Mamman Mathew and Others v. IQBAL S/o Meera Sahib and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936 Crl.MC.No. 1216 of 2011 ( ) ---------------------------CC 120/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOTTARAKKARA PETITIONER(S)/ACCUSED 2 TO 5: -------------------------------------------------------- 1. MAMMAN MATHEW, EDITOR, MALAYALA MANORAMA KOTTAYAM. 2. JACOB MATHEW, PRINTER & PUBLISHER, - MALAYALA MANORAMA, KOTTAYAM. 3. JACOB JOHN, CO-ORDINATING EDITOR, - MALAYALA MANORAMA, KADAPPAKKADA, KOLLAM. 4. MANOJ KADAMBADU, CHIEF REPORTER, MALAYALA MANORAMA, KADAPPAKKADA, KOLLAM. BY ADVS SRI.MILLU DANDAPANI RESPONDENT(S)/COMPLAINANT AND STATE: ------------------------------------------------------------------------ 1. SHRI IQBAL, S/O. MEERA SAHIB, ROSE MAHAL, KAREEPRA VILLAGE, VAKKANAD MURI KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R1 BY ADV. SRI.S.SREEKUMAR (SENIOR ADVOCATE) R2 BY PUBLIC PROSECUTOR SHRI N.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.08.2014, THE COURT ON 03-09-2014 PASSED THE FOLLOWING: CRL.MC NO.1216/2011 ## APPENDIX PETITIONERS' EXHIBITS: ANNEXURE A PHOTOCOPY OF COMPLAINT IN CC NO.120/2011 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA ANNEXURE B PHOTOCOPY OF PUBLICATION DATED 13.10.2009 APPEARED IN MALAYALA MANORAMA DAILY ANNEXURE C PHOTOCOPY OF PUBLICATION DATED 14.10.2009 APPEARED IN MALAYALA MANORAMA DAILY ANNEXURE D PHOTOCOPY OF PUBLICATION DATED 15.10.2009 APPEARED IN MALAYALA MANORAMA DAILY ANNEXURE E PHOTOCOPY OF PUBLICATION DATED 20.10.2009 APPEARED IN MALAYALA MANORAMA DAILY ANNEXURE F PHOTOCOPY OF SWORN STATEMENT OF THE 1ST RESPONDENT IN CMP 8179/2010 REFERRED TO IN THE CRIMINAL MISCELLANEOUS CASE ANNEXURE G PHOTOCOPY OF SWORN STATEMENT OF WITNESS, CW2 CHANDRA MOHAN REFERRED TO IN THE CRIMINAL MISCELLANEOUS CASE ANNEXURE H PHOTOCOPY OF LAWYER NOTICE DATED 6.11.2009 ISSUED ON BEHALF OF 1ST RESPONDENT TO THE 4TH PETITIONER THROUGH ADV.MADHU ANNEXURE I PHOTOCOPY OF REPLY NOTICE DATED 10.11.2009 ISSUED ON BEHALF OF THE 4TH PETITIONER TO ADV.MADHU RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.M.C. No.1216 of 2011 -------------------------------------Dated this the 3[rd ] day of September, 2014.** ## **ORDER** Accused 2 to 5 in C.C.No.120 of 2011 on the file of Judicial First Class Magistrate Court-I, Kottarakkara have approached this Court with a prayer to quash Annexure-A complaint by invoking Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). In the said complaint the offence alleged against the accused is punishable under Section 500 of the Indian Penal Code (in short, “IPC”). 2. The contentions in the complaint are thus: The complainant/1[st] respondent is a member of an ancient and aristocratic family in Kottarakkara Taluk. At present he is working as Assistant Commissioner of Police. He entered the service in the year 1995 as Sub Inspector of Police. Thereafter he worked earnestly and honestly and thereby gained timely promotions. The deceased 1[st] accused was the Chief Editor of Malayala Manorama daily. It is a news paper having wide circulation. On 13.10.2009 and thereafter the paper published certain news items serially casting aspersions about the character and conduct of many persons, including the complainant. Most of the innuendoes in the news item published on 13.10.2009 directly point fingers to the complainant. The 2 Crl.MC No.1216/2011 false news item with defamatory statements was consciously published by the petitioners/accused. Not only that, on subsequent days also they published news items falsely indicating involvement of the complainant in a drinking spree and liaison with promiscuous ladies. According to the complainant, even though he had not been specifically named in the news items, the descriptions would definitely bring out his identity as a person involved in the anti-social activities. Therefore, the complainant contended that his family members, friends and relatives started viewing him with an element of contempt. Further, his stature in the department, especially among the superior officers, is also lowered. Therefore, the petitioners/accused are liable to be prosecuted for defaming the complainant. 3. Heard the learned counsel for the petitioners and the learned counsel for the complainant/1[st] respondent. Learned Public Prosecutor is also heard. 4. Along with the petition, the objectionable news items have been produced as Annexures-B to E. Malayala Manorama news paper on 13.10.2009 published the item with a caption “ഗസ��സ�ല� പ����സ മ�ഫ�യ� സ�ഗമ�: എസ.��. അപ��ഷണ� ആര�ഭ�ച� ”. According to the complainant, in the third column of the news item, there is a clear indication 3 Crl.MC No.1216/2011 by words employed that one of the police officers involved in the nefarious activities allegedly happened in the Government Guest House, Asramam, Kollam was the complainant. The gist of the news item is that a mafia gang dealing with illicit spirit arranged a party for police officers and film stars. It is also alleged that ladies of licentious character were also brought for the guests invited for the celebration. According to the complainant, the reference “ജ��!യ�ല� ക�ഴകന പമഖ�യ�ല� C.I.” is specifically made to target him. The news item was published by the Kollam Bureau of the news paper. The complainant contended that he is a person hailing from and was working in the eastern portion of Kollam District. Therefore, he contended that the false item published by the accused was with an intention to denigrate him. On 14.10.2009, 15.10.2009 and 20.10.2009 there were continuations of the first news item, wherein also the complainant's involvement had been indirectly referred to. Learned counsel for the petitioners submitted that the incident described in the news item was reported in other news papers also. Further, the incident mentioned therein was true. Apart from that, there is no reference, either by name or by description, connecting the complainant with the news item. The complainant cannot be heard to say that a reader of the news item would identify him as one of the persons involved in the revel. 4 Crl.MC No.1216/2011 5. Per contra, learned counsel for the complainant submitted that even though name of the complainant was not mentioned in the news item, the descriptions would show that the maker of the news intended to tarnish the image of the complainant. Further, on the alleged date, the complainant was not even available in station as he had gone to a pilgrimage (Umra) with due permission of the department. It is also the grievance of the complainant that on account of the untrue serialised story published by the accused, he had to face a departmental action. He was directed by superior officers to explain his role in the alleged incident and thereby, he was subjected to unnecessary harassment. Learned counsel for the complainant contended that even without naming a person the offence of defamation can be committed. 6. Learned counsel for the petitioners relied on a decision of this Court in **Raman Namboodiri v. Govindan (1962 KLT 538)** to canvass the following proposition: _“If the words complained of contain no reflection on a particular individual or individuals, but may equally apply to others belonging to the same class, an action for defamation will not lie. The defamatory matter to be actionable must be such that it contains an imputation concerning some particular person or persons whose identity_ 5 Crl.MC No.1216/2011 _can be established. It is unnecessary that the person whose conduct is called in question should be described by name. It is sufficient if on the evidence it can be shown that the imputation was directed towards a particular person or persons who can be identified.”_ 7. Answering the above argument, learned counsel for the complainant, relying on **Subair v. Sudhakaran (1987 (1) KLT 291)** contended that defamation can also arise by innuendo. The relevant portion is excerpted hereunder: _“To constitute defamation, the identity of the complainant should be established. But, it is not always necessary to name the person. If the description and attendant circumstances suggest with fair certainty the identity of the person intended, that is sufficient to attract the offence: The reference need not be explicit. If the description is such that a reasonable person in the context in which it is made, will understand it as a reference to a particular person, it would suffice. It is not always that a libellous statement is made with directness, nor does it mean that as long as it is not by specific reference, so long it is not libel. A degree of indirectness or innuendo is noticed in such attempts, and is to be expected. It can be said with assurance that even without specific or explicit reference, by_ 6 Crl.MC No.1216/2011 ## _innuendo, defamation can arise.”_ ## In the said decision, freedom of press is described in the following words: _“In a free society, the press enjoys an important position and plays a vital role. But the liberty of the press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. Vituperative exercises, or yellow journalism, cannot pass muster under the guise of freedom of press, no more than shilling shockers, or salacious prose can masquerade, as literary works. The freedom of the press is no more important, than the good name of the press. It must set the right tune.”_ Another learned Single Judge of this Court in **Sukumar Azhikode v. State of Kerala (2007 (2) KLT 883)** referring to the decision in **Subair** 's case (supra) and also other decisions, held as follows: _“Any prudent or reasonable reader of the news item can easily understand that the reference in the statement was not to any class or indeterminate body of persons but to the complainant and to the complainant only. If the description and attendant circumstances suggest with fair certainty the identity of the person intended, that is sufficient to attract the offence. An imputation in the form of an alternative or expressed ironically may also amount to defamation_ 7 Crl.MC No.1216/2011 _and that defamation by innuendo is also well known. The law guards and protects the reputation of an individual, as an inviolable right, the infringement, of which give rise to an actionable claim. It is no defence to contend that the statement was made as a scourge to cleanse the system or in the interest of the general public, if through that statement, the reputation of persons who are the participants of public service system is maligned. The rank or position of the offender is hardly relevant. It is not necessary to prove that actual harm has been caused. It is sufficient to show that harm was intended to the complainant's reputation or that the accused person knew or had reason to believe that the imputations made by him would harm the complainant's reputation.”_ 8. From the above, it can be safely concluded therefore that for attracting an offence of defamation punishable under Section 500 IPC, the defamed person need not be mentioned by name. It is sufficient if it is possible to make out the identity of the person defamed from the descriptions in the libelous matter; then certainly the offence of defamation is attracted. 9. The question to be decided here is whether on a reading of the complaint and the disputed news items, a reader could relate the same to 8 Crl.MC No.1216/2011 the complainant. Learned counsel for the petitioners contended that no specific averment is made in the complaint that the reference in Annexure- B news item about the C.I. of Police working in the eastern side of Kollam District can only be related to the complainant. According to the learned counsel for the complainant, he was at the material time working as C.I. of Police, Punalur, a place on the eastern side of Kollam District. In answer to this contention, learned counsel for the petitioners would contend that not only Punalur, Kottarakkara and other places of Kollam District are also falling on the eastern side. According to the petitioners, there is no rhyme or reason for assuming by the complainant that the news item was directly or indirectly referring to him. 10. Learned counsel for the petitioners relied on **Karunakaran v. Jayasooryan (1992 (2) KLT 33)** to contend that prosecution for defamation under Section 199 Cr.P.C. can only be filed by a complaint made by a person aggrieved by the offence and the complainant herein will not fall within the classification of an aggrieved person. Based on **S.Khushboo v.** **Kanniammal and another ((2010) 5 SCC 600)** , it is further contended by the learned counsel for the petitioners that in the absence of any direct or indirect reference about the complainant in the news item, he cannot be called as a person aggrieved by the news item. It is also contended by the 9 Crl.MC No.1216/2011 petitioners that the complainant himself has a case that he was not available in the State at the time when the incident took place. Therefore, neither his superiors nor any one close to him had any occasion to suspect his involvement in the incident. Petitioners would contend that the news item was published with a view to bring the true facts to the public domain. 11. In order to attract an offence punishable under Section 500 IPC certainly the act alleged must fall within the definition of defamation under Section 499 IPC. On a reading of the said Section, it is evident that the words either spoken or intended to be read must make or publish any imputation concerning the reputation of a person with an intention to harm or knowing or having reason to believe that such imputation will harm the reputation. Therefore, the primary requirement is that there must be a publication with an imputation and with an intention or knowledge to harm the affected person. Even though, the offence of defamation can be committed without specifically naming a person, on reading the entire complaint and the news items, I am of the definite view that the descriptions in the news item would fall well short of the requirement of identifying him either directly or indirectly. It is worthwhile to note that the petitioners have a case that there are so many persons in the rank of Circle Inspector working on the eastern side of the Kollam District at the material time and hence, nobody could have identified the complainant as the 10 Crl.MC No.1216/2011 person involved in the objectionable activities revealed by the paper. Considering the entire facts and circumstances, I am of the view that the descriptions are insufficient to connect the complainant with the alleged incident. Merely for the reason that he was asked to explain by his superiors, it cannot be said that it was because of the description of him revealed in the news item. I do not find any merit in the complaint and the continuance of prosecution is an abuse of the process of the court. In the result, the petition is allowed. The complaint pending in C.C.No.120 of 2011 on the file of Judicial First Class Magistrate Court-I, Kottarakkara is hereby quashed. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**