LAW FINDER

Submitted By: Adv. Nilesh C Ojha

Gambhirsinh R. Dekare v. Falgunbhai Chimanbhai Patel (SC) Law Finder Doc Id # 417954
2013(2) ECrC 178 : 2013(3) AIR BomR 335 : 2013(2) AICLR 480 : 2013(2) CalCriLR 522 : 2013(2)
SCC(Cri) 1 : 2013(2) Recent Apex Judgments (RAJ) 279 : 2013(2) RCR(Criminal) 311 : 2013(2) CTC
579 : 2013 AIR (SC) (Cri) 822 : 2013(3) SCC 697 : 2013(1) CCR 688 : 2013 AIR (SCW) 1590 : 2013(2)
PLJR 188 : 2013(125) AIC 173 : 2013(81) ACrC 913 : 2013 CriLJ 1757 : 2013 AIR Supreme Court 1590
: 2013(2) JCC 1324 : 2013(2) Crimes 1 : 2013(4) SCR 719 : 2013(3) Scale 302 : 2013(3) ALT (Crl) 183 :
2013(6) ALT 58 : 2013(3) JT 570 : 2013(2) MhLJ (Crl) 317 : 2013(2) JLJR 95 : 2013 CriLR (SC) 500 :
2013(2) JBCJ 457 : 2013(2) Andh LD (Criminal) 107 : 2013(sup) CutLT (Criminal) 1631 : 2013(5) GLR
4273 : 2013(2) SLT 618 : 2013(2) BBCJ 464 : 2013(2) BLJud 157 : 2013(55) Orrisa Cri R 109
SUPREME COURT OF INDIA
Before:- Chandramauli Kr. Prasad and V. Gopala Gowda, JJ.
Criminal Appeal No. 433 of 2013 (@Special Leave Petition (Crl.) No. 3475 of 2008). D/d. 11.3.2013.
Gambhirsinh R. Dekare - Appellant
Versus
Falgunbhai Chimanbhai Patel and another - Respondents
For the Petitioner :- Huzefa Ahmadi, Sr. Adv., Ejaz Maqbool, Ms. Tanima Kishore, Advocates.
For the Respondents :- Dushyant A. Dave, Sr. Adv., Suk Sagar, Ms. Bina Madhavanl, Sanjiv Dave, Ms.
Anindita Pujari (for M/s. Lawyer's Knit and Co.), Ms. Hemantika Wahi, Kamal Deep, Ms. Shubhanda
Deshpande, Ms. Nandini Gupta, Advocates.
NOTE
After issuing the summoning order the magistrate has no power to review or withdraw the
order.
A. Criminal Procedure Code, Sections 200, 202 and 203 - Magistrate taking cognizance of
complaint and issuing process without material on record - Magistrate thereafter has no power
to review and recall the order - The aggrieved party has remedy to invoke provisions of Section
482 Criminal Procedure Code (K.M. Mathew's case 1992(1) RCR (Criminal) 232 overruled in
2004(4) RCR (Criminal) 1 (SC).
[Paras 21 and 22]
B. Indian Penal Code, Sections 500 and 501 - Indian Penal Code, Section 114 - Defamatory news
item published in a Vadodara edition of a newspaper Sandash - Both resident Editor of
Vadodara and Editor at Ahmedabad from where the newspaper is published are liable.
ON FACTS
A news item published in Vadodara Edition of newspaper 'Sandesh' that the petitioner who was a
Magistrate had illicit relations with wife of Doctor - Complaint under Sections 500, 501 and 114
Indian Penal Code filed by the Magistrate both against the Editor at Vadodara Edition and

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Submitted By: Adv. Nilesh C Ojha
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Ahmedaband alleging that both had deliberately published the news which is defamatory and the
"accused persons were in the knowledge that the complainant shall be defamed in the society due
to publication of such news" - Complaint against Editor Ahmedabad quashed by High Court on the
ground that Editor Ahmedabad could not be aware what was being published in Vadodara Edition
and it would be the Resident Editor only who shall be responsible for the contents of the Vadodara
Edition - Order of High Court set aside.
[Paras 11, 12 and 13]
C. Press and Registration of Books Act, 1867, Sections 7, 5 and 1 - The Editor who controls the
selection of the matter that is published in a newspaper - Once the name of the Editor is
shown, he shall be held responsible in any civil and criminal proceeding - Further, the
presumption would be that he was the person who controlled the selection of the matter that
was published in the newspaper - However, that this presumption under 7 of the Act is a
rebuttable presumption and it would be deemed a sufficient evidence unless the contrary is
proved. 2002(4) RCR (Criminal) 288, relied.
[Para 17]
D. Indian Penal Code, Section 500 - News item published in newspaper making defamatory
allegations against complainant - Complaint could not be quashed on the ground that
allegations were not true - Held :-
(1) At this stage it is impermissible to go into the truthfulness or otherwise of the allegation
and one has to proceed on a footing that the allegation made is true.
[Paras 11 and 12]
Cases Referred :-
Adalat Prasad v. Rooplal Jindal, 2004(4) RCR (Criminal) 1 : (2004)7 SCC 338.
K.M. Mathew v. K.A. Abraham, 2002(4) RCR (Criminal) 288 : (2002)6 SCC 670.
K.M. Mathew v. State of Kerala, 1992(1) RCR (Criminal) 232 : (1992)1 SCC 217.
JUDGMENT
Chandramauli Kr. Prasad, J. - The petitioner Gambhirsinh R. Dekare, at the relevant point of time
was serving as Taluka Mamlatdar and an Executive Magistrate in Vadodara Taluka in the State of
Gujarat. A Gujarati daily newspaper "Sandesh" is published from different places i.e., Surat, Valsad,
Bharuch, Vadodara and other cities of India. Navinbhai Chauhan is the Resident Editor of Vadodara
edition of "Sandesh" whereas Falgunbhai Chimanbhai Patel is the Editor of "Sandesh". The
newspaper published a news item in its Vadodara issue dated 28.09.1999 that the petitioner "is in
love and keeping illicit relations with the wife of a doctor at Ajwa Road with the following
headlines :
"Mamlatdar Shri Gambhirsinh Dhakre is caught red handed by the youngsters-Mamlatdar is
indulged in illicit relations with the wife of Doctor who is residing at Ajwa Road- attempts to
conceal the matter-why the Government is not taking any action against the Mamlatdar?"
2. According to the petitioner (hereinafter referred to as "the complainant"), the allegation
published in the newspaper is false and defamatory. Accordingly, he filed complaint in the Court of

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Submitted By: Adv. Nilesh C Ojha
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Chief Judicial Magistrate, Vadodara. The complainant alleged that the news items are printed in the
newspaper "as per the instructions and directions of the accused persons". In paragraph 3 of the
complaint the complainant alleged as under :
"3. The Accused No. 1 and 2 of this case have deliberately published the news in the Page No.
12 of their daily newspaper 'Sandesh' dated 28/9/99 which is quite defaming and offending to
us. The accused persons were in the knowledge that we the complainant shall be defamed in
the Society due to publishing of such news and with a view to vilify us as the person having
bad character, the accused persons, in collusion with each other, have published the following
news in the newspaper deliberately."
3. The complainant termed those allegations to be false and stated that the Editor and the Resident
Editor have tried to prove him a characterless person in the society and because of that he had
faced shameful and disgraceful situation amongst the family members and friends. The news item
further brought him in disrepute in the Department and the public. It has been alleged that the
accused persons have published the news item without any evidence or proof. The complainant
denied to have any illicit relation with the doctor's wife. The complainant was examined on solemn
affirmation in which he reiterated the allegation.
4. The Chief Judicial Magistrate, taking into account the allegation made in the petition of complaint
and the statement of the complainant on solemn affirmation, took cognizance of the offence under
section 500, 501, 502, 506, 507 and 114 of the Indian Penal Code and issued process against both the
accused.
5. Accused No. 2, Falgunbhai Chimanbhai Patel, the Editor of "Sandesh", aggrieved by the order
taking cognizance and issuing process, filed an application before the High Court seeking quashing
of the complaint filed before the Chief Judicial Magistrate, Vadodara on 08.10.1999. He sought
quashing of the complaint on the ground that he is the Editor of the newspaper, stationed at
Ahmedabad and the offending news item was published in the Vadodara Edition of the newspaper,
of which Navinbhai Chauhan, accused No. 1, is the Resident Editor. It was further contended that
he was not aware of the offending news item being published in the newspaper or for that matter
he had any role to play in selection of such item for publication. The High Court by the impugned
order allowed the application and while doing so observed as follows :
"6. In the complaint itself, the petitioner is described as editor of the newspaper and his
address is shown at Ahmedabad. Original accused No. 1 is described as a resident editor of
Baroda of the same newspaper. It is not in dispute that the newspaper in question has its
registered office at Ahmedabad and Baroda edition of the newspaper is being separately
published from Baroda. It is also not in dispute that offending news item was carried in
Baroda edition of the newspaper only."
6. The High Court further went on to observe as under :
"10. In the present case also, I find that there is nothing in the complaint to suggest that the
petitioner herein was aware about the offending news item being published or that he had
any role to play in selection of such item for publication. In absence of any material disclosed
in the complaint and in view of the admitted fact that the petitioner is an editor of the
newspaper stationed at Ahmedabad and the news item was carried in its Baroda edition alone
where the newspaper has a separate resident editor, the petitioner cannot be proceeded
against for the offence of defamation of the complaint."

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Submitted By: Adv. Nilesh C Ojha
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7. The High Court came to the conclusion that prosecution of accused No. 2 would amount to
miscarriage of justice and, accordingly, quashed the complaint and the process issued against him.
8. It is against this order that the complainant has preferred this special leave petition.
Leave granted.
9. Mr. Huzefa Ahmadi, Senior Advocate appears on behalf of the complainant (appellant herein)
whereas accused No. 2 (Respondent No. 1 herein) is represented by Mr. Dushyant Dave, Senior
Advocate.
10. Mr. Ahmadi, submits that according to the complainant, accused No. 2 was the Editor stationed
at Ahmedabad and there is specific allegation against him that the news items are published in the
newspaper "as per the instructions and directions of the accused persons". The complainant has
further alleged in the complaint that both the accused i.e. the Editor (accused No. 2) and the
Resident Editor (accused No. 1) had deliberately published the news in their Gujarati daily
newspaper "Sandesh" which is defamatory. The complainant went on to say that the "accused
persons were in the knowledge that the complainant shall be defamed in the society due to
publication of such news". In the face of the aforesaid allegation, Mr. Ahmadi points out that the
High Court committed a serious error by observing that "there is nothing in the complaint to
suggest that" accused No. 2 "was aware about the offending news item being published or that he
had any role to play in selection of such item for publication". Mr. Dave, however, submits that,
according to the complainant's own showing, accused No. 2 was the Editor of the newspaper
stationed at Ahmedabad and the offending news item having been published at Vadodara for which
there is admittedly a separate Resident Editor, it has to be assumed that the accused No. 2 was not
aware of the same and had no role to play in the selection of such item for publication.
11. We have bestowed our consideration to the rival submission and we do not find any substance
in the submission of Mr. Dave. Complainant has specifically averred in the complaint that the news
item was printed in the newspaper as per the instructions and directions of the accused persons.
The complainant had specifically alleged that accused nos. 1 and 2 have deliberately published the
offending news and it was within their knowledge. At this stage, it is impermissible to go into the
truthfulness or otherwise of the allegation and one has to proceed on a footing that the allegation
made is true. Hence, the conclusion reached by the High Court that "there is nothing in the
complaint to suggest that the petitioner herein was aware of the offending news item being
published or that he had any role to play in the selection of such item for publication" is palpably
wrong. Hence, in our opinion, the High Court has quashed the prosecution on an erroneous
assumption of fact which renders its order illegal.
12. Mr. Ahmadi, further submits that the impugned order is vulnerable on another count. He points
out that according to the complainant, the present accused was the Editor and his name has been
printed as such in the publication and, therefore, he is responsible for the publication of the news
item. Mr. Dave, however, submits that there being Resident Editor for the Vadodara Edition of the
newspaper, the present accused, who is the Editor and stationed at Ahmedabad, cannot be held
responsible for the publication. He emphasizes that it would be the Resident Editor who shall be
responsible for the contents of the Vadodara Edition. In support of the submission he has placed
reliance on a decision of this Court in the case of K.M. Mathew v. State of Kerala, 1992(1) RCR
(Criminal) 232 : (1992)1 SCC 217.
13. A news item has the potentiality of bringing doom's day for an individual. The Editor controls

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Submitted By: Adv. Nilesh C Ojha
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the selection of the matter that is published. Therefore, he has to keep a careful eye on the
selection. Blue-penciling of news articles by any one other than the Editor is not welcome in a
democratic polity. Editors have to take responsibility of everything they publish and to maintain the
integrity of published record. It is apt to remind ourselves the answer of the Editor of the Scotsman,
a Scottish newspaper. When asked what it was like to run a national newspaper, the Editor
answered "run a newspaper. I run a country". It may be an exaggeration but it does reflect the
well known fact that it can cause far reaching consequences in an individual and country's life.
14. The scheme and scope of Press and Registration of Books Act, 1867 (hereinafter referred to as
"the Act") also brings forward the same conclusion. Section 1 of the Act is the interpretation clause
and the expression "Editor" has been defined as follows :
"1. Interpretation-clause. - (1) In this Act, unless there shall be something repugnant in the
subject or context, -
xxx xxx xxx
"editor" means the person who controls the selection of the matter that is published in a
newspaper;"
15. Section 5 of the Act provides for rules as to publication of newspapers and prohibits its
publication in India except in conformity with the rules laid down. Section 5 (1) of the Act which is
relevant for the purpose reads as follows :
"5. Rules as to publication of newspapers. - No newspaper shall be published in India, except
in conformity with the rules hereinafter laid down :
(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall
contain the names of the owner and editor thereof printed clearly on such copy and also the
date of its publication.
xxx xxx xxx"
16. From a plain reading of the aforesaid provision, it is evident that every copy of every newspaper
published in India is mandated to contain the names of the owner and Editor thereof. It is in the
light of the aforesaid obligation that the name of the accused No. 2 has been printed as Editor.
Section 7 of the Act makes the declaration to be prima facie evidence for fastening the liability in
any civil or criminal proceeding on the Editor. Section 7 of the Act reads as follows :
" 7 . Office copy of declaration to be prima facie evidence. - In any legal proceeding
whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid,
attested by the seal of some Court empowered by this Act to have the custody of such
declarations, or, in the case of the editor, a copy of the newspaper containing his name printed
on it as that of the editor shall be held (unless the contrary be proved) to be sufficient
evidence, as against the person whose name shall be subscribed to such declaration, or printed
on such newspaper, as the case may be that the said person was printer or publisher, or
printer and publisher(according as the words of the said declaration may be) of every portion
of every newspaper whereof the title shall correspond with the title of the newspaper
mentioned in the declaration, or the editor of every portion of that issue of the newspaper of
which a copy is produced."
17. Therefore, from the scheme of the Act it is evident that it is the Editor who controls the selection

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Submitted By: Adv. Nilesh C Ojha
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of the matter that is published in a newspaper. Further, every copy of the newspaper is required to
contain the names of the owner and the Editor and once the name of the Editor is shown, he shall
be held responsible in any civil and criminal proceeding. Further, in view of the interpretation
clause, the presumption would be that he was the person who controlled the selection of the matter
that was published in the newspaper. However, we hasten to add that this presumption under
Section 7 of the Act is a rebuttable presumption and it would be deemed a sufficient evidence
unless the contrary is proved. The view which we have taken finds support from the judgment of
this Court in the case of K.M. Mathew v. K.A. Abraham, 2002(4) RCR (Criminal) 288 : (2002)6 SCC
670, in which it has been held as follows :
"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."
18. Now reverting to the authority of this Court in the case of K.M. Mathew v. State of Kerala,
(1992)1 SCC 217, relied on by Mr. Dave, in our opinion, same instead of supporting his contention,
goes against him. In the said case it has been observed as follows :
"9. In the instant case there is no averment against the Chief Editor except the motive
attributed to him. Even the motive alleged is general and vague. The complainant seems to rely
upon the presumption under section 7 of the Press and Registration of Books Act, 1867 ('the
Act').But Section 7 of the Act has no applicability for a person who is simply named as 'Chief
Editor'. The presumption under Section 7 is only against the person whose name is printed as
'Editor' as required under Section 5(1). 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 newspaper of which a copy is produced. Section 1(1) of the Act defines 'Editor' to mean 'the
person who controls the selection of the matter that is published in a newspaper'. Section 7
raises the presumption in respect of a person who is named as the Editor and printed as such
on every copy of the newspaper. The Act does not recognise any other legal entity for raising
the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no
presumption against him under Section 7 of the Act."
19. In this case the accused was the Chief Editor of Malyalam Manorama and there was no
allegation against him in the complaint regarding knowledge of the objectionable character of the
matter published. In the absence of such allegation, the Magistrate decided to proceed against the
Chief Editor. On an application by the Chief Editor, the process issued against him was recalled. The
High Court, however, set aside the order of the Magistrate and when the matter travelled to this
Court, it set aside the order of the High Court. This Court made distinction between 'Editor' and
'Chief Editor'. In no uncertain terms the Court observed that the Press and Registration of Books Act
recognizes 'Editor' and presumption is only against him. The Act does not recognise any other legal
entity viz., Chief Editor, Managing Editor etc. for raising the presumption. They can be proceeded
against only when there is specific allegation.
20. We may here observe that in this case, this Court has held that the Magistrate has the power to

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drop proceeding against an accused against whom he had issued process in the following words:
"8. It is open to the accused 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 the 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 the process is an interim order and not a
judgment. It can be varied or recalled. The fact that the process has already been issued is no
bar to drop the proceedings if the complaint on the very face of it does not disclose any offence
against the accused."
21. However, this Court in Adalat Prasad v. Rooplal Jindal, 2004(4) RCR (Criminal) 1 : (2004)7
SCC 338, has specifically overruled K.M. Mathew (Supra) in regard to the power of the Magistrate to
recall its order issuing process. It has been observed as follows :
"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there
being any allegation against the accused or any material implicating the accused or in
contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated,
but then the relief an aggrieved accused can obtain at that stage is not by invoking Section
203 of the Code because the Criminal Procedure Code does not contemplate a review of an
order. Hence in the absence of any review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking section 482 of the Code.
16. Therefore, in our opinion the observation of this court in the case of K.M. Mathew v. State
of Kerala, 1992(1) SCC 217, that for recalling an erroneous order of issuance of process, no
specific provision of law is required, would run counter to the scheme of the Code which has
not provided for review and prohibits interference at interlocutory stages. Therefore, we are of
the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is
required for recalling an erroneous order, amounting to one without jurisdiction, does not lay
down the correct law."
22. Thus our reference to K.M. Mathew (supra) may not be construed to mean that we are in any
way endorsing the opinion, which has already been overruled in Adalat Prasad (supra).
Thus the impugned judgment of the High Court is indefensible both on facts and law. Any
observation made by us in this judgment is for the decision in this case. It does not reflect on the
merit of the allegation, which obviously is a matter of trial.
In the result, the appeal is allowed, the impugned judgment of the High Court is set aside and the
court in seisin of the case shall now proceed with the trial in accordance with law.
Appeal allowed.

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