Mammen Varghese, Philip Mathew, and Staff Reporter, Malayala Manorama Daily v. Skanda Kumar (also known as S. Kumar) and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936** ## **Crl.MC.No. 4842 of 2013 ()** ## **--------------------------CRL.RP.NO. 42/2006 OF SESSIONS COURT, KOTTAYAM .............** ## **CMP.NO. 4033/2006 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM** ## **----------------** ## **PETITIONER(S)/ACCUSED:** **------------------------------------------** **1. MAMMEN VARGHESE, PRINTER AND PUBLISHER, MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** ## **2. PHILIP MATHEW,** - **MANAGING EDITOR, MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** ## **3. STAFF REPORTER,** **MALAYALA MANORAMA DAILY, KOTTAYAM-686 001.** **BY SMT.SUMATHY DANDAPANI,SENIOR ADVOCATE ADV.SRI.MILLU DANDAPANI** ## **RESPONDENTS:** **---------------------------** **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-682 031.** **R1 BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE ADVS. SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SRI.K.T.SIDHIQ SMT.AMMU CHARLES R2 BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 4842 of 2013 ()** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ----------------------------------------------** **ANNEX.A. TRUE COPYA OF THE COMPLAINT FILED BY THE 1ST RESPONDENT AS C.M.P. NO. 4033/2006 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ANNEX.B. TRUE COPY OF THE ORDER IN CM.P. NO. 4033/2006 DATED 14-7-2006. ANNEX.C. TRUE COPY OF THE ORDER DATED 29-5-2013 IN CRL. M.C. 438/2007. ANNEX.D. TRUE COPY OF THE ORDER DATED 11-9-2013 IN CRL. R.P. NO. 42/2006.** ## **RESPONDENT(S)' ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4842 of 2013 .................................................. Dated this the 8[th] day of August, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioners challenging the order passed by the Sessions Judge, Kottayam in Crl.R.P.No.42/2006 under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioners were arrayed as the accused in Annexure-A complaint filed by the first respondent herein before the Chief Judicial Magistrate Court, Kottayam and it was provisionally taken on file by the learned Magistrate as CMP.No.4033/2006 and it was posted for recording the sworn statement of the complainant. Since he did not appear, the learned Magistrate by order dated 14.7.2006 dismissed the complaint, which was challenged by the first respondent earlier by filing Crl.R.P.No.42/2006 before the Sessions Court, Kottayam. The petitioners were not originally impleaded in the revision as it was dismissed prior to Crl.M.C.No.4842 of 2013 2 taking cognizance and issuance of process. The learned Sessions Judge allowed the revision setting aside the order of dismissal and remanded the matter to the court below for fresh disposal. That order was challenged by the petitioners by filing Crl.M.C.No.438/2007 before this Court and this Court by Annexure-C order relying on the decision of the Apex Court in **Manharibhai Muljibhai Kakadia & Another v. Shaileshbhai Mohanbhai Patel & Others** (2012 (10) SCC 517) allowed the petition and remitted the case to the Sessions Court for fresh disposal after giving opportunity to the petitioners also to advance their case in support of the dismissal of the complaint by the court below. Accordingly, the learned Sessions Judge after hearing both sides passed Annexure-D impugned order allowing the revision and setting aside the order of the lower court and remanded the matter to the court below for giving an opportunity to the complainant to adduce evidence and for fresh disposal. That order is being challenged by the petitioners by filing this petition. 3. Heard the senior counsel for the petitioners and the first respondent and the learned Public Prosecutor. 3 Crl.M.C.No.4842 of 2013 4. The learned senior counsel appearing for the petitioners submitted that the first respondent is a foreigner and though the case was posted for five times for recording the sworn statement, the complainant was not diligent in adducing the evidence and that aspect has not been correctly appreciated by the learned Sessions Judge while allowing the revision petition. 5. The learned senior counsel appearing for the first respondent submitted that petition under Section 482 of the Code is not maintainable and their remedy is to file a revision against that order and also submitted that while exercising the power under Section 482 of the Code, the court will not get wider power, but only go into the legality of the order passed to the limited extent and no illegality has been committed by the learned Sessions Judge in passing the order. 6. The learned senior counsel appearing for the petitioners submitted that since it is in the nature of interlocutory order, no revision will lie. 7. As regards the question of maintainability is concerned, the learned senior counsel for the first respondent has relied Crl.M.C.No.4842 of 2013 4 on a decision reported by this Court, in which it has been held that, if it is the first opportunity available for the petitioners who are respondents in the case to question the order in the revision of the Sessions Court, then their remedy is to file revision against that order and the bar under Section 397(2) is not applicable. 8. But, I am not going into that question as power under Section 482 can be exercised if the court feels that illegality or otherwise of the decision is put forward and it may warrant interference of this Court if ultimately found that this order is totally wrong and without application of legal principles. Further even if assuming that the order passed by the Sessions Judge is not an interlocutory order but an intermediary order and that will affect the right of the party as such and revision is the remedy available, considering the fact that the case was filed in the year 2013, relegating the party to recourse their remedy of filing revision, will cause prejudice to the petitioners, then this Court can entertain the matter and dispose of the same invoking the power under Section 482 of the Code to advance justice and prevent Crl.M.C.No.4842 of 2013 5 injustice being caused on account of the pendecy of the petition before this Court for considerable time and time to file revision is lost to the to the petitioners on account of the delay. So, this Court has decided to proceed with the matter on merits itself. 9. It is an admitted fact that the complaint was filed by the first respondent against the petitioners alleging offence under Section 500 of the Indian Penal Code. It is also an admitted fact that on the date on which the complaint was filed, sworn statement of the complainant was not recorded. Thereafter it was posted for that purpose five times and since the complainant did not adduce evidence, the learned Chief Judicial Magistrate dismissed the complaint by Annexure-B order. That was challenged by the petitioners by filing Crl.R.P.No.42/2006 and the learned Sessions Judge earlier allowed the revision and remanded the case to the court below for giving an opportunity to the complainant to adduce evidence. The learned Sessions Judge at that time did not go into the question regarding limitation because that was not available at that time. At the time when the first respondent Crl.M.C.No.4842 of 2013 6 filed revision, the petitioners were not made as respondents and they were not heard. So they challenged the same by filing Crl.M.C.No.438/2007 before this Court and this Court by Annexure-C order, allowed the application relying on the decision reported in **Manharibhai's** case (cited supra) and held that though the complaint was dismissed under Section 203 of the Code, they got a right and the court should not have disposed of the revision filed against that order without hearing them and for that purpose, the application was allowed by Annexure-C order and it was remitted to the court below for fresh disposal. Even at that time, the limitation question was not raised because the party was not even heard at that time. Thereafter by Annexure-D order, the learned Sessions Judge allowed the revision after hearing both sides. Now that is being challenged by the petitioners. 10. It is true that the case was adjourned for five times for recording the sworn statement of the complainant. Admittedly, he is working in a foreign country. The Magistrate should have recorded the sworn statement of the complainant even on the date it was filed so as to enable Crl.M.C.No.4842 of 2013 7 him to proceed with the complaint even on that day. Direction was given by this Court in several decisions to the effect that as far as possible sworn statement of the complainant has to be recorded on the date of filing of the complaint itself. But, in this case, that was not done and it was adjourned for that purpose and on every occasion it cannot be said that he was not represented by the counsel but he filed application seeking time for adducing evidence and on that basis that was adjourned. It is true that on the last hearing date, there was no representation for the complainant and no application was filed. It cannot be said that the non appearance of the complainant was willful. So considering the circumstances, the Sessions Judge has to be taken a lenient view in exercising the discretion and felt that an opportunity has to be given to the complainant to proceed with the complaint and so allowed the revision and remitted the same for the court below for fresh disposal. That discretionary order is now being challenged by the petitioners. 11. On going through the order passed by the learned Sessions Judge, this Court feels that all the aspects raised by Crl.M.C.No.4842 of 2013 8 the petitioners before this Court has been rightly considered and thought that an opportunity has to be given to the complainant to prosecute his case and on that basis, the revision was allowed and it was remitted to the court below for giving opportunity to the complainant to proceed with the case. So under the circumstances, I do not find any illegality committed by the court below in passing the order. However, in the decision relied on by the learned senior counsel appearing for the petitioners namely **Manharibhai's** case (cited supra), the Hon'ble Supreme Court has only said that the petitioners will be getting the right only to canvass for the legality of dismissal of the complaint for the reason stated alone and not on other grounds. Further, in the same decision it has been held that even it was sent back to the court below, they could not participate in the proceedings till the process is issued to them and they can only watch the proceedings till the process is issued. Only after issuance of process, they will get the right to participate in the proceedings. So under the circumstances, this Court do not find any reason to interfere with the order passed by the Sessions Crl.M.C.No.4842 of 2013 9 Judge in the revision. Accordingly this petition is dismissed. The interim order passed by the court below staying the proceedings is vacated. Considering the fact that the complaint is of the year 2006, efforts must be made by the Chief Judicial Magistrate to expedite disposal of the petition at the earliest. Office is directed to communicate this order to the court below immediately. ## **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.4842 of 2013 10