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1987 DIGILAW 512 (KER)

Nazeem Bavakunju v. State Of Kerala

1987-10-16

K.G.BALAKRISHNAN

body1987
Judgment :- This is an appeal filed against the acquittal of the accused in C.C. 12 of 1983 on the file of the Chief Judicial Magistrate's Court, Ernakulam. Respondents 2 to 5 were arrayed as accused in a private complaint preferred by the appellant. The respondent 2 to 4 are the Printer and Publisher, Managing Director and Chief Editor respectively of the News Paper "Malayala Manorama". The 5th respondent is the Cochin correspondent of the newspaper. 2. The complainant has been working as a Senior Grade Assistant in Kerala Financial Corporation. Her husband Bavakunju was formerly an employee working in the Kerala Education Department. During the relevant period he was working as a Headmaster on deputation in Mujahidin High School, Panayappilly, Cochin. In the month of January 1983 arrangements were made for the conduct of school Youth Festival Celebrations of Kerala at Ernakulam. The complainant's husband Bavakunju was nominated as the convener of the Publicity Committee. The school youth festival started on 25th January 1983. The complainant's husband meanwhile got an employer at Abudabi (Middle East) and he left India on 27-1-1983. On 1-2-1983 the newspaper 'Malayala Manorama' carried a news item. The relevant extract which is marked as Ext.P1(a) is to the following effect. The appellant filed the complaint alleging that the publication of this news item is an attack on the character of the complainant's husband and was intended to malign his reputation and she also alleged that the news item had the desired effect and the same made them appear low in the eye of the public. The appellant examined three witnesses on her side and one witnesses was examined on defence side. Series of documents were also produced on behalf of the appellant. The learned Magistrate after considering the evidence on record acquitted the accused mainly for the reason that the complainant is not a person aggrieved by the publication of the news item and therefore she was not entitled to file a petition. The learned Magistrate also held that the accused were entitled to protection of exception 9 of S. 499, I.P.C. The finding of the learned Magistrate is challenged by the appellant. 3. The learned Magistrate also held that the accused were entitled to protection of exception 9 of S. 499, I.P.C. The finding of the learned Magistrate is challenged by the appellant. 3. The first question that arise for consideration is whether the appellant is entitled to file a criminal complaint in view of S. 199 of the Cr.P.C. Under S. 199 no Court shall take cognizance of an offence punishable under Chapter XXI of the Penal Code except upon a complaint made by some person aggrieved by the offence. In the present case the imputation, even according to the appellant, is directed against Bavakunju, the husband of the appellant. The learned counsel for the appellant contended that the imputation has lowered the reputation of Bavakunju in the eye of public and therefore the appellant is really aggrieved by such defamatory statement. The counsel further contended that considering the husband and wife relationship prevalent in our society the wife is to be considered as an indivisible part of the husband and therefore the wife also is really aggrieved in a case where the reputation of her husband was at stake. 3A. There may be cases where the wife also would be really aggrieved when the imputation is of such a nature that it has got some direct connection attaching the reputation of the wife. Section 199, Cr.P.C. restricts the powers of the Court in taking cognizance of offence except upon a complaint filed by some aggrieved person. The question is whether the person who filed the complaint of defamation is or is not really aggrieved within the meaning of that section. This is a question which should be decided on the basis of the nature of accusation and also on other relevant circumstances. A fanciful or sentimental grievance of the complainant would not suffice. It must be such grievance as the law can appreciate and it must be what has been termed 'legal grievance'. Only such a person as has directly or indirectly suffered loss of reputation complained of can alone set the law in motion. 4. In the instant case the imputation against the complainant's husband was that even though he was the convener of Publicity Committee he left for Gulf country and consequently the office of the Publicity Committee remained closed. The imputation is about the performance of the complainant's husband in respect of his official duties. 4. In the instant case the imputation against the complainant's husband was that even though he was the convener of Publicity Committee he left for Gulf country and consequently the office of the Publicity Committee remained closed. The imputation is about the performance of the complainant's husband in respect of his official duties. Bavakunju was the Headmaster of a school and he happened to be the convener of the Publicity Committee of the Youth Festival in his capacity as a Government servant. The publication was only in respect of the manner in which the complainant's husband discharged his official duties as the convener of the Publicity Committee. The imputation never intended to vilify the complainant or any of the relatives of Bavakunju. It is not enough that the feelings of the complainant also were wounded by such imputation. The imputation only mentioned that the complainant's husband showed some laches in his official work. Even if it is found that the imputations are per se defamatory, it can never be said that the complainant was really aggrieved by such statements. Therefore, the complaint filed by the complainant was incompetent under S. 199, Cr.P.C. 5. The learned counsel for the appellant also contended that under S. 460(e) of Cr.P.C. irregularity in respect of taking cognizance of an offence is only a curable defect and the same cannot vitiate the proceedings. This contention also cannot be accepted. Section 460(e) only deals with cases of taking cognizance of an offence under Clause (a) or (b) of S. 190(1), whereas S. 199 specifically prohibits the taking of cognizance of any complaint filed by persons other than the aggrieved. Moreover S. 460 is in respect of cases of irregularities done by magistrates not empowered by law to do and the above section does not cover a case falling under S. 199 of the Code. From the very wording of S. 199 it is clear that S. 199 is mandatory and the Court is not competent to take cognizance of any petition which is not filed by an aggrieved person. From the very wording of S. 199 it is clear that S. 199 is mandatory and the Court is not competent to take cognizance of any petition which is not filed by an aggrieved person. The Supreme Court in G. Narasimhan v. T. V. Chokkoppa, 1973 Cri LJ 52 : (AIR 1972 SC 2609) while considering the scope of S. 198 held : "Section 198, thus, lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The section is mandatory, so the if a magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction (of an accused in such a case by the Magistrate) would be void and illegal." Therefore I hold that the complainant is not a person aggrieved by the imputation and the petition is not sustainable for that reason. 6. Considering the merits of the case also it has only to be held that the acquittal passed by the Court below is quite reasonable and proper. The evidence on record would go to show that the complainant's husband was nominated as a publicity convener and that he left the place without making proper arrangements. Ext. P14 is the souvenir published by the Youth Festival Committee. In Ex. P14 the complainant's husband is shown as the publicity convener and his photograph is seen published in the same. The complainant would say that her husband had made every arrangements before he left the place. But D.W. 1 would say that he was authorised to do publicity work only at a later stage. This would indicate that no timely information was given or arrangements were made by the complainant's husband. Another imputation made against the complainant's husband is that owing to the sudden departure of the complainant's husband the office of the publicity committee remained closed. PW 1 could not say anything regarding this. She was not aware whether the publicity office remained closed or not. The 5th respondent, namely, the Cochin Correspondent of the newspaper 'Malayala Manorama' while questioned under S. 313, Cr.P.C. stated that he prepared the report after satisfying the truth and genuineness of the same. PW 1 could not say anything regarding this. She was not aware whether the publicity office remained closed or not. The 5th respondent, namely, the Cochin Correspondent of the newspaper 'Malayala Manorama' while questioned under S. 313, Cr.P.C. stated that he prepared the report after satisfying the truth and genuineness of the same. PW 1 herself has no case that the office of the publicity committee on the Youth Festival was functioning on the first two days of the festival. In the absence of any positive case, it could only be assumed that the allegation was true. 7. In a case of this nature if the contents of the news item published is the newspaper are slightly exaggerated it does not make the comment unfair so long as what is expressed therein is materially true and for public benefit. The publishers of the newspaper are entitled to make fair comments. The doctrine of fair comment is based on the hypothesis that the publication in question is one which broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. Mere exaggeration or even gross exaggeration would not by itself prove malice. It has been held in Cheriyan v. Johnson, 1969 Ker LT 597 that the important ingredient of the 9th exception to S. 499, I.P.C. is that the report made is substantially true and that the comment made basing on the facts, is supported by good faith. The Supreme Court in H. Singh v. State of Punjab, AIR 1966 SC 97 : (1966 Cri LJ 82) considered the question elaborately and held : "It is not possible to lay down any rigid rule or test for deciding whether an accused person acted in good faith under the Ninth Exception. The question has to be considered on the fact and circumstances of each case, what is the nature of the imputation made, under what circumstances did it come to be made, what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation, was any enquiry made by him before he made it, are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true ? These and other consideration would be relevant in deciding the plea of good faith under the Ninth Exception." The Supreme Court in the above decision also held that the accused in such cases need only prove their case by the preponderance of probability. In the present case the 5th respondent when questioned stated that he gave that report on the basis of his personal information. There is no evidence on the side of the complainant to show that the imputations were untrue. So considering the merits of the case also the acquittal of the accused was proper and I see no reason to interfere with the order of acquittal. The criminal appeal is dismissed. Appeal dismissed.