## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD**
**WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935**
## **Crl.MC.No. 1914 of 2011 ( )**
**---------------------------STC. NO.427/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.**
**......**
**PETITIONER/ACCUSED NO.3:**
**-------------------------------------------**
**S. GOPALAKRISHNA SHENOY, AGED 43 YEARS, S/O.SUBRAMANYA SHENOY, TEMPLE ROAD, PAYYANNUR, KANNUR DISTRICT.**
**BY ADVS.SRI.O.V.MANIPRASAD, SRI.SAJU J PANICKER.**
**RESPONDENTS/COMPLAINANT & STATE:**
**------------------------------------------------------------**
**1. T.V. SURENDRAN, AGED 39 YEARS, S/O.M. KUNHAMBU NAMBIAR, NEAR OLD BUS STAND, PAYYANNUR P.O., KANNUR DISTRICT, PIN-670 307.**
**2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANAKULAM.**
**R1 BY ADV. SRI.M.SASINDRAN. R2 BY PUBLIC PROSECUTOR MR.REJI JOSEPH.**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-01-2014, ALONG WITH CRMC. NO.2093 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**rs.**
## **Crl.MC.No. 1914 of 2011**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:-**
**ANNEXURE 1 COPY OF THE COMPLAINT DATED 07/01/2010 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.**
**ANNEXURE 2 COPY OF THE PETITION DATED 15/07/2009 SUBMITTED BY THE 2ND ACCUSED BEFORE THE CIRCLE INSPECTOR OF POLICE, PAYYANNUR.**
**ANNEXURE 3 COPY OF THE PETITION DATED 16/07/2009 MADE BY THE COMPLAINANT.**
**ANNEXURE 4 COPY OF THE COMPLAINT IN STC. NO.219/2009 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.**
**ANNEXURE 5 COPY OF THE ORDER DATED 23/04/2011 IN STC NO.427/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR.**
**RESPONDENT'S ANNEXURES:NIL.**
## **//TRUE COPY//**
## **P.S. TO JUDGE**
**rs.**
## **A.HARIPRASAD, J.**
## **--------------------------------------**
## **Crl.M.C. Nos.1914 & 2093 of 2011**
**-------------------------------------Dated this the 15[th] day of January, 2014.**
## **ORDER**
Petition filed under Section 482 of the Criminal Procedure Code (for short, “Cr.P.C.”).
2. Petitioners in these cases are acused 2 and 3 in S.T.C.No.427 of 2011 pending before the Judicial First Class Magistrate Court, Payyannur. They are charged with offence punishable under Section 500 read with Section 34 of the Indian Penal Code (for short, “IPC”)
3. Allegations in the complaint, in brief, are as follows:
The complainant claims to be an experienced journalist. He is
the editor of a vernacular evening daily. Complainant averred in the complaint that he earned reputation and goodwill among the public as well as among the members in the media. On 13.07.2009, Sudheepam daily, the paper published by the complainant, published a news item regarding the missing of Swami Gopalji. 2[nd] accused was a close associate of missing Swami Gopalji. 3[rd] accused is a relative, friend and associate of the 2[nd] accused. Accused 2 and 3 were in enmical terms with the complainant. The 3[rd] accused filed a complaint against the complainant as S.T.No.219 of 2009 and it was pending at the time of this complaint. It is
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contended that on 15.07.2009, a news item, which was _per se_ defamatory to the complainant, was published in two local dailies. Gist of the contents of the news item was that the complainant over phone threatened and blackmailed the 2[nd] accused that he would publish a news item against him pertaining to the disappearance of Swami Gopalji. Averments in Annexure 2 complaint filed by the 2[nd] accused before the Police, which was published in two local dailies, brought disrepute to the complainant. Therefore, he filed the complaint before the court.
4. Heard the learned counsel for the complainant and the accused.
5. Since common questions of fact and law arise in both cases, they are considered together and disposed by this common order.
6. Learned counsel for the petitioners submitted that the entire allegations in the complaint even if accepted in toto, will not reveal an offence of defamation as defined in Section 499 IPC. Annexure 2 in Crl.M.C.No.1914 of 2011 is the complaint filed by the 2[nd] accused before the police. It is mentioned therein that on 14.07.2009, a caller from Sudheepam daily threatened him with publication of defamatory news item unless he gave advertisement to the paper to a tune of `5,000/- every month. These facts were mentioned in Annexure 2 complaint. It is seen that the police could not trace out the caller and the complaint was
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dropped. Annexure 3 in Crl.M.C.No.1914 of 2009 is a petition filed by the complainant before the police. According to him, nobody from his news paper or himself called the 2[nd] accused and threatened.
7. Annexure 4 in Crl.M.C. No.1914 of 2011 is the copy of a complaint filed by the 3[rd] accused herein against the complainant and his wife. Learned counsel for the complainant would submit that this matter was tried by court and they were acquitted. However, that fact is not borne out from the records. Annexure 4 in Crl.M.C.No.2093 of 2011 is the plaint filed by the 2[nd] accused against the complainant and his wife. He claimed damages from the defendants therein for the alleged defamatory publication effected by them in their news paper by name Sudheepam. Annexure 5 in Crl.M.C.No.2093 of 2011 is the judgment of the trial court. It shows that the suit was decreed to an extent of `25,000/- against the defendants therein (complainant and his wife). It is not evident from the records as to whether this has become final or not.
8. Learned counsel for the petitioner submitted that entirety of the allegations in the complaint will not satisfy the test of defamation as defined in Section 499 IPC. Section 499 IPC reads as follows:
_“_ _**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,_
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_or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, 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.”_
9. Learned counsel for the petitioner drew my attention to eighth Exception to Section 499 IPC which reads as follows:
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_“Eighth Exception.-_ _**Accuation preferred in good faith to authorised person** .- It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.”_
According to him, the 2[nd] accused (petitioner in Crl.M.C.No.2093 of 2011) had preferred a petition to Police against the complainant alleging that latter threatened former over phone with dire consequences of publishing a defamatory news item. As per the averments in Annexure 2 in both cases, the 2[nd] accused stated that the caller identified himself as one calling from Sudheepam daily and it is also asserted that he could identiy the complainant by voice. It is submitted that the complaint was preferred in good faith. Although the complaint was closed by the Police as they could not identify the caller, learned counsel for the petitioner submitted that it will not lead to an inference that the complaint lacked good faith. Supreme Court in **Rajendra Kumar Sitaram Pande and others v. Uttam and another (AIR 1999 SC 1028)** considered the scope of Exception 8 to Section 499 IPC and held that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. In this case, the allegation in Annexure 2 was that there was an attempt on
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the part of the complainant herein to commit extortion by putting the petitioner in Crl.M.C.No.2093 in fear of injury to his reputation. I am of the view that merely the Police closed the case as an undetected one, for the reasons mentioned in Annexure 2 it cannot be said to be preferred to the Police without any good faith.
10. There is no tangible reason mentioned in the complaint in implicating the petitioner in Crl.M.C.No.1914 of 2011. Entirety of allegations in the complaint taken together will show that there is no legal foundation for the action initiated under Section 499 IPC. Therefore, I am of the view that the prosecution of the petitioners in both the cases will be an abuse of the process of the court. Petitions are liable to be allowed.
In the result, the petitions are allowed. All proceedings in S.T.C.No.427 of 2011 on the file of Judicial First Class Magistrate Court, Payyannur are hereby quashed.
All pending interlocutory applications will stand dismissed.
## **A. HARIPRASAD, JUDGE.**
**cks**
