M.J.Akbar v. Indian Institute of Technology, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.Nos.4527 & 4529/2001M.J.AkbarPetitioner in both OPS VsIndian Institute of Technology, Madrasby its Registrar, Professor MR PraneshChennai-36 Respondent in both Cr.OPsPrayer:- These Criminal Original Petitions are filed to dispensewith the production of the certified copy of the complaint inCC.No.7714 & 7716/2000 which copy is yet to be served upon thePetitioner, stay all further proceedings in CC.No.7714 & 7716/2000pending on the file of the Metropolitan Magistrate, Saidapet,Chennai, pending disposal of the above petition, dispense withappearance of the Petitioners before the Metropolitan Magistrate,Saidapet, Chennai in relation to CC.No.7714 & 7716/2000 pendingdisposal of the above petition and to call for the records inCC.No.7714 & 7716/2000 pending on the file of the MetropolitanMagistrate, Saidapet, Chennai and quash the same, in so far as itrelates to the Petitioner.For Petitioner:Mr.Sathish ParasaranFor Respondent :Mr.Vijaya Narayanan, SC forMr.R.ParthibanORDER These Criminal Original Petitions are filed to quash theproceedings in CC.Nos.7714 and 7716/2000 on the file of the learnedMetropolitan Magistrate, Saidapet, Chennai, in so far as thePetitioner, who is the Editor-in-Chief of the English dailyNewspaper "Deccan Chronicle" is concerned. 2. The brief facts are stated as follows:-The Respondent/complainant, viz. Indian Institute ofTechnology has been maintaining a very high standard in technicaleducation in India and has acquired a name for its academicexcellence not only in India, but throughout the world. Apublication was made in the English Daily Newspaper "Deccan https://hcservices.ecourts.gov.in/hcservices/ Chronicle" dated 8.8.2000 in Hyderabad and Bangalore Editions,which reads as under:-"AP TRIBAL GIRL FIGHTS HER WAY INTO IIT, BRILLIANTSTUDENT DECLARED FAILED, TOPS AFTER RE-EXAMINATION.An Andhra tribal girl has managed to wrest admissioninto the prestigious IIT here after waging a do-or-diebattle against the administration, which first declaredher as failed but back tracked subsequently in the faceof evidence in her favour and the threat of agitationby the Periyar Dravidar Kazhagam, a dalit party.Ms.Sujee Teppal, who belongs to the Kammara Tribe inBhimvaram, was so badly shaken up on learning that shefailed in physics despite topping mathematics andchemistry papers, that she even attempted suicide andwas saved at the nick of time by Apollo Hospital here,according to reliable sources.Extensive investigations in the Institute reveal "Sujeewas failed deliberately in the Physics paper despitedoing well-one suggestion widely heard in the institutecorridors was that the concern teacher "punished" herbecause she was "too smart" for his liking"".The Respondent has filed the complaint against R.Bhagwan Singh, theReporter, M.J.Akbar, the Editor-in-Chief and O.Thomas, thePublisher of Deccan Chronicle, arraying them as A1 to A3 forpreparing and publishing the said news item in the Deccan Chronicledated 8.8.2000 with the common intention to malign and defame thecomplainant and thereby committed the offence punishable underSections 120(b), 500, 501, 502 read with 34 and 120 of IPC.3. The complainant has stated in the complaint that theaforesaid report is totally and grossly misleading and highlydefamatory. It is further stated that the tribal girl by name Sujeejoined the preparatory course in the year 1999 along with 22 othersand in February 2000, Sujee's father was informed by theCoordinator of the Preparatory Course that her performance was notupto the mark in Physics in First Term of the Course and she mustput in a great effort in that subject. The father of Sujee sent areply to the Director, thanking the Director for the suggestionsmade and assuring that his daughter would do well in future. It isfurther stated that Sujee along with 16 other students was alsoinformed to improve their performance in physics. Out of 23students attended the Preparatory 1999 Course, about 1/3rd failedand Sujee was one among them, who failed to secure the pass marksin the Examination. However, the offending news item proceededmaliciously as if she stood first among the 6 candidates in thetest, which is false and without any basis. Further a perusal ofthe offending news item would make it clear that the heading note https://hcservices.ecourts.gov.in/hcservices/ "teacher punished Sujee because she was too smart for his liking"is totally false. 4. The Petitioner has submitted that the very complaintis frivolous and wholly devoid of merits. According to thePetitioner, the Metropolitan Magistrate, who has taken cognizance,has no jurisdiction and therefore, the complaint cannot besustained on the said ground also. It is submitted by him that thealleged defamatory news article was published in the DeccanChronicle of Hyderabad Edition, which relates to CC.No.7714/2000and in Bangalore edition, which relates to CC.No.7716/2000.According to him, the Newspaper does not have any publishing centerin Chennai or in any other places in Tamil Nadu nor are the papersdistributed in Tamil Nadu. That apart, it does not have anyarrangement for distribution of the Newspapers by airmail or othermeans, excepting in the actual place of publication of the saidNewspaper. So, it is contended that the learned Magistrate has nojurisdiction to take cognizance of offence and the proceedings asagainst the Petitioner are without jurisdiction. 5. In these Criminal Original Petitions, one of thecontentions raised by Mr.Sathish Parasaran, the learned counsel forthe Petitioner is that the Metropolitan Magistrate Court at Chennaihas no jurisdiction to take cognizance of the offence, since thepublication was made in the Hyderabad and Bangalore Editions ofDeccan Chronicle and in fact, the Newspaper did not have anypublishing center in Chennai and therefore, the complaint itselfcannot be sustained.6. It is necessary, at this juncture, to refer to Section179 of Code of Criminal Procedure, which lays down that when aperson is accused of a commission of an offence by a reason ofanything which has been done and of any consequence, which hasensued such offence may be enquired into or tried by a court withinthe local limits of whose jurisdiction, any such thing has beendone, or any such consequence has ensued. Therefore, where an acthas been done, which is an offence and the consequence has ensuedthereon, both the courts can have jurisdiction to entertain or totake cognizance of the offence.7. The contention of the Petitioner is that the saidNewspaper is published and circulated within Hyderabad City ofAndhra Pradesh and Bangalore of Karnataka State and as such, thecourt at Chennai has no jurisdiction to entertain the complainant.There is no dispute that the Deccan Chronicle containing theoffending news item was published in the editions of Hyderabad andBangalore. According to the complainant, the said daily Newspaperhas been circulated throughout India and read by many persons andthe same can be read on the website in all computers with aninternet connection. It is averred in the complaint that severalpersons rang up to the Director and other Senior Faculty Members ofthe Respondent and wrote to them expressing their anguish on https://hcservices.ecourts.gov.in/hcservices/ reading the report. Although the offending news item was publishedin the above said two places, the consequence had ensued atChennai, where the Respondent Institute is functioning and as such,the Metropolitan Magistrate court at Chennai has got jurisdiction.8. The Apex Court had considered provisions of Section 179of Code of Criminal Procedure in the case of State of Punjab Vs.Nohar Chand (1984-SC-1492). The matter is relating to manufactureof sub standard fertilizer and the marketing of the same atdifferent places. The Honourable Supreme Court has held that theplace where the sub standard fertilizer was manufactured and theplace where it is marketed, the court has jurisdiction to enquiryinto or try the case in both the courts.9. In the case of M.P.Narayana Pillai Vs. M.P.Chacko(1986-Cri.LJ-2002 (Kerala)), the High Court of Kerala in thematter relating to defamatory proceedings out of the news itempublished and the congnizance taken by the court was challenged,held as under:-"One of the contentions of the Petitioners is that theMagistrate acted illegally in taking cognizance of theoffence when he had no territorial jurisdiction toentertain the complaint. That contention does notappear to be correct. It is true that the KalakaumudiWeekly is printed and published from Trivandram. Butin order to maintain a prosecution for defamation in aparticular Court there need only be publication of thelibel within the jurisdiction of the court where thecomplaint is filed. Jurisdiction has to be decided onthe basis of the allegations in the complaint for thepurpose of a proceeding under Section 499. The veryallegation of the 1st Respondent in the complaint isthat it was published at Vaikom also and it was fromthere that he got and read a copy of it. Being aweekly publication intended to be read by people, it isenough for the complainant to show that the publicationwas delivered within the limits of the territorialjurisdiction of the court in order to invest that courtwith jurisdiction. It need not be shown that thedefamatory matter was seen or read by any particularperson within the jurisdiction of that court. Sincethe weekly is being printed and published for thepurpose of reading by the people when it is shown thatit was published it could be presumed that it wasread."The same view was reiterated in the case of Dr.Subramaniam SwamyVs. Prabhakar S.Pai and another (1984-Cr.LJ-1329).10. Considering the averments made in the present case, Iam in complete agreement with the decisions of the High Court ofKerala that where the offending publication was delivered and readby the complainant, the court at that place would have jurisdiction https://hcservices.ecourts.gov.in/hcservices/ to try the case. Therefore, the Metropolitan Magistrate Court atChennai has got jurisdiction to take cognizance of the case and thecontention of the Petitioner has no merits.11. The Petitioner has next submitted that the Petitionerbeing the Editor in Chief cannot be prosecuted for the offencealleged and absolutely he has no role to play either in theselection of the matter or in the publication of the said newsitem. 12. Mr.Sathish Parasaran, the learned counsel for thePetitioner would contend that the complainant has proceeded on theerroneous premise and gross misappropriation of the provisionscontained in Section 7 of the Press and Registration of Books Actthat the Petitioner, being the Editor in Chief, is in charge ofchecking the news or information published in all the editions ofthe Deccan Chronicle. The learned counsel drew the attention ofthis court to the definition contained in Section 11 of the saidAct, wherein the 'Editor' is defined to mean that a person, whocontrols the selection of the matter that is to be published inNewspaper. He would contend that in the absence of any allegationto hold the Petitioner to be the Editor, no cause of action wouldarise against the Petitioner. 13. In support of his contentions, he referred to theunreported decision of the Andra Pradesh High Court rendered inCMP.No.3094/1997 involving the same Petitioner, wherein the HighCourt of Andhra Pradesh, after considering the various decisionsrendered by the Apex Court, proceeded to hold that no prosecutionunder Section 7 of the Press and Registration of Books Act could atall be raised against the Chief Editor, so as to warrant thePetitioner for being arrayed as an accused. Reliance was placed onthe decisions rendered in the cases of Haji C.H.Mohammad Koya Vs.TKSMA.Muthukoya (AIR-1979-SC-154) and K.M.Mathew Vs. State ofKerala and another (1992-1-SCC-217). According to the Petitioner,the above said decisions are only reaffirmation of the well settledjurisdiction of law laid down by the Honourable Supreme Court invarious decisions. 14. In the cases of Haji C.H.Mohammad Koya Vs.TKSMA.Muthukoya (AIR-1979-SC-154), the Honourable Supreme Court hasobserved as follows:-"15. Section 8A of the Press Act provided that whereany person's name has appeared as an editor in a paperalthough he was not an editor he shall within two weeksof his becoming aware that his name has been sopublished, appear before the District Presidency of SubDivisional Magistrate and make a declaration that hisname has been incorrectly published and get acertificate from the Magistrate that the provisions of https://hcservices.ecourts.gov.in/hcservices/ S.7 shall not apply to him. It may be to note thefollowing acts here:-1. That the issues of Chandrika shown to us clearlyand unmistakably mention the name of Aboobaker as theprinter, publisher and editor of Chandrika and does notmention the appellant as the Editor of Chandrika. TheAppellant is merely shown as the Chief Editor but thisis an offence which is not at all contemplated by thePress Act.2. That if the Appellant was really the editor of thepaper then PW.2 Aboobaker ought to have resorted toS.8A to correct the mistake in the paper where his namewas shown as the editor but no such thing has beendone. On the other hand, PW.2 Aboobaker tacitly andclearly admits that he is the editor of the paper.3. That the Petitioner has not at all pleaded in hispetition the nature of the duties performed orresponsibilities shouldered by the Appellant as ChiefEditor. There is no averment at all in the petitionthat the appellant controls the selection of matterthat is published in the newspaper which alone wouldmake him an editor as defined in Section 1(1) of thePress Act. The word 'Chief Editor' is clearly absentfrom the Press Act and in fact foreign to it becausethe Press Act has selected only one person who has aspecial status and that is the editor who can be sued,if necessary, or can use and against whom alone apresumption under Section 7 of the Press Act can bedrawn. While holding that the presumption underSection 7 of the Press Act is available to thePetitioner, the High Court has completely overlookedthe aforesaid aspects mentioned by us. The law on thesubject is absolutely clear and there are a number ofdecisions of this court which have interpreted therelevant sections of the Press Act."15. The decision rendered in the case of K.M.Mathew Vs.State of Kerala and another (1992-1-SCC-217), is relating toprosecution of the Chief Editor for certain publication in theNewspaper. His case was dropped by the Magistrate on the groundthat it has not been alleged in the complaint that the Chief Editorwas responsible for selection of the news item and the publicationthereof. There was no averment in the complaint that the ChiefEditor had perused the material or edited before its publication orotherwise it was published with his knowledge or consent. When thematter went to the High Court, it quashed the order of theMagistrate on the ground that it was a summons case and theMagistrate had no power after taking cognizance of the offence todrop the proceedings. On appeal to the Honourable Supreme Court, https://hcservices.ecourts.gov.in/hcservices/ the Supreme Court found that the High Court had been too technicalin this regard and on facts found that there was no avermentagainst the Chief Editor, except the motive attributed to him. TheHonourable Supreme Court rejected the contention that there was apresumption under Section 7 of the Press and Registration of BooksAct against the Chief Editor and reiterated that the Chief Editor'sname was not at all mentioned in Section 7 of the said Act.16. Mr.Vijaya Narayanan, the learned senior counsel forthe Respondent drew the attention of this Court to the decisionrendered in the case of K.M.Mathew Vs. K.A.Abraham and others(2002-6-Scale-82) in support of his contention that there could bea presumption against the Editor, whose name is printed in theNewspaper to the effect that he is the Editor of such publicationand that he is responsible for selecting the matter forpublication. Though, such a similar presumption cannot be drawnagainst the Chief Editor, the complainant can still allege andprove that they had knowledge and they were responsible for thepublication of the defamatory news item. He would contend that thepresumption under Section 7 is a rebuttable presumption and thesame can be proved otherwise which would amount that some bodyother than the Editor can also be held responsible for selectingthe matter for publication in the Newspaper.17. The factual aspects of the said case is that thecomplainant had specifically alleged that the appellants hadknowledge of the publication of the alleged defamatory matter andthey were responsible for such publication. On such facts, theHonourable Supreme Court in the decision cited supra held asfollows:-"21. It is true that judicial process should not be aninstrument of oppression or needless harassment and theMagistrate while taking cognizance should be satisfiedthat there is a prima facie case against the accusedand at that he should be circumspect and judicious inexercising discretion and should take all relevantfacts into consideration before issuing process andthat vindication of majesty of justice and maintenanceof law order in the Society are the prime objects ofcriminal justice and it shall not be the means to wreakvengeance, but, at the same time, 'the inherent powerof the court under Section 482 Cr.PC should be verysparingly and cautiously used and only when the courtcomes to the conclusion that there would be manifestinjustice or there would be abuse of the process of thecourt, if such power is not exercised. "so far as theorder of cognizance by a Magistrate is concerned, theinherent power can be exercised when the allegations inthe first information report or the complaint togetherwith the other materials collected during investigationtaken at their face value, do not constitute the https://hcservices.ecourts.gov.in/hcservices/ offence alleged. At that stage, it is not open eitherto sift the evidence or appreciate the evidence andcome to the conclusion that no prima facie case is madeout." (See: State of Bihar Vs. Rajendra Agrawalla(1996-8-SCC-164)."18. In this case, in the complaint it is specifically averredthat the Petitioner/2nd accused has failed to check up the newsitem or the information supplied to him by the 1st accused beforethe publication of the same in his paper and deliberately andintentionally failed to do so. Whether he has got a duty to checkup the news or the information supplied to him and whether hedeliberately and intentionally failed to check up the correctnessor otherwise of the said news item can be gone into only at thetime of trial. In this case, the Petitioner can adduce evidenceand can rebut the presumption by showing that he has nothing to dowith the publication of the offending news article at the time oftrial. Therefore, I am unable to find any illegality in thecognizance taken by the learned Magistrate as against thePetitioner for the offence committed as alleged. Therefore, thereare no merits to quash the impugned criminal proceedings.19. In the result, these Criminal Original Petitions fail andare dismissed, as devoid of merits. However, it is open to thePetitioners to raise all his contentions before the court below andestablish them in the course of trial.After pronouncement of the order on 16.07.2009, the learnedcounsel for the Petitioners has requested that the personalappearance of the Petitioners may be dispensed with before thecourt below.2. Considering the said request made by the learned counsel forthe Petitioners, as it appears to be genuine, the learnedMagistrate is directed not to insist on the presence of thePetitioners for the hearings, except on the dates, when substanceof the charges should be read over and answering 313 statement andon the date of judgement on the counsel filing a petition underSection 317 of Cr.PC. under Section 317 of Cr.PC.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm https://hcservices.ecourts.gov.in/hcservices/ To:1. The The Metropolitan Magistrate's Court,Saidapet, Chennai.2. The Public Prosecutor, High Court, Madras 1 cc To Mr.R.Parthiban, Advocate, SR.32335.4 cc To Mr.Satish Parasaran, Advocate, SR.31576.Crl.OP.Nos.4527 & 4529/2001 VSN(CO)RVL 06.08.2009