STATE Vs. D PACKIARAJ

JUDGEMENT

(1.) These two appeals are presented on behalf of the State from the order of acquittal made by the Sessions Court of Nagercoil in Criminal Appeals Nos. 43 and 44 of 1122. The charge against the two accused who are the Editor, and Printer and Publisher respectively of a weekly newspaper called "Nadar Nampan" was that they had defamed the complainant by publishing a letter in the newspaper. The complainant was the sty. Second Class Magistrate of Eraniel. The first accused who is an Advocate was the Editor of the newspaper and the second accused who is retired medical officer is the Printer and Publisher of the newspaper. The article published in the newspaper was translated as follows in the Judgment of the lower appellate Court;

(2.) On behalf of the State, the learned Public Prosecutor argues that the order of acquittal is erroneous and that the provisions of Exception 9 to S.502 of the Travancore Penal Code will not apply to the present case. On the other hand, the learned counsel for the Editor and Printer and Publisher of the newspaper supports the decision of the lower appellate Court and argues that the case is really covered by Exception 9 and that there is no ground for interference in this appeal.

(3.) Before dealing with the general questions raised on both sides, there is one point that was urged in the Trial Court and which is also urged here on behalf of the 1st respondent which must be dealt with. It is contended that at the time that the letter was published in the newspaper, the first accused, the Editor of the newspaper, was on leave and had nothing to do with the publication. This contention did not find favour with the Trial Court which overruled this contention and held that both the accused were guilty. But it appears from the records that the second accused accepted complete responsibility for the publication. The letter in question was addressed to him by a person who was known to him who was also examined as D.W. 2 at the trial. He had absolute confidence, in that person and it was he who during the temporary absence on leave of the first accused, directed the publication of the letter in the newspaper. There is authority for the position that in such circumstances, where it is satisfactorily established that the Editor was on leave and had entrusted his duties to a responsible person, he cannot be held to be criminally liable. In the case reported in Ramaswami v. Lokanada ( ILR 9 Mad. 387 ), the view taken was that it would be a sufficient answer to a charge of defamation against an Editor of a newspaper, if it is proved that the libel was published in his absence and without his authority, knowledge or consent and that he had in good faith entrusted the temporary management of the newspaper during his absence to a competent person. In the present case, both the Editor and Printer and Publisher are respectable persons belonging to the legal and medical professions respectively and although there was no evidence called to prove that the first accused was on leave the second accused undertook responsibility and conceded that it was during the temporary absence of the first accused that he directed the publication of this letter. He was according to his version, in charge of the newspaper during the absence of the first accused. When the responsibility was accepted in that unqualified manner by the second accused, there was no necessity for the first accused to adduce positive proof to show that he was on leave and the observation contained in the judgment of the Trial Court that in the absence of such evidence the plea of the first accused could not be accepted we are not prepared to endorse. On the other hand, the facts elicited at the trial show that the second accused who is an equally responsible and respectable person, was in sole charge of the publication at the time that the letter was printed in the paper. In these circumstances, we are not satisfied that there is any ground for interference with the order of acquittal made by the lower appellate Court, so far as the first accused is concerned.