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2021 DIGILAW 8 (KER)

Kesava Menon v. Bindu

2021-01-05

SUNIL THOMAS

body2021
ORDER : 1. Petitioners are the accused Nos.4 and 5 in C.C.No.938/2015 on the files of the Judicial First Class Magistrate Court, Kunnamkulam, for offence punishable under S.499 of the Indian Penal Code. The first petitioner is the editor of Mathrubhumi Printing and Publishing Company Limited, Kozhikode and the second petitioner is an employee of Mathrubhumi daily. 2. First respondent herein is the de facto complainant. She laid a complaint against the petitioners and respondents 2 to 4, before the Judicial First Class Magistrate Court, Kunnamkulam, alleging that publication of similar news items by the petitioners in Mathrubhumi daily and the respondents 3 and 4 in Deshabhimani daily, of which, they were the Chief Editor and printer and publisher respectively were defamatory to her. The second respondent is an elected member of the Avanoor Grama Panchayath. 3. According to Annexure-A1 complaint, complainant was the ICDS supervisor of Anganvadis in Avanoor Grama Panchayath. Second respondent herein had submitted a complaint dated 24.10.2014 to the District Collector falsely alleging that there were wide spread irregularities and falsification of records and misappropriation of funds in relation to purchase and disbursement of the food supplied to the students of Anganvadi. It was alleged that the first respondent was responsible for the irregularities and the misappropriation. It was further alleged that Grama Panchayath had resolved to conduct an inspection by a three member committee. They allegedly inspected the Anganvadis and found that food materials of good quality were not supplied to the students. Huge misappropriation of funds were also detected. It was again alleged by the second respondent that on his complaint, food safety authorities had visited the place. They had found that many cereals and pulses were infested with worms. However, the first respondent took them to another store of her choice and drew samples from that store. According to the first respondent, the allegations made by the second respondent in his complaint were absolutely false and made with mala fide intention. He gave wide publicity to his complaint through media, hoardings and flex boards erected at different places. Everybody who knew the first respondent could identify that the allegations referred to the first respondent. 4. As a part of the above, the second respondent also got the news item published in two prominent dailies, Mathrubhumi and Deshabhimani. He gave wide publicity to his complaint through media, hoardings and flex boards erected at different places. Everybody who knew the first respondent could identify that the allegations referred to the first respondent. 4. As a part of the above, the second respondent also got the news item published in two prominent dailies, Mathrubhumi and Deshabhimani. The petitioners herein, without properly enquiring into the genuineness of the allegations and without attempting to find out the truth involved in the allegation, widely published the news item. A copy of the publication by the petitioners was produced as Annexure-A2. It was stated that first respondent informed the petitioners that the news item was false. However, there no correction was issued by the news paper nor they tendered apology for publishing the false news item. It was also stated by the first respondent that the publication was intended to cause damage to the reputation of the complainant, to defame her and to lower her reputation among the public. 5. The court below on the basis of the prima facie materials placed, took cognizance of the complaint and issued summons to the accused. 6. Petitioners have approached this court contending that the prosecution is not sustainable. It was contended by the petitioners that the prosecution amounted to abuse of the process of law. They had no intention to lower the dignity or reputation of the first respondent. They had only published truth of the allegations. No mala fide was involved and they had no ill will or malice against the first respondent. They prayed to quash the proceedings. 7. Supporting the complaint, the learned counsel for the first respondent contended that there were prima facie materials available on record, which prompted the court below to take cognizance of offence. Summons was accordingly issued. The petitioners have not challenged the issuance of summons to them and without challenging it, they cannot sustain the Crl.M.C. It was also contended, relying on the authorities, that ingredients under Ss.499 of I.P.C. were made out. It was also contended that the publication made by the petitioners were sufficient to cause harm to the de facto complainant. 8. Annexure-A2, publication dated 07.12.2014 in Mathrubhumi daily relates to a vigilance raid conducted in three Anganvadis and the office of ICDS. Report stated that raid was pursuant to a complaint submitted by the second respondent. It was also contended that the publication made by the petitioners were sufficient to cause harm to the de facto complainant. 8. Annexure-A2, publication dated 07.12.2014 in Mathrubhumi daily relates to a vigilance raid conducted in three Anganvadis and the office of ICDS. Report stated that raid was pursuant to a complaint submitted by the second respondent. It was stated that vigilance enquiry was conducted against the former Secretary of ICDS. It was mentioned that irregularities were found in the distribution of rice, purchase of items, that items were purchased without obtaining proper certificate from Civil Supplies Corporation. 9. The main contention set up by the learned counsel for the petitioners was that the complaint was patently and basically wrong and not sustainable in so far as the complaint had not specifically mentioned the incriminating allegation, except vaguely affirming that the complaint was made mala fidely and allegations were untrue. The complainant did not specifically extract the defamatory part of the publication to enable the accused to effectively defend the case. It was contended that the above complaint was patently defective in as much as it had not disclosed the allegations, which specifically constituted the defamatory part of publication and which allegedly affected the reputation of the complainant. A reference to the complaint shows that in the complaint she has generally referred to Annexure-A2 complaint as false and calculated, to harm her reputation. She has vaguely stated that the raid was not conducted. However, she has not specifically extracted those portions of the publication, which were defamatory to her. There were several aspects touching upon the search and the primary findings or the observations arrived out by the search team, in the course of search. Which among those allegations referred to in Annexure-Al constituted the defamatory part, has not been culled out and specifically extracted in the complaint, it was contended. 10. To support the contention of the petitioners, the learned counsel referred to the decision in Madhavi Amma v. Sherief (1985 KHC 68). In that, the court had held that evidently there were defamatory imputations in various statements produced before the court. However, it was noted that at least the substance of the defamatory statements, or such portions or even their substance were not extracted in the complaint. In that, the court had held that evidently there were defamatory imputations in various statements produced before the court. However, it was noted that at least the substance of the defamatory statements, or such portions or even their substance were not extracted in the complaint. On that basis, it was held that a mere reading of the complaint alone will not impress anybody that the publications were defamatory to any extent. The court held that the complaint by itself did not make out a cause of action and quashed the proceedings. Identical stand was taken by another bench of this court in Malayala Manorama Company Ltd. & Ors. v. M.M.Lawrence & Ors. ( 2020 (3) KHC 512 ). After going through the crux of the issue and the complaint, it was held by the learned Single Judge that complaint by itself did not make out any defamatory article. 11. Considering the above legal position in the background of the facts alleged, I am satisfied that the complaint does not disclose the precise defamatory part of the publication or does not even disclose the defamatory part of publication and to that extent, the complaint is patently defective and bad. 12. It was further contended by the learned counsel for the petitioners that the question arises, whether publication was defamatory in nature and whether the executive director of the publication can be made responsible for the publication made. The learned counsel referred to the decision in Jacob Mathew v. Gangadharan Nair ( 2001 (2) KLT 412 ), wherein a Single Judge of this court had considered the question whether the executive editor can be arrayed as an accused in the complaint. It was held that to take cognizance against the executive editor, there must be positive averments about the knowledge of the editor in checking the news items, in the complaint. Presumption is available only against the editor. In Jacob Mathew v. Manikantan ( 2012 (3) KLT 824 ), while apprehending the petitioner involved in a crime, his pants came down. The publication of the photograph depicting it in a newspaper was alleged to be defamatory to the petitioner. Petitioners initiated proceedings under Section 499 of IPC against the publication of that photograph. It was held that any fair comment or criticism over the events that occurred, that too, made for public good, made by the publication cannot constitute defamation. The publication of the photograph depicting it in a newspaper was alleged to be defamatory to the petitioner. Petitioners initiated proceedings under Section 499 of IPC against the publication of that photograph. It was held that any fair comment or criticism over the events that occurred, that too, made for public good, made by the publication cannot constitute defamation. In V.S.Achuthanandan v. Kamalamma ( 2008 (3) KLT 346 ), it was held that in the absence of any positive evidence implicating the chief editor for selection, printing and publishing of the defamatory article, no complaint will lie against him. It was inter alia held that press persons should not be dragged into courts, in the absence of a strong case based on specific and definite pleadings and averments. It was held that freedom of press is inclusive of the fundamental right to freedom of speech and expression, guaranteed under Art.19(1) (a) of the Constitution of India. 13. In Mammen Mathew v. Radhakrishnan ( 2007 (4) KLT 833 ), it was held that to ascertain whether an offence under S.499 of the I.P.C. was made out, the important aspect to be examined was whether the news item together with complaint makes out prima facie, the offence under S.499 of the I.P.C. It was also held that to ascertain whether the offence under S.499 of the I.P.C. was prime facie made out, the article should be read in its entirety and not in isolation. On facts, it was held that the news item did not give the impression that it was actuated by any malevolent motive or a desire to contaminate or cast aspertion on the complainant. 14. To support the contention of the first respondent, the counsel relied on the decisions reported in M.Kesava Menon & Ors. v. P.Raju & Ors. ( 2020 (5) KHC 335 ), Gambhirsingh R.Dekare v. Falgunbhai Chimanbhai Patel & Ors. (2013 (2) KLT SN 40 (C.No.44) SC = AIR 2013 SC 1590 ) and Mohammed Abdulla Khan v. Prakash K. ( AIR 2017 SC 5608 ). 15. Having evaluated the entire facts in the background of the settled legal position, I am satisfied that a reading of the complaint along with the paper publication only reveal that the publication mainly related to certain admitted facts and based on the complaint made by the second respondent. 15. Having evaluated the entire facts in the background of the settled legal position, I am satisfied that a reading of the complaint along with the paper publication only reveal that the publication mainly related to certain admitted facts and based on the complaint made by the second respondent. Essential facts about the allegations made by the complainant by the second respondent is not disputed. It is also found that the petitioners publication is totally different in context and content, from that of the publication made by fourth and fifth respondents in their newspaper and both were published on different dates. Hence, both the publications cannot be clubbed together and accused cannot be prosecuted in a composite procedure with respect to two different publications made on two different dates. Having evaluated the entire facts, I feel that the allegations in the complaint cannot survive as against the petitioners. Accordingly, Crl. M.C.is allowed and all further proceedings as against the petitioners herein in C.C.No.938/2015 on the files of the Judicial First Class Magistrate Court, Kunnamkulam stand quashed.