Amaresh Ku. Singh, J.
1. Heard the learned Counsel for the petitioner and the non-petitioner.
2. This petition under Section 482 of the Criminal Procedure Code seeks the quashing of the proceedings against the petitioner Dr. S.D. Khetani, who is one of the three accused persons against whom process was issued by the learned Additional Chief Judicial Magistrate, Bali (District Pali) under Section 204 of the Criminal Procedure Code, after conducting an inquiry under Sections 200 and 202 of the Criminal Procedure Code, on a complaint filed by the non-petitioner, alleging the commission of an offence under Section 500 of the Indian Penal Code. The offence under Section 500 of the Indian Penal Code is alleged to have been committed by the publication of a news item in Issue dated 1st August, 1989 of 'The Rajasthan Kesari Dainik' a daily news paper alleging that the Sarpanch of village Panchayat Sela, (situated within the sub-division Bali), was alleged to have misappropiated a sum of Rs. 10,000/- which was entrusted to the village Panchayat for the construction of a public well. The non-petitioner worked as 'officiating Sarpanch' of the Gram Panchayat Sela after the passing of the no-confidence motion of the then Sarpanch and after that he was elected as the Sarpanch of the village Panchayat and on the date of the publication of the news item dated 1st August, 1989 was working as Sarpanch. Therefore, the news item hints at his involvement in the alleged criminal misappropriation of public money and is defamatory.
3. The accused who are alleged to be responsible for the publication of the alleged defamatory news, are (a) Dr. S.D. Khetani (who is the petitioner in this case), (b) Shri S.R. Vidhani and (c) Prakash Kumar Chauhan. The petitioner was the Chief Editor, Shri S.R. Vidhani was the Editor and Prakash Kumar Chauhan was the news reporter of the Rajasthan Kesari Dainik, in which the defamatory news item was published on 1st August 1989. It was alleged in the complaint that when the complainant (non- petitioner) came to know about the news item he sent a notice to Dr. S.D. Khetani, the Chief Editor, requesting him to give the particulars relating to the news item in question and in reply he was informed that the news had been published on the basis of the reporting made by Shri Prakash Kumar Chauhan. The learned Additional Chief Judicial Magistrate, Bali, before whom the complaint was filed by the non-petitioner took cognizance of the offence under Section 500 of the Indian Penal Code and conducted inquiry under Sections 200 and 202 of the Criminal Procedure Code and came to the conclusion that there were sufficient grounds to proceed against all the three accused persons. He, therefore, directed the issue of summons against all the three accused including the petitioner.
4. The learned Counsel for the petitioner has submitted that issue of process against the petitioner for the alleged offence under Section 500 of the Indian Penal Code, by publication of defamatory news item in Issue dated 1st August, 1989 of Rajasthan Kesari Dainik amounts to abuse of the process of the court because there are no grounds to proceed against the petitioner for the alleged offence. It is, therefore, submitted that continuance of the proceedings against the petitioner would result in his unnecessary harassment. Prayer made on behalf of the petitioner is for the quashing of the proceedings against the petitioner. The learned Counsel for the non-petitioner has opposed the petition.
5. The learned Counsel for the petitioner has placed reliance on the observations made in (a) K.M. Mathew v. Ashok Tanwar 1995 (2) RLW Rajasthan, Page 293) and (b) K.M. Mathew v. State of Kerala : 1992CriLJ3779 .
6. The facts of the case reported in : 1992CriLJ3779 , were that K.M. Mathew was the Chief Editor of Malyala Manorama, a daily news paper in the State of Kerala and the largest language news paper in India. Separate editions of the news papers were published from different centres namely Trivendram, Kottayam, Cochin and Calicut. At each of these centres there was a separate Editor who was responsible for selection and publication of news items. The Chief Editor was based at Kottayam and he was responsible for the general policy of the Daily and various other publications of the Manorama group of publications. A news item was published in the Daily against an advocate. His case that the news item was published with the sole object of ridiculing and defaming him. He lodged a complaint before the court of Additional Judicial Magistrate against the Chief Editor, the Printer and Publisher of the. news paper alleging that they had committed the offence punishable under Sections 500 and 34 of the Indian Penal Code, the learned Magistrate examined the complainant on oath and took the complaint on file as CC 496/85 and issued summons to the accused.
7. 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 had 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. 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 complaint 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 and held that the Magistrate had no jurisdiction to drop the proceedings against the accused.
8. The Hon'ble Supreme Court considered the facts and circumstances of the case. Their Lordships found that there was no averment against the Chief Editor except the motive attributed to him and even the motive alleged was general and vague and complainant seemed to rely on the presumption under Section 7 of the Press and Registration of Books Act, 1867. Their Lordships held that the presumption under Section 7 was only against the person whose name is printed as 'Editor' as required by Section 5(1). It was also observed that, there is a mandatory (though rebuttable) presumption that the person whose name is printed as 'Editor' is the editor of every portion of that issue of the news paper of which a copy is produced. It was held that the Act does not recognise any other legal entity for raising the presumption.
9. A careful reading of the judgment leaves no room for doubt that the only question of law decided by the Hon'ble Supreme Court was, whether a presumption under Section 7 of the Act of 1867 could be drawn against a person other than the person whose name was printed as 'Editor' and their Lordships answered the question in negative. Whether there were sufficient grounds to proceed against the Chief Editor, (without raising a presumption against him under Section 7) was a question of fact and in view of the particular facts and circumstances of the case their Lordships held that the order of the Magistrate was right as there was not even an allegation against the Chief Editor and the High Court had not examined whether a case was made out by the complainant.
10. Interpretation of Section 7 of the Act of 1867 is a question of law and the law declared by the Hon'ble Supreme Court as to the scope and interpretation of Section 7 of the Act of 1867 is a binding precedent under Article 141 of the Constitution. Therefore, if the 'prima facie case' for proceedings against the petitioner depends on the application of Section 7 of the Act, of 1867, the law declared by the Hon'ble Supreme Court would have to be applied and the law is that no presumption under Section 7 of the Act of 1867 can be drawn against any person other than one whose name is printed as 'Editor' and that an obligatory presumption is to be drawn against the person whose name is printed as 'Editor' and that such presumption is 'rebuttable' So far as finding of facts independently of the presumption drawn under Section 7 of the Act of 1867 are concerned, those findings beings the findings of fact are restricted to that case only and may perhaps be applied to cases with cent percent identical facts, (which is very rare to find).
11. In view of above reasons, the submission made by the learned Counsel for the petitioner that a presumption under Section 7 of the Act of 1867 cannot be drawn against the petitioner because his name was not shown as 'Editor' in the news paper appeals to be correct.
12. The judgment of the Hon'ble Supreme Court in Mathew's case (supra) does not lay down the law that persons other than 'Editors' cannot commit the offences under Section 500 of the Indian Penal Code or that they are immune against prosecutions for offences committed by publication of defamatory news item in a news paper, if there be evidence (other than presumption under Section 7 of the Act of 1867) to show that they have committed the offence.
13. The next case relied on by the learned Counsel for the petitioner is K.M. Mathew v. Ashok Tanwar 1995 (2) RLW Page 293 decide by a learned Single Judge of this Court. In this case as observed by the learned Single Judge, the petitioner (a Chief Editor) was impleaded merely on the ground of his being 'Chief Editor' of the weekly, without any averment in the complaint that he controlled selection of the matter that was published in the weekly. The judgment given by the learned Single Judge rests on the footing that presumption under Section 7 of the Press Act of 1987 was not available to the complainant to prove his case and in the absence of averments, there was no ground to presume that the accused (a Chief Editor) was in any manner concerned with the selection and publication of the news item. This judgment cannot be used as an authority for the proposition that persons other than those shown as Editors cannot in no case be proceeded against for committing the offence punishable under Section 500 of the Indian Penal Code. In fact the presumption under Section 7 of the Press Act 1867, is 'rebuttable' as held by the Hon'ble Supreme Court. It means that even the 'Editor' can rebut the presumption drawn under Section 7 by proving that the defamatory news item was not selected and published by him. In such a case, the criminal liability for publishing the defamatory news item would obviously be of some other person than the Editor, no matter such person is a Chief Editor or any other person. In short, in the eye of law, persons shown as Chief Editors, are neither given legal immunity against criminal prosecutions for publishing defamatory news item in news papers, nor they are recognised as 'persons incapable of committing offences punishable under Section 500 of the Indian Penal Code.' All that they can plead is that if their names have not been shown as 'Editors' then no presumption under Section 7 of the Press Act, 1987 can be drawn against them, and it would require direct evidence or circumstantial evidence to prove that they are guilty of the offence punishable under Section 500 of the Indian Penal Code.
14. The net result of above discussion is that the complainant (non-petitioner) in this case cannot take the help of Section 7 of the Press Act, 1867 for proving a prima facie case against the accused (petitioner). The complainant must, therefore, base his case on direct or circumstantial evidence or any rule of presumption other than Section 7 of the Press Act of 1867, for issue of process against the accused persons who are not covered by Section 7 of the Press Act. At the same time, it must be stated that neither Section 7 of the Press Act of 1867 confers any immunity on any person against prosecution according to law for having committed offence punishable under Section 500 of the Indian Penal Code, if there be grounds to presume that he has committed the offence under Section 500 of the Indian Penal Code, or is liable for the same under Sections 120B, 114 or 34 of the Indian Penal Code.
15. Section 114 of the Evidence Act empowers the courts to take judicial notice of natural events, human conduct, etc. as mentioned in Section 114 of the Evidence Act, subject of course to the condition that the fact noticed by the court must be a fact' which the court believes to be existing or which, in the opinion of this Court is so probable that a prudent man ought, in the facts and circumstances, act on the supposition that it exists. Subject to these conditions, the court can take judicial notice of natural events, common course of business and human conduct. The reason for conferring this power on the courts is obvious. Without this power the courts cannot 'ascertain any facts.'
16. The conduct of a person is relevant under Section 8 of the Evidence Act. The vocation or profession he selects, the post or posts he voluntarily accepts to hold, the name (indicative of his vocation, profession of job) which he gives to himself are important relevant conducts, which amount to admission of what he/she proclaims by words of deeds about himself/herself. People act on such conduct and admissions for the purpose of ascertaining his/her vocation, profession, job and responsibilities. The man who calls himself a doctor in medicine, is believed by people to be a doctor and people start going to him for obtaining medical treatment or for consultations. People believe in what such person says or suggests by words or gestures or by his conduct, for the .simple reason that every member of this civilised human society of ours is required to adhere to truth and truth along and, therefore, he/she is believed to be speaking the truth and conducting himself/ herself in accordance with his/her real profession, or real vocation. If this belief is destroyed the person loses his credibility and he/she would be liable to be discarded as 'unreliable' or an impostor.
17. The law relating to presumptions under Section 114 of the Evidence Act, is founded on the human conduct of the civilised society of ours and this conduct includes strict adherence to certain basic principles without which it would be impossible to carry on the interactions among the human beings in the desired manner. No civilised society, therefore, permits departure from the duty to speak the truth and to conduct oneself strictly in accordance with, truth which the individual or the group concerned believes to exist. The exceptions to the aforesaid duty to speak the truth and conduct oneself in accordance with truth, are in the nature of sports (including jokes and stories), arguments based on a valid rule of logic (for the sake of ascertaining that which is otherwise inaccessible); culture, which permits adoption of falsehood to a certain degree, not with the object of be- fooling people, but with the sole object of reducing the rigours of unpleasant truths and the hypothesis which are conceptualised and advanced with the earnest hope that they would be materialised by deliberate efforts of one who advances the hypothesis. No one has a licence to describe himself as a criminal, or a murderer, or some one other than what he/she really is and if such person falsely makes a statement about his profession, vocation, job or character the responsibility he cannot be permitted to say that others who believe in what he stated to be truth were wrong. The presumption is that every person is truthful and the statement made by a person is correct. Those who by words or deeds pretend to be what they are not, bear the responsibility of proving that they made false statement or that they did not conduct themselves according to real state of affairs. Every one is believed to be truthful and is, therefore, presumed to be honest and truthful and one who wants the people to doubt his statement, bears the burden to prove that he is not honest and truthful.
18. The petitioner, who is a surgeon and runs a hospital, is -a responsible person. People suffering from ailments go to him with the faith that he would be making statements truthfully and would be conducting himself truthfully. It is, therefore proper to presume that the petitioner is truthful in his statement and conduct and, therefore, when he describes himself as the 'Chief Editor' of the Daily News paper he may be presumed to represent that he is responsible for the work of 'editing' news to be published in the news paper of which he proclaims to be the Chief Editor or in any case, he is associated with and controls the selection and publication of the news for publication in the news paper. Since humanity is founded on faith in the honesty and truthfulness of human beings, it is just and proper that a presumption should be drawn to the effect that the petitioner, is a truthful person and when he ascribed himself as the Chief Editor, he has in fact assumed the responsibilities of the Chief Editor, which means that among several editors he is the seniormost editor. The man who makes an admission of a fact by words or deeds, is presumed to have stated the truth and conducted himself according to truth. This is why his admissions are not only relevant, they can be legally used against him/her. The criminal who makes a confession that he has committed a crime, is presumed to be speaking the truth (though the presumption is rebuttable) and if the people, the police officer and the court, acting on the above mentioned presumption believe him to be a criminal and take action against him, the man has to thank himself. The caution which is to be administered to an accused desirous to make a confession or the caution which is required to be administered to the prisoner desirous to make a statement incriminating himself (that whatever he says may be used against himself) is necessitated by the presumption that what such person says by words or gestures is true. Even in the face of the rule that no accused person should be compelled to give statement against himself, the accused persons are not given a licence to speak the lies. The right is given to them is the right to remain silent if they do not want that their statements should be used against them. Under Section 179 of the Indian Penal Code, whenever a person is legally required to answer a question, there is a legal duty imposed on him to speak the truth and if his statement is found to be false, he is liable to be punished. Fraud and cheating by impersonation are punishable under the Penal Code.
19. In view of the above reasons, it is proper to presume that petitioner is a truthful person and that when he has described himself as the Chief Editor, of the Daily news paper, it must be presumed that he is associated with the job of editing and is in a controlling position in the matter of editing of the news for Rajasthan Kesari, because of his superior position as a Chief Editor.
20. In the instant case, there is a statement on oath by the complainant to the effect that the petitioner was responsible for the publications of the defamatory news item. Another important fact worthy of notice is that the complainant (non-petitioner) sent a notice to the petitioner asking him to give the particulars of the publication of the news item and the reply he received was not that the petitioner did not know anything about the news in question, but the reply was that the news item was based on the reporting made by the accused No. 3. This reply clearly shows that the petitioner was in fact associated with editing of the newspaper, otherwise he could not have known that the news item in question was based on the reporting made by the accused No. 3. One who is in fact not at all concerned with the commission of a certain offence should at the earliest opportunity wash his hands of the alleged crime rather than try to justify the criminal act in one way or the other. Those who try to justify an act, are those who know about the act and the circumstances in which that act was committed otherwise they would not be in a position to justify the doing of the act. Those who justify acts are, therefore, presumed to have the knowledge of the acts whether as witnesses or as persons involved in the commission of the acts in question. The reply sent by the petitioner was not in the nature of washing his hands of the responsibility for editing. It was in the nature of justifying the publication of the news item and throwing sole responsibility on the accused No 3 as if the reporter along is responsible for publication of a defamatory news item.
21. The learned Additional Chief Judicial Magistrate found sufficient grounds to proceed against the petitioner. In the particular facts and circumstances of the case it cannot be said that the learned Additional Chief Judicial Magistrate has committed any error of law of fact in issuing process against the petitioner. The learned Additional Chief Judicial Magistrate has not given any final decision about the guilt of the petitioner. If. is, therefore, open to the petitioner to place facts which can show that he was not responsible for the publication of the defamatory news item. In AIR 1992 SC Page 2206 their Lordships of the Hon'ble Supreme Court observed:
It is open to the accused person to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing a process is an interim order and not a judgment. The fact that the process has already been issued is no bar to drop the proceedings in the complaint on the very face of it does not disclose any offence against the accused.
22. Rescinding the process already issued is one thing and dropping the proceedings validly initiated by issue of process under Section 204 of the Criminal Procedure Code is another. The distinction between them is that when on reconsideration of the same material which was available to the Magistrate at the time of issuing process, the Magistrate comes to the conclusion that processes ought not to have been issued, he has to 'rescind' the order to meet the ends of justice. On the other if additional material is brought to his notice showing that the accused against whom process was issued, is not guilty and that he ought not to be tried, the Magistrate may drop the proceedings in place of rescinding his previous order made under Section 204 of the Criminal Procedure Code. In the instant case the course of rescinding the order does not appear to be justified for, on the basis of the material available on record it can be said that there were grounds to proceed against the petitioner. However, the second course may be permissible if additional facts showing that the petitioner was not associated with the publication of the news item in question, are brought to the notice of the learned Additional Chief Judicial Magistrate.
23. For reasons mentioned above, the petition is dismissed with the observation that the petitioner would be at liberty to move an application before the learned Additional Chief Judicial Magistrate, Bali and place additional material before him to show that he was not associated with or was responsible for the publication of the news item in question and that in spite of being the Chief Editor he was in fact not associated with the job of editing the news items for publication in the Rajasthan Kesari Dainik.