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2023 DIGILAW 800 (KER)

Philip Mathew v. P. Jayarajan

2023-10-17

C.S.DIAS

body2023
ORDER : The petitions are filed under Section 482 of the Code of Criminal Procedure to quash the private complaint and all further proceedings in C.C.No.700/2013 on the file of the Court of the Judicial First-Class Magistrate-I, Kannur. The petitioner in Crl.M.C.No.3355/2015 is the first accused, and petitioners in Crl. M.C.No.727/2015 are the accused 2 and 3 in the above complaint filed by the first respondent alleging that the petitioners and two others (accused 4 and 5) have committed the offence under Section 499 of the Indian Penal Code. As the parties are the same, the petitions were consolidated and jointly heard, and are being disposed of by this common judgment. For convenience, the parties are referred to, wherever the context so requires, as per their status in the complaint. The relevant facts: 2. It is alleged in the complaint that the complainant is a two-time member of the Kerala Legislative Assembly and the present Secretary of the Kannur District Committee of the Communist Party of India. The first accused is an MLA representing the Azhikode Constituency in Kannur and the accused Nos. 2 and 3 are the Managing Editor and the Printer cum Publisher of the Malayala Manorama Daily, and the accused 4 and 5 are the Editor and Printer cum Publisher of Chandrika Daily. The accused 2 to 5 publish daily newspapers in Malayalam, which have a wide circulation. On 8.10.2012, both newspapers published an abridged version of the statement made by the first accused in a press conference held in Kannur on the previous day. The first accused, with a clear intention of harming the complainant, made unfounded and unwarranted insinuations that the complainant was responsible for the death of one Sareesh and that the death toll in the Shukoor murder case would rise if the complainant and other leaders were permitted to go scot-free, taking benefit of a minor offence under Section 118 of the Indian Penal Code (‘IPC’ for short). The first accused had described the complainant as a serial killer with a clear intention to harm him. The accused 2 to 5 gave comprehensive coverage to the defamatory insinuations through their newspapers, causing grave injury to the complainant. Therefore, they share the culpability with the first accused on an equal basis, and all the accused are liable to be punished under Section 500, read with Section 34 of the IPC. 3. The accused 2 to 5 gave comprehensive coverage to the defamatory insinuations through their newspapers, causing grave injury to the complainant. Therefore, they share the culpability with the first accused on an equal basis, and all the accused are liable to be punished under Section 500, read with Section 34 of the IPC. 3. After recording the statement of the complainant, the learned Magistrate took cognizance of the offence, registered the above case and issued process to the accused. 4. It is assailing the cognizance and further proceedings the present petitions are filed. 5. The cardinal contention of the petitioners/accused 1 to 3 in the Crl.MCs is that even if the entire allegations in the complaint are taken at their face value, the same would not constitute an offence under Section 499 of the Indian Penal Code (‘IPC’ for short). In Shreya Singhal v. Union of India [ (2015) 5 SCC 1 ], the Hon’ble Supreme Court has observed that the mere causing annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character is not an offence under the IPC. The complaint infringes the petitioners’ fundamental right of free speech and expression guaranteed under the Constitution of India. Hence, the complaint is to be quashed. 6. Heard; Sri.Babu.S.Nair, the learned Counsel appearing for the petitioner in Crl.M.C No.3355/2015/first accused and Sri.Millu Dandapani, the learned Counsel appearing for the petitioners in Crl.M.C No.727/2015/accused 2 and 3; and Dr.Sebastian Paul, the learned Counsel appearing for the first respondent/complainant and Smt.Seetha S., the learned Public Prosecutor appearing for the second respondent – State. 7. The learned Counsel appearing for the petitioners in tandem argued that even if the allegations in the complaint are taken at their face value and accepted in their entirety, they do not prima facie constitute the alleged offence or make out a case against the accused. The complainant has failed to state even the elementary ingredients of Section 499 of the IPC, which is fatal to the prosecution. The petitioners may not be subject to the ordeal of trial, which will be a futile exercise. Therefore, to prevent the abuse of the process of the Court, the complaint may be quashed. The complainant has failed to state even the elementary ingredients of Section 499 of the IPC, which is fatal to the prosecution. The petitioners may not be subject to the ordeal of trial, which will be a futile exercise. Therefore, to prevent the abuse of the process of the Court, the complaint may be quashed. To fortify their contentions, they relied on the decisions of this Court in Mammen Mathew v. M.N.Radhakrishnan and Another [ 2007 (4) KHC 502 ], Rekha and Others v. Vinodan T.S. and Another [ 2009 (3) KHC 477 ] and M.K. Ali Master v. Abdulla Timber & Others [2021 ICO 814]. 8. The learned Counsel for the first respondent and the learned Public Prosecutor, on the contrary, vehemently refuted the above submissions and argued that the contentions raised in the petitions are matters of evidence to be decided by the Trial Court and not in proceedings under Section 482 of the Code of Criminal Procedure (‘Code’ in short). They placed reliance on the decisions of this Court in Kesava Menon M. and Another v. P.Raju and Another [ 2020 (5) KHC 335 ], Balakrishna Pilla R. v. State of Kerala and Another [ 2015 (4) KHC 924 ] and Varghese Cor Episcopa M.K. v. State of Kerala and Another [ 2020 (1) KHC 390 ] to reinforce their submissions that in all the above cases this Court had dismissed petitions of similar nature. 9. The gravamen of the allegation in the complaint is that, on 07.10.2012, the first accused conducted a press conference in Kannur and imputed defamatory statements against the complainant and on the following day, the accused 2 to 5 published the abridged version of the insinuations in their newspapers, as per Annexures 2 and 3 articles, which reads as under: 9.1. Annexure 2: 9.2. The English translation of the above news item reads as follows: “DEATH OF SAREESH SHOULD BE ENQUIRED: K.M. SHAJI Kannur: K.M. Shaji, MLA, has demanded a comprehensive enquiry into the death of Shukkoor murder case accused, Sareesh without writing off it as a suicide. Deaths happening in connection with each murder in Kannur need to be seriously looked into. It cannot be viewed lightly. Deaths happening in connection with each murder in Kannur need to be seriously looked into. It cannot be viewed lightly. The demand for enquiry made by the relatives into three murders which followed the murder of Fasal and the mystery alleged by the relatives in the death of witnesses in Jayakrishnan murder and the accusation that three murders had happened in connection with the death of the daughter of CPM leader. Shaji had doubted that the array of dead in relation to the case may increase on account of the fact that leaders such as P. Jayarajan are making use of the benefit of Section 118 of the IPC in the Shukkoor murder case and roaming freely. K.P. Thahir, Muslim Youth League state vice president had demanded a thorough enquiry into the death of Sareesh. Government shall seriously look into the fact that those getting involved in the crimes and cases for the party are ceasing to exist, said Thahir.” 9.3. Annexure 3: 9.4. The English translation of the above news item reads as follows: “A comprehensive investigation into the suicide of the accused in Shukkoor murder case is needed: K.M Shaji. Staff Reporter, Kollam K.M. Shaji, M.L.A has demanded a comprehensive investigation to be launched into the death of Sarish and the accused in the Shukkoor murder case, rather than writing it off as just another suicide. Every time there is a murder in Kannur, a series of related murders often cease to be news. The suicide of Sarish should be seen in the context of the relatives demanding an investigation into the three murders that took place after the murder of Thalassey Fazal, the relatives alleging mystery in the death of the witnesses in the murder of Jayakrishnan Master and the allegations that three murders took place in connection with the death of a CPM leader's daughter. It is suspected that the free-roaming of accused like Jayarajan due to the weak charges under Section 118 in the Shukkoor murder case will further increase the death toll in this case. Therefore, the government should take the suicide seriously, the MLA added.” 10. The question is whether the complaint can be quashed under Section 482 of the Code in light of the allegations in the complaint. 11. Section 499 of the Indian Penal Code reads thus: “499. Therefore, the government should take the suicide seriously, the MLA added.” 10. The question is whether the complaint can be quashed under Section 482 of the Code in light of the allegations in the complaint. 11. Section 499 of the Indian Penal Code reads thus: “499. Defamation-Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.-An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” (emphasis added) 12. A reading of the provision makes it imperative that the publication of the imputation should be intended to harm any person, or the person making the statement believes that the imputation would harm the person's reputation and defame him. The actual test in determining whether the imputation is defamatory or not is to perceive whether, in the estimation of others, it lowers the moral, intellectual character, cast, calling or credit of the said person and causes it to be believed that the person is in a loathsome or disgraceful state. The true test to decipher whether the statement is defamatory is to discover how a man of ordinary sense and temper would react to the alleged insinuation. 13. The true test to decipher whether the statement is defamatory is to discover how a man of ordinary sense and temper would react to the alleged insinuation. 13. It is sine qua non that in a prosecution for the offence under Section 499 of the IPC, there should be an allegation in the complaint that the imputation was made with the mens reathat it would harm the complainant's reputation. 14. In dealing with Section 499 of the IPC in Jeffrey J. Diermeier v. State of W.B [ (2010) 6 SCC 243 ], the Honourable Supreme Court held as under: 29. To constitute “defamation” under Section 499 IPC, there must be an imputation, and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged. 30. However, as per Explanation 4 to the section, no imputation is said to harm a person's reputation, unless that imputation directly or indirectly lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, in the estimation of others or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful”. 15. Nevertheless, in the same judgment (Jeffrey J.Diermeier), a word of caution was also expressed in the following lines: “20. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of the inherent powers of the High Court under Section 482 of the Code. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice”. 16. The contours of the jurisdiction of this Court under Section 482 of the Code is well accentuated in the celebrated judgment in the State of Haryana and others v. Bhajan Lal and others [(1992) Supp (1) SCC 335], in the following lines: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 17. The expression ‘rarest of rare cases’ referred to above in Bhajan Lal’s case has been pithily explained by the Honourable Supreme Court in Som Mittal v. Govt. of Karnataka [ (2008) 3 SCC 574 ] to mean as under: “9. When the words “rarest of rare cases” are used after the words “sparingly and with circumspection” while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words “sparingly and with circumspection”. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression “rarest of rare cases” is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation”. 18. A careful reading of Annexure 1 complaint establishes that there is a conspicuous absence of an allegation that the first accused made the insinuation and the accused 2 to 5 published Annexures 2 and 3 news items with the mensreato harm the reputation of the complainant or that the accused believed that the imputation would damage the reputation of the complainant and defame him. 19. Similarly, Annexures 2 and 3 news items prima facie substantiate that the first accused had only demanded the Government to conduct a comprehensive investigation into the purported suicide of one Sarish, an accused in a murder case, and seriously look into the increasing numbers of murders occurring in Kannur, and he expressed his concern in the accused in such cases, including the complainant, being charged with minor offences. 20. It is to be remembered that the first accused was an elected representative (MLA) of the people of Azhikode constituency, one of the assembly constituencies in Kannur District. Being a representative of the people of his constituency, he appealed to the Government, for and on behalf of the masses, to take strict action against the perpetrators, to deter such persons from indulging in gruesome murders. 21. In addition to the conspicuous absence of the necessary ingredients in the complaint to attract the above offence, by no semblance of imagination can the above statement be labelled to be an insinuation falling within the sweep of Section 499 of the IPC. 22. The decisions relied on by the respondents are cases where the petitioners had claimed the benefit of the explanations and exceptions to Section 499 of the IPC, which obviously are questions to be decided in trial. But, the case on hand is contextually different, where the basic ingredients to attract the offence under Section 499 IPC are absent in the complaint. 23. But, the case on hand is contextually different, where the basic ingredients to attract the offence under Section 499 IPC are absent in the complaint. 23. On a conspectus of the materials on record and the law referred above, this Court is of the view that the allegations made in Annexure1 complaint, even if taken on its face value and in its entirety, do not constitute an offence under Section 499 of the IPC. Therefore, there is no meaning or purpose in making the petitioners undergo the ordeal of trial. This Court is of the view that the present case falls within the category of the illustrations referred to Bhajan Lal (supra), and as a corollary to this, I am inclined to exercise the inherent powers of this Court under Section 482 of the Code and quash the complaint and all further proceedings, which will prevent the abuse of the process of court and secure the ends of justice. In the result: (i) The Crl.MCs are allowed. (ii) Annexure 1 complaint and all further proceedings in C.C. No.700/2013 of the Judicial First Class Magistrate Court -I, Kannur, so far as it relates to petitioners/accused Nos.1 to 3, are hereby quashed.