K.M. Mathew, Chief Editor, Malayala Manorama Daily, Kottayam; Mammen Varghese, Printer and Publisher, Malayala Manorama Daily; Philip Mathew, Managing Editor, Malayala Manorama Daily; Staff Reporter, Malayala Manorama Daily v. Skanda Kumar also known as S. Kumar; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 29TH DAY OF MAY 2013/8TH JYAISHTA 1935** ## **Crl.MC.No. 438 of 2007 (D)** **------------------------------------[CRL.R.P.NO.42/2006 OF THE SESSIONS COURT,KOTTAYAM, C.C.NO.106/2006 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM]** **.................** ## **PETITIONERS/ACCUSED:** **------------------------------------** **1. K.M. MATHEW, CHIEF EDITOR, MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** ## **2. MAMMEN VARGHESE,** - **PRINTER AND PUBLISHER, MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** ## **3. PHILIP MATHEW, MANAGING EDITOR,** - **MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** ## **4. STAFF REPORTER,** - **MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** **BY ADV. SRI.MILLU DANDAPANI.** ## **RESPONDENTS/COMPLAINANT & STATE:** **------------------------------------------------------------** ## **1. SKANDA KUMAR ALSO KNOWN AS S. KUMAR,** **KALAM GARDENS, 9, ALTHROP ROAD, ST.ANBANS, HERTIFORDSHIRE, A/1 3PH UNITED KINGDOM, BUSINESS ADDRESS IN INDIA, EASY TEC INDIA PVT.LTD., EASY TEC HOUSE, UNION CLUB ROAD, KOTTAYAM - 686 001.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.** **R1 BY SENIOR ADVOCATE SRI.K.RAMAKUMAR, R2 BY PUBLIC PROSECUTOR SRI. EGY N. ELIAS.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C.NO.438/2007-D:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE-A: COPY OF THE COMPLAINT DTD. 05/05/2006 IN C.C. NO.106/2006 FILED BY R.1. BEFORE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM.** **ANNEXURE-B: CERTIFIED COPY OF ORDER DTD. 14/07/2006 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM, IN C.M.P.NO.4033/2006.** - **ANNEXURE-C: COPY OF THE APPLICATION DTD. 12/10/2006 FILED BY R.1. IN C.M.P.NO.8303/2006 BEFORE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM.** - **ANNEXURE-D: COPY OF THE STATEMENT OF OBJECTIONS DTD. 04/10/2006 PREFERRED BY PETITIONERS HEREIN IN C.M.P.NO.8303/2006 BEFORE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM.** - **ANNEXURE-E: CERTIFIED COPY OF ORDER DTD. 31/10/2006 OF SESSIONS JUDGE, KOTTAYAM, IN CRL.REVISION PETITION NO.42/2006.** - **ANNEXURE-F: CERTIFIED COPY OF ORDER DTD. 01/12/2006 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM, IN C.M.P.NO.8303/2006.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------------- Crl. M.C.No.438 of 2007 ---------------------------------------------------Dated this the 29[th] day of May, 2013 ## Order This is an application filed by accused Nos.1 to 4 in C.C. No.106/2006 on the file of the Chief Judicial Magistrate, Kottayam, to quash the proceedings under Section 482 of the Code of Criminal Procedure. 2. The case of the petitioners is in the petition was as follows: “Petitioners herein are arrayed as accused in C.C. No.106/2006 before Chief Judicial Magistrate Court, Kottayam, for alleged offence punishable u/s 500 and 501 of Indian Penal Code 1860. Petitioners are innocent of charges levelled against them and they have falsely been implicated in the case. After filing Annexure-A complaint, there were positing to record complainant's sworn statement, he was continuously absent. On 14.7.2006 also, complainant was absent and there was no representation. Accordingly, complaint, which was numbered as CMP 4033/2006, was dismissed by the Learned Magistrate as per Annexure-B order. Against Annexure-B order, 1[st] respondent filed Crl. Revision Petition No.42/2006 before Sessions Judge, Kottayam, without making petitioners herein, who are accused as parties, on party array. In the meanwhile, 1[st] respondent herein filed a similar complaint before Magistrate 2 Crl. M.C.No.438 of 2007 Court on 12.10.2006 with an application to condone delay in filing complaint as per Annexure-C. Petitioners herein submitted Statement of Objections dated 4.10.2006 to CMP No.8303/2006 as per annexure-d. The present complaint is unjust, illegal and liable to be quashed by this court invoking its inherent jurisdiction under Section-482 of the Code of Criminal Procedure, 1973”, hence this petition. 3. Heard learned counsel for the petitioners, learned Senior Counsel Sri.K. Ramakumar appearing for the first respondent and learned Public Prosecutor. 4. Learned counsel for the petitioners submitted that even going by the allegations in the complaint, no offence is made out and the petitioners cannot be made responsible for the publication and the revisional order passed by the Sessions Court without giving an opportunity of hearing them, and consequential taking cognisance of the case after remand by the Magistrate is not proper. 5. On the other hand Sri.K. Ramakumar, learned senior counsel for the first respondent submitted that at the time of pre-cognisance stage, the accused has no right of hearing and only after issuance of the process, they 3 Crl. M.C.No.438 of 2007 will be getting right of hearing, but in view of the change of law laid down by the Hon’ble Supreme Court they must be given an opportunity of hearing in the revision, but the complaint cannot be quashed at this stage as they will be getting an opportunity to cross examine the complainant and seek for an order of discharge during trial. 6. It is seen from the complaint filed that the petitioners were shown as accused Nos. 1 to 4 on the basis of a publication made in their newspaper about the complainant. Earlier as per Annexure-B order, the complaint was dismissed, since the complainant has not appear for giving sworn statement. Against that, the complainant preferred revision before the Sessions Court, Kottayam without impleading the present petitioners, who are shown as suspected accused in Annexure-A complaint. As the law then stood, since the complaint was dismissed under Section 203 of the Code of Criminal Procedure for non prosecution, the suspected accused will not be getting any right of hearing in the revision, but in view of the subsequent decision of the Hon’ble Supreme Court reported 4 Crl. M.C.No.438 of 2007 in **2012 (10) SCC 517 Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel and others,** wherein it has been categorically stated that once the complaint has been dismissed under Section 203 of the Code of Criminal Procedure, and revision has been filed against that order, the accused/suspected accused also will be getting a right of hearing, and if the order was passed without hearing them, then prejudice will be caused to them, they will be having a right of hearing at that stage, though they may not get a right of hearing of it is remanded to the Lower court for enquiry under Section 200 and 202 of the Code. 7. In this case Annexure-E order was passed by the Sessions Judge in Criminal R.P. No.42/2006, without hearing the present petitioners, who were shown as suspected accused in the lower court. So on that ground the order passed by the Sessions Judge is liable to be set aside, and it has to be remitted to the Sessions Court for the purpose of fresh hearing after giving an opportunity to the present petitioners also to address their grievance regarding the same. But prayer No.2 cannot be granted at 5 Crl. M.C.No.438 of 2007 this stage, because, if the Annexure-E order of the Sessions Court is set aside, it will go back to the original position of pre-cognisance stage under Section 202 of the Code of Criminal Procedure, and at that stage, the accused will not be getting any right of hearing. Only after the complaint is taken on file and process is issued, they will be getting a right of hearing. So the prayer No.2 cannot be granted as such at this stage. But, however the right of the petitioners to question the cognisance of complaint later or framing charges against the accused person, or seeking for discharge etc., is left opened and they can agitate the same at the appropriate time before the appropriate forum. The order of the Sessions Judge in Crl. R.P.42/2006 is set aside in view of the decision cited **Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel and others** (supra), and the matter is remitted to the Sessions Court for fresh disposal after giving an opportunity of hearing to the petitioners herein, who can also appear before the Sessions Court as directed by this court. Parties are directed to appear before the Principal Sessions Court, Kottayam on 6 Crl. M.C.No.438 of 2007 12.08.2013. On their appearance, the revision petitioner is directed to file an application to implead the present petitioners also as additional respondents in the revision petition, and the counsel for the petitioners herein are directed to take notice of the same and after allowing the application, the Sessions Judge is directed to give an opportunity of hearing to the counsel for the subsequently impleaded parties as well, and dispose of the revision in accordance with law. With the above direction, the above petition is disposed of. Learned Sessions Judge is directed to expedite disposal of the revision at the earliest, at any rate, within one month from the date of appearance of the parties before that court. ## **Sd/K.Ramakrishnan, Judge** // True Copy// P.A. To Judge ss