9 January, 2018
The Supreme Court of India in its recent judgment dated December 4, 2017 has aimed to clarify the position of the liability of the owner of a newspaper in the cases of defamation. The present criminal appeal titled Mohammed Abdulla Khan Vs. Prakash K arises out of a criminal defamation complaint filed against the owner and editors of a newspaper for an article alleged to be defamatory.
Mohammed Abdulla Khan (“The Appellant”) approached the concerned Magistrate’s Court in Karnataka following the inaction on the part of the police when a complaint for defamation had been lodged. The learned Magistrate took cognizance of the matter on April 15, 2014 for offences punishable under Section 500 (Punishment for defamation), Section 501 (Printing or engraving matter known to be defamatory) and Section 502 (Sale of printed or engraved substance containing defamatory matter) of the Indian Penal Code, 1860 (“IPC”).
Aggrieved by the aforesaid order, Prakash K. (“The Respondent”) filed a Revision Petition, which was dismissed. The Respondent further carried the matter to the Karnataka High Court invoking Section 482 (saving of inherent powers of High Court) of the Code of Criminal Procedure, 1973. The said petition was allowed and proceedings against the Respondent were quashed. The impugned order relied upon the judgment of the Supreme Court i.e. K.M. Mathew Vs. K.A. Abraham, (2002) 6 SCC 670 and did not provide any reason whatsoever for quashing the complaint except that “it would lead to a miscarriage of justice”.
The Supreme Court, in the Special Leave Petition filed against the High Court, analyzed the offence of defamation as provided in the IPC. It noted that to constitute an offence of defamation, a person is required to make some imputation concerning any other person. Such imputation must be made either with intention, or Knowledge, or having a reason to believe.
Further, such an imputation will have to harm the reputation of the person against whom the imputation is made by making signs or visual representations and can either be made or be published.
The Court further differentiated between making or an imputation and publishing of it by stating the following examples:
(i) If ‘X’ tells ‘Y’ that ‘Y’ is a criminal- ‘X’ makes an imputation.
(ii) If ‘X’ tells ‘Z’ that ‘Y’ is a criminal- ‘X’ publishes the imputation.
In other words, the essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the person against whom the imputation is made.
The Court noted that in the context 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.
It has further been clarified that answer to the question depends upon the facts of each case. 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. It has been made 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.
The Court additionally considered the K.M. Mathew case and noted 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 Court after considering the applicability of the K.M. Mathew case and the facts of the present matter held that whether the owner can be made vicariously liable or not requires a critical examination and each case would require a careful scrutiny. The present appeal was allowed and the order of the High Court was set aside.
For further information, please contact:
Vineet Aneja, Partner, Clasis Law