Magis- trate  to drop the proceedings against him, before the  evi- dence was recorded, contending that there was no averment in the  complaint  that he had perused the material  or  edited before  its publications or that it was published  with  his knowledge or consent. The  Magistrate dropped the proceedings against  the  appel- lant. The revision, moved by the complainant was allowed by the 365 High  Court.  This appeal has been filed  by  special  leave against the   order Of the High Court. Allowing the appeal, this Court,     HELD:  1.  The  power to drop  proceedings  against  the accused  cannot be denied to the Magistrate. Section 204  of the  Code indicates that the proceedings before  the  Magis-

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trate  commences upon taking cognizance of the  offence  and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the  need to  try the accused arises when there is allegation  in  the complaint  that  the accused has committed  the  crime.,  If there  is no allegation in the complaint involving  the  ac- cused in the commission of the crime, it is implied that the Magistrate  has no jurisdiction to proceed against  the  ac- cused. [368 A-C]     2.  It is open to the accused to plead before the Magis- trate  that the process against him ought not to  have  been issucd. Magistrate may drop the proceedings if he is  satis- fied  on reconsideration of the complaint that there  is  no offence  for  which the accused could be tried. It  is  :his judicial discrction. [368 C-D]     3.  No specific provision required for the Magistrate to drop  the  proceedings  or rescind the  process.  The  order issuing  the process is an interim order: and not  a   judg- ment.  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  its  does not disclose any offence against the accused. [368 D-E]              4.  Section 7 of the Press and Registration  of Books  Act,  1867 has no applicability for a person  who  is simply  named  as  ’Chief Editor’.  ’The  presumption  under Section7 is only against the person whose name is printed as ’Editor’ as required under Section 5(1). There is a mandato- ry  (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  produccd. The  Act  does  not recognize 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. [368 E-G]     5.   No  person should be tried without  a  prima  ficie case. For a Magistrate to take congnizance of the offence as against the Chief 366 Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.  The complaint  in  the instant case does not  contain  any  such allegation.  In the absence of such allegation,  the  Magis- trate  was justified in directing that the complaint so  far as  it  relates to the Chief Editor could not  be  proceeded with. [369 B, A]     State  of  Maharashtra  v. Dr. R.B.  Chowdhaty  &  Ors., [1967]  3 S.C.R. 708; D.P. Mishra v. Kamal Narain  Sharma  & Ors.,  [1971] 3 SCR 257; Nara Singh Charan Mohanty v. Suren- dra  Mohantv, [1974] 2 S.C.R. 39 and Haji C.H.Mohammad  Koya v. T.K. S.M.A.Muthukoya, [1979] 1 S.C.R. 664, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 711 of 1991.     From  the  Judgment  and Order dated  28.7.1988  of  the Kerala High Court in Crl. R.P. No. 59 of 1988. Kapil Sibal and E.M.S. Anam for the Appellant. A.S.Nambiar and K.R. Nambiar for the Respondent. The Judgment of the Court was delivered by     K.  JAGANNATHA  SHETTY, J. We grant  special  leave  and proceed to dispose of the matter.     This appeal against a decision of the Kerala High  Court

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raises  an  important question concerning the power  of  the Magistrate  to  drop  proceedings against an  accused  in  a summons-case after process is issued.     The facts are simple. K.M.Mathew--appellant is the Chief Editor  of  Malayala Manorma. It is a daily  newspaper  with wide  circulation  the State of Kerala and seems to  be  the largest  language newspaper in India. Separate  editions  of the  newspaper are published from different  centres,namely, Trivendrum,  Kottayam, Cochin and Calicut. At each of  these s.  there  is  a separately Editor who  is  responsible  for selection and publication to the items  The chief editor  is based  at  Kottayam and he is responsible  for  the  genaral policy  of the Daily and various other publicalions  of  the Manaroma   group  of  publications. Respondent No. 2  is  an case was that the news item published in the Daily. His case was  that the news item was published  with the sole  object of  ridiculing  and defaming him. . He lodged  a   complaint before the court of Addi- 367 tional  Judicial  Magistrate against the Chief  Editor,  the Printer  and Publisher of the newspaper alleging  that  they have committed an offence punishable under Sections 500 & 34 IPC. The learned Magistrate examined the complainant on oath and  took  the complaint on file as CC 496/  85.  He  issued summons  to  the accused. The accused upon  service  entered appearance and pleaded not guilty.     Before  the  evidence  was recorded,  the  Chief  Editor requested the Magistrate to drop the proceedings against him He  contended that the complainant has not alleged that  the Chief Editor was responsible for selection of the news  item and  publication thereof. There was not even an averment  in the complaint that the Chief Editor has perused the material or  edited before its publication or that it  was  published with his knowledge or consent. After hearing the parties the Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him. To be more precise, the  Magis- trate  directed that the complaint so far as it  relates  to the Chief Editor could not be proceeded with.     The complainant took up the matter to the High Court  in revision. The High Court allowed the revision and set  aside the order of the Magistrate.     The  High Court did not examine whether the  complainant has or has not made out a case against the Chief Editor. The High  Court rested its conclusion solely on  the  procedural requirements  of  the trial of a summons-case. It  has  been pointed  out  that  in any private complaint  triable  as  a summons-case the Magistrate, after taking cognizance of  the offence  and  issuing process, has no jurisdiction  to  drop proceedings  against  the accused. He is  bound  to  proceed under Chapter XX of the Code of Criminal Procedure when  the accused enters appearance. He will have to state the partic- ulars  of  the offence and record the plea of  the  accused. When the accused pleads not guilty, he will have to hear the prosecution  and take all such evidence produced in  support of  the prosecution. Then he will have to hear  the  accused and  take all such evidence produced in support of  the  de- fence. The High Court went on to state that the question  of conviction  or  acquittal will arise  only  after  recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no  provision in  the  Code for dropping the proceedings against  any  ac- cused. So stating the High Court has directed the Magistrate to proceed with the trial of all the accused.     The High Court seems to be too technical in this regard. If  one reads carefully the provisions relating to trial  of

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summons-cases, the power to 368 drop proceedings against the. accused  cannot be. denied  to the  Magistrate  Section  204 of the Code  indicates  .  the proceedings  before  the Magistrate commmences  upon  taking cognizance  of the offence and the issue of summons  to  the accused.  When the accused enters apperance in  response  to the  summons, the Magistrate has to take  proceedings  under Chapter  .XX of the Code. But the need to  try ’the  accused arises’  when they is allegation in the comnplaint that  the accused  has commited the crime If there is no allegation in the  complaint involving the accused. in the  commission  of the  crime,  it  i.s  implied  that the  Magistarte  has  no jurisdlction to proceed against the accused.        It is open, to the accused to  plead bfore the Magis- tarate that the process against him ought. no; to have  been issued.  The Magistrate may drop the proceedings if  he   is statisfied on reconsideration of the complaint that there is no offence  for- which  the accuseed  could be tried. It  is his judicial  desetion . No specific provision  required for the Magistrate t0 drop the proceedings or rescind the  proc- ess The order issumg 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  file proceedings if the complaint on the very face of it does not disclose any offence against the accused     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  Sec- tion  7 of the Act has no applicability for a person who  is simply  named as ’Chief Editor’. The presumption under  Sec- tion  7 is only against the person whose name is printed  as ’editor’ as required under Section 5(1). There is a mandato- ry  (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 r,rising 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.  See State of Maharashtra v. Dr. RB. Chowdhary &  Ors., [1967] 3 SCR 708 U.P. Mishra v. Kamal Narain Sharma &  Ors., [1971]  3  SCR 257, Narasingha  Charan Mohanty  v.  Surendra Mohanty,  [1974]  2 SCR 39  and haji C.H. mohamad  Koya   v. T.K.S.M.A. Muthukoya,  [1979] 1 SCR 664. 369     It  is important to state that for a Magistrate to  take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge  of the objectionable character of the matter. The complaint  in the  instant case does not contain any such  allegation.  In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to  the Chief  Editor could not be proceeded with. To ask the  Chief Editor to undergo the trial of the case merely on the ground of  the  issue  of process would be  oppressive.  No  person should  be tried without a prima facie case. The view  taken by  the High Court is untenable. The appeal  is  accordingly allowed. The order of the High Court is set aside.

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V.P.R.                                                Appeal allowed. 370