Mammen Mathew and Others v. P.K. Kanaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936** ## **Crl.MC.No. 1239 of 2011 ( )** **----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 84/2011 of J.M.F.C.-I,KOYILANDY.** ## **PETITIONER(S)/ACCUSED 2 TO 7::** **---------------------------------------------** **1. MAMMEN MATHEW, EDITOR, MALAYALA MANORAMA COMPANY LTD., MANORAMA BUILDINGS, K.K.ROAD, KOTTAYAM-686 001.** **2. PHILIP MATHEW, MANAGING EDITOR, MALAYALA MANORAMA COMPANY LTD. -DO-.** **3. JACOB MATHEW, EXECUTIVE EDITOR, MALAYALA MANORAMA COMPANY LTD., -DO-.** **4. THOMAS JACOB, EDITORIAL DIRECTOR, MALAYALA MANORAMA COMPANY LTD., -DO-.** **5. MAMMEN VARGHESE, PRINTER & PUBLISHER, MALAYALA MANORAMA COMPANY LTD., -DO-.** **6. JAYA, W/O.RAMACHANDRAN,** - **LOCAL CORRESPONDENT, (MEPPAYUR/KEEZHARIYOOR) EDATHIL HOUSE, P.O.KEEZHARIYOOR, QUILANDY POLICE STATION LIMIT.** **BY ADVS.SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI.** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **------------------------------------------------------------** ## **1. P.K.KANARAN, AGED 73 YEARS,** **EX-PRESIDENT, KEEZHIRIYUOOR GRAMA PANCHAYAT, PALLIYOTH KUNIYIL HOUSE, KIZHIRIYOOR P.O., PIN-673 324 QUILANDY (QUILANDY POLICE STATION, LIMIT).** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADVS. SRI.SANTHARAM.P** **SMT.REKHA ARAVIND** **R2 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-07-2014, THE COURT ON 05-08-2014 PASSED THE FOLLOWING:** ## **Crl.MC.No. 1239 of 2011 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE A : CERTIFIED COPY OF THE COMPLAINT INC.C NO.84/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, QUILANDY. ANNEXURE B : TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 5-7-2011. ANNEXURE C : TRUE COPY OF THE LAWYER'S NOTICE DATED 17-7-2010 ISSUED ON BEHALF OF THE FIRST RESPONDENT TO THE PETITIONERS. ANNEXURE D : TRUE COPY OF THE REPLY LAWYER NOTICE DATED 5-8-2010 ISSUED ON BEHALF OF THE PETITIONERS TO ANNEXURE B LAWYER NOTICE. ANNEXURE E : TRUE COPY OF THE PRESS RELEASE DATED 3-7-2010 ISSUED BY SRI.CHUKKOTHU BALAN.** ## **RESPONDENT'S ANNEXURES : NIL.** ## **//TRUE COPY //** ## **P.A TO JUDGE** ## **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.1239 of 2011** **-----------------------------------------------Dated this the 5[th] day of August, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Accused 2 to 7 in C.C No.84/2011 on the file of Judicial First Class Magistrate Court, Koyilandy seeks quashment of Annexure A complaint filed by the first respondent against them alleging offences punishable under Sections 500 and 501 I.P.C. 2. Allegations in Annexure A complaint, in short, are as follows : Complainant is the President of Keezhariyoor Grama Panchayath. He is hailing from a poor family. For more than 40 years, he was actively participating in social works in and around Koyilandy Taluk. As a recognition for his hard work, sacrifices, sincerity, honesty, simplicity and integrity he was elected as the President of Keezhariyoor Grama Panchayath. **Crl.M.C No.1239 of 2011 2** First accused is the President of Keezhariyoor Congress Mandalam Committee. Accused 2 to 8 are persons connected with Malayala Manorama Daily where the defamatory news item about the complainant appeared. 3. The complainant is aggrieved by a news item appeared in Malayala Manorama Daily on 05-07-2010. The news item is produced as Annexure B. Caption of the news item is “ ഗ��മ��തവത�ന ത�ടക�”. There is a sub heading in the news as “മ��ണഗ�സ ബഹ�ഷ�ര�ച�.” According to the complainant, the defamatory statements are coming under the sub heading. It is mentioned there that the workers of the congress party in that area boycotted the function organized by Keezhariyoor Grama Panchayath, because the complainant refused to resign in spite of finding out financial irregularities in **Crl.M.C No.1239 of 2011 3** the utilization of funds of Panchayath. It is also mentioned that the workers of Congress party under the leadership of the first accused was agitating against the corruption in the Panchayath. According to the complainant, the allegations in the news item are false and per se defamatory. 4. Heard the learned counsel for the petitioners, learned counsel for the complainant/first respondent and also the learned Public Prosecutor. 5. Learned counsel for the petitioners raised two issues. Firstly, the news item published by Malayala Manorama Daily does not contain any defamatory statement. What the accused have done is only to publish the contents in Annexure E notice issued by Keezhariyoor Mandalam Congress 'I' Committee Office. It is also contended that neither the reporter nor any one **Crl.M.C No.1239 of 2011 4** connected with the daily has added any statement to the press release given by Keezhariyoor Mandalam Congress 'I' Committee (Annexure E). Therefore, the complainant is not maintainable for that reason. Secondly, it is contended that there is no allegation in the complaint that the news item was published with an intention to make any imputation concerning the complainant or intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of the complainant. Therefore, on that score also, the complaint is not maintainable. 6. Per contra, learned counsel for the complainant contended that the news item was published only in Malayala Manorama Daily and there was no press release as claimed by the petitioners. It is further contended that there are sufficient **Crl.M.C No.1239 of 2011 5** averments in the complaint that the news item was published maliciously and with an intention to harm the reputation of the complainant. Since that is a question of fact, it cannot be decided in a proceeding under Section 482 Cr.P.C. 7. For clarity, we shall consider the relevant provision in the penal code. Section 499 I.P.C defines “Defamation” in the following terms : _“_ _**499. 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, 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_ ## **Crl.M.C No.1239 of 2011 6** _to to a defamation impute anything 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 to make an defamation 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_ **Crl.M.C No.1239 of 2011 7** _generally considered as disgraceful.”_ 8. On a reading of the Section, it is evident that any words either spoken or intended to be read can be a subject matter of defamation. Further, signs or visible representations also can be a defamatory. Essential ingredients to attract the offence is that the words, either spoken or intended to be read, or signs or visible representations made or published contained any imputation concerning any person. Besides, it must have been done with an intention to harm or knowing or with a knowledge or having reason to believe that such imputation will harm the reputation of such person. There are ten exceptions. Explanation 4 makes it clear that if an imputation may directly or indirectly lowers the moral or intellectual character of that person in respect of his caste or of his calling or lowers the ## **Crl.M.C No.1239 of 2011 8** credit of that person is said to harm the persons reputation. 9. Learned Single Judge of this Court in _**Mammen Mathew v. Radhakrishnan.M.N and another (2007(4) I.L.R 406)**_ held that a mere publication of an imputation by itself will not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that it will harm the reputation of the persons concerned. 10. Another learned Single Judge of this Court in _**Rekha**_ _**and Others v. Vinodan T.S and Another (2009(3) KHC 477)**_ held as follows : _“Section 499 of Indian Penal Code provides that 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, or knowing or having reason to_ ## **Crl.M.C No.1239 of 2011 9** _believe that such imputation will harm the reputation of such person, is said to defame that person except in cases covered by explanations 1 to 4 provided therein. Therefore, as rightly pointed out by the learned counsel appearing for petitioners in order to attract an offence under Section 499, there should be an allegation that words spoken or published were made with an intention to harm or knowing or having reason to believe that such imputation will harm the reputation of the person.”_ 11. In the complaint, it has been specifically mentioned in paragraph 6 that the news item was published by the accused persons knowing fully well that the contents therein were false and that it was intended to defame and ridicule the complainant. The complainant therefore contended that the news item was published to tarnish the image of him and to bring ignominy to **Crl.M.C No.1239 of 2011 10** him in the midst of the public. In paragraph 7 also, we find allegations that the news item was published with the intention and knowledge that they are false and it was done with a view to diminish the reputation of the complainant. Whether those allegations could be sustained at the time of trial is a matter which can only be decided by the trial court. The jurisdiction of this Court under Section 482 Cr.P.C cannot be used to resolve issues of facts. 12. Learned counsel for the petitioners submitted that they have not added anything to Annexure E letter issued by the first accused as President of Keezhariyoor Mandalam Congress 'I' Committee. In answer to this argument, learned counsel for the complainant contended that there was no such press release as claimed by the petitioners and this letter must have been **Crl.M.C No.1239 of 2011 11** given by the first accused to Malayala Manorama alone. However, those questions are also vexed factual issues. On an evaluation of entire facts and circumstances, I am of the view that _prima facie,_ a case is made out in the complaint. 13. It cannot be decided at this stage of the proceedings that the objectionable news item is defamatory and it was published intentionally or with the knowledge that it could cause injury to the reputation of the complainant. Those are all matters of evidence. 14. Learned counsel for the petitioners submitted that implicating accused 2 to 5 in the case is with a bad intention. 2[nd] accused is the Editor of Malayala Manorama. 3[rd] accused is the Managing Editor, 4[th] accused is the Executive Editor. 5[th] accused is the Editorial Director of the news paper. According to **Crl.M.C No.1239 of 2011 12** the learned counsel for the petitioners they have no role in the selection of news item to be published in the news paper. Section 7 of the Press and Registration of Books Act, 1867 reads as follows : _“_ _**7. Office copy of declaration to be prima facie evidence** .- In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or_ ## **Crl.M.C No.1239 of 2011 13** _printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the editor of every portion of that issue of the which a is newspaper of copy produced.”_ 15. This provision was considered by the Apex Court in _**Mathew v. Abraham (2002(3) K.L.T 282 (S.C))**_ . The law laid down is as follows : _“There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the over which these newspaper persons exercise control. The provisions contained in the Act clearly go to show that there could be a presumption against the editor whose name is printed in the newspaper to_ ## **Crl.M.C No.1239 of 2011 14** _the effect that he is the editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under S.7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper. In the instant appeals, the complainant in each case has alleged that these appellants who are either Editor or Editor or Managing Chief Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper_ ## **Crl.M.C No.1239 of 2011 15** _publications. Moreover, in none of these cases, the 'editor' had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the 'editor' whose name is printed in the newspaper whom there is a against statutory presumption under S.7 of the Act, and in case such 'editor' succeeds in proving that he was not the 'editor' having control over the selection of the alleged libellous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit. We are not unmindful of the powers of the court under S.319 of the Code of Criminal Procedure, but such powers are circumscribed by limitations.”_ ## 16. In one case, a learned Single Judge of this Court held **Crl.M.C No.1239 of 2011 16** that the publisher of a daily news paper cannot be absolved of the liability on the ground that Editor or Chief Editor were not prosecuted (See _**E.P.Jayarajan v. Surendran ( 2010(2) K.L.T 505).**_ 17. Learned counsel for the petitioners contended that the allegations in the complaint would only show that the accused persons falsely published the news item with an intention to defame the complainant. It is not specifically mentioned that the 3[rd] , 4[th] and 5[th] accused were directly responsible for selecting the news item. 2[nd] accused is the Editor of the Malayala Manorama Newspaper. 6[th] accused is the Printer and Publisher and 7[th] accused is the Reporter of the newspaper. Therefore, in the absence of any specific allegations against the 3[rd] , 4[th] and 5[th] accused, it cannot be found that the complaint is maintainable **Crl.M.C No.1239 of 2011 17** against them too. Going by the relevant provisions in the Press and Registration of Books Act, 1867 and the precedents on the point, the 2[nd] , 6[th] and 7[th] accused cannot claim immunity from prosecution as there are specific allegations about the defamatory contents in Annexure B publication. However, accused 3, 4 and 5 cannot be roped in the alleged offence of defamation, as there is no averment in the complaint that they were responsible for the selection and publication of the news item. Hence, the complaint against them cannot be legally maintained and further prosecution against them is an abuse of the process of court. In the result, Crl.M.C is allowed in part. Annexure A complaint in relation to petitioners 2, 3 and 4 (accused 3, 4 and 5) is hereby quashed. The other accused are free to plead for **Crl.M.C No.1239 of 2011 18** discharge before the competent court. If they move the court below to allow them to plead discharge in absentia, then the learned Magistrate shall consider the plea and pass appropriate orders. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk