Vinod Mathew Jacob Editor (Kerala) and RK Jhunjhunwala, Printer and Publisher, The New Indian Express vs. K.I. John Kallarackal; J.K. Thomas Karot House; State of Kerala

## CR IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943 CRL.MC NO. 2932 OF 2015 [AGAINST C.C.NO.125/2014 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM] PETITIONERS/ACCUSED Nos.2 & 3: 1 MR.VINOD MATHEW JACOB EDITOR (KERALA), THE NEW INDIAN EXPRESS, EXPRESS HOUSE, KALOOR, KOCHI-682017. 2 R.K.JHUNJHUNWALA PRINTER AND PUBLISHER, THE NEW INDIAN EXPRESS,EXPRESS HOUSE, KALOOR, KOCHI-682017. BY ADVS. SRI.U.K.DEVIDAS SRI.V.KRISHNA MENON SRI.PRINSUN PHILIP SMT.P.VIJAYAMMA ## RESPONDENTS/COMPLAINANT, ACCUSED NO.1 & STATE: 1 K.I.JOHN KALLARACKAL, MISS EAST ROAD, BAKER HILL, KOTTAYAM. 2 J.K.THOMAS KAROT HOUSE, KUMARANELLOOR, PERUMBAIKADU VILLAGE,KOTTAYAM-686016. 3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM BY ADVS. R1 BY SRI.NANDAGOPAL S.KURUP SRI.G.SREEKUMAR CHELUR R3 BY SRI.SUDHEER GOPALAKRISHNAN, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.11.2021, THE COURT ON 7.12.2021 PASSED THE FOLLOWING: Crl.M.C.No. 2932 of 2015 2 ## O R D E R The petitioners herein are accused Nos.2 and 3 in C.C.No.125/2014 on the file of the Chief Judicial Magistrate Court, Kottayam. The aforesaid case was registered against them and another person on a complaint submitted by the 1[st] respondent herein alleging offences punishable under Sections 500,501 and 502 of the Indian Penal Code (IPC). The case of the 1[st] respondent in short is as follows: The 1[st] petitioner herein is the Editor, and the second petitioner is the Printer and Publisher of a newspaper. On 29.6.2014 on the 3[rd] page of the newspaper, they published an advertisement purported to have been made by the 1[st] accused. The allegation is that, the aforesaid advertisement contained false and defamatory statements against the 1[st] respondent. The specific case of the 1[st] respondent is that, the aforesaid publication was made by the accused persons with the intention to harm the reputation of the 1[st] respondent and the Crl.M.C.No. 2932 of 2015 3 said imputation was made maliciously with the sole intention to defame the 1[st] respondent. 2. The learned Magistrate has taken cognizance on the said complaint and the matter is now pending as C.C.No.125/2014. 3. This Crl.M.C. is filed by the petitioners seeking to quash all further proceedings in the above case, as against the petitioners herein on the ground that, even if the contents of the complaint, which is produced as Annexure-D, are accepted in its entirety, no offences alleged against them are attracted. 4. Heard the learned counsel for the petitioners, the learned counsel for the 1[st] respondent and learned Public Prosecutor for the 3[rd] respondent. 5. The learned counsel for the petitioners contends that, the publication which is produced as Annexure-B along with this Crl.M.C. is a paid advertisement made by the 1[st] accused and the petitioners do not have any role in preparing the Crl.M.C.No. 2932 of 2015 4 same and no responsibility as to the contents of the same can be imposed upon them. It was pointed out that, Annexure-A is the media release order in respect of the aforesaid advertisement and Annexure-C is the bill issued towards payment of charges for the publication of the said advertisement. In such circumstances, the learned counsel for the petitioners prays for quashing Annexure-D complaint and all further proceedings pursuant thereto. He relies on the judgments reported in Mammen Mathew v. M.N. Radhakrishnan and Another [2007(4)KHC 502], Aman Kumar Singh and Another v. Tikendra Thakur and Others [2015 KHC 5234][2015 CriLJ NOC 517] and an unreported judgment of this Court in W.P.(C)No.6485/2020. 6. On the other hand, the learned counsel for the 1[st] respondent seriously opposes the aforesaid contention. According to the learned counsel, Section 499 of Indian Penal Code which defines the offence of defamation, does not make any distinction between an advertisement and news Crl.M.C.No. 2932 of 2015 5 content. Any publication which contains defamatory statements, made with the intention to defame any person or made with the knowledge that such statement is likely to harm the reputation of another person, would attract the offence of defamation. The learned counsel relies upon the judgment in Chellappan Pillai v. Karanjia [1962(2) Cri.LJ 142], T.Venkatram Reddy v. N. Venkata Narayana and Another [(2009) 3 ALT(Cri)251]. He also relies on a judgment rendered by the Supreme Court of United States in Elizabeth Peck v. Tribune Company [Digest Sup.Ct.1908]. Accordingly he prays for dismissal of the above Crl.M.C. 7. The crucial question that arises is as to whether the publication of Annexure-B which is claimed to be an advertisement attracts the offence under Sections 499 and 500 of the IPC or not. The offence of defamation is defined under Section 499 of the IPC which reads as follows: _“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_ Crl.M.C.No. 2932 of 2015 6 _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._ _Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives._ _Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such._ _Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation._ _Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.”_ The crucial aspect to be noticed in this regard is that, as per the definition of defamation, whoever _by words either spoken or intended to be read makes any signs or visible representations 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 to have committed the offence. The expressions used in the Crl.M.C.No. 2932 of 2015 7 said provision ie. _words, signs, visible_ _representations etc._ are very wide enough to include any forms thereof. If it is shown that a publication of sign, visible representation or words of any nature were made, with an intention to defame other person or with the knowledge that it is likely defame another person, an offence is committed. Nowhere in the said provision, descriptions such as news item, advertisement etc are mentioned. It is true that, a “news item” and ‘advertisement” are completely different in its meaning and character. Despite the difference between an advertisement and news item, both the same would come within the purview of the expressions used in Section 499 IPC, as the aforesaid expressions are very wide enough to take both advertisement and news item within its ambit. Therefore, merely because of the reason that the publication was that of an advertisement, the persons who makes the said publication in the capacity as a Printer and Publisher of a newspaper Crl.M.C.No. 2932 of 2015 8 or as an Editor cannot escape from the liability. Once it is shown that he played a role in the publication of such an item with the intention or knowledge that the same will harm the reputation of another or likely to harm the reputation, the offence would get attracted. 8. In this case, the contention of the learned counsel for the petitioners is that the petitioners did not have any role in selecting the advertisement and they were also not responsible for the contents of Annexure-B advertisement. While considering this aspect, the provisions of Press and Registration of Books Act, 1867 has to be taken into consideration. Section 5 of the Press and Registration of Books Act, 1867 (hereinafter referred to as ‘PRB Act’) contemplates for mandatory declaration to be made by the Printer and Publisher of every newspaper. The form of such declaration is also contemplated therein. Section 6 of the said Act provides that the declaration made by the Printer and Publisher Crl.M.C.No. 2932 of 2015 9 as contemplated under Section 5 of the said Act shall be authenticated by the signature and the official seal of a Magistrate before whom the said declaration has been made. Subsection 2E of Section 5 provides that whenever there is change in the ownership of the newspaper a new declaration has to be made. Sub section 3 thereof provides that when place of printing or publication is changed, a new declaration has to be made. Subsection 4 of the said provision provides that when the printer and publisher who made such declaration leaves India for a period exceeding 90 days or is prevented by any infirmity in carrying out duty for a period exceeding 90 days, a new declaration has to be made. Thus from the reading of the aforesaid provisions, it is evident that the law contemplates submission of new declarations, in the circumstances mentioned above. The insistence for submission of fresh declarations in the eventualities mentioned above, is a clear indication to the seriousness and Crl.M.C.No. 2932 of 2015 10 importance given to the necessity of submission of declaration for the purpose of publication of newspaper. Accountability at higher levels imposed upon the Printer and Publisher in the matter of publication of newspaper, is clear from those provisions. 9. Section 7 of the Press and Registration of Books Act is another provision of crucial importance in this regard, which 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 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].” As per the said provision, a presumption is contemplated upon the Printer and Publisher as well as Editor of a newspaper, in respect of every portion of every newspaper whereof the Crl.M.C.No. 2932 of 2015 11 title shall correspond with the title of the newspaper mentioned in the declaration or the issue of the new paper of which copy is produced. This would indicate that, the presumption contemplated under Section 7 is in respect of every portion of newspaper, which would take in, every content of the newspaper, irrespective of the nature of the same, such as news item, advertisement etc. 10. Thus, a joint reading of the definition of defamation as contained in Section 499 of the IPC and the presumption stipulated under Section 7 of Press and Registration of Books Act, 1867, would clearly indicate that the responsibility of Printer and Publisher as well as the Editor are not confined to the news items published in the newspaper alone, but it extends to every portion of the newspaper, irrespective of the nature of its contents. When the legal position regarding the responsibility of the said persons is as above, Crl.M.C.No. 2932 of 2015 12 the petitioners who are Editor as well as Printer and Publisher of the newspaper, cannot escape from the liability, by simply stating that Annexure-B publication is an advertisement made by the 1[st] accused. **==> picture [396 x 14] intentionally omitted <==** (supra), a Division Bench of this Court observed as follows: _“To bring the publication of a scandalous imputation under the Penal law it is not necessary to prove that it was done out of any illwill or malice or that the complainant had actually suffered from it. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant. Every sane man is presumed to have intended the consequences which normally follow from his act. The accused a journalist of some standing, can very well be presumed to know or to have reason to believe that the imputation published by him would harm the ’ ” complainant s reputation._ ## 12. In T.Venkatram Reddy’s case (supra) after considering the contents of Law of Press authored by Sri.D.D.Basu and a number of foreign judgments, it was observed, by the High Court of Andhra Pradesh as follows: _“However, in so far as the Editor is concerned, the petitioners themselves stated that the 2[nd] petitioner is the Editor of the newspaper and has_ ## Crl.M.C.No. 2932 of 2015 13 _been so shown in the newspaper, unlike the 1st petitioner who was not mentioned as the Editor or Printer or Publisher, to be brought within the scope of Section 7 of the press and registration of books act, 1867. The presumption under Section 7 thereof is, undoubtedly, available against the 2[nd] petitioner, though rebuttable it may be, and as held in South Gurbachan Singh Koshan v. Babu Ram (3 supra), the duty of the Editor to verify before publication cannot be negative even before an enquiry or trial on merits. The principles laid down in the decisions from foreign jurisdictions, not inconsistent with the Indian law, suggest that there is no absolute immunity to the press in this regard, which is subject to the ordinary laws of the land like any other citizen and by virtue of Section 7 of the press and registration of books Act, 1867, the consequential presumption arising against the 2[nd] petitioner there under, the admitted status of the 2[nd] petitioner as the Editor of the newspaper and the contents of the publication in question, through by way of a paid advertisement, being undoubtedly, offensive to the complainant (while whether they are defamatory in character or not has to be still established during trial), any premature termination of the criminal proceedings against the 2[nd] petitioner may not be in tune with the settled principles it may be that the 2[nd] petitioner may ultimately prove himself to be entitled to be absolved of any criminal liability due to absence of any mala fides or malice or illwill or knowledge or due to the publication having been made in spite of his due diligence, care and caution or otherwise due to such other sustainable defence, but the trial Court could not have refused to take cognizance of the offence against him at the preliminary stage itself. Hence, the criminal petition cannot succeed in respect of the 2[nd] petitioner.”_ 13. The view expressed by me in the above paragraphs are fortified by the observations in the above judgments. The offence under Sections 500,502,503 r/w.Section 499 of the IPC will get Crl.M.C.No. 2932 of 2015 14 attracted if the publication is containing defamatory statements or imputation harming the reputation of the other, irrespective of the question whether it is an advertisement or not. This is by virtue of the presumption contained under Section 7 of the Press and Registration of Books Act. 14. However, as pointed out by this Court in K.M.Mathew v. K.A. Abraham [AIR (2002)6 SCC 670], the presumption under Section 7 of the Press and Registration of Books Act is a rebuttable one. Thus, it shall be open for the Printer and Publisher as well as Editor to rebut the said presumption, by producing necessary materials to show that they were neither responsible for preparing the said advertisement nor for selecting the said advertisement. It is a question of fact, which can be examined only upon evaluation the evidence to be adduced in a trial. Crl.M.C.No. 2932 of 2015 15 15. It was contended by the learned counsel for the petitioners that, only in cases where the publication of advertisement was made in respect of any prohibited articles or matters, the responsibility can be fastened upon the petitioners herein. It was further pointed out in this connection that, as far as the contents of Annexure-B advertisement is concerned, it was relating to transactions between two individuals in which the petitioners did not have any role. However, in my view, the petitioners cannot escape from the responsibility merely because of the reason that Annexure-B was not a prohibited advertisement. As mentioned above, presumption under section 7 of PRB Act extends to all the contents of the news paper, irrespective of the nature thereof. Hence, the aforesaid question has to be examined, on the basis of the evidence to be adduced and after completing the trial. Crl.M.C.No. 2932 of 2015 16 16. In Elizabeth Peck v. Tribune Company [Digest Sup.Ct.1908], an observation was made by the Supreme court of United States while considering the case of libel found in an advertisement printed in a newspaper, which reads as follows: _“This is an action on the case for a libel. The libel alleged is found in an advertisement printed in the defendant’s newspaper. There was some suggestion that the defendant published the portrait by mistake, and without knowledge that it was the plaintiff’s portrait, or was not what it purported to be. But the fact that, if it was one, was no excuse. If the publication was libelous, the defendant took the risk. As was said of such matters by Lord Mansfield, ”Whenever a man publishes, he publishes at his peril.” The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else.”_ Though, the above observations are not binding on this court, the principles therein are having some relevance to this case. By virtue of section 7 of PRB Act, the petitioners herein are having some responsibility for each and Crl.M.C.No. 2932 of 2015 17 every statements made in the publication, irrespective of the nature of such publication. 17. Regarding the decisions relied on by the learned counsel for the petitioners, I am of the view that, none of them are relevant in the facts and circumstances of the case. As far as the unreported judgment in WP(C) No.6485/2020 is concerned, the observations therein were made completely in a different scenario while considering the prohibition of advertisement of an ayurvedic treatment. The facts of the case in Mammen Mathew’s case (supra) were in relation to a news item published, which was completely different from the factual situation existing in this case. Aman Kumar Singh’s case (supra)was a decision rendered by Chathisgarh High Court, while considering the question of defamation in respect of a news item. In such circumstances, I do not find any reasons to entertain this Crl.M.C, as the Crl.M.C.No. 2932 of 2015 18 contentions raised by the petitioners are matters to be decided on evidence and therefore, beyond the scope of proceeding under Section 482 of Cr.P.C. Accordingly, this Crl.M.C is hereby dismissed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.M.C.No. 2932 of 2015 19 ## APPENDIX OF CRL.MC 2932/2015 PETITIONERS’ ANNEXURES: ANNEXURE-A: TRUE COPY OF THE RELEASE ORDER DATED 28.6.2014. ANNEXURE-B: TRUE COPY OF PAGE 3 OF THE NEW SUNDAY EXPRESS DATED 29.6.2014. ANNEXURE-C: TRUE COPY OF THE BILL DATED 29.6.2014. ANNEXURE-D: CERTIFIED COPY OF THE COMPLAINT. **==> picture [90 x 9] intentionally omitted <==** **==> picture [30 x 10] intentionally omitted <==** P.S. to Judge