Crl.M.C. No. 2912 of 2015 (CC 2060/2014) - High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020/18TH BHADRA, 1942** ## **Crl.MC.No.2912 OF 2015** **CC 2060/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NORTH PARUR** ## **PETITIONERS/ACCUSED NOS.3 & 4:** - **1 M.KESAVA MENON EDITOR, 'MATHRUBHOOMI' DAILY, MATHRUBHOOMI PRINTING & PUBLISHING COMPANY LTD., KOZHIKODE.** **2 V.BHASKARA MENON PRINTER & PUBLISHER, 'MATHRUBHOOMI' DAILY, MATHRUBHOOMI PRINTING & PUBLISHING COMPANY LTD., KOZHIKODE.** **BY ADV. SRI.C.P.UDAYABHANU** ## **RESPONDENTS/COMPLAINANT:** - **1 P.RAJU, AGED 62 YEARS S/O.LATE CHELLAPPAN PILLAI, MEPPILLIL HOUSE, KEDAMANGALAM, NORTH PARAVUR, PIN 683513.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.T.R.S.KUMAR R1 BY ADV. SRI.P.B.PRADEEP R1 BY ADV. SMT.DEENA JOSEPH R1 BY ADV. SHRI.ABHILASH AUGUSTINE M. R1 BY ADV. SRI.K.RAJAN (MUHAMMA) R1 BY ADV. SRI.T.K.SHAJITH R1 BY ADV. SMT.DEEPA R MENON R1 BY ADV. SHRI.MITHUN C THOMAS R1 BY ADV. SMT.A.ANJANA R1 BY ADV. SHRI.RICHIN MATHEW BY ADV.SRI. UDAYAKUMAR. K.B. (P.P) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.7.2020, THE COURT ON 9.9.2020 PASSED THE FOLLOWING:** **Crl.M.C.No.2912 of 2015** **==> picture [37 x 9] intentionally omitted <==** **==> picture [85 x 10] intentionally omitted <==** **Dated this the 9[th] day of September, 2020** ## **O R D E R** The petitioners are the editor and printer cum publisher of Mathrubhoomi Daily Newspaper published from Kozhikode. They are respectively third and the fourth accused in C.C.No.2060/2014 instituted on Annexure-1 private complaint before JFCM Court, North Parur, by the first respondent for commission of offences punishable under Sections 500 and 501 r/w Section 34 IPC. They seek to quash the complaint invoking the inherent power of this Court under Section 482 Cr.P.C. 2. The first accused in the complaint is the sitting MLA of Parur constituency. The first respondent was the former MLA of the same constituency. The allegation against the first accused is that he, with a view to replying to a criticism made against him, convened a press ## **Crl.M.C.No.2912 of 2015** **:-3-:** conference on 10.11.2012 at 10 AM, in which the petitioners and many from public participated and the first accused circulated a press release containing certain imputations against the first respondent. 3. The statement made in the press release, according to the first respondent, is humiliating and has lowered his reputation among the public. It contained an imputation that the first respondent always stood for the cause of the affluent and the abkari people acting as their loyal agent during his tenure as MLA. The first accused further claimed that if first respondent dared to criticise him who stands for the poor and the ordinary, the electorate will realise the truth in no unmistakable terms. He is also stated to have made a sarcastic remark that people also knew as to why and at whose complaint, the first respondent was expelled from the political party ## **Crl.M.C.No.2912 of 2015** ## **:-4-:** newspaper JANAYUGOM. 4. The first respondent denied the imputations made against him as false and claimed them to be defamatory and affecting his reputation in the society. According to him, the statements were intended to wreak political vengeance and lower his status in the estimation of right thinking members of the public. The specific allegation against the petitioners is that they, with the knowledge that the imputation amounted to defamation, edited, printed and published the statement and committed the above offences. 5. During the pendency of this proceeding, the second petitioner who is the printer cum publisher was reported dead and consequently the prosecution as against him stood abated. 6. What survives is the limited question as to whether prosecution of the first petitioner who is the editor of the news daily, could be assailed ## **Crl.M.C.No.2912 of 2015** ## **:-5-:** as illegal and amounts to abuse of the process of law. 7. It is contended on behalf of the petitioners that the press release was published as such without any distortion or additions and in exercise of fundamental right to freedom of speech and expression of thought guaranteed by Article 19 (1)(a) of the Constitution of India. It is also contended that the publication was made only in good faith and further Annexure-1 complaint does not contain any allegation that the petitioners have acted with any malafides. Another contention is that the contents in the press release were not reproduced in the complaint and in its absence, the accused are left in the dark without knowledge of the accusation made against them and the complaint is defective for this sole reason. In this respect, a decision reported in **Konath** **Madhavi Amma v. S.M.Sherief & ors. (1985 KLJ 317)** ## **Crl.M.C.No.2912 of 2015** **:-6-:** was relied on. Yet another argument is that if the impugned imputation is read in the context in which it came to be made, it is no way a defamatory statement at all. Finally, it was argued that since there is no allegation in the complaint that the first petitioner was responsible for selecting the news item for publication, the complaint is defective and it is liable to be quashed. In this respect, decisions reported in **V.S.Achuthanandan v. G.Kamalamma & ors. (2008 (3) KLT 346)** and **Mamman Mathew v. Radhakrishnan M N (2007 (4) KLT 833)** were cited by the learned counsel for the petitioners. 8. I heard the learned counsel appearing for the petitioners and the first respondent, the complainant. 9. The learned counsel for the first respondent submitted that the direct speech of the author in his own words contained in the press ## **Crl.M.C.No.2912 of 2015** ## **:-7-:** release was already produced in the court below and even though words were not reproduced as such in the complaint, it is no legal ground to quash Annexure-1 complaint. In this respect, he relied on a decision of this Court in **T.Kunhambu v. A.** **Sojath (1989 Criminal Law Journal 1022)** which followed the decision of the Apex Court reported in **Balraj Khanna v. Motiram (MANU/SC/0076/1971)** . 10. The alleged defamatory news item published in the Mathrubhumi daily was extracted in the complaint and the petitioners have no contention that the contents in the newspaper and Annexure-I complaint are different. Moreover the press release containing the actual words was also produced along with the complaint. 11. The object of having actual words of impugned statement before the court is to enable it to consider whether it is defamatory in nature. This purpose can be achieved even if the words are ## **Crl.M.C.No.2912 of 2015** ## **:-8-:** not extracted in the complaint itself. It is enough if the document containing the matter is annexed to the complaint. As per the view taken in the above two decisions cited by the learned counsel for the first respondent, the document containing the alleged defamatory statement annexed to the complaint should be reckoned as forming part of the pleadings. Therefore, I hold that the contention of the petitioners that complaint is defective and is liable to be quashed is not sound. 12. The contention of the learned counsel for petitioners that the publication is justified since it was made in exercise of the fundamental right to freedom of speech and expression of thought guaranteed to the press persons under Article 19(1) of the Constitution of India, is also equally unsound. The defence that no distortion or any addition was made to the ## **Crl.M.C.No.2912 of 2015** **:-9-:** original statements made by the author is also not sufficient to take the editor or publisher out of their purported criminal liability under law unless it is shown that the statement was not defamatory within the meaning of Section 499 IPC. 13. The law does not confer any special privilege on the class of media persons as regards their right to publication of news and it is on par with the class of other citizens in the country, if not relatively onerous. None can seek to shirk off the criminal liability arising out of a charge of defamation unless the act is done in good faith and protected by the exceptions one to ten in Section 499 IPC. It is _sine qua non_ that the person seeking to prosecute the offender on the charge of defamation must allege in the complaint that the imputation was made against him with the intention or knowledge or with reasonable belief that the statement would harm the ## **Crl.M.C.No.2912 of 2015** ## **:-10-:** reputation of the complainant. 14. An overall reading of Annexure-1 complaint brings to light that there is requisite allegation against the petitioners that they edited, printed and published the news item with the knowledge that it would harm the reputation of the first respondent. 15. The learned counsel for the petitioners argued that the statement in any view of the matter, is not defamatory since it was made by the author while soberly reacting to a criticism levelled against him, without intending to injure the complainant's reputation in the society and as a matter of fact, it was made in good faith also. In my opinion, this being a disputed matter, is largely a question to be resolved by the evidence and in the course of the trial of the case. 16. The true test to identify whether a statement is defamatory or otherwise, is to ## **Crl.M.C.No.2912 of 2015** **:-11-:** discover as to how it was taken at heart by the right thinking members of the public. If a prudent and reasonable person could regard a particular objectionable statement made, to be only worth ignoring or unworthy of any serious consideration or to be too insignificant to affect the reputation of the aggrieved, the Court may justifiably take a view that hardly an indictable offence was committed. This, however, is a matter which the court can ordinarily decide in the course of the trial and may not be always a good ground for quashment of the complaint at the threshold. 17. The learned counsel for the petitioners submitted, drawing my attention to the words employed in Section 499 IPC, that an editor of a news printing and publishing company, not being a person who either makes or publishes the statement, is outside the sweep of the Section and ## **Crl.M.C.No.2912 of 2015** **:-12-:** is therefore not liable for criminal prosecution for offence punishable under Section 500 or Section 501 IPC. 18. It is next contended that whenever an editor is arraigned as accused, there must be a definite averment in the complaint against him that he was the person responsible for the selection of the news item for publication. It is submitted that there is no allegation whatsoever to the effect that the first petitioner was responsible for selecting the impugned statement and consequently Annexure-1 complaint is defective and for that reason itself, it is liable to be quashed. In support of the plea, the learned counsel relied on a Single Bench decision of this Court reported in **V.S.Achuthanandan's** case supra wherein a few decisions of the Honourable Apex Court were also referred. 19. On the other hand, the learned counsel for ## **Crl.M.C.No.2912 of 2015** ## **:-13-:** the first respondent disputing the correctness of the above legal position submitted that an editor of a news publishing and printing company is also liable for criminal prosecution for the offences under Section 500 IPC in view of the relevant provisions in the Press and Registration of Books Act, 1867, (for short, 'the Press Act') and he cited two decisions of the Hon'ble Apex Court reported in **Gambhirsinh R.Dekare v. Falgunbhai** **Chimanbhai Patel & ors. [(2013)3 SCC 697]** and **Mohammed Abdulla Khan v. Prakash K. (2017 KHC** **6824)** to substantiate his argument. It was further submitted that the absence of allegation in the complaint arraigning the accused/editor as person responsible for selecting the news item is not fatal and for that reason alone, a complaint is not liable to be quashed. 20. It is true that Section 499 IPC holds only those persons who make or publish defamatory ## **Crl.M.C.No.2912 of 2015** **:-14-:** statements, as being criminally liable for the commission of the offence. The Section makes no reference to a person who edits the statement before it is published. It is, however, significant to note that the Press and Registration of Books Act, 1867 containing relevant provisions such as Sections 1, 5 and 7 was enacted while the Indian Penal Code (45/1860), had gained ground and been in force. The editor of newspaper and books is defined by the Press Act as a person who controls the selection of the matter intended for publication. Section 7 of the said Act does not in specific terms provide for the penal liability of an editor. The name of the person printed in the copy of publication as editor is permitted by the said section to be used in any civil or criminal proceeding as prima facie evidence against such person as editor of the newspaper. Though Section 7 enacts only a rule of ## **Crl.M.C.No.2912 of 2015** **:-15-:** presumptive evidence, it is noticeable that the criminal liability of an editor of news publication was in the contemplation of the law makers. By assigning the role of controlling the selection of the matter to an editor, the intention of the legislature was made clear that it sought to penalise the editor also besides the maker and publisher, in the event the publications contained defamatory statements. In unearthing the sect of offenders made liable for the offence of defamation, the interpretive process of law requires that Section 499 IPC and the Press Act should be read in conjunction and harmony. The publication no doubt ought to precede a prudent and responsible selection of news items and in that sense, the selection forms, for all practical purposes, an integral part of the process of publication. 21. On a harmonious reading of Section 499 IPC ## **Crl.M.C.No.2912 of 2015** **:-16-:** and the relevant provisions of the Press Act, the person who publishes must encompass the editor also. In **Gambhirsinh R.Dekare's** case as well as in **Mohammed Abdulla Khan's** case, the Hon'ble Supreme Court held that a editor of a newspaper who controls the selection of defamatory matter is liable for criminal prosecution on the charge of defamation. 22. It is true that in Annexure-1 complaint against the first petitioner, there is no allegation to the effect that he has had knowledge of the alleged defamatory content in the news item published or is he responsible for selecting the matter for publication. 23. The question that, therefore, arises for consideration is whether in the absence of such allegation, the learned Magistrate was justified in taking cognizance of the offences in question and proceeding against the first petitioner. ## **Crl.M.C.No.2912 of 2015** **:-17-:** 24. I notice that in **V.S.Achuthanandan's** case supra, this Court had taken a view that in the absence of a positive allegation against the editor that he was responsible for the selection of objectionable material for publication, complaint for commission of offence punishable u/s.500 IPC cannot be maintained against him. In taking this view, the Court relied on **Jacob Mathew v. Gangadharan Nair** reported in **(2001(2) KLT 412)** , **K.M.Mathew v State of Kerala** reported in **(1992(1) KLT 1)** and **K.M.Mathew v K.A.Abraham** reported in **(1997(2) KLT 803)** . The first case in which the law requiring positive assertion of allegation against the editor/accused about his knowledge of objectionable material was laid down is, **K.M.Mathew v State of Kerala** and it was subsequently followed in the other cases also. 25. But after having gone through the case laws cited, it is difficult to find that an ## **Crl.M.C.No.2912 of 2015** **:-18-:** absolute proposition of law has been laid down requiring the complainant to make positive allegation in all cases alike that the editor being prosecuted has had the knowledge of the contents of the matter published. The need for insisting such positive assertion in the complaint was felt by the courts when prosecutions came to be initiated against different categories of editors of the printing and publishing institutions other than the editor defined by Section 1 of the Press Act. 26. It is a fact that in printing and publishing companies, there are editors working in different grades such as Chief Editor, Managing Editor, Executive Editor and Editor etc. The presumption under Section 7 as to the name of the person printed as editor in the newspapers operates only against the editor defined under the Act which, for the sake of convenience, is ## **Crl.M.C.No.2912 of 2015** ## **:-19-:** hereinafter referred to as 'editor under the statute'. That means, if an editor of a grade different from the editor under the statute is prosecuted, there is no presumption that he is the person put in control of selecting the matter for publication. In other words, without necessary allegation that he was in control of the selection process of news items, a prosecution against an editor belonging to such different category may not be lawful. 27. The position, of course, is different when the statutory editor is prosecuted in which case there is a presumption against him by virtue of Section 7 of the said Act that he has had the control of selecting the news item. In such a case, even in the absence of a positive allegation in the complaint that he is responsible for selecting the news item, it will be lawful for the court to proceed against the accused/editor acting ## **Crl.M.C.No.2912 of 2015** ## **:-20-:** on the presumption provided by law. The above position is clear from the facts dealt with in the three decisions cited by the learned counsel for the petitioners and referred to in Paragraph (24) of this judgment. It could be noted from the said decisions that the editors prosecuted in those cases were either the Chief Editor, the Executive Editor or persons of categories other than the editor under the statute. 28. There is no dispute of the fact that first petitioner is the editor under the statute who was responsible for selecting the item published in newspaper. The first petitioner himself admits this. When there is no dispute on the material aspect, any insistence for positive allegation being made in the complaint that he had knowledge of the published news item is quite unwarranted and superfluous. The facts dealt with in the later decisions of the Hon'ble Apex Court reported in ## **Crl.M.C.No.2912 of 2015** ## **:-21-:** **Gambhirsinh R.Dekare's** case and **Mohammed Abdulla** **Khan's** case (both cited supra) relied on by the learned counsel for the first respondent also only support this position. The decisions relied on by the learned counsel for the petitioners are thus clearly distinguishable on facts. In the light of the foregoing discussion, I hold that none of the submissions made for quashing Annexure-1 complaint is sustainable. In the result, the Crl.M.C. is dismissed. However, it is made clear that I have not expressed any views on the merits of the case and the learned Magistrate will be at liberty to proceed with Annexure-1 complaint and take appropriate decision in the case in accordance with the law. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ ## **Crl.M.C.No.2912 of 2015** ## **:-22-:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE-I** **A CERTIFIED COPY OF THE COMPLAINT TAKEN ON FILE OF JFCM COURT-I, NORTH PARAVUR AS C.C.2060/2014.** **ANNEXURE-II COPY OF THE DOCUMENT NO.2 OF ANNEXURE-I COMPLAINT VIZ, NEWS ITEM PUBLISHED IN SAYAHNA KAIRALI DAILY DATED 10.11.2012.** **ANNEXURE-III** **COPY OF THE DOCUMENT NO.3 OF ANNEXURE-I COMPLAINT VIZ, NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 11.11.2012**