N.C. Talukdar, J.
1. This Rule must be made absolute. The present revisionsal application is for quashing, in so far as it relates to the petitioner, a criminal case being C. R. Case No. 638 of 1966, pending in the Court of the Additional District Magistrate at Port Blair. Andaman and Nicobar Islands under Section 500 I. P C.
2. The facts leading on to the present revisional application may be put in a short compass. On the 14th May 1965 in the issue of the 'Darpan' a Bengali weekly published In Calcutta, an editorial article was published containing an alleged defamatory imputation against the complainant firm, viz., R. Akoji Jadwet and Company This weekly used to be printed at a press owned by a Limited company, viz., the Metropolitan Printing and Publishing House(P) Ltd. and at the relevant time, the present petitioner, Sunilakhya Chowdhury, was one of the Directors of the Company. The accused petitioner was neither the maker, that is the author nor the printer nor the publisher of the impugned publication and has been prosecuted as he is a director of the Company which owns the Press and which did the job of printing the said journal. The opposite party No. 2, Hiren Basu, is the Editor Publisher, Printer and the owner of the said Bengali journal as per the declaration under Rule 3 of the Press and Registration Act.
3. The complainant opposite party No. 1 filed a petition of complaint on the 22nd March, 1966 in the Court of the Additional District Magistrate. Port Blair. Andaman and Nicobar Islands against the present petitioner and the accused opposite party No. 3 inter alia on the allegations that the accused persons made, printed and published for public consumption, certain false and highly tendentious remarks in the publication called the 'Darpan', which is a Bengali Weekly. In its 16th issue dated Friday the 14th May 1965 alleging insinuating and impugning complicity of the complainant and his partners with the alleged loss of 25 trategic from the office of the Chief Commissioner at Port Blair, Andaman and Nicobar Islands. It was further averred therein that the Court at Port Blair has jurisdiction to entertain and try the accused there as the accused had made and published by selling and circulating for sale at Port Blair and Calcutta copies of the Weekly containing the said defamatory matters. No list of the prosecution witnesses, however, was filed along with the petition of complaint.
4. The Additional District Magistrate, Port Blair thereupon registered the said complaint and fixed 28-3-60 for the statement of the complainant and on 23-8-60 the complainant being absent the complaint was dismissed for default Thereafter before the said order was signed, the learned Counsel for the complainant appeared and the learned Additional District Magistrate directed the case to be put up in the afternoon when the learned Counsel for the complainant wasagain busy elsewhere and the case was adjourned till 31-3-66. On 31-3-66 the learned Additional District Magistrate recorded the statement of the complainant and as he was of the opinion that there are good grounds to proceed in the matter, he directed summons to be issued against the accused persons for appearance on 9-5-66. The learned Additional District Magistrate further direct-ed that a list of witneses is to be filed. Thereafter there were several adjournments on the prayer of the present petitioner and the case was ultimately fixed on the 16th August, 1966. The present revisional application was moved before this Court on the 8th August, 1966 and the Rule was issued, staying all further proceedings in the meantime.
5. It is to be observed in this connection that the impugned publication is dated the 14th May, 1965 but the petition of complaint was filed so late as on the 22nd March, 1966 but no reason has been given in thesaid petition of complaint for filing the same after the lapse of over ten months.
6. The accused petitioner's-- case, bereft of all verbiage, is that neither in law nor on merits, the case pending against him under Section 500 I.P.C before the learned Additional District Magistrate at Port Blair. Andaman and Nicobar Islands, is maintainable and at such the said proceedings, so far as he is concerned, are to be quashed.
7. The learned Advocate-General. Mr. Ajit Kumar Dutt, has put forward a five fold contention in support of the Rule. He has urged in the first place that in the petition of complaint, no list of prosecution witnesses was given, nor was such a list of witnesses filed along with the said petition of complaint, as enjoined under Section 204 (1)(A) of the Code of Criminal Procedure and as such no summons should have been issued against the accused persons under Sub-section (1) of Section 204 Cr. P. C. The second contention is that the procedure followed in this case was not in accordance with the law The learned Additional District Magistrate taking cognizance was required to examine the complainant on oath at once, as enjoined under the law and he could not postpone the said examination. In this particular case, it would appear from the ordersheet that the case was adjourned for the examination of the complainant and on the next date as the learned counsel did not appear, the petition of complaint was dismissed for default. Thereafter upon a prayer made on behalf of the complainant the said case was revived and the complainant opposite party was examined under Section 200 Cr. P. C. He has urged in the third place that the company, viz., the Metropolitan Printing and Publishing House (P) Ltd. is not in any way liable for the offence charged. An offence under Section 500 l.P.C. is one of those offences requiring 'mens rea' and as such a company cannot, in any event, be held to have committed in offence under 'the said section. A company is a juristic entity or an artificial person and a Director is not the company. Therefore this is not an offence by the Company and me. Metropolitan Printing and Publishing House (P) Ltd. of which the accused petitioner was formerly a Director, is not in any way liable for prosecution It was further submitted that the Press belonged to the company which in the ordinary course of business had merely done the job of printing and as such no offence was committed by the Company as alleged or at all. He contended in the fourth place that even if the company could be presumed to have committed any offence, the present petitioner could not be roped in merely because he was at the material time a Director of the said Company, as the law is well settled that when an offence is committed by a company, a Director cannot be hauled up unless and until the same is specifically provided for in law it was not even alleged in the petition of complaint that the petitioner who was formerly a Director of the Company had any knowledge of the impugned order. His fifth and last contention is that so far as the present petition is concerned, the proceedings under Section 500 I. P. C. pending before the learned Additional District Magistrate at Port Blair. Andaman and Nicobar Islands are without jurisdiction. The company did only the job of printing at its press at Calcutta and was neither the Publisher nor had any concern or connection with the circulation of the Journal at the Andaman and Nicobar Islands. Therefore with regard to the company of which the petitioner was the Director, the Court al Andaman and Nicobar Islands has no jurisdiction It is only the publication, in the Andaman and Nicobar Islands which would confer such jurisdiction on the said court. By undertaking the job of printing, the company cannot be held liable for making and publishing a defamatory imputation at the Andaman and Nicobar Islands.
8. Shri Amal Kumar Ghosal, learned Advocate appearing for the accused opposite party No. 2, viz.. Shri Hiren Basu, the Editor of the Bengali Weekly 'Darpan' adoptedthe first two arguments of the learned Advocate-General relating to procedural defect. He further contended that the present proceedings are bad on merits and also for want of jurisdiction and his client cannot be implicated in a proceeding under Section 500 I. P. C. taking place at Port Blair, Andaman and Nicobar Islands.
9. Mr. Anil Kumar Sen, Advocate (with Shri Subimal Som, Advocate) appearing on behalf of the complainant opposite party No. 1 contended that this revisional application is not maintainable inasmuch as the accused persons who have been summoned did not submit to the process by appearing before the learned Additional District Magistrate at Port Blair; that it is quite premature and the relative proceedings should not be quashed at this stage; that the petition of complaint does disclose an offence under Section 500 I.P.C. against both the accused; that the pre-sent case is not bad for want of jurisdiction because the publication of the weekly was also made in the Andaman and Nicobar Islands by the circulation for sale of the copies of the said Weekly there, containing the said defamatory matters; and that, in any event, the proceedings against the accused opposite party No. 2 are quite maintainable in the court at Port Blair, because he is the Editor Publisher, Printer and the Owner of the journal, copies whereof were circulated for sale and therefore published in the Andaman and Nicobar Islands. Mr. Sen further urged that the accused opposite party No. 2 has not preferred any revisional application in this court and as such his prayer for quashing should not be considered.
10. The first two grounds urged by the learned Advocate-General relate to procedural defects and more technical than real. In connection with first ground as to the purported non-conformance to the mandatory provisions of Section 204(1A) Cr. P. C., the steps of the reasoning advanced by the learned Advocate General are that neither was a list of the prosecution witnesses incorporated in the petition of complaint nor was the same filed separately, along with the said petition and as such no summons or warrant should have been issued against the accused persons under Sub-section (1) to Section 204 Cr. P. C. I am afraid I cannot agree with the said contention in the facts and circumstances of the present case. The language used by the legislature in Section 204(1A) Cr. P. C. is that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed'. Here the order passed by the learned Additional Magistrate on 31-3-67 runs as follows: 'summons shall go to the accused for appearance on 9-5-66 List of witnesses to be filed'. There is no such inflexible rule, provided for under the code, that such a list of witnesses must have to be incorporated in the petition of complaint or must accompany the petition of complaint and a failure to do that will vitiate theproceedings. The intention of the legislature is quite clear and is that before the issuing of the summons or warrant against the accused persons, such a list of witnesses should be filed. The point of time need not be when the petition of complaint is filed. In this case, it would appear from the records that such a list was filed on behalf of the complainant on 1-4-66 and the summons was issued thereafter on 15-4-66, I hold therefore, that there has been a sufficient compliance to theprevisions of Section 204 (1A) Cr. P. C. Even it was not so, it is to be remembered that no prejudice was ultimately caused to the accused persons. A reference in this connection may be made to the case of Somasundaram v. Gopal, AIR 1958 Mad, 341 wherein Mr. Justice A. S. Panchapakesa Ayyar and Mr. Justice Basheer Ahmed Sayeed held that the list filed under Section 204(1A) Cr. P. C. can be added to by supplemental lists accompanied by applications to the court to the summon those new witnesses. The phrase 'taken all such evidence as may be produced in support of the prosecution' under Section 244 (1) and Section 244 (2) and Section 252 (2) Cr. P. C. shows the ample powers of the court in this respect. A private complainant may give up some or all the witnesses in the original list filed under Section 204 (1A) Cr. P. C. Therefore the test is that non-filing of such a list at the initial list by itself does not vitiate the proceedings but that the same should be filed before the court issues the summons. I may further refer to the case of Syama Charan Saha v. Nagendranath Rakshit 61 Cal WN 192 wherein Mr. Justice Debabrata Mukherjee has held that Section 204 Cr. P.C. does not control Section 252 of the said Code. The real purport of Section 204 is to give the accused a fair idea of the allegations that are made against him as also of the persons who are likely to support those allegations. Nothing more was intended by the legislature than this. If the complainant was to be tied inexorably to the list of wit-ness mentioned in Section 204 (1A) Cr. P. C. then that would have the effect of abolishing Section 252 (2) of the Code. The provisions contained in Section 204 are not absolute and can in a proper case be relaxed so as permit the complainant to produce evidence which is useful or illuminating in relation to the charge brought against the accused. His Lordship further held that it is quite clear that if Sub-sections (1A) and (1B) of Section 204 Cr. P. C. were to be held absolute, then the discretion which the legislature has given to the Magistrate in Section 252 (2) Cr. P. C. would be utterly empty.
11. The next point urged by Mr. Dutt with regard to the non-conformance to the mandatory provisions of Section 200 of the Code of Criminal Procedure, is very thin and is not ultimately sustainable. Undoubtedly the language of Section 200 Cr. P. C. is that Magistrate taking cognizance of anoffence on complaint shall at once examine the complainant and the witnesses present, if any. But the question that remains to be answered is as to whether the court in this case did take cognizance on the 22nd March, 1966. The order passed by the learn-ed Additional District Magistrate at Port Blair on 22-3-66 is that 'complainant H. M. Jadwet filed a complaint under Section 500 I.P.C. and complainant's counsel is also present Register. Fix 28-3-66 for statement of the complainant'. It may well be that no cognizance was at all taken and for a proper determination of the said point, one must try to understand what the expression 'cognizance' really means. The Supreme Court has held in the case of Narayan Das, Bhagwandas v. State of West Bengal : 1959CriLJ1368 , that
'as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance is taken of an offence. ' It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and the subsequent section of chapter XVI of the Code, that it can be stated that he has applied his mind and therefore had taken cognizance'
However, any discussion as to whether the Magistrate had taken cognizance on the 22nd March. 1966 when he passed the order referred to would be more academic than real in the facts and circumstances of the present case and one need not enter into the same because of the distinguishable facts in the case, sticking out for miles. It would appear from the order-sheet that the petition of complaint originally filed by the complainant opposite party No. 1 was dismissed for default on 28-3-66 and therefore the chapter including the purported non-conformance to Section 200 Cr. P. C., if any was closed. Subsequently on the same date, namely, on 28-3-66 upon a prayer made by the counsel for the complainant opposite party No. 1, the learned Additional District Magistrate ordered that 'complaint shall not be dismissed put up in the afternoon' and in the afternoon as the counsel was engaged before the District Magistrate, the complaint was adjourned till 31-3-66. In my opinion the court surely, at this stage and on this date was not applying its mind and 'taking cognizance' Therefore, there is no question of 'at once examining the complainant on that date'. On 31-3-66, the complaint was put up before the learned Additional District Magistrate, who applied his mind and took cognizance. He immediately examined the complainant on oath under Section 200 Cr. P. C. and recorded his statement in details. I have already discussed as to what exactly is taking cognizance. A reference in this connection may be made to some cases. In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee : AIR1950Cal437 , Mr. Justice K. C. Dasgupta and Mr. Justice S. C. Lahiri held that before it can be said that any Magistrate has taken cognisance of any offence under Section 190 (1) (a) Cr. P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the chapter. In another case reported in : 1951CriLJ775 , R. R. Chari v. State of Uttar Pradesh, it was held by their Lordships of the Supreme Court that before it can be said that any Magistrate has taken cognizance of any offence under Section 190 Cr. P. C. he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter, proceeding under Section 200 and thereafter sending it for enquiry and report under Section 202 Cr. P. C. The Magistrate cannot be said Lo have taken cognizance of the offence when he had applied his mind not for the purpose of proceeding under the subsequent sections of the chapter but for taking action of some other kind. A reference may also be made to the case of Gopal Das Sindhi v. State of Assam. AIR 1961 SC 986. Their Lordships further interpreted as to what is meant by the expression 'taking cognizance'. It was held that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of chapter XVI but for taking action of some other kind, as for example ordering investigation under Section 156 (3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. I hold accordingly that both the grounds taken by the learned Advocate-General relating to procedure, as discussed above, must fail. Moreover the accused also have not been prejudiced in any way by these purported non-conformances. The next three points raised by the learned Advocate-General are material and go to the root of the case. There is much force behind the same. Mr. Dutt contended that a company cannot in any event be held to have committed an offence under Section 500 I.P.C. because the most essential ingredient of the said offence is 'mens rea'. A company is a juristic entity or an artificial person and a director is not a company. Accordingly there is no offence by the limited company, namely, The Metropolitan Printing and Publishing House (P) Ltd.. whereof the accused petitioner was formerly a director, and as such it cannot be prosecuted of the offence as alleged or at all. A reference in this connection may be made to the relevant provisions of the Companies Act (Act I of 1956), as amended by Act LXV of 1960. In various penal provisions thereunder namely, under lections 162, 168 and 220(3) the legislature in its wisdom has used the expression 'thecompany and every officer of the company who is in default'. An 'officer who is in default' has been defined in Section 5 of the said Act as an officer of the company who is knowingly guilty of the default non-compliance, failure, refusal or contravention mentioned in the relative provisions. Therefore, there is no difficulty in convicting a company as enjoined under the said provisions of that Act But the position becomes difficult in the case of an offence under Section 500 I. P. C., which is an offence requiring a blame-worthy mind and is not a statutory offence requiring no 'Mens Rea'. The offence of defamation consists of three essential ingredients, namely. (1) making or publishing any imputation concerning any person (2) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, the intention to cause harm is the most essential 'sine qua non' of an offence under Section 499 I.P.C. It is further to be noted that in this case the press belonged to the company at Calcutta and it had merely done the job of printing in the ordinary course of day-today business. The learned Advocate-General has referred to two cases in this connection. In the first place he has referred to the case of Anath Bandhu v. Corporation of Calcutta : AIR1952Cal759 . Mr. Justice K. C. Chunder has held therein that if there is anything in the definition or context of a particular section in the statute which will prevent the application of the section to a limited company, certainly a limited company cannot be proceeded against. There are heaps of sections in which it will be physically impossible by a limited company to commit the offences. Then again a limited company cannot generally be tried when 'mens rea' is essential. Again it cannot be tried where the only punishment of the offence is imprisonment because it is not possible to send a limited company to prison by way of a sentence. Under the General Clauses Act as also the Bengal General Clauses Act, the expression 'person' includes a limited liability company in the second place he has referred to the cases of Bisheswar Nath Mehrotra v. State : AIR1956Cal137 , wherein Mr. Justice Debabrata Mukherjee has discussed as to whether a company can be prosecuted and the maintainability of such a prosecution and also of the prosecution against the directors of the company. His Lordship has held ultimately that the director or all the directors do not constitute a company. The company is a legal entity which can be prosecuted if it is alleged that it is guilty of acts which make it punishable under the Indian Boilers Act, 1928. I agree, therefore, with the learnedAdvocate-General that a company cannot he held to have committed an offence under Section 500 I. P. C. Let me now proceed to examine the second contention raised by him that even if the company could be presumed to have committed any offence, the present petitioner cannot in any was be implicated merely because he was at the material time the director of a Private Limited Company, owning a press where the journal was printed. It has never been the intention of the legislature that a director of a company can be hauled up unless and until the law expressly provides for the same. A further reference may be made to the provisions of the Companies Act, 1956 to establish the principle referred to above. Sub-section (5) of Section 210 of the Companies Act lays down that 'if any person, being a director of & company fails to take reasonable steps to comply with the provisions of this section, he shall in respect of each offence be punishable with imprisonment for a term which may extend to 6 months or with fine which may ex-tend to Rs. 1000/- or both'. The directions do not constitute a company and are not liable for any offence that the company might commit unless it is specifically enjoined in the statute. The expression 'makes or publishes' has been interpreted as supplementing each other. If a person inertly writes out a defamatory matter but does nut publish the same, that is does not circulate to others, it will not be defamation. The word 'make' is intended to refer to the originator of the imputation. The mechanic or the compositor or the press does neither 'make or publish' the matter that may be impugned as defamatory. Therefore, on that principle also the prosecution under Section 500 I. P. C. is not maintainable against the accused-petitioner, who merely was a director of the company concerned. The last contention raised by the learned Advocate-General relates to jurisdiction and it goes to the very root of the case. By doing the job work of printing the company could not have been held liable for making and publishing a defamatory imputation at Pert Blair in the Andaman and Nicobar Islands. The steps of the reasoning of the learned Advocate-General are that the Metropolitan Printing and Publishing House (P) Ltd., whereof the accused-petitioner was formerly a director, only did the job work of printing at its press in Calcutta. The company or its director was neither the maker nor the printer nor the publisher nor even the owner or editor of the Bengali Weekly called the 'Darpan' nor have they any connection with the circulation of the said journal at Andaman and Nicobar Islands. It is only the publication, if at all, in the Andaman and Nicobar Islands, which would confer jurisdiction on the said court Mr. Anil Kumar Sen, Advocate, appearing on behalf of the complainant opposite party No. 1 has urged that there has been publication at Port Blair in the Andaman and Nicobar Islands and it is futile on the part of the publisher who is responsible for the defamatory matters published in such papers, whether he knows the contents of such paper or not. I am afraid I cannot agree with the contention of Mr. Sen as the same has no application in the facts and circumstances of the present case. In this connection Mr. Sen referred to the case of Empress of India v. Mcleod, (1881) ILR 3. All 342. Chief Justice Sir Robert Stewart has held therein that the sending of a newspaper containing defamatory matter by post from Calcutta, where it is published, addressed to a subscriber at Allahabad Is a publication of such defamatory matter at Allahabad. The publisher of a newspaper is responsible for defamatory matter published in such paper whether he knows the contents of such paper or not The principles laid down in the said case are quite all right and nobody disputes the same but those have no application to the present case in view of the facts and circumstances thereof i any event in view of the declaration under the Press and Registration Act and also in view of the averments made in the petition of complaint, it is the accused opposite party No. 2 who is the editor, printer, owner and the publisher of the Bengali Weekly called the 'Darpan' Therefore the present petitioner cannot be deemed to be the publisher within the meaning of the section. Mr. Sen also in his fairness, stated that if the declaration under the Press and Registeration Act be taken into consideration, that may be the position. In my opinion, to maintain a prosecution for defamation in a particular court there must be a publication of the libel within the legal limits of the jurisdiction of that court I am referring in this connection to the case of Mrs. K Burke v. T C. W. Skipp 25 Cri L. J. 641 :(AIR 1924 Mad 340). Mr. Justice Odgers and Mr. Justice Hughes held inter alia that the law of defamation in India demands publication. It is clearly the duty of the prosecution to prove affirmatively that the accused published the libel and the defamatory words must be published within the territorial jurisdiction. The law on the point is quite clear and it is no use multiplying cases. I accordingly hold that even if there was an offence, the court at Port Blair Andaman and Nicobar Islands has no jurisdiction to try either the company The Metropolitan Printing and Publishing House (P) Ltd. or its director who Is the petitioner in the present revisional application and as such upon this ground alone the relative proceedings at Port Blair, Andaman and Nicobar Islands, so far as the said petitioner is concerned are liable to be quashed I will now proceed to consider the several grounds urged by Mr. Anil Kumar Sen who appears on behalf of the complainant opposite party No. 1 to oppose the present rule.
12. Mr. Sen has taken a preliminary point that the present revisional application is not maintainable inasmuch as the accused-petitioner has not submitted to the jurisdiction of the Court at Port Blair, Andaman and Nicobar Islands, by appearing there in pursuance of the process that was issued by the said court. He urged that this amounts to a defiance of the process issued by the court of the Additional District Magistrate at Port Blair and therefore the accused-petitioner should not be heard in support of this revisional application which is not per se maintainable. The second contention advanced by Mr. Sen is that there has been in fact a publication of the defamatory matter in the Bengali Weekly called the 'Darpan' which was printed and published from the press owned by the Metropolitan Printing and Publishing House (P) Ltd. whereof the accused-petitioner was one of the directors at the material time and as such he was guilty of the offence of defamation. According to Mr. Sen the publisher of a newspaper is responsible for a defamatory matter published in such paper whether he knows the contents of such paper or not and in the facts and circumstances of the case the accused-petitioner is also guilty of the publication as the weekly concerned was printed in the press belonging to the limited company whereof he was a director. He cited the principles laid down by Mr. Justice Vivian Bose in the case of Dr. N. B. Khare v. M. R. Massanl, AIR 1942 Nag 117, and contended that the press and the authors and publishers of books have no special privilege relating to the offence of defamation. The third contention of Mr. Sen is that the present case, in any event, is maintainable against the accused opposite party No. 2 on the point of jurisdiction. He further contended that unlike the accused-petitioner, the accused opposite party No. 2 has not filed any revisional application praying for the quashing of the proceedings and as such his case cannot be considered for the said purpose. So far as the second contention of Mr. Sen is concerned, I have already considered the same in the foregoing paragraphs and I have found against the same. I also do not agree with the third ground canvassed by Mr. Sen in law although on merits I hold against the opposite party No. 2. To agree with Mr. Sen's contention would mean unduly fettering the jurisdiction of the court in revision. Even if a party does not apply to this Court in revision but the said case be brought before the court by some other party, nothing would stand in the way of this court to exercise its revisional or inherent powers to make such orders as may be necessary for the ends of justice. There is no form of injustice that the long arms of the court cannot reach and the inherent power of the court is ex debito justitiae to dispense real and substantial justice for the administration of which alone courts exist.
I will now take up for consideration the first and the preliminary point taken up by Mr. Sen, going to the very root of the case. I am afraid that I am unable to agree with Mr. Sen on the point. There is no rule of law enjoining that the accused must submit to the process issued by the court below before invoking the revisional jurisdiction of the Hon'ble High Court excepting that there is a rule of practice -- therein also the opinions are divided -- that an accused who has defied the law by not submitting to the jurisdiction of the court concerned, should not be heard in support of his cast by this Hon'ble court. This view has been taken in some unreported decision.-- while a contrary view has also been taken in some other unreported decisions, all of this Hon'ble Court. But the tests laid down therein are quite different and the facts in the present case are clearly distinguishable. Apart from the fact that the accused-petitioner in this case has really submitted to the jurisdiction of the Court at Port Blair by sending telegrams & praying for adjournments, the present case stands on a different footing because of a complete lack of jurisdiction of the court at Port Blair with regard to the case against the present accused-petitioner. The proper test is whether there has been the factum of defiance of the majesty of law by the party concerned before invoking the jurisdiction of this Hon'ble Court. There is no such absolute proposition of law or of rule of practice that anybody who has been summoned by the trial Court needs must appear there before being entitled to be heard by this Hon'ble Court The line should be drawn somewhere so that justice may not be denied to a party seeking the same, upon merely a hypertechnical ground. In a case where there is an initial lack of jurisdiction coupled with the existence of abounding difficulties due to great distance or other reasons standing in the way of the accused to physically appear in the court below before moving the High Court, it shall constitute no valid ground for refusing to hear the said petitioner upon that preliminary ground. In the facts and circumstances of the present case, I hold that there is neither any defiance to the majesty of law nor any non-submission to the process of the court at Port Blair inasmuch as the accused-petitioner has in fact submitted to the same by sending telegrams and praying for adjournments on grounds as mentioned therein. The preliminary point, therefore, raised by Mr. Sen is not maintainable in the fact of the present case and as such fails.
13. The contention raised by Mr. Amal Kumar Ghosal, Advocate, appearing on behalf of the accused opposite party No. 2, as to the maintainability of the proceedings against his client, on the ground of procedural defects are not maintainable in law for reasons I have already mentioned above in connection with the case of the accused-petitioner. As to the next contention raisedby Mr. Ghosal regarding jurisdiction, the observations made by me in connection with the case of the accused-petitioner do not apply to the case of the accused-petitioner No. 2, who is the editor, publisher and printer of the Bengali Journal called the 'Dar-pan'. The two cases are clearly distinguishable. The gravamen of the question of jurisdiction is the test of publication and in this case, such an averment as to the publication in the Andaman and Nicobar Islands has been made in the petition of complainant. The question of quashing the proceedings so far as the accused opposite party No. 2 is concerned, is therefore premature and cannot be considered at this stage Mr. Anil Kumar Sen, Advocate, appearing on behalf of the complainant opposite party No. 1, has as mentioned above, referred to the case of AIR 1942 Nag 117. Mr. Justice Vivian Bose, as he then was, held therein that the press and authors and publishers of books have no special privilege relating to the offence of defamation. None of the accused persona in this case even claimed that. Therefore I do not think that these cases cited by Mr. Sen are pertinent to the point at issue. It has been held by Mr. Justice O'Sullivan in the case of Kundanmal v. Emperor, 45 Crl LJ 105=(AIR 1943 Sind 196) where a defamatory letter was despatched from Hyderabad to Karachi and was received at Karachi, there would be publication at Karachi and hence the court at Karachi has jurisdiction to entertain the complaint with regard to the offence of defamation. It has been further held in the case of Chellappan Pillai v. Karanjia, 1962 (2) Cri LJ 142 (Ker) that where a defamatory statement is published in a newspaper, it is sufficient to prove that the paper was delivered within the jurisdiction of the Court. In view of the aforesaid principles and in view of the fact that there is no evidence of rebuttal at this stage on the part of the accused opposite party No. 2 to rule out the factum of publication within the jurisdiction of the court at Andaman and Nicobar Islands. I hold accordingly that the accused opposite party No. 2, who is the editor, printer and publisher of the journal, is not entitled to get benefit of the ground of absence of jurisdiction. I agree with Mr. Anil Kumar Sen, Advocate on this point that in any event the case is maintainable on the question of jurisdiction as against the accused opposite party No. 2, and I hold that the proceedings under Section 500 I, P C., now pending in the court of the Additional District Magistrate at Port Blair, Andaman and Nicobar Islands so far as the accused apposite party No. 2 is concerned cannot be quashed at this stage and should go on. I make however, no observation as to the merits if the case.
14. In the result, the Rule is made absolute and the proceeding under Section 500 I. P. C. pending before the Additional District Magistrate at Port Blair Andaman and Nicobar Islands, in C. R. case No. 363 of 1966, in so far as it relates to the present petitioner, are hereby quashed.