Judgment:
ORDER
P. Shanmugam, J.
1. Petition is to quash the proceedings in S.T. No. 1341/93 on the file of the Judicial Magistrate of First Class, Chengannur, including Annexure-Al complaint.
2. The respondent had preferred a complaint dated May, 1992 against the petitioners alleging that by publishing the news item the petitioners have committed the offence of defamation punishable under Sections 500, 501 and 502 read with Section 34, I.P.C. The complaint related to a news item published in the newspaper dated 14-2-1992 wherein, according to the complaint, publication under the caption 'Fraud in Gulf, 'complaint against a Malayalee,' appeared as a news item. According to him, the publication had seriously infringed the reputation of the complainant and lowered his moral and intettectual character, causing considerable mental pain and agony to him and his family. When complainant caused a notice calling upon the petitioners to make an unconditional apology, petitioners have expressed their inability to do so holding that the news item was published in the interest of the public. As against the complaint, petitioners have earlier moved the High Court in Criminal M.C. No. 2345 of 1993 under Section 482 of the Criminal P.C. to quash it. This Court by order dated 13-12-1994 quashed the proceedings on the ground that the alleged imputation were not incorporated in the complaint and, therefore, the complaint was defective. On a Special Leave in Criminal Appeal No. 1726/96, dated 25-9-1996 the Hon'ble Supreme Court allowed the appeal holding that the news item is per se defamatory, and , therefore, there is no need of incorporating selected pieces there from in the complaint separately and directed the Magistrate to proceed with the complaint. Thereafter the present Criminal M.C. is filed to quash the proceedings.
3. Learned counsel for the petitioners raised two points : (i) Annexure Al complaint is not maintainable against the Chief Editor and, therefore, the Court below acted without jurisdiction in taking cognizance of the complaint against him, and (ii) the Judicial Magistrate of First Class, Chengannur has no territorial jurisdiction since the paper was printed and published at Kottayam.
4. Learned counsel for the petitioners submitted that in the earlier round of litigation though these points were raised the learned Judge found it unnecessary to consider the above questions in the light of the finding that the complaint was liable to be quashed on the third ground viz. absence of the relevant portion of the defamatory statement. Therefore, according to him, these questions are still left open. It is further submitted that the 1st petitioner, namely, the Chief Editor, is in no way responsible for the selection of the materials and its publication and that there is no specific averment of an overt act on his part in the complaint.
5. The relevant portion dealing with the Chief Editor in the complaint is as follows :
As the Chief Editor he is in overall control of the publication and he has active participation thereof.
xx xx xx xx xxThis news item was transmitted to Kottayam office of by the 4th accused, as the correspondent and it was published with the knowledge and connivance of the Chief Editor.
In the lawyer's notice dated 6-4-1992 calling upon the petitioners for an unconditional apology it is stated as follows :
The first among you is the Chief Editor of Malayalam Manorama daily and is in overall charge of the Printing and Publishing of the same
xx xx xx xx xxAs Chief Editor, Editor, Printer and Publisher and correspondent, all of you are jointly and severally liable for the publication of the news being per se defamatory....
In the reply to the said lawyer's notice dated 22-4-1992 it is stated :
That the publication had been made after due enquiry and had been made based on reliable information received by our clients.
6. Thus from the records it is seen both in the legal notice as well as in the reply a specific imputation of responsibility was raised, but was not denied in the reply. Similarly in the complaint the respondent had specifically averred the involvement of the Chief Editior. Therefore, the stand of the petitioners that there is no specific averment of any overt act cannot be accepted.
7. It is nextly contended that the 1st petitioner is not in any way responsible for the selection of the materials and its publication. In this context he has referred to Section 7 of the Press and Registration of Books Act, 1867 and also the decision in Mohammed Koya v. Muthukoya AIR 1979 SC 154, wherein the Supreme Court held that the Press Act does not recognise any other legal entity except the editor in so far as the responsibilities of that office are concerned. In Mohammed Koya's case the Supreme Court was dealing with the allegations of corrupt practice falling within the ambit of Section 123 of the Representation of the People Act alleging that Mohammed Koya as the Chief Editor of a Malayalam daily was responsible for the publication containing several articles and speeches to vote him for religious and communal grounds. Mohammed Koya denied that he was an editor, but admitted that he was the Chief Editor and that too only in the name. The Supreme Court also found that the term Editor means a person who controls the selection of the matter that is published in a newspaper. Where a person' s name is printed in the newspaper as its editor it raises a rebuttable presumption only against such editor. He can rebut the presumption by showing that he had nothing to do with the publication of the editorial or the news reports. But where a person is not shown in the paper to be its editor no such presumption under Section 7 of the Press Act can be drawn.
8. Therefore the contention of learned counsel for the petitioners that as the Chief Editor he cannot be held as responsible under the Press Act cannot be sustained. As per the decision, a presumption even against the editor can be rebutted. There is nothing in the Act to save a Chief Editor or a person not shown in the paper to be its editor from being prosecuted.
9. In K.M. Mathew v. State of Kerala (1992) 1 Ker LT 1 : 1992 Cri LJ 3779 the Supreme Court was dealing with a similar contention filed by the 1st petitioner herein. The Magistrate held that the complaint in so far as it relates to the Chief Editor could not be proceeded with. The High Court reversed the order of the Magistrate and the Supreme Court though allowed the appeal held 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. In that case, according to the Supreme Court, there is no averment against the Chief Editor except a general allegation of motive, the legal presumption cannot be drawn against the Chief Editor. In yet another case of this Court in Mathew v. Nalini (1988) 2 Ker 832 following the decision of the Mohammed Koya's case held that there can be no presumption against the Chief Editor since the Chief Editor has not an office as contemplated under the Press Act. In that case also the Court found that there was no averment that the Chief Editor was the person who selected the material for publication. The Court held that merely on the basis that the name of the Chief Editor appears in the newspaper a presumption cannot be raised against him and that there is no material whatsoever in the complaint suggesting a case against the Chief Editor. This judgment also is not of any help to the case put forward by the petitioners. In the light of the clear pronouncement on the question whether the Chief Editor can be proceeded with in a case of defamatory especially concerning with the 1st petitioner himself in another case (Vide K.M. Mathew v. State of Kerala 1992 Cri LJ 3779 referred supra) it is not possible to accept the case of the petitioners.
10. Jurisdiction : Though the petitioners has not raised the jurisdiction point in the petition learned counsel for the petitioners submitted that the newspaper was published from Kottayam, Trivandrum, Kochi, Palakkad, Kozhikode, Kollam and Kannur and the publication is complete at the place where it is printed, and, therefore, the circulation of the newspaper other than place of printing cannot be treated as place of publication for the purpose of jurisdiction.
11. In support of his contention he had referred to the decision in C.S. Sathya v. State of Karnataka (1993) 1 Kant LJ 56 : 1994 Cri LJ 1954 and an unreported decision of this Court in Crl.M.C. No. 183 of 1995, dated 4-4-1997.
12. Before going into the controversy the scope of the offence of Section 499, I.P.C. and Sections 177, 179, Cr. P. C. may require brief consideration. The offence complained of is defamation. The following are the requisites of Section 499 for defamation :
1. Making or publishing any imputation concerning any person;
2. Such imputation must have been made by
(A) Words either spoken or intended to be read; or
(B) signs, or
(C) visible representations.
3. Such imputation must have been made with intention of harming or with knowledge or reason to believe that it will harm the reputation of the person concerning whom it is made.
13. The meaning of the word 'publish' as given in Chambers 20th Century Dictionary is 'to make public'; 'to divulge; to announce; to proclaim; to send forth to the public; to put forth and offer for sale orig. any article, new books ,newspapers etc. to put in circulation' Halsbury Laws of England, Third Edn. Page 35: 'publication consists in making known the defamatory statement after it has been reduced into some permanent form'. Words and Phrases, Vol. 35A, Page 148, 'publish' in general is defined as bringing before the public as for sale or distribution. To 'publish' a libel, is to make is known to communicate it to others. To publish is to put into general circulation as distinguished from printing. Publisher of newspaper who causes paper, after printing, to be circulated in ordinary manner publishes it. Publish means to bring before the public as for sale or distribution.
14. In this connection it is useful to refer to the decision in Amar Singh v. K.S. Badalia 1965 (2) Cri LJ 693 (Patna) in reference to publication :
One of the ingredients of the offence of defamation is that there should be making or publication of any imputation.... The defamatory matter has to be published. In other words, it has to be communicated to a person other than the person defamed...'makes' in Section 499 has been used in its etymological sense as connoting 'to make public' or to make known to people in general.
15. Indian Penal Code - Ratarial and Dhirajlal's 26th edition refers and comments 'publishes' as follows :
Where a libel is printed, the sale of each copy is a distinct publication and a fresh offence; vide Pundit Mokand Ram (1883) PR No. 12 of 1883'. Defamatory matter written on a post-card or printed on papers distributed broadcast, constitutes publication vide Thiagaraya v. Krishnasami (1892) ILR 15 Mad 214'. 'The editor and proprietor of a newspaper, containing defamatory matter by post from Calcutta, where it is published, addressed to a subscriber at Allahabad, is publication of such defamatory matter at Allahabad. Vide McLeod, sup : Girjashankar Kashiram, (1890) ILR 15 Bom 286).
16. Section 177 of the Cr. P. C. refers to the well established common law rule that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which on the evidence the facts occurred and are alleged to constitute the crime. Therefore the place the defamatory matter was published will be competent to entertain the complaint. If the statement is published in a newspaper circulated and read in Chenganoor the Magistrate Court at Chengaonor will have jurisdiction.
17. Section 178 of the Code provides for a jurisdiction to try the case in case of conflict of different areas and doubt about the Court competent to try. In this context the decision in M.R. Krishnamurthy Aiyer v. C.V. Parasuram Aiyar 24 Cri LJ 309 : AIR 1923 Madras 666 would apply squarely wherein the Court held that if a defamatory letter is posted in Madras with view to its being read in Tirunnelvelly the offence of defamation is triable either in Madras or in Tirunnelvelly under Section 178 or Section 179 of the Code.
18. Section 179 of the Code applies when the act is an offence by reason of anything which has been done and any consequence has ensued. But it has been held by many High Courts unless the consequence ensued is one of the ingredients of the offence. Section 179, Crl. P. C. has no application, vide Mukhi Tirathdas v. Jethanand Matvalamal 38 Crl LJ 512 at 520 : AIR 1937 Sind 68 (FB), Kashi Ram Mehta v. Emperor AIR 1934 All 499 at 503 : 1934 (35)Cri LJ 982 (FB) and In Re Jivandas Savchand, (1931) ILR 55 Bom 59 : AIR 1930 Bom 490 (FB).
19. The case of the petitioners is that publication is complete at Kottayam, the place where it is printed and published, according to them. Printing is different from publication. Even though the printing part of it is complete at Kottayam, papers containing the imputation are sent out to various centres for circulation. Applying the meaning of the word 'publish' the papers are made public when it is offered for sale or circulated for sale.
20. The place of the commission of offence for the purpose of Sections 177 and 179 of the Crl. P. C. would be at Chenganoor. As one of the ingredients of defamation being publication intending to be read will mean to whichever place it is addressed or circulated to the subscribers or public.
21. The only decision referred to by the petitioner viz. C.S. Sathya v. State of Karnataka (1993) 1. Kant LJ 56 : 1994 Cri LJ 1954 has followed the principles laid down in S. Bangarappa v. Ganesh Narayan 1984 Cri LJ 1618 (Kant) and Subramaniam Swamy v. P.S. Pai, 1984 Cri LJ 1329 (Bom). But on fact it held that the complainant reading or having come to know of the defamatory matter at a different place would not give the jurisdiction. The said decision cannot, in my view, be an authority for the proposition that circulation of a paper is of no consequence in case of defamation. It is nobody's case that all the papers were printed and released at Kottayam to public and the papers reached by circulation to the hands of the complainant from Kottayam. The learned counsel referred to an unreported decision in Crl. M. C. 183/95 dated 4-4-1997 of this Court. I find that the matter was not contested. The learned Judge did not have the opportunity of considering the impact of Section 179 in reference to circulation of newspapers, but has followed the decision in C. S. Sathya's case.
22. In S. Bangarappa v. Ganesh Narayan 1984 Cri LJ 1618 (Kant) and Subramaniam Swamy v. P.S. Pai, 1984 Cri LJ 1329 (Bom) have clearly stated that publication of the statement in a news paper circulated in the place would confer jurisdiction. In all these cases the statement made by the accused is said to have been complete on the consequence ensued after publication. In this case the complaint is against the publisher himself and it is seen that the fact of publication itself is at Chenganoor apart from the fact of its consequences. In other words even without resource to Section 179 the complaint can be maintained under Sections 177 and 178 of the Code.
23. Some of the decision can now be carefully referred to. The jurisdiction question especially in reference to defamation matters was subject matter of interpretation by various Courts. In Krishnamurthi v. Parasurama AIR 1923 Mad 666 : 1923 (24) Cri LJ 309 the Madras High Court held that if the defamatory letter is posted in Madras with a view to be read in Tinnevelly, the offence of defamation is triable either in Madras or in Tirunnevelly, under Sections 179 and 182 of the Code.
24. In Rekhabai v. Dattaraya 1986 Cri LJ 1797 the Bombay High Court held in case of defamation for the purpose of jurisdiction place of trial where the letter was written and posted or where the letter was received. The posting of the letter being publication in cases where the letter reaches its destination, the offence itself is competed with the posting of the letter and gives jurisdiction to the Court where the letter is posted and consequences which consisted in gaining publicity at the opening of the letter at the other and also gives jurisdiction where the addressee resided.
25. In Purnaiah v. Satyanarayan AIR 1959 Andh Pra 657 : 1959 Cri LJ 1403 the Andhra Pradesh High Court held that where the offence of defamation was committed by the accused by positing a defamatory letter from place A to place B, the offence can be tried either at A where the posting took place or at B where the actual publication took place.
26. In Subramaniam Swamy v. P.S. Pai 1984 Cri LJ 1329, the Bombay High Court was dealing with the case of alleged defamatory statement made by the accused in press conference at Chandigarh. But the statement in the newspaper was circulated and read in Bombay. On the question of jurisdiction the Bombay High Court held that the particular newspaper in which the impugned news item is published is circulated and read in the city of Bombay where the complainant resides. The Court took the view that the consequence of the statement made at Chandigarh has been completed at Bombay by Circulation of the said newspapers, and, therefore, the offence of defamation is complete in the city of Bombay. As per Section 179 of the Code both the Courts at Chandigarh and at Bombay will have jurisdiction to entertain a complaint under Section 500 of the Indian Penal Code.
27. In J.N. Bagga v. A.I.R. Ltd. AIR 1969 Bom 302 : 1969 Cri LJ 1109 the Bombay High Court held that an advertisement for sale in a newspaper or journal amounts to 'offer for sale' within the meaning of that expression as used in Section 51(b)(i) of the Copyright Act, 1957, and, therefore, the 'offer for sale' could be deemed to have been made at every place where a journal in which the advertisement is given, is either published or reaches by way of circulation.
28. The Supreme Court in State of Punjab v. Nohar Chand AIR 1984 SC 1492 : 1984 Cri LJ 1153 held that the Court where the sub-standard fertiliser is marketed will equally have jurisdiction to try the manufacturer of the sub-standard fertiliser whose manufacturing activity is at a different place. If one manufactures the sub-standard fertilizer, wherever it is marketed the inter-relation or causal connection is of cause and effect. In Gajjan Singh v. State of M.P. 1965 (2) Cri LJ 822 : AIR 1965 SC 1921 the Supreme Court as against the possession and use of forged motor transport permit held that the permit was seized at Nasik. The forged permit could be used at any of the points between Indore and any out station and case could be tried at Indore in view of Section 179. The petitioner had printed at Kottayam and published and circulated the news paper intending to be offered for sale and read at Chenganoor. Any other construction would narrow or restrict the scope and ambit of Section 499, I.P.C. and Sections 177, 178 and 179, Cr. P. C. Though for the purpose of Press Act the printing takes place at a particular place the petitioner cannot be allowed to contend that the publication is only at the place of the printing and not at the place where it is circulated.
29. The last contention of learned counsel for the petitioners that the complaint does not make out any offence against the other petitioner cannot be accepted since the Supreme Court in SLP. No. 1726/96 dated 25-9-1996 held as follows :
We have for ourselves gone through the news item and we find the same per se defamatory...and direct the Magistrate to proceed with in the complaint....
Therefore, there is no scope for an argument about the merits of the complaint.
For all these reasons I do not find any grounds to interfere with the proceedings before the Judicial First Class Magistrate, Chengannur and the Crl. M.C. is accordingly dismissed.