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 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.
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.”