L. Rath, J.
1. An order passed by the learned Subdivisional Judicial Magistrate, Bhubaneswar recalling the process issued against the opposite party on a complaint Under Section 500 read with Section 34, IPC brought by the petitioner arraigning the opposite party as accused No, 3 is assailed in the present petition. The bare facts are that the complaint was filed alleging commission of offence by Shri Pritish Nandy, the Editor and Publisher of the Illustrated Weekly of India and Dr. Claude Alvares as also the present opposite party alleging that the petitioner was a Cabinet Minister of the Government of India since 23-4- 1989 and was Minister of Environment and Forest til! 2-4-1990. Two issues of the Illustrated Weekly of India were published for the period July 29-August 4, 1990 and August 26-September 1, 1990 respectively containing articles captioned,'A Hallow Mockery'' and 'The Real issues, Both the articles contained defamatory imputations and aspersions against the petitioner. The first article was written by accused No. 2 Dr. Claude Alvares and the second one was written by Shri Pritish Nandy. As regards the opposite party the averment is of it being the proprietor of the Illustrated Weekly of India the accused Nos. 1 and 3 to have pubiished/publicised/to have got pubished the two issues of the periodical through the local office of the opposite party at New Capital, Bhubaneswar. The learned Subdivisional Judicial Magistrate, Bhubaneswar, after recording the statement of the petitioner Under Section 200, CrPC conducted an inquiry under Sec 202, CrPC wherein he recorded the statement of a witness Sri Rama Krushha Mishra and felt a prima facie case Under Section 500 read with Section 34, IPC to have been made out and taking cognisance, directed issue of summons against all the accused. The opposite party thereafter entered appearance and filed a petition on 25-8-1993 for recalling the process against it. The learned SDJM after hearing both sides allowed the petition for which the present petition has been occasioned.
2. The learned SDJM reached the conclusion that in view of the decision in AIR 1992 SC 2206 : (1992) 5 OCR 66 (K. M. Mathew v. State of Kerala and Anr.) he had the authority to reconsider and recall the process issued. On merits he held of the opposite party having no part to play in editing, printing and publishing the articles for which he took the view that there was no prima facie case for the opposite party to stand trial. Besides, he also took exception to the fact that the opposite party had not been represented by its Board of Directors/ employees etc. He found that there was no specific allegation against the opposite party that it itself had committed any offence. To reach the decision reliance was placed by him on AIR 1968 SC 110 (The State of Maharashtra v. Dr. R. B. Chowdhuri and Ors.).
3. Mr. B. M. Patnaik, learned counsel appearing for the petitioner, has urged white moving the matter for admission that the petitioner has come with the allegation of commission of offence also inter alia against the opposite party and the learned SDJM having directed issue of process on being satisfied of there being a prima facie case against it, should not have recalled the process as at that stage all that was necessary to be seen was whether a prima facie case was made out on the basis of the materials presented by the complainant and not as to whether the allegations are established or whether the case would ultimately end in conviction. In making the submission he has conceded that the learned Magistrate had the jurisdiction to re-consider and recall the process issued but submitted that though such a power lay in him, yet it had been improperly exercised.
4. Dealing with the duty of the Court in directing issue of process on a private complaint, I had the occasion to observe in (1993) 6 OCR 657 (Bharat Ranjan Misra v. Shyam Sundar Agarwal) :
' xx xx it is true that in a case where the cognizance taken in a complaint and the direction for issue of process are assailed before the Court seeking their quashing a consideration as to whether ultimately a conviction would ensue on the com- plaint or not is not appropriate and the factors which should weigh with the Court are that whether even if the prosecution allegations are taken as uncontroverted, a prima facie case is made out. Even so it is also not the law that when some alle- gations are made in the complaint, the Court is to merely act as a rubber stamp to direct issue of process. Some kind of check on the genuineness of the complaint is inherent so that the Court is not used for an oblique purpose but is approached for bringing an offender to book. The demarcating line between the two approaches is extremely thin and the Court has to be conscious while dealing with the same. On the one hand the right of a prosecutor where his rights have been infringed and he is aggrieved by the criminal conduct is to be safeguarded and justice meted out, and on the other hand, a possibly innocent citizen is to be protected from unnecessary and undue harassment by letting loose a prosecution against him mala fidely. xx xx'
It follows that even though the consideration at the stage of issuing process is not as to whether the case would ultimately end in conviction, yet the Court has to remain alert that it is not being used for an ulterior purpose without there being any remote chance of conviction in the case. In that case reliance was placed on AIR 1988 SC 709 (Madrvavrao Jiwaji Rao Scindia v. Sambhajirao Chandrajirao Angre) where the observations made was :
'The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offences. It is also for the Court to take into consideration in a particular case to consider whe- ther it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a prosecution to continue, the Court may, while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'
5. In the background of such position of law, it is to be considered whether there is a prima facie case against the opposite party and whether there is even any remote chance of its conviction. Mr. Patnaik. being pressed with the question has urged the sole submission that the opposite party is the owner of the press in which the periodical was printed and he also produced an issue of the Illustrated Weekly of India to show it being printed for 'Bennett Coleman and Co. Ltd., etc. by Pritish Nandy, etc.'. Section 7 of the Press and Book Registration Act, 1867 (hereinafter called 'the Act') provides that in any legal proceeding whatever, as well civil as criminal, the production of a copy of the declaration Under Section 5 and/or in the case of the editor, of the copy of the newspaper showing his name as the editor, shall be held to be sufficent evidence against the person whose name is subscribed to the declaration as the printer, or publisher or the printer and publisher, or printed on the newspaper as the editor, that the said person was the printer or publisher or printer and publisher of every portion of every newspaper whose title corresponds to the title of the newspaper as stated in the declaration or that, as the case may be, the editor of every portion of that issue of the newspaper of which the copy is produced. It is to be noticed that no . such presumption is attached to the owner, even though Section 5 (1) of the Act requires that every copy of every newspaper shall contain the name of the owner besides that of the editor. Hence while law creates a statutory liability even in a criminal proceeding against the editor, printer and the publisher, yet no such liability is attached to either the owner of the newspaper or the owner of the press. To make them liable as parties to the offence their active participation in it and the necessary mens rea in them for the purpose have to be established. It has hence to be alleged not only in a general manner that the accused was the owner of the press or of the newspaper but also that he had a direct participative role in making the publication and that he was guilty of the ingredients of the offence under Sec.499 of the Indian Penal Code. It has to be shown that he had the necessary knowledge of the printing and publication and he intended the offence to be committed. The question was examined in AIR 1968 Calcutta 296 (Sardar Bhagat Singh Akali v. Lachman Singh Akali) wherein it was observed :
'The owner in order to be liable Under Section 499 of the Code has to have direct responsibility for the publication of the defamatory statement and he must also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the person concerned. The owner of a journal qua owner has thus no responsibility under the section '
Analysing the provision of Section 7 of the Press and Registration of Books Act, the Apex Court observed in paragraph 13 in AIR 1979 SC 154 (Haji C. H. Mohammed Koya v. T. K. S. M. A. Nuthukoya) in relation to the Preamble of the Act, that in order to avoid multiplicity of suits and uncertainties of liabilities, it was considered necessary to choose one of the persons from the staff and make him liable for all the articles or matters published in the paper so that any person aggrieved may sue only the person so named under the provisions of the Act and is relieved from the necessity of making a fishing or roving enquiry about persons who may have been individually responsible for the offending matters published in the paper, The Court held that their opinion as above was reinforced by the statement of objects and reasons accompanying the Act to the following effect :
'Whereas it is expedient to repeal the Indian Press Act, 1910 and the Newspapersvincitements to Offences)Act,1908,and to make further provision in the Press and Registration of Books Act, 1867, for the liability of editors of newspapers in civil and criminal proceedings and to make certain amendments in that Act in order to facilitate the registration of printers and publishers, and to provide in the Sea Customs Act, 1878, the Code of Criminal Procedure, 1898, and the Indian Post Office Act, 1898, for the seizure and disposal of certain documents ; it is hereby enacted as follows.'
The Court also took into consideration the definition of 'Editor' in Section 1 (1) of the Act which says :
'Editor' means the person who controls the selection of the matter that is published in a newspaper.'
6. It would hence be seen that even the objects and reasons of the Act reiterated that the provision had been made in the Act that the civil and criminal liability in respect of the publication was that of the editor.
7. In the complaint petition itself no allegation has been made specifically against the opposite party of it having been directly responsible for the printing and publication of the offending articles. No such evidence has also been led during the Section 202, CrPC inquiry. Since nothing has. been shown of the opposite party being directly responsible for the articles, it would be a travesty of justice to permit the prosecution to continue against it and hence the learned S.DJ.M. had rightly decided to recall the process issued. In that view of the matter, I do not find any good grounds for admission of this case. The petition is rejected.