ORDER
R. Dayal, J.
1. This application has been filed under Sections 561-A and 439 of the Code of Criminal Procedure, 1898, which Code is still in force in the State of Sikki, for quashing the order dated 7-3-1991 summoning the applicants to face a criminal case under Sections 500, 501, 502, 109 and 34, I.P.C., passed by the learned Judicial Magistrate (East and North) Sikkim in Criminal Misc. Case No. 10 of 1991.
2. Messers Bennett Coleman and Company Ltd., is carrying on the business of printing and publishing various newspapers, magazines, periodicals and weeklies from various parts of the country and one of the dailies published by this Company is Nav Bharat Times. Petitioner No. 1 Shri A.K. Jain is the Chairman and petitioner No. 2, Shri Samir Jain is the Managing Director of the Company. The Criminal proceedings arise from a news item published by the Nav Bharat Times on 11-12-1990 with the heading 'Dalmia Samooh Ki Kar Chori pakari gayi.' Thereafter a notice dated 22-1-1991 was sent by Shri R. B. Subba, advocate on behalf of five companies including Messers Mansarover Commercial Pvt. Ltd., respondent No. 2, the complainant, to seven persons including the applicants, alleging, inter alia, that the said publication had been made mala fide with the motive of verifying the name and reputation of the companies on whose behalf of the notice was sent, undermining their business. By this notice, the addresses were required to tender unconditional apology as per the draft enclosed therewith and to publish the same on the front page of the newspaper with the same prominence with which the news item had been published. It was further mentioned in the notice that in within 48 hours after the service of the notice, civil and criminal proceedings would be initiated against the addressees. The petitioners sent a reply (Ex. P. 7A) to this notice on 11-2-91 through Shri P.R. Seetharaman, Advocate mentioning therein that his clients were Chairman and Vice Chairman and Managing Director respectively of the company known as M/s. Bannet Coleman and Company Ltd., who are the publishers of the Nav Bharat Times from various places and the Board of Directors had entrusted the editorial responsibility of Shri Rajendra Mathur, Chief Editor and the said paper is printed and published by Shri Ramesh Chandra, Executive Director. It was further mentioned that his clients did not take any part in gathering news and/or in editorial matters and printing and publishing of the newspaper and as such they had no direct knowledge of what was printed and published, as they were concerned with the general policy of the newspaper and business aspect of the same and so the notice was uncalled for and unjustified. Thereafter, a criminal complaint which was registered as Criminal Misc. Case No. 10 of 1991 in the Court of the Judicial Magistrate East and North Sikkim, was filed by respondent No. 2, Messers Mansarover Commercial Pvt. Ltd., against six persons. Accused Nos. 1 and 2 are the applicants who are the Chairman and the Managing Director respectively. Shri Rajendra Mathur who was the Chief Editor, since deceased, was impleaded as the third accused. Accused No. 4 is Shri Ramesh Chandra, the printer and publisher. Accused No. 5 is Shri Surender Pratap Singh, Executive Editor and accused No. 6, is Shri Sanjay Pugalia, the author of the impugned item. It was alleged in the complaint that the above mentioned item was defatory against the complainant company and had directly or indirectly harmed and injured its reputation and credibility. In paragraph 8 of the complaint, it was alleged that the complainant had reason to believe that the said news item had been written and published at the instance of and in furtherance of the common intention of all the accused persons who were out to harm the complainant company by publishing the above item. In paragraph 17, the complainant alleged that all the accused persons had in active connivance with each other and 'with common malign' defamed the complainant company by publishing the item with the intention to harm knowing or having reason to believe that the said statement would harm the reputation and credibility of the company. The accused were alleged to have committed offences under Sections 500, 501, 502 read with Sections 34 and 109 of the Indian Penal Code. The learned Magistrate examined two witnesses, namely, Shri Rakesh Maggo PW 1 and Shri Jigmi Dorjee PW 2. The evidence of Shri Jigmi Dorjee is not at all material for the present case, since he has stated nothing about the involvement of the applicants with the news item in question. The other witness, Shri Rakesh Maggo, is the director of the complainant company, Messers Mansarover Commercial Pvt. Ltd. He has also stated nothing as to the involvement of the applicants with respect to its preparation, publication or printing except that the Nav Bharat Times is managed and owned by the accused persons as Chairman and Managing Director. On 7-3-91 the learned Magistrate passed the impugned order summoning all the accused, expressing the view that the complainant has made out a prima facie case under Sections 500, 501, 502, 109 and 34, I.P.C. But he has not indicated on what specific materials he found a prima facie case against the applicants, as he has stated that his view is based on a consideration of the submissions of the learned counsel for the complainant and on a perusal of the exhibits (documents) before him. This statement is too vague to give an insight into the mental process which could have led him to hold that view. This much is, however, clear that he did not find any thing in the oral evidence to be of relevance against the applicants. Certainly, the submissions of a counsel cannot take the place of oral evidence or other materials on which a person can be called upon to answer a criminal case. The documents, he had in contemplation, he has not specifically mentioned to show which documents, in his view, made the applicants responsible for the publication and in which manner. He saw virtue in being vague, rather than specific, exposing himself to the allegation from the applicants that the impugned order suffers from non-application of mind. The case of the applicants is that no allegation whatsoever has been made and no material whatsoever has been disclosed to show their involvement in the making or publication of the news item and the complaint has been filed with an ulterior motive to harass them.
3. Making or publication of an imputation is an essential ingredient of the offence of defamation. Arguments in this Court have been advanced on the footing, as if the news item in question is defamatory, since the question as to whether or not it is, in fact, defamatory is to be determined at the trial. The only question for consideration at this stage is whether there is any material on the record to make out a prima facie case about the involvement of the applicants either in the making or the publication of the item. As observed in Nagawwa v. Veeranna, AIR 1976 SC 1947: (1976 CriLJ 1533), the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited --limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether prima facie case for issue of process has been made out. In coming to a decision as to whether a process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. By way of illustrations, to provide sufficient guidelines, it was pointed out that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
4. An order summoning a person to appear in a Court of law to answer a criminal charge entails serious consequences. Such an order cannot be passed without the sanction of law. So issue of process against an accused person against whom no allegations have been made in the complaint, nor is there any evidence or materials to show his involvement in an offence, is certainly an abuse of the process of the Court, for, in that case, there can be no occasion for the Magistrate of being of the opinion that there is sufficient ground for proceeding, so as to justify the issue of the process against him.
5. In the present case, the complaint does not disclose any facts so as to connect the applicants with the publication. The mere fact that applicant No. 1 is the Chairman and applicant No. 2 is the Managing Director of the Company that carries on, amongst others businesses, the business of printing and publishing the Nav Bharat Times is by itself, not sufficient to make them liable for the publication. Para 8 of the complaint runs as under:--
'8. That the complainant has reason to believe that the above said article was written and published at the instance of and in furtherance of a common intention of all accused persons who are out to harm the complainant company by publishing the abovesaid false, malicious and defamatory articles against the Complainant Company.'
This paragraph states the belief of the complainant rather than the facts that the news item in question was written and published at the instance or in furtherance of the common intention of all the accused persons. The facts on which the belief could be based have not been alleged. As regards evidence, the only evidence on the point is the statement of Shri Rakesh Maggo, (P.W. 1) who is the Director of Messers Mansarover Commercial Private Limited, the complainant to the following effect:
'The above said Nav Bharat Times is managed and owned by accused persons in their respective possession as Chairman, Managing Director, Chief Editor, Printer and Publisher Executive Director author of the said articles as given in the complaint.'
6. The fact that the Nav Bharat Times is managed by the applicants as Chairman and Managing Director does not amount to an evidence of the fact that these persons were concerned with the making, printing or publishing of the item. Thus, there is no evidence whatsoever as to the common intention or participation of the applicants in the publication of the item.
7. Besides, in law, there is no presumption that the Chairman or the Managing Director of the Company owning a newspaper is responsible for the contents of the newspaper. The holder of such office is neither the editor nor the printer, nor the publisher, merely for being the incumbent of such office, without anything more, Section 5 of the Press and Registration of Books Act, 1867, inter alia, provides in Sub-section (1) that every copy of a newspaper shall contain the name of the editor thereof printed thereon, and in Sub-section (2) for the making of a declaration by the printer and the publisher in the prescribed form. Section 6 provides for the authentication of such a declaration. Section 7 reads as under:
'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 declaration, 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.'
Thus a person declared to be the printer is to be presumed the printer, the person declared to be the publisher is to be presumed the publisher; and the person whose name is printed as the editor, is to be presumed the editor. Under Section 1(1), 'Editor means the person who controls the selection of the matter that is published in a newspaper.' So, unless the contrary is proved, the person shown to be the editor is responsible for the contents of the newspaper and the persons declared to be the printer and the publisher are responsible as printer and publisher. There is no presumption that the Chairman or the Managing Director of the Company that owns a newspaper is responsible for the selection of the matter that is published in a newspaper or for its printing or publishing. The Supreme Court observed in State of Maharashtra v. R. B. Chowdhari, AIR 1968 SC 110 : (1968 Cri LJ 95) (Para 7):
'7. ... The term 'editor' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor is a person who is responsible for selection of the material Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy o the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question. On the whole therefore the order of discharge made by the learned single Judge appears to be proper in the circumstances of the case and we see no reason to interfere.'
8. Thus, there being no evidence showing the involvement of the applicants with the making, printing or publishing of the news item in question, nor there being any presumption in law about the involvement of the incumbents of the respective offices held by them as to the making, printing or publishing of the contents in a newspaper, the issue of process by the learned Magistrate by the impugned order dated 7-3-1991 was an abuse of the process of Court.
Accordingly, the application is allowed and the impugned order is quashed and set aside.