The Bombay High Court recently held that in defamation cases, persons other than the reporter, editor, printer and publisher can also be tried or prosecuted, if the defamation complaint contains specific and clear

The Bombay High Court recently held that in defamation cases, persons other than the reporter, editor, printer and publisher can also be tried or prosecuted, if the defamation complaint contains specific and clear allegations against such persons.
As observed in the judgment passed by Justice Revati Mohite-Dere,
As far as liability is concerned, primarily a reporter is responsible for his act of defamation and vicarious responsibility is fastened only on the printer, publisher and editor of the newspaper, unless the contrary is proved.
Having regard to the judicial pronouncements in this regard, it can safely be said that besides persons declared as editor, printer and publisher of a newspaper, only such persons could be prosecuted for an action of defamation against whom specific and clear allegations have been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or had knowledge or reason to believe that the imputation will harm the reputation of the complainant.”
The High Court made the observation in an application filed by the Managing Director of a newspaper ‘Bombay Samachar’ seeking to quash defamation proceedings against him
The Court was informed that due to election related rivalry, there was animosity between a former and new Chairman of the Bombay Parsi Panchayat. One of the parties filed a complaint against eight allegedly defamatory articles that were published in the `Bombay Samachar’, in which the other was Managing Director.  
Thereafter, in October, last year Magistrate Court issued process in the defamation complain, including against the Managing Director. Being aggrieved, applicant Managing Director filed an application before the High Court to quash the complaint against him.
Appearing for the applicant, Senior Counsel Ashok Mundargi submitted that his client was not involved in the day-to-day activities of the Bombay Samachar. It was also contended that his client’s name is not mentioned under the Press and Registration of Books Act (PRB Act) and there are no averments against him regarding his specific involvement in publishing the articles in question. In view of these contentions, it was submitted that the Managing Director should not be arraigned in the defamation proceedings since he cannot be attributed with knowledge, intention or culpability with respect to the allegedly defamatory articles. 
The original complainant opposed the application, arguing that his complaint clearly shows the complicity of the applicant Managing Director in the alleged offence. It was argued that the applicant had the requisite knowledge of the falsity of the information and had intentionally printed, published and circulated the defamatory article, without verifying the genuineness and veracity of the same, with a malafide attempt of defaming and tarnishing the image and reputation of the complainant. Further, it was submitted that the High Court need not go into the truthfulness or otherwise of the allegations at this stage, which can only be gone into at the time of trial.
The Court, in turn, relied on the Supreme Court judgments in State of Maharashtra v R. B. ChowdharyKM Mathew v State of Kerala and KM Mathew v KA Abrahamto reiterate that there is no statutory immunity available to the Managing Director of a publication when it comes to defamation proceedings. Rather, what is to be considered is whether there are specific allegations by the complainant of complicity by the accused. 
“… what can be culled out from the aforesaid judgments is that there must be positive averments in the complaint, of knowledge of the objectionable material.”
In the case at hand, the Court found there were specific allegations against the Managing Director as well. In view of the same, the judge dismissed the application, holding that,
“Considering the aforesaid, this is not a fit case to quash the proceedings qua the applicants. The application is accordingly dismissed.”
However, the Court allowed the applicant Managing Director to file a plea seeking his exemption from attending proceedings on health grounds.
“If such an application is filed, learned Judge to consider the same sympathetically, on its own merits in accordance with the law.”
Along with Senior Counsel Mundargi, advocates Amol Doijode, Ruchi Magoo, Levi Rubens, Sushant Arora, Sheetal Mote and Anshul Rathi instructed by Vigil Juris appeared for applicant Managing Director and the Newspaper, Bombay Samachar.
The original complainant was represented by advocates Samsher Garud, Harsh Noorjani and Vignesh Iyer instructed by Jayakar & Partners.
Additional Public Prosecutor PH Gaikwad appeared for the State Government.
[Read Judgment]

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