Jacob Mathew, Philip Mathew and Thomas Jacob v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 29TH DAY OF JULY 2013/7TH SRAVANA, 1935** ## **Crl.MC.No. 3902 of 2010 (A)** **---------------------------------------** **[C.C. NO.424/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR]** **.................** ## **PETITIONERS/ACCUSED NOS.1 TO 3:** **------------------------------------------------------** **1. JACOB MATHEW, PRINTER AND PUBLISHER, MALAYALA MANORAMA, THAZHETHERUVU, KANNUR.** **2. PHILIP MATHEW, MANAGING EDITOR,** - **MALAYALA MANORAMA, THAZHETHERUVU, KANNUR.** **3. THOMAS JACOB, EDITORIAL DIRECTOR, MALAYALA MANORAMA, KANNUR.** ## **BY ADV. SRI.MILLU DANDAPANI.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. WILSON.A., AGED 24 YEARS, S/O.ANAVELLIL, AARALAM FARM COLONY, BLOCK 10 AARALAM-670 701.** **R1 BY PUBLIC PROSECUTOR SRI. P.P.PADMALAYAN, R2 BY ADV. SRI.CIBI THOMAS.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON 29-07-2013 PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.3902/2010-A:** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A: COPY OF THE COMPLAINT IN C.C. 424/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR. ANNEXURE B: COPY OF THE NEWS ITEM PUBLISHD ON 16/11/2009 IN MALAYALA MANORAMA DAILY. ANNEXURE C: COPY OF THE COMPLAINT SUBMITTED BY THE DEMOCRATIC WOMEN ASSOCIATION TO THE HUMAN RIGHTS COMMISSION, KERALA.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **K.RAMAKRISHNAN, JJ.** -------------------------------------------------------Criminal MC No.3902 of 2010 -------------------------------------------------------Dated this, the 29[th] day of July 2013 ## Order This is a petition filed by accused Nos.1 to 3 in CC No.424/2010 on the file of the Judicial First Class Magistrate Court, Mattannur, to quash the proceedings under Section 482 of the Code of Criminal Procedure Code (hereinafter referred to as the Cr.P.C.). 2. The case of the petitioner in the petition was as follows : Petitioners are accused Nos.1 to 3 in CC No.424/2010 on the file of the Judicial First Class Magistrate Court, Mattannur. Annexure A complaint in CC No.424/2010 was filed by the 2[nd] respondent herein, alleging commission of offence punishable under Section 500 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC), on the allegation that the imputations contained in Annexure B news item caused defamation to the complainant and to the tribal community, to which he allegedly belong. Crl.MC No.3902/10 2 3. Annexure B news item contains only the opinions and allegations of the office bearers of Democratic Women Association, to conduct a survey and enquiry into the Tribal area of Aaralam, pursuant to which, they filed Annexure C complaint before the Kerala Human Rights Commission. 4. The imputations in Annexure B news item are supported by truth. The news item was published in good faith and for public interest. The petitioners had no ill-will or malice towards the complainant or anybody in the tribal community. The news item does not contain any reference regarding the complainant, so as to enable him to raise a claim that he had suffered defamation on account of the publication of Annexure- B news item. The complainant cannot initiate and continue the prosecution, alleging commission of offence punishable under Section 500 of the IPC, claiming that the publication caused defamation to the community, to which he allegedly belong. 5. Petitioners Nos.2 and 3 are not responsible for the selection, editing, printing and publication of the news item Crl.MC No.3902/10 3 in the Malayala Manorama daily and they are not liable for the offence punishable under Section 500 of the Indian Penal Code. Annexure A complaint and further proceedings in CC No.424/2010 are abuse of the process of law and therefore, it is liable to be quashed. Hence the Criminal M.C. 6. Heard both sides. 7. The learned counsel for the petitioners argued that the complainant in Annexure A complaint is not an aggrieved person, having locus standi to file a complaint under Section 500 of the Indian Penal Code, representing the class of persons alleged to have been defamed on account of Annexure B paper publication. Further, in order to attract Explanation 2 to Section 499 IPC for initiating an action for class defamation, the class so affected must be determinable and identifiable and if a general allegation is made against a class of persons, which is having indefinite number, then, no action for class defamation can be initiated. In this case, Annexure B publication will go to show that it relates to an incident happened in a tribal colony and it relates to a class, Crl.MC No.3902/10 4 which cannot be determined or identified. Under such circumstances, no offence under Section 500 of IPC is attracted and there is no need to proceed with the complaint as it is an abuse of the process of law. Further, even assuming that it will amount to class defamation, though not admitted, it is done in public interest and good faith, which is a defence available under the section for the publisher and as such, there is no possibility of convicting the petitioners and proceeding with the case is a futile attempt. On the above grounds, the petitioners prayed for allowing the application. The learned counsel for the petitioners relied on the decisions reported in **Mathew v. Balan** (1984 KLT 893) and **Ram v. Siby Mathew** (2000(2) KLT 366). 8. On the other hand, the learned counsel for the second respondent would argue that there are necessary allegations made in the complaint, which will prima facie show that the complaint is maintainable. Further, the complainant, being a member of the class, which has been mentioned in the impugned defamatory publication, is an aggrieved person, Crl.MC No.3902/10 5 entitled to launch a complaint on behalf of the class, which he represents. Further, whether he is aggrieved by the publication or not, is a matter for evidence. Moreover, the alleged publication relates to a class of persons residing in a particular place and so, prima facie, it is a class, which is definite and identifiable. The question of good faith or public interest or the defences available to the petitioners, are all matters for evidence and if the question can be decided on the basis of evidence alone, then, the power under Section 482 of the Cr.PC. cannot be invoked to quash the proceedings. So, according to him, it is matter for evidence and without evidence, the allegations in this case cannot be established and this is not a fit case to quash the proceedings at the initial stage. So, he prayed for dismissal of the petition. 9. I have considered the rival contentions of both parties. 10. It is an admitted fact that the petitioners are the printer, publisher, managing editor and editorial director of a well known Malayalam daily, namely, Malayala Manorama. It Crl.MC No.3902/10 6 is also an admitted fact that Annexure B publication was made in the said Malayalam daily on 16.11.2009 with the following caption : “സ�ക�����ഫ�യ പ�ട� ��റ�ക�ന� ; ആദ�വ���കക�ളന�കള�ല ഗര�ഛ�( ദ� സപര�ക�ന� **,** ക ഴ�"ള� ട$ണ കക(ന കര�ച� സ�ക�����ഫ�യ (പവര(�ക�സനന�ആകര�പണ�. '' ## It is further mentioned in the alleged news item as follows : ''സ�ക��� ��ഫ�യയ�സട പ�ട�യ�ലസ"ട� �� പ ആദ�വ��� കക�ളന�കള�ല അനധ�ക/തഗര�ഛ�(ദങള�� അവ�വ�ഹ�ത അമ��ര�� സപര�ക�നത�യ� ആകര�പണ�. ക ഴ�"ള�ട$ണ കക(ന കര�ച� സ�ക��� ��ഫ�യ (പവര(�ക�നത�യ�ണ� ആകര�പണ�ഉയരന�ട�ളത�................................................. ആറള� ഫ�� ആദ�വ��� പ�നരധ�വ��ക�ഖലയ�� �� പ കക�ളന�കള�� കക(ന കര�ച�ണ�സ�ക��� ��ഫ�യ പ�ട� ��റ�ക�യ�ട�ളത�.'' It is clear from the above that the news item relates to an adivasi colony in Keezhppally town and Aaralam Farm. The complaint was filed by the complainant, who belongs to that community and who resides in that area, as a person, who is working for the upliftment of the adivasi members of that area. It is also mentioned in the complaint that on account of this publication, the Crl.MC No.3902/10 7 reputation of adivasi female members in that area has been affected, which will indirectly affect the reputation of the adivasi families residing in that colony and that will amount to class defamation. ## 11. The allegation regarding defamation as mentioned in the complaint was as follows : “ക�"ട� പ(തവ�ര( വ�യ�ച� �റ� ���ദ�യങളക� ��ന�ല അന9�യക�രന�� ആറളസ( ആദ�വ�����:ഹ� ഒനടങവ�� അപ��ന�തര�� ന�ന�തര ���വ�കയ�� ആദ�വ�����:ഹ� ഒനടങ� അപക ര(�സ"ട�ര�ക �കയ���ണ�. പര�ഷ�ക/തജനവ���ഗങ ളക� ��ന�ല ആറള� ആദ�വ��� ക�ഖലകള�സല ��(ത കസള ലല�ഗ�ക അര�ജകത@വ�� വ9��ച�രവ�� കവശ9�വ/(�യ�� ന�ലന�ല�ക�ന ��:ഹ��യ� ച�(ത കര�ക �വ�ന ക�"ട� വ�ര( ഇടയ�ക�കയ�� അന9���ദ�യ(�ലസ"ട ജനങള�� ���:ഹ9 (പവര(കര�� ആദ�വ���കസള കജ�ല�ക� വ�ള�ക�വ�ന�� ഇടപഴക�വ�ന�� വ��മത�ക�വ�ന�� ഇട വന�ട �ണ�.ക:ട�സത അന9കക�ളന�യ�ല�� ���ദ�യ(�ല�� സപടവര ആറള� ഫ���സല ��(ത കള���യ� വ�വ�ഹബന(�കലരസ"ട�ന �� വ��മത�ക�കയ�ണ�.” So, it is stated that the publication affects the adivasi community in that area and thereby, he is also an affected Crl.MC No.3902/10 8 person. ## 12. Section 499 of the IPC defines defamation as follows : “Defamation - Whoever, by words either spoken or intended to be read, or by sings 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 expected , to defame that person.” Explanation 2 of Section 499 IPC reads as follows : “It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.” 8[th] and 9[th] Exceptions to Section 499 IPC read as follows : Eighth Exception - **Accusation preferred in good faith to authorised person** - It is not defamation to Crl.MC No.3902/10 9 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. Ninth Exception - **Imputation made in good faith by person for protection of his or other's interests** - It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.” 13. In order to attract class defamation, it must be proved that a defamatory imputation is against a collection of persons. The language of Explanation 2 is, no doubt, wide. The collection of persons must be an identifiable body so that it is possible to show with definiteness that a particular group of persons as distinguished from the rest of the community was defamed. The identity of collection of persons must be established as relatable to the defamatory words or Crl.MC No.3902/10 10 imputations. Only a definite and determinate body would amount to collection of persons referred to in Section 499 of IPC read with Explanation 2 thereof. If the publication relates to general allegations regarding certain persons belonging to a class generally, will not be sufficient to attract the definite class of persons so as to file a complaint under the section. Further, the person entitled to file a complaint must be an aggrieved person. That means, the complainant himself must be aggrieved. Section 198 of Cr.PC. lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not and modifies that rule by permitting only an aggrieved person to move a Magistrate in cases of defamation. The Section is mandatory so that if the Magistrate were to take cognizance of an offence of defamation of a complaint filed by one, who is not an aggrieved person, the trial and conviction would be void and illegal. In the case of a class Crl.MC No.3902/10 11 of persons, against whom imputation concerning collection of persons is made, the complaint by an individual member of that collection, is identifiable, definite and determinate in relation to such imputation. So, if an allegation is made against a class of persons, which is identifiable, definite and determinate in relation to imputation, then, a member of that class so affected, is a person aggrieved, entitled to file a complaint under Section 499 of IPC with the aid of Explanation 2 of that Section. 14. The above proposition has been explained in detail, in the decisions reported in **S.Khushboo v. Kanniammal** (2010) 5 SCC 600), **Rallis India Limited v. K.T.Vijayakumar** (2010 CRL.L.J. 2485), **Express Publications (Madurai) Ltd v. State of Orissa** (2006 CRL.LJ 2548), **Mammootti v. Rajaji Mathew Thomas** (2006(3) KLT 335), **J.Taniguchi v. K.Gopi** (2002 CRL.L.J.1730), **Ram v. Sibi Mathew** (2000(2) KLT 366), Crl.MC No.3902/10 12 **Sasikumar B.Menon v. Vijayan** (1999(1) KLT Crimes 184), **C.Ravichandran Iyer v. Justice A.M.Bhattacharjee** (1995 SCC (Crl) 953), **Karunakaran v. Jayasurya** (1992 (2) KLT 33), **Ganesh Nand Chela v. Swami Divyanand** (1980 CRL.L.J.1036), **K.M.Mathew v. Balan** (1984 KLT 893), **Narottamdas.L.Shah v. Patel Maganbhai Revabhai** (1984 CRL.L.J.1790), **D.N.Sen v. R.K.Bhadra** (AIR 1970 Calcutta 216), **Asha Parekh v. State of Bihar** (1977 CRL.L.J.21), **Sahib Singh Mehra v. State of Uttar Pradesh** (AIR 1965 SC 1451), **G.Narasimhan v. T.V.Chokkappa** (AIR 1972 SC 2609). 15. In Halsbury's Laws of England (3[rd] edition edited by Viscount Simond) Vol.24 in Page 5 at para 6, it has been observed as follows : “A class of persons cannot be defamed as a class nor can an individual be defamed by general reference to the class to which he belongs. A similar view has been taken by Hately in “Libel and Slander” where it has Crl.MC No.3902/10 13 been observed that “when the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans or the like, no particular member of the body or class can maintain an action.” 16. In the decision reported in **Dhirendra Nath Sen** 's case (supra), it has been held that if a person complains that he has been defamed as a member of the class, he must satisfy the court that the imputation is against him personally and he is the person aimed at before he can maintain a prosecution for defamation. In short, the grievance of the complaint should not be merely be one shared by every member of an organised society. The mere fact that the feelings of the complainant have been injured in consequence of a defamatory statement made against his religious head, offers him no ground under the law to prosecute the accused for defamation. In the same decision, it has been observed that if the defamatory allegation or imputation is made against the Crl.MC No.3902/10 14 Ashramam of which he is a member, then, he can maintain an action against the maker of the defamatory statement by virtue of the Explanation to Section 499 of the Indian Penal Code. In the decision reported in **Sahib Singh Mehra** 's case (supra), the Supreme Court has held that if an allegation has been made against a group consisting of all members of the prosecuting staff in the service of the Government of Uttar Pradesh, within this general group of Public Prosecutors of U.P, there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 of Section 499 of IPC and could, therefore, be the subject of defamation and in such cases, any one of the members of that group of that area can maintain an action for defamation against the maker of the defamatory statement as an aggrieved person within that class. So, it is clear from the above dicta that if the allegations made Crl.MC No.3902/10 15 relate to class of an identifiable and determinate one, it relates to a particular group of persons of a particular locality, then, a member of that locality as an aggrieved person, is entitled to maintain an action, though it is not personally affecting him, but, it is affecting the community as such and as a member of that community, he can maintain an action. 17. In the decision reported in **Narottamdas.L.Shah v. Patel Maganbhai Revabhai** (1984 CRL.L.J.1790), the distinction between character and reputation has been explained as follows : “The term 'reputation' means, “What is generally said or believed about the persons' or things' character”. The two terms 'character' and 'reputation' are prone to be confused. Character, in the context, would mean, fortitude or moral constitution or strength of a person. It has no relevance with the belief or opinion of others in respect to a person. Therefore, character is what a person 'actually is' while 'reputation' is what neighbours Crl.MC No.3902/10 16 and others say 'what he is'. The man may have, in fact, a good character and yet suffer from bad reputation or vice versa. In short, 'reputation' is, what is reputed about, that is to say, common knowledge or general opinion in respect to a person. It is the estimation in which a person is held by others and not the opinion, which, he himself may have about himself. It may be said that 'reputation' is a composite hearsay, being the community's opinion, which implies the definite and final formation of belief by the community. By no stretch of reasoning, the term 'reputation' can imply one's own belief about himself.” 18. In the case on hand, the allegation is that a sex racket has rampant among a particular class of people of a particular community in a particular area. So, it cannot be said that it is an indefinite, indeterminable collection of persons. The fact that the complainant is representing that group, gives a cause of action for him to file a complaint. How far he is aggrieved, how the alleged defamatory allegation affects him or his family etc., are questions of Crl.MC No.3902/10 17 fact and matters for evidence. In the decision reported in **Dhirendra Nath Sen** 's case (supra), it has been held as follows : “The concept of defamation is very old and the Penal Code makes no distinction between the written and spoken defamation. The term defamation includes both libel and slander. The classical definition of the term, however, is as has been a “False statement about a man to his discredit”. This definition has been approved of in a series of decisions. The concept of defamation is indeed a mixed concept partly subjective and partly objective and the institutions of the proceedings must be against the background of Section 198 of the Criminal P.C. Upon ultimate analysis however, whether the impugned publication is defamatory or not is a question of fact and the same must abide a full-fledged trial.” So, at this stage, this Court cannot go into the question as to whether the complainant is really an aggrieved person or not, without evidence. 19. Further, in the decision reported in **Rumugam v. Kittu** (2009(1) KLT Suppl.841(SC), it has been held that for the purpose of bringing a case within the purview of 8[th] and 9[th] exception appended to Section 499 IPC, it would be necessary for the appellant to prove Crl.MC No.3902/10 18 good faith for protection of interest of person making it or of any other person or for public good. It is well settled law that those pleading exception must prove it. If the exceptions are to be proved by evidence, then, by invoking the inherent powers under Section 482 Cr.P.C., the pending proceedings cannot be quashed at the threshold. It is also settled law that in a case where there are prima facie materials available for proceeding with a complaint and other matters are to be decided on the basis of evidence, then, it is not a fit case to quash the proceedings at the threshold, invoking the power under Section 482 of the Cr.PC. This was so held in the decision reported in **Arun Bhandari v. State of U.P** (2013(1) Supreme 131). It is further held in the same decision that powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its discretion in exercise of its power, is Crl.MC No.3902/10 19 based on sound principles and such inherent powers should not be exercised to stifle a legitimate prosecution. It is not proper for the High Court to analyse the case of the complainant, in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the materials before it and conclude that the complaint could not be proceeded with. 20. It is clear from the above dicta that in a case where the matter has to be considered on the basis of evidence, court cannot invoke the power under Section 482 Cr.PC and quash the complaint. In this case, considering the nature of allegations made and in view of the discussions made above, I feel that this is not a fit case to invoke the power under Section482 Cr.PC. to quash the proceedings. All the contentions raised by the petitioners in this petition are matters to be considered by Crl.MC No.3902/10 20 the trial court on the basis of evidence to be adduced and not on the technicality of the grounds alleged at the time of hearing alone. The petitioners will be at liberty to raise all his contentions before the trial court. They are not entitled to get the reliefs claimed in this petition and it is accordingly dismissed. It is made clear that the observations made in this judgment will not be a bar for the trial court to consider the case of the petitioners on merits on the basis of evidence and to dispose of the same in accordance with law. It is made clear that the right of the petitioner to raise the plea for discharge is also not affected on account of the discussions made in this order. If the petitioners apply for dispensing with the personal appearance under Section 205 of the Code of Criminal Procedure, the Magistrate shall consider the same and dispose of the same in accordance with law. ## **K.RAMAKRISHNAN,JUDGE** Crl.MC No.3902/10 21 sta Crl.MC No.3902/10 22