RAMKUMAR Vs. K M MATHEW

JUDGEMENT

(1.) C.C. No. 496 of 1985 on. the file of the Additional Judicial First Class Magistrate, Er-nakulam was taken to file for an offence punishable under S.500 read with S.34 of the Indian Penal Code against two accused on a private Complaint filed by the petitioner. First accused is Shri K.M. Mathew, Chief Editor, Malayala Manorama Daily published from Kottayam. Second accused is Shri Mammen Varghese, Printer and Publisher of the same paper. First accused filed M.P.No.1896 of 1987 based on a decision of this Court in Mathew v. Nalini, (1987) 2 K.L.T. 286 requesting that the proceedings against him may be dropped. The prayer was allowed by order dated 5-12-1987 and the Magistrate ordered the Complaint to be proceeded against the second accused alone. The correctness and propriety of that order is under challenge by the Complainant.

(2.) MATHEW's case, (1987) 2 K.L.T. 286 said: 'An editor is liable for the material published by reason of S.7 of the Press and Registration of Books Act, 1867. Editor is defined in S.1(1) of the Act as the person selecting the material for publication. The definition is not by nomenclature but functional. The Press and Registration of Books Act does not recognise any other legal entity except the editor in so far as the responsibilities of that office are concerned. Therefore, mere mention of the name of the Chief Editor is neither here nor there, nor does it in any way attract the provisions of the Press Act particularly S.7. In the Complaint in this case, there is no averment that the Chief Editor was the person who selected the material for publication or that he was in any manner responsible for its publication. There is a vague assertion in Paragraph 16 that the second accused as the Chief Editor and the other accused are chargeable for the offence. The broad assertion is too transparent, to stand scrutiny'.

(3.) BUT in this case, the facts are entirely different and it is admitted by the Magistrate himself in his order. The allegation of the petitioner in the private Complaint is that the first accused is having a definite motive and that the publication was purposely made by him in continuation of various other items of previous conduct. In Paragraph 9 of the impugned order the Magistrate said that there were allegations that the first accused was having grudge against the petitioner. BUT that allegation was overcome by saying that it is not sufficient for a presumption as to the commission of the offence of defamation by him. Paragraph 10 refers to the role of the first accused in publishing the false news item. Finally in Paragraph 12 the Magistrate said that there are averments by the Complainant that the first accused caused the news item in question to be published with the deliberate object of lowering his reputation in the estimation of others. Paragraph 14 refers to the allegation of motivation against the first accused. In spite of all these things. Finally the Magistrate said that in the absence of an averment that the first accused was the person who selected the material and was responsible for its publication, he cannot be proceeded with on account of the principles laid down in Mathew's case, (1987) 2 K.L.T. 286. I do not think that the approach made by the Magistrate in this respect is correct.