Mohammed Abdulla Khan vs Prakash K. on 4 December, 2017

                                                                                          Reportable

                                    IN THE SUPREME COURT OF INDIA

                                  CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NO.2059 OF 2017
                              (Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)




                   Mohammed Abdulla Khan                                              … Appellant

                                Versus

                   Prakash K.                                                         … Respondent




                                                 JUDGMENT

Chelameswar, J.

1. Leave granted.

2. The sole respondent is admittedly the owner of a Kannada

Daily Newspaper by name “Jaya Kirana” published from

Mangalore, Karnataka. On 16.12.2013, the said newspaper

carried a news item containing certain allegations against the
Signature Not Verified

appellant herein. According to the appellant, the allegations are
Digitally signed by
DEEPAK MANSUKHANI
Date: 2017.12.04
15:58:33 IST
Reason:

highly defamatory in nature.

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3. The appellant lodged a report with the Panambur Police,

Mangalore, Dakshina Kannada District on 17.12.2013 against

the respondent and another person who was editor of the

abovementioned newspaper. Police did not take any action.

Thereafter, the appellant filed a private complaint against the

respondent and the editor of the abovementioned newspaper

before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which

eventually came to be numbered as CC No.1252 of 2014. The

learned Magistrate took cognizance of the matter on 15.04.2014

for the offences punishable under Section 500, 501 and 502 of

the Indian Penal Code, 1860.

4. Aggrieved by the order dated 15.04.2014, the respondent

carried the matter in Revision Petition No.219 of 2014 before the

Sessions Judge, Dakshina Kannada, Mangalore. By the order

dated 06.11.2015, the respondent’s revision was dismissed.

Respondent further carried the matter in Criminal Petition

No.8679 of 2015 to the Karnataka High Court invoking Section

482 of the Code of Criminal Procedure, 1973. By an order dated

23.11.2016, the said petition was allowed and the proceedings in

CC No.1252 of 2014, insofar as they pertained to the respondent,

were quashed.

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5. Both in his revision as well as the petition under Section

482 Cr.P.C., the respondent urged various grounds which

according to him render the order dated 15.04.2014 illegal. The

details of those various grounds are not necessary for our

purpose.

6. The judgment under appeal is very cryptic. The first three

paragraphs of the judgment under appeal (running into a short

one and a half page) purport to take note of only one submission

of the respondent.

“Para 2. The learned Counsel for the petitioner would point out
that there can be no vicarious liability insofar as the criminal
law is concerned. The complainant’s allegation of the
defamatory material published in the newspaper against him,
even if it is established, can only be sustained against the editor
of the newspaper and not the owner of the newspaper. The
petitioner admittedly was the owner. The newspaper carries a
legend that the newspaper is edited and published on behalf of
the petitioner and there is no dispute in this regard.”

7. It appears from the judgment under appeal that the

appellant herein argued that in view of the law laid down in K.M.

Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s

objection could not be sustained. High Court rejected the

submission of the appellant.

“Para 3. Though the learned Counsel for the respondent would
seek to contend that the question is no longer res integra and is
covered by a judgment of the Supreme Court in the case of K.M.
Mathew vs. K.A. Abraham
, AIR 2002 SC 2989, it is however
noticed that the said decision was in respect of a managing

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editor, resident editor or a chief editor of respective newspaper
publications, who were parties therein.”

The learned Judge recorded that the judgment in K M Mathew’s

case could be distinguished and, therefore, opined that the

respondent’s petition is required to be allowed.

“Para 3. … Therefore, at the outset, it can be said that the said
case could be distinguished from the case on hand, as, the
petitioner is not claiming as an editor, who had any role in the
publication of the newspaper. Therefore, it is a fit case where
the petition should be allowed.”

It is unfortunate that the High Court did not choose to give any

reason whatsoever for quashing the complaint except a grand

declaration that “it would lead to a miscarriage of justice”.

“Accordingly, though the criminal proceedings can go on against
the editor of the newspaper, the petitioner cannot be proceeded
with, as it would lead to a miscarriage of justice.”

Hence, the appeal.

8. Before us the appellant appeared in person. Inspite of the

service of notice, the respondent neither chose to appear in

person nor through a counsel. In view of the fact that a

substantial question of law is involved in the matter, we thought

it appropriate to request Shri M.N. Rao, learned Senior Advocate

to assist the Court in this matter.

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9. Heard Shri M.N. Rao, learned Senior Advocate for the

appellant.

10. Section 499 IPC defines the offence of defamation. It

contains 10 exceptions and 4 explanations. The relevant portion

reads;

“Section 499. Defamation.— Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to defame that
person.”

11. An analysis of the above reveals that to constitute an

offence of defamation it requires a person to make some

imputation concerning any other person;

     (i)       Such imputation must be made either

               (a)   With intention, or

               (b)   Knowledge, or

               (c)   Having a reason to believe

that such an imputation will harm the reputation of the person

against whom the imputation is made.

     (ii)      Imputation could be, by

               (a)   Words, either spoken or written, or


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              (b)      By making signs, or

              (c)      Visible representations

(iii) Imputation could be either made or published.

The difference between making of an imputation and

publishing the same is:

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation.

If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the

imputation.

The essence of publication in the context of Section 499 is

the communication of defamatory imputation to persons other

than the persons against whom the imputation is made.1

12. Committing any act which constitutes defamation under

Section 499 IPC is punishable offence under Section 500 IPC.

Printing or engraving any defamatory material is altogether a

different offence under Section 501 IPC. Offering for sale or

selling any such printed or engraved defamatory material is yet

another distinct offence under Section 502 IPC.

1
Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)

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13. If the content of any news item carried in a newspaper is

defamatory as defined under Section 499 IPC, the mere printing

of such material “knowing or having good reason to believe that

such matter is defamatory” itself constitutes a distinct offence

under Section 501 IPC. The sale or offering for sale of such

printed “substance containing defamatory matter” “knowing that

it contains such matter” is a distinct offence under Section 502

IPC.

14. Whether an accused (such as the respondent) against whom

a complaint is registered under various Sections of the IPC

(Sections 500, 501 502 IPC) could be convicted for any of those

offences depends upon the evidence regarding the existence of

the facts relevant to constitute those offences.

15. In the context of the facts of the present case, first of all, it

must be established that the matter printed and offered for sale

is defamatory within the meaning of the expression under Section

499 IPC. If so proved, the next step would be to examine the

question whether the accused committed the acts which

constitute the offence of which he is charged with the requisite

intention or knowledge etc. to make his acts culpable.

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16. Answer to the question depends upon the facts. If the

respondent is the person who either made or published the

defamatory imputation, he would be liable for punishment under

Section 500 IPC. If he is the person who “printed” the matter

within the meaning of the expression under Section 501 IPC.

Similarly to constitute an offence under Section 502 IPC, it must

be established that the respondent is not only the owner of the

newspaper but also sold or offered the newspaper for sale.

17. We must make it clear that for the acts of printing or selling

or offering to sell need not only be the physical acts but include

the legal right to sell i.e. to transfer the title in the goods – the

newspaper. Those activities if carried on by people, who are

employed either directly or indirectly by the owner of the

newspaper, perhaps render all of them i.e., the owner, the

printer, or the person selling or offering for sale liable for the

offences under Sections 501 or 502 IPC, (as the case may be) if

the other elements indicated in those Sections are satisfied.

18. Whether the content of the appellant’s complaint constitutes

an offence punishable under any one or all or some of the

abovementioned sections was not examined by the High Court for

quashing the complaint against the respondent. So we need not

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trouble ourselves to deal with that question. We presume for the

purpose of this appeal that the content of the appellant’s

complaint does disclose the facts necessary to establish the

commission of one or all of the offences mentioned above.

Whether there is sufficient evidence to establish the guilt of the

respondent for any one of the abovementioned three offences is a

matter that can be examined only after recording evidence at the

time of trial. That can never be a subject matter of a proceeding

under Section 482 Cr.P.C.

19. From the judgment under appeal, it appears that before the

High Court it was argued on behalf of the respondent that there

is no vicarious liability in criminal law and therefore the owner of

a newspaper cannot be prosecuted for the offences of defamation.

“2. The learned counsel for the petitioner would point out that
there can be no vicarious liability insofar as the criminal law is
concerned. The complainant’s allegation of the defamatory
material published in the newspaper against him, even if it is
established, can only be sustained against the editor of the
newspaper and not the owner of the newspaper. The petitioner
admittedly was the owner. The newspaper carries a legend that
the newspaper is edited and published on behalf of the petitioner
and there is no dispute in this regard.”

20. It appears from para 3 of the judgment that the appellant

herein submitted in response to the above extracted contention of

the respondent that the question is no longer res integra and is

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covered by a judgment of this Court in K.M. Mathew v. K.A.

Abraham Others.2

The High Court rejected the submission holding:

“…….it is however noticed that the said decision was in respect
of a managing editor, resident editor or a chief editor of
respective newspaper publications, who were parties therein.
Therefore, at the outset, it can be said that the said case could
be distinguished from the case on hand, as, the petitioner is
not claiming as an editor, who had any role in the publication
of the newspaper. Therefore, it is a fit case where the petition
should be allowed.”

The High Court concluded that prosecution of the respondent

would lead to miscarriage of justice. A conclusion without any

discussion and without disclosing any principle which forms the

basis of the conclusion.

FACTS, ISSUE RATIO DECIDENDI OF K.M. MATHEW’S CASE:

21. K.M. Mathew was the “Chief Editor” of a daily called

Malayalam Manorama. When he was sought to be prosecuted for

the offence of defamation, he approached the High Court under

Section 482 Cr.P.C. praying that the prosecution be quashed on

the ground that Section 7 of the Press and Registration of Books

Act, 1867 only permits the prosecution of the Editor but not the

Chief Editor. The High Court rejected the submission.

2
(2002) 6 SCC 670

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22. Even before this Court, the same submission was made.3

This Court rejected the submission holding:

“16. The contention of these appellants is not tenable. There
is no statutory immunity for the Chief Editor against any
prosecution for the alleged publication of any matter in the
newspaper over which these persons exercise control.”

It was further held that though the presumption under Section 7

of the Press and Registration of Books Act, 1867 is not applicable

to somebody whose name is printed in the newspaper as the

Chief Editor, the complainant can still allege and prove that

persons other than the Editor, if they are responsible for the

publication of the defamatory material.

“20. The provisions contained in the Act clearly go to show that
there could be a presumption against the Editor whose name is
printed in the newspaper to the effect that he is the Editor of
such publication and that he is responsible for selecting the
matter for publication. Though, a similar presumption cannot
be drawn against the Chief Editor, Resident Editor or Managing
Editor, nevertheless, the complainant can still allege and prove
that they had knowledge and they were responsible for the
publication of the defamatory news item. Even the presumption
under Section 7 is a rebuttable presumption and the same could
be proved otherwise. That by itself indicates that somebody
other than editor can also be held responsible for selecting the
matter for publication in a newspaper.”

23. K.M. Mathew’s case has nothing to do with the question of

vicarious liability. The argument in K.M. Mathew’s case was

that in view of Section 7 of the Press and Registration of Books

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The contention of the appellants in these cases is that they had not been shown as Editors in these publications
and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor”
and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in
that newspaper. [Para 15 of K.M. Mathew’s case]

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Act, 1867 only the Editor of a newspaper could be prosecuted for

defamation. Such a submission was rejected holding that Section

7 does not create any immunity in favour of persons other than

the Editor of a newspaper. It only creates a rebuttable

presumption that the person whose name is shown as the editor

of the newspaper is responsible for the choice and publication of

the material in the newspaper. K.M. Mathew’s case made it

clear that if a complaint contains allegations (which if proved

would constitute defamation), person other than the one who is

declared to be the editor of the newspapers can be prosecuted if

they are alleged to be responsible for the publication of such

defamatory material.

The High Court, in our opinion, without examining the ratio

of K.M. Mathew’s case chose to conclude that the decision is

distinguishable. The judgment of the High Court is absolutely

unstructured leaving much to be desired.

24. Vicarious liability for a crime is altogether a different matter.

In England, at one point of time, the owner of a newspaper was

held to be vicariously liable for an offence of defamation (libel).

The history of law in this regard is succinctly stated by Lord

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Cockburn in The Queen v. Holbrook.4 Though there appears to

be some modification of the law subsequent to the enactment of

Lord Campbell’s Act i.e. the Libel Act 1843 (67 Vict C 96).

Lord Campbell’s Act did not apply to India. The Press and

Registration of Books Act (Act XXV of 1867) is made applicable to

British India and continues to be in force by virtue of the

declaration under Article 372 of the Constitution of India. There

are material differences between the scheme and tenor of both

the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad

692, it was held:

“… But we cannot hold that the provisions of that Statute (Ed.

Lord Campbell’s Act) are applicable to this country, and we must
determine whether the accused is or is not guilty of defamation
with reference to the provisions of the Indian Penal Code. We
consider that it would be a sufficient answer to the charge in this
country if the accused showed that he entrusted in good faith the
temporary management of the newspaper to a competent person
during his absence, and that the libel was published without his
authority, knowledge or consent. As the Judge has, however,
misapprehended the effect of Act XXV of 1867, we shall set aside
the order of acquittal made by him and direct him to restore the
appeal to his file, to consider the evidence produced by the
accused and then to dispose of the appeal with reference to the
foregoing observations.”

and reiterated in Emperor v. Bodi Narayana Rao and G.

Harisarvothama Rao, (1909) ILR 32 Mad 338:

“Lord Campbell’s Act, of course, is not in force in India, and the
Criminal Law of England is not necessarily the same as the
Criminal Law of India as contained in the Indian Penal Code …”

4
L.R. 3 QBD 60

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25. The extent of the applicability of the principle of vicarious

liability in criminal law particularly in the context of the offences

relating to defamation are neither discussed by the High Court in

the judgment under appeal nor argued before us because the

respondent neither appeared in person nor through any

advocate. Therefore, we desist from examining the question in

detail. But we are of the opinion that the question requires a

serious examination in an appropriate case because the owner of

a newspaper employs people to print, publish and sell the

newspaper to make a financial gain out of the said activity. Each

of the abovementioned activities is carried on by persons

employed by the owner.

26. Where defamatory matter is printed (in a newspaper or a

book etc.) and sold or offered for sale, whether the owner thereof

can be heard to say that he cannot be made vicariously liable for

the defamatory material carried by his newspaper etc. requires a

critical examination.

27. Each case requires a careful scrutiny of the various

questions indicated above. Neither prosecutions nor the power

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under Section 482 CrPC can be either conducted or exercised

casually as was done in the case on hand.

28. The judgment under appeal cannot be sustained for the

reasons indicated above. The same is, therefore, set-aside and

the appeal is allowed. The trial court will now proceed with the

case in accordance with law.

………………………………….J.
(J. CHELAMESWAR)

………………………………….J.
(S. ABDUL NAZEER)

New Delhi
December 4, 2017

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Article source: Supreme Court

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