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2021 DIGILAW 122 (KER)

Rajeev Chandrasekhar v. State of Kerala

2021-02-09

P.SOMARAJAN

body2021
ORDER : Cognizance was taken on a private complaint alleging offence punishable under Section 499 and 500 IPC by the Chief Judicial Magistrate, Ernakulam on a complaint made by one Pradeep Parappuram (second respondent) claimed to be an active worker of Nationalist Congress Party (NCP). The allegation is that the first respondent from 11.8.2017 onwards started to publish news items in connection with Sri. Thomas Chandy, a Minister from NCP, regarding his involvement in the encroachment over government land through a company by name Lake Palace Resort owned by him, construction of a road by using MP Fund without any tender, encroachment over Punnammada lake extending approximately to 5 acres, acquisition of property in large scale from the person to whom the excess lands were given, reclamation of paddy land and its conversion as parking area connected with Lake Palace resort, reclamation of paddy land for constructing a road leading to Lake Palace, real estate business and the missing of files from village office, Alappuzha connected with the property owned by Lake Palace Resort etc.. 2. Going by the entire publication, it is clear that what is alleged is against a private company by name Lake Palace Resort owned by Sri. Thomas Chandy. He happened to be a Minister from the Nationalist Congress Party. No where it is stated with respect to any allegation as against the Nationalist Congress Party, its ideology or its involvement. The allegations levelled is against the Lake Palace Resort owned by Sri. Thomas Chandy and his various business and encroachment over the Punnamada Lake and government property, acquisition of property in large scale given to the landless person from excess land and the like. Neither Sri. Thomas Chandy, the then Minister, nor the private company by name Lake Palace Resort or any of its directors or any person directly aggrieved by the said publication not came up to prosecute the first respondent and the media by name Asianet News Channel who aired the news item. The learned counsel Sri. Harindranath submitted that the petitioner, who is a party worker came up to prosecute the accused person without having a grievance either in his personal capacity or as a member of political party, the NCP. The fact that Sri. The learned counsel Sri. Harindranath submitted that the petitioner, who is a party worker came up to prosecute the accused person without having a grievance either in his personal capacity or as a member of political party, the NCP. The fact that Sri. Thomas Chandy happened to be the Minister from the said political party may not by itself give any locus standi for prosecution regarding the defamatory statement, if any, made against Sri. Thomas Chandy and his company, Lake Palace Resort. It appears that the learned Magistrate took cognizance without the compliance of requirement under Section 199 Cr.P.C.. A complaint can be maintained only by a person aggrieved by the offence. Section 199 Cr.P.C. is extracted below for reference: “199. Prosecution for defamation.-(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code(45 of 1860), except upon a complaint made by some person aggrieved by the offence: Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code, 1860 (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor. (3) Every complaint referred to in sub-section (2) shall set forth in the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him. (4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction- (a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government; (b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State; (c) of the Central Government, in any other case. (5) No Court of Session shall take cognizance of an offence under sub section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.” 3. The aggrieved person need not be the defamed person, but there should be a direct nexus between the imputation and the complainant. In the absence of such a nexus between the imputation and the complainant, it cannot be said that he can maintain an action for the offence of defamation. No cognizance can be taken for the offence of defamation under Chapter XXI of IPC, unless there is a complaint lodged by the aggrieved or defamed person. It is not permissible to permit any ill-motivated person to harass or prosecute the accused in substitution of the aggrieved person or defamed person. The very act and the intention of the complainant is well explicit even going by the allegation levelled in the complaint stating that he is a party worker occupying an official position and hence aggrieved by the abovesaid publication, though the same is not focused against any particular political party or their ideology. It is against the institution run by Sri. Thomas Chandy and encroachment over the government properties and acquisition of property given as excess land to the poor persons. It is against the institution run by Sri. Thomas Chandy and encroachment over the government properties and acquisition of property given as excess land to the poor persons. The complainant without having any personal grievance came up to prosecute the accused person for the defamation and thereby misused the judicial machinery so as to show his loyalty towards Sri. Thomas Chandy and his private company. Necessarily, the second respondent should not be allowed to go with free hand and as such, it is fit and proper to direct him to pay an amount of Rs.5,000/-(Rupees five thousand only) to the KELSA within one month from today, failing which, KELSA shall recover the same from the second respondent. Hence the complaint and the entire proceedings thereof including cognizance taken are liable to be quashed. I do so. Crl.M.C. is allowed accordingly. The Registry is directed to send a copy of this order to the KELSA.