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Banka Behari Singh Vs. O.M. Thomas and ors. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 122 of 1959
Reported inAIR1960Ori126; 1960CriLJ1116
ActsPress and Registration of Books Act, 1867 - Sections 3, 4, 6, 7 and 18; Evidence Act - Sections 57(3) and 87; Code of Criminal Procedure (CrPC) , 1898 - Sections 177, 179 and 527
AppellantBanka Behari Singh
RespondentO.M. Thomas and ors.
Appellant AdvocateAsok Das and ;Srinivas Misra, Advs.
Respondent AdvocateR.N. Misra, Adv.
DispositionRevision dismissed
Cases ReferredAssistant Sessions Judge v. Ramanand.
Excerpt: to persons therein to be printer or publisher - and no presumption can be taken as to name printed on book as its author - hence, accused persons liable to be acquitted as identity of authors as publishers has not been established - lower court justified in holding that magistrate of jashpurnagar was not having jurisdiction as printing and publishing disseminated from different place - petition dismissed. - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements..........34 of the indian penal code, against him. the substance of the allegation was that in three printed books grossly defamatory statements were made against the petitioner by the authors of the same, and that the books were printed and published at the places noted in them and that they were also widely disseminated in jashpurnagar within the said district of raigarh where the petitioner was residing. one of the books is entitled 'voice of truth' of which one of the part authors is one o. m. thomas. in that book it was mentioned that it was published by o. m. thomas, 20 elgin road, allahabad and that it was printed at st. paul's press training school, allahabad. the second book is entitled 'annotations on the niyogi report' written by rt. rev. oscar sevrin s. j. and published by.....

R.L. Narasimham, C.J.

1. This is a petition, in revision, against the judgment of the Sessions Judge of Sambalpur, declining to interfere with an order of discharge passed by the First Class Magistrate of sambalpur.

2. On the 20th July 1937 the petitioner tiled a complaint in the Court of the First Class Magistrate. Jashpurnagar, in the district of Raigarh, in Madhya Pradesh against nine persons alleging that they committed offences under Sections 500, 501 and 502 read with Section 34 of the Indian Penal Code, against him. The substance of the allegation was that in three printed books grossly defamatory statements were made against the petitioner by the authors of the same, and that the books were printed and published at the places noted in them and that they were also widely disseminated in Jashpurnagar within the said district of Raigarh where the petitioner was residing. One of the books is entitled 'Voice of Truth' of which one of the part authors is one O. M. Thomas. In that book it was mentioned that it was published by O. M. Thomas, 20 Elgin Road, Allahabad and that it was printed at St. Paul's Press Training School, Allahabad. The second book is entitled 'Annotations on the Niyogi Report' written by Rt. Rev. Oscar Sevrin S. J. and published by Pushpa Publishers of Nagpur, it is further mentioned in that book that it was printed by Wilfred Maciel at 'Pushpa' 46 Kingsway, Nagpur-1. The third book is entitled 'Why are you nervous of Conversion to Christianity?'. The author is one M. Morris. The book was printed and published at Sanjiban Press, Digha Ghat, Patna. In this book it is further mentioned that the sale proceeds would go to the Catholic Regional Council, Ranchi. Two of the books (excluding 'The Annotations on the Niyogi Report') are priced publications.

3. The learned Magistrate of Jashpurnagar issued process against the nine persons named in the petition of complaint. Two of them, namely, G. K. Francis and M. Morris are reported to be dead. The trial, therefore, proceeded against the remaining seven persons, but in the meantime on their application to the Supreme Court under Section 527 Cr. P. C. then Lordships of the Supreme Court were pleased to transfer the case to the District Magistrate of Sambalpur, for trial by a competent Magistrate. The case came up for trial, in due course, to the file of Sri G. C. Mallik, Magistrate, First Class, Sambalpur, who, after examining several prosecution witnesses in chief and also after cross-examining them, discharged four of the accused persons namely Rev. Father T. Barret, (opp. party No. 3, O. M. Thomas (opp. party no. 1), Rev. A. Rossi (opp. party No. 2) and Wilfred Maciel (opp. party No. 4) observing that no prima facie case was made out against them.

The trial continued against the remaining three persons, namely, Rt. Rev. Oscar Sevrin (opp. party No. 5), Ignace Beck (opp. party No. 6) and John Ekka (opp. party No. 7). Rev. Father J. Barret is said to be the Manager of Sanjivan Press, Digha Ghat, Patna where the publication 'Why are you nervous about conversion to Christianity?' was published. Mr. O. M. Thomas is (as already pointed out) the joint author and publisher of the book 'Voice of Truth.' Rev. A. Rossi is the Manager in St. Paul's Press Training School, Allahabad where the book was printed. Sir Wilfred Maciel is said to be the Printer and Publisher of the book entitled 'Annotations on the Niyogi Report', residing at 'Pushpa' 46 Kingsway, Nagpur 1.

4. Both the lower courts have held that no prima facie case was made out against the aforesaid four accused persons for the following reasons:

(i) The identity of these persons with the persons named either as the author or as the printer or publishers in the aforesaid books, has not been established.

(ii) The Magistrate at Jashpunagar had no jurisdiction to take cognizance of the offence alleged against any of these persons inasmuch as the printing and publishing took place either at Allahabad, or Patna, or at Nagpur and there is no evidence to show that they had any part in the publication or dissemination of the books in any area within the jurisdiction of the Magistrate at Jashpurnagar.

5. The remaining three accused persons, namely, Rt. Rev. Sevrin, Ignaee Beck, and John Ekka are undergoing trial and it will obviously be not proper for this court to make any observations which might embarrass either party in their trial. Assuming (without deciding) that the contents of the aforesaid books are defamatory ot the petitioner, the main question for consideration in this revision petition is whether the view taken by the lower courts as regards the identity of the authors and publishers of the books with the aforesaid four accused persons and as regards the jurisdiction of the Jashpurnagar Magistrate to try the case, is correct.

6. It will be noticed that the aforesaid publications are 'books' and not 'newspapers'. The Press and Registration of Books Act, 1867, makes a sharp distinction between 'books' and 'newspapers.' So far as news papers are concerned Section 7 of that Act says that a copy of a declaration made under Section 6 shall be held (unless the contrary be proved) to be sufficient evidence as against the persons whose names shall be subscribed to such declaration, that the said person was the printer or publisher of every portion of the newspaper. There is no similar provision in the Act with regard to books. It is true that Section 3 says that every book shall have printed legibly on it the name of the printer and the place of publication.

Similarly, Section 4 also says that every keeper of a printing press shall make a statutory declaration before a competent Magistrate. Section 18 requires that an authorised officer of the State Government shall maintain a registered memorandum of every book containing various particulars including the name of the author, the name and address of the publisher, etc. Section 19 requires that a copy of the same shall be published in the gazette. In this case admittedly no copy of the entry made in the Register maintained under Section 18 was proved. Hence, apart from what is printed in the book concerned there is no direct evidence to show who were the authors, publishers and printers of these books. The evidence of the complainant who, admittedly has no knowledge of English, on this point, can carry no weight. The authors of these books are not men of such repute as to attract the provisions of Section 87 of the Evidence Act, read with Section 57(3) of that Act.

7. Mr. Asoka Das urged that the names printed in the books may be taken as prima facie evidence unless it is rebutted by the persons concerned. This, argument cannot be accepted as it will shift the burden of proof on an accused to establish the essential facts in a criminal case. The absence, of a provision in that Act, similar to Section 7, so far as books are concerned is itself sufficient to show that such an argument cannot be accepted. Moreover it was open to the complainant to produce a copy of the entry made in the Register under Section 18 of the Act, but that has not been done. In AIR 1923 Bom. 255, Emperor v. T. K. Pitre the principle dealing with the aspect of the ease was laid down as follows:

'A printed book by itself proves nothing relevant to the present enquiry. There is no presumption that it is written by the man who is described as the author, unless it is one of the limited class of books covered by Section 87 of the Indian Evidence Act'.

So far as the printers and publishers are concerned, the petitioner should have called for and proved the certified copy of the declaration made under Section 4 of the Act and of the entries made under Section 18 of the Act. I must, therefore, in agreement with the two Courts hold that the connection of three out of the four accused persons who were discharged, namely opposite parties Rev. Rossi, Rev. Father J. Barret and Wilfred Maciel with the printing and publishing of the books in question, has not been established.

8. The case of opposite party O. M. Thomas is on a slightly different footing. It is true that in his case also apart from what was printed in the book 'Voice of Truth' no evidence has been led by the prosecution to show that he was also responsible for its publication. But during the hearing of this petition in this Court Mr. Asoka Das for the petitioner produced before me a copy of the application for transfer filed before the Supreme Court along with an affidavit sworn by Mr. O. M. Thomas himself. In that affidavit Mr. Thomas admitted in paragraph 2 that he was the accused in the case and in paragraph 3 that he was the 'part author and sole publisher' of 'Voice of Truth'. Though this document has not been formally proved before the trying Magistrate, Mr. Asoka Das stated that he will prove it in accordance with law before the trying Magistrate and thus establish the identity of Mr. Thomas as the author and publisher of the aforesaid book. Hence the case against him cannot be thrown out merely on the ground that the identity of this accused as the person responsible for its publication has not been clearly established.

9. But the finding of the two lower courts to the effect that the Magistrate at Jashpurnagar had no jurisdiction to try these four accused persons is correct. The printing and publication of the books containing the alleged defamatory attacks against the petitioner took place, at Patna, Allahabad and Nagpur which are outside the jurisdiction of the Court of the Magistrate at Jashpurnagar. An ingenious attempt was however made to show, in the petition of complaint that the printing and publishing was part of an organised conspiracy, and the principle of Section 34 of the Indian Penal Code was also invoked. But there is absolutely no evidence to show that these persons had conspired with the authors or with any of the other persons who are undergoing trial, viz. Rev. Sevrin, Ignace Beck and John Ekka.

Nor is there any evidence to show that these persons sent the books by post to Jashpurnagar. The prosecution witnesses have spoken about the availability of the books and also their dissemination in Jashpurnagar by some other persons. Unless it can be further established that those other persons were agents or servants of the four members of the opposite party, named above, or that they received them by post or by other means, from the place or Publication at Allahabad, or Patna or Nagpur as the case may be, it cannot be held that these members of the opposite party had anything to do with the dissemination of the contents of these books at Jashpurnagar, It may be that the Magistrate at Allahabad, Patna or Nagpur may have jurisdiction to try these persons for the offence, but the Magistrate at Jashpurnagar cannot get jurisdiction to try them unless the principle of Section 179 Cr. P. C. can be invoked.

In my view that section has no application to the present case. As soon as the books were published the offence of defamation was complete. The subsequent dissemination of the contents of places other than those at which they were printed and published may amount to distinct offences against the persons responsible, for such dissemination, but the printers and publishers at the original place of publication cannot be held liable for such dissemination, unless there is further evidence of the kind mentioned above. It is difficult to say that the dissemination of the books at Jashpurnagar was a 'consequence' arising out of the publication of the same at Allahabad, Patna or Nagpur.

The 'consequence'' referred to in section 179 Cr. P. C. must be a part of the offence with which the accused person is charged. It is evident that that section can apply only to a case where, a person is charged with an offence not only by reason of some act committed by him but also by reason of the consequence which had ensued from that act. If, as soon as an act is committed, the offence is completed at the place where the act is committed, then merely because the same offence is repeated at another place, the latter offence cannot be said to be a 'consequence' arising out of the former act within the meaning of the aforesaid section. See AIR 1938 All 632, Mohd. Abdul Latif v. Ahmad Abdul Halim and the cases cited therein.

10. Though there is paucity of judicial decisions bearing on this subject, the few decisions cited at the Bar appear to be in support of the view taken by the lower courts. The earliest is ILR 3 All 342, Empress of India v. McLeod, where it was held that the sending of newspaper containing defamatory matter by post from Calcutta where it was published, to a subscriber at Allahabad, would amount to publication of such defamatory matter at Allahabad. The act of sending the matter by post, by the publishers at Calcutta, to the subscriber at Allahabad, provides the connecting link between the two places so as to confer jurisdiction on the Court at Allahabad: Similarly in ILR 15 Bom 286, Queen-Empress v. Girjashankar, the defamatory matter was contained in a newspaper published at Bombay, but it was sent from the Press at Bombay where it was printed, to certain persons in Ahmedabad where the subsequent publication took place.

Hence it was held that the Editor and Proprietor of the newspaper was liable for the publication at Ahmedabad, and the court there had jurisdiction. In ILR 22 Bom 112, Queen-Empress v. Bal Gangadhar Tilak the objectionable matter (it was a case of sedition under Section 121A, I. P. C.) was printed in Poona but was sent to subscribers and other persons at Bombay. Hence it was held that there was sufficient publication in Bombay for the Courts there to have jurisdiction. In a later Allahabad case reported in 30 Cri LJ 530: (AIR 1928 All 222), Emperor v. Jhabbar Mal, the defamatory matter was printed at Delhi and sent by post to a person at Dehra Dun, named Narayan Dutt. That person actually produced before the court a copy of the newspaper which was sent to him, and the address together with the stamp and post-mark. Hence, it was held that the Court at Dehra Dun had jurisdiction to try the case. This question was fully discussed in an elaborate judgment reported in AIR 1935 Nag 90, Diwan Singh v. Emperor, where the following were quoted:

'The venue of the offence is laid where the sedition was written or spoken, or where it was published, by the authority or with the assent of the accused.'

11. It may thus be taken as well established that the Jashpurnagar Magistrate will have jurisdiction to try the case against these four members of the opposite party, only if there is some evidence to show that the publication at Jashpurnagar was done either under the authority or with the assent of these four persons. There is no such evidence. Merely because all of them are Christians and these books attempted to justify the conduct of Christian Missionaries in India and to refute certain allegations contained in the Niyogi Report, it cannot be said that they intended or knew it to be likely that the books will disseminate in Jashpurnagar. Mr Thomas who argued the case himself gave an apt illustration to expose the fallacy of the argument.

The complainant or some of his men might as well have purchased these books from some bookstalls or any other source, either at Allahabad, or Patna or Nagpur and then brought them to Jashpurnagar. It will not therefore be proper to hold that the author or the printer or publisher must necessarily be liable for the publication at any place where they may be found unless some further material is forthcoming.

12. The Magistrate at Jashpurnagar had, therefore, no jurisdiction to take cognizance of the offence alleged against these persons. The mere fact that their Lordships of the Supreme Court subsequently transferred the case to Sambalpur, would not confer on the Magistrate at the latter place jurisdiction to try the case if the original court from where it was ordered to be transferred had itself no jurisdiction. Though there is no direct decision under Section 527 Cr. P. C. there are some decisions under Section 526 Cr. P. C. which, I think, may apply. See ILR 10 Bom 274 (at p. 280), Queen-Empress v. Mangal Tekchand, AIR 1954 Bom 337, Nirmala Bai v. Reva Das and ILR 36 Mad 387, Assistant Sessions Judge v. Ramanand.

13. The revision petition is therefore dismissed.

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