ORDER
M.M. Kumar, J.
1. This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity, Cr. P.C.) seeks quashing of order dated 7-8-2003 Annexure P-9 passed by the Judicial Magistrate 1st Clas, Sirsa asking the petitioners to appear in person. The petitioners have earlier approached this Court by filing Criminal Miscellaneous No. 6601-M of 2003 under Section 482, Cr. P.C. That petition was dismissed as infructuous with the observation that the proper course for the petitioners was to file an application under Section 245, Cr. P.C. before the Magistrate. The petitioners were granted exemption from personal appearance only for 15-2-2003 and they were to appear before the Magistrate through counsel on that date i.e. 15-2-2003. It was further observed that the petitioners would furnish an undertaking that they would appear in person on the next date of hearing unless the Court grants further exemption. According to the learned counsel on 15-2-2003 an application seeking exemption from personal appearance was filed along with an application under Section 245, Cr. P.C. However, the Magistrate by the impugned order has asked the petitioners to appear in person and both the applications have been kept pending.
2. It will be appropriate to make a brief reference of Complaint No. 468-I of 2002 Instituted on 2-11-2002. The complainant Shri Abey Singh Chautala is an M.L.A. from Rori constituency, Haryana and it is claimed that he belongs to a very well reputed family of Chautalas, District Sirsa. It is also claimed that he holds high reputation in the State and National level political circle. It is further claimed that he never indulged in gambling/gaming. However, the Hindustan Times an English Daily having wide circulation in the country including States of Punjab, Haryana, Rajasthan and abroad published a news item under the caption Abhey Chautala faces Bookies wrath and under the caption ‘Bad bet puts Chautala’s son on Bookies Hit list’ in New Delhi edition. The complainant has claimed that the aforementioned news item is defamatory and motivated. It is also claimed that the news is falsely reported. It would be appropriate to reproduce in extenso certain allegations made in the complaint as noticed by the Magistrate :–
“The allegations of the complainant, in brief, are that he is MLA from Rori Constituency of Haryana and he had the distinction of winning with over a margin of 86000 votes, the highest margin in the Indian Union and in the democracies of the world. The said win is also recorded in the Genies Book of records. He is President of All India Boxing Association and Vice President of All India Olympic Association. He is son of Shri. Om Parkash Chautala, Chief Minister of Haryana and grandson of Sh. Devi Lal, who was a freedom fighter and also had been Chief Minister of Haryana and Deputy Prime Minister of Government of India. Late Sh. Devi Lal and his brother late Ch. Sahib Ram were awarded with Tamra Patras. Late Ch. Sahib Ram had been MLC in Punjab and late Ch. Devi Lal had been MLA and M. P. and he was also a patron of the Indian National Lok Dal, a recognised National Political Party. He was also a member of the Rajya Sabha. Late Ch. Devi Lal was a mass leader and after his death, the Central Govt. converted his residence as a memorial. Ch. Devi Lal was also known as “Kisan Messiah”. The father of the complainant Sh. Om Parkash Chautala has been Chief Minister of Haryana, many a times and he is now heading Indian National Lok Dal. The brother of the complainant, Ch. Ajay Singh Chautala, Advocate, Sirsa has also been in active politics and has been MLA from Rajasthan twice from two different constituencies and he is now a member of Parliament from Bhiwani constituency of Haryana by defeating Ch. Surender Singh S/o Ch. Bansi Lal with a record margin. The complainant has further alleged that he belongs to a well reputed agricultural family of Chautala, Distt. Sirsa and commands respect and status in the society and also in the political circle at the State and National level because of his own and his father and grandfather’s status and political activities. He never Indulged in any gambling/gaming. The Hindustan Times, an English daily newspaper having wide circulation through the Union of India including States of Punjab, Haryana, Rajasthan and abroad is printed and published at Delhi, Gurgaon, Panihati, 24 Parganas (North) and Ranchi including other editions such as New Delhi edition and Chandigarh edition having circulation in North, South, East and West of the Union of India. The said newspaper is read by the people of India and foreign countries. Ms. Neeta Sharma, is Press Correspondent, Sh. V. Sanghvi is Editor, Sr. Arun Rai Chowdhury is Resident Editor, Sh. Rajan Kohli is Executive President and Sh. Rakesh Sharma is Printer and Publisher, Managing Control and regulating the selection of the news items for publication. All the above said persons are well educated people and they understand the implications and legal consequences of the news item and every news item is well within their knowledge and each one is severally and jointly responsible for its publication. All the above said accused persons published this news item in their above said daily Hindustan Times on 14-8-2002 on its front page under the caption “Abhey Chautala faces Bookies Wrath” in Chandigarh edition and under the caption “Bad bet puts Chautala’s son on Bookies Hit list” in New Delhi edition. The name of the aforesaid persons accused with their official status as per the requisition of the Press and Book Registration Act, 1867 are also mentioned therein. The complainant has further alleged that on 14-8-2002, when the complainant was present at the farm house of Sh. Ajit Singh s/o. Sh. Prithvi Raj, r/o. Gillankhera, P.S. Wing, Tehsil and Distt. Sirsa, said Sh. Ajit Singh while confronting the complainant with above said news items published in the Hindustan Times and labelled him (complainant) as gambler/Betman and also stated as to how he (complainant) would discharge his duty as MLA and would face the public. The said Sh. Ajit Singh also stated that the above said news items containing imputation has directly lowered his moral, intellectual character and respect in the society and also in his society estimation to which he belongs to and also indirectly lowered moral, intellectual character and respect of the entire family of the complainant having a name in politics, ruling the State and Union of India. As per the version of the complainant, he himself was shocked to read the said news items and assured Sh. Ajit Singh that the news items were motivated and falsely reported. The author of the news item Ms. Neeta Sharma cooked up the news items and it was irresponsibly reported. The said news item is defamatory per se, without verifying the facts. After the publishing of said news items, the complainant has been visited by numerous people including Sh. K.L. Tantia, Sr. Advocate, Sirsa, Sh. Vinod Beniwal, Member, Zila Parishad and son of Mrs. Vidya Beniwal, former MP and present MLA from Darba Kalan constituency. Various other persons from different backgrounds also contacted him on telephone and in person In this regard. The complainant has also placed on record the original newspaper and has alleged that the same be read with the complaint. It has also been alleged by the complainant that the said Article/news has lowered his and his family’s esteem by mentioning the fact of having betted with bookies in India-England Match of Cricket, the final of Nat and West Trophy. The said allegations are not only false but also malicious and amount of defamation. The complainant informed the Director General of Police about the said news item, who separately sought clarification from the Police of New Delhi and Bombay for confirmation, who denied having received any such information, or in any way the same having been divulged to any reporter. The complainant in his complaint has alleged that on 17-8: 2002, he got notice served to all the above mentioned accused through registered post seeking source of the impugned news item published in the Hindustan Times on 14-8-2002, but no reply has been received from any of the accused. The impugned news item has tarnished the linage of the complainant and his family in the eyes of the public. He (complainant) being an aggrieved person is competent to file the present complaint against the accused persons. The impugned news item has been published in the news paper which has a wide circulation in Sirsa District of Haryana as well. The complainant has further alleged that the present news items were read and conveyed to him at village Gillan Khera. P.S. Ding, tehsil and Distt. Sirsa. Hence, this Court at Sirsa is having jurisdiction to take cognizance of the offence and trial.
In support of his allegations, the complainant Shri Abhey Singh Chautala appeared in the witness box as PW 1 in his preliminary evidence and has also examined Shri Ajit Singh as PW 2 and Sh. K.L. Tantia, Advocate as PW. 3. The preliminary evidence of the complainant was, thereafter, closed by the complainant.”
3. After the issuance of process by the Magistrate on 24-12-2002, the petitioners have filed Criminal Misc. No. 6601 M oi’2003 before this Court which was disposed of directing the petitioners to appear before the Magistrate granting them exemption for 15-2-2003. The order of this Court dated 14-2-2003 reads as under :–
“The four petitioners are Executive President, Resident Editor, Editor and Printer/ Publisher of the Hindustan Times. They have been summoned on the basis of a complaint under Sections 500, 501, 502, IPC and with , regards to a news item which appeared in the Hindustan Times on August 13, 2002 entitled “Abhay Chautala faces bookies wrath” (Annexure-P. 1). Counsel has cited K.M. Mathew v. State of Kerala, 1992 SCC (Cri) 88 : (1992 Cri LJ 3779) in support of his argument that Editors of newspapers, editors based at different centres of publication, and other executive officers of newspapers cannot be tried for the above offences. Presumption under Section 7 of the Press and Registration of Books Act, 1867 was only in respect of the person, whose name is printed as Editor in the newspaper. Even if the name of Chief Editor is printed in the newspaper, no presumption arises against him.
It seems that K.M. Mathew’s case lays down guidelines with regard to the manner in which Chief Editors, Editors and other officers of newspapers are to be dealt with when, a complaint has been filed under Sections 500, 501 and 502, I.P.C. and process issued against them. The proper course of action for such newspaper men would be to file a petition under Section 245 of the Code of Criminal Procedure pleading their defence and seeking discharge. Indeed this was the relief granted to the aggrieved Chief Editor in K.M. Mathew’s case by the Magistrate and upheld by the Apex Court.
Therefore, this petition is dismissed as infructuous with liberty to the petitioners to seek relief before the learned Magistrate by filing an application under Section 245 of the Code of Criminal Procedure.
Counsel for the petitioners has orally prayed for grant of exemption from personal appearance to the petitioners for Feb. 15, 2003, the date fixed before the learned Magistrate. The prayer is granted. The petitioners shall put in appearance through counsel before the Court concerned on the date fixed and shall be granted exemption from personal appearance only for that date. They shall undertake that they shall appear on the adjourned date of hearing unless the Court grants them further exemption from personal appearance.”
4. Mr. R. S. Ghai, learned Senior Counsel has argued that the Magistrate is not empowered under Section 205, Cr.P.C. to keep the application in abeyance and direct the petitioners to appear. According to the learned counsel, both the applications filed under Sections 205 and 245, Cr.P.C. have been kept pending arid the petitioners have been asked to appear. The learned counsel has placed reliance on various judgments of this Court as well as of the Apex Court namely, Smt. Swarni v. Ram Kishan, (2003) 3 Rec Cri R 844 (Pun & Hry); Bhola Nath Tiwari v. State, 2002 (1) JCC 561; Ms. X v. Mr. Z, 2002 (1) JCC 562; Nihal Singh v. Arjan Das (1985) 27 Delhi LT 147 : (1985 Cri LJ 467), S. Jayadev v. State, (1997) 67 Delhi LT 564; Mst. Munni Begum v. State, AIR 1968 Delhi 202 : (1968 Cri LJ 1162), Helen Rubber Industries, Kottayam v. State of Kerala, 1973 Cri LJ 262; Ajit Kr. Chakraborty v. Serampore Municipality, 1989 Cri LJ 523 (Cal), N. Dinesan v. K. V. Baby, 1981 Cri LJ 1551 (Kerala) and Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., (2001) 7 SCC 401 : (2001 Cri LJ 4250).
5. After hearing the learned counsel, I do not find any illegality in the order dated 7-8-2003 passed by the Magistrate warranting interference of this Court because the order is consistent with the directions issued by this Court in Criminal Miscellaneous No. 6601-M of 2003. In the aforementioned order, this Court has directed the petitioners to file an undertaking that they shall appear on the adjourned date of hearing unless they have been granted exemption from personal appearance. There is no legal obligation on the Magistrate to grant exemption in case the Magistrate feels the necessity of appearance of the accused. The contrary view if taken would amount to review of the order passed by this Court on 14-2-2003. I am further of the view that the petitioners are misusing the process by approaching this Court time and, again. Once the order passed by this Court is clear in its tenor and content, no fault can be found with the impugned order directing the petitioners to appear. The pendency of the applications under Sections 245(2) and 205, Cr.P.C. is no bar for the Magistrate to direct the personal appearance of the petitioners, In Bhaskar Industries case (2001 Cri LJ 4250) (SC) (supra) relied upon by the petitioners, it has been observed by their Lordships of the Supreme Court that discretion to dispense with personal attendance under Section 205, Cr.P.C. should be used in rare cases on account of distance, physical, disability or other good reasons subservient to the interest of justice. It has also been observed that under Section 273, Cr.P.C. the normal rule is that evidence should be recorded in the presence of accused. In this regard, the observations of their Lordships read as under :–
“The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the Court, provided he has been granted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose the proceedings of the Court in the cases should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court . It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court in that particular case.”
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6. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by Magistrate. It enjoins on the Court to ask the accused whether he pleads guilty when the “accused appears or is brought before the Magistrate.” The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that :
“205(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.”
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7. The position, therefore, boils down to this, it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings In a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above as a matter of course. ”
8. I am also of the view that there is no legal right vested in an accused to seek exemption from personal appearance in the Court. The underlying idea entering consideration of the Magistrate is to advance the interest of justice.
9. The other judgments relied upon by the learned counsel do not indicate anything common with the facts of the case. In none of the cases, the High Court had passed the order directing the accused to file an undertaking for appearing before the Magistrate as and when required unless exempted from personal appearance. Therefore, I do not feel the necessity of dealing with every Judgment individually and it is suffice to mention that the order of this Court dated 14-2-2003 Annexure P-7 is clear in its tenor and content.
10. The argument of the learned counsel that the applications cannot be kept pending directing the petitioners to appear has also not impressed me because firstly, the order dated 14-2-2003 makes it binding on the petitioners to appear as and when required by the Magistrate and secondly, there is no bar on the Magistrate even otherwise to ask the accused to enter personal appearance before him. Therefore, the argument raised is liable to be rejected.
11. At the end, Mr. R.S. Ghai, learned counsel has made an oral request that the petitioners be granted exemption to appear in person before the Magistrate for a period of one week as they have been required to appear on 26-9-2003. I do not find any substance in the aforementioned prayer made by the learned counsel, especially in view of the order passed by this Court on 14-2-2003. The oral request, therefore, is also declined.
12. For the reasons stated above, this appeal fails and the same is dismissed.