M.J.VIJAYAPADMAN v. K.R.AJITHKUMAR and STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 70 OF 2017 ``` ``` [AGAINST C.C.NO.81/2016 PENDING ON THE FILES OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA] ``` ## `PETITIONER/ACCUSED NO.1:` ``` M.J.VIJAYAPADMAN PRINTER & PUBLISHER,MATHRUBHOOMI PRINTING & PUBLISHING COMPANY LIMITED, SH MOUNT P.O., KOTTAYAM - 686 006. BY ADV.P.VIJAYA BHANU SR.ADVOCATE ADV.SRI.M.REVIKRISHNAN ADV.C.JAYAKIRAN ``` ## `RESPONDENTS/COMPLAINANT AND STATE:` ``` 1K.R.AJITHKUMAR AGED 59 YEARS S/O. KUNJURAMAN,'ROHINI SADANAM', AZHOOR,PATHANAMTHITTA VILLAGE,PATHANAMTHITTA P.O - 689 645. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM - 682 031. ``` ``` R2 BY SHRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR R1 BY ADV SRI.MANU RAMACHANDRAN ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 30.11.2022, THE COURT ON 01.12.2022 PASSED THE FOLLOWING: ``` CRL.MC No.70 of 2017 2 ## `O R D E R` ``` The petitioner is the 1[st]accused in ``` ``` C.C.No.81/2016 on the file of the Chief Judicial Magistrate Court, Pathanamthitta. The aforesaid Calendar Case was registered based on a private complaint submitted by the 1[st] respondent herein alleging offences punishable under Sections 499 ``` ``` and 500 of the Indian Penal Code (IPC). ``` ``` 2.The facts which led to the filing of this ``` ``` Crl.M.C. are as follows: ``` ``` The petitioner/ 1[st] accused was the Printer and ``` ``` Publisher of Mathrubhumi Printing and Publishing Company Limited, which is publishing Mathrubhumi Daily. The 1[st] respondent/complainant was the Municipal Councillor of Ward No.29 of ``` ``` Pathanamthitta Municipality, and he was also the ``` ``` former Vice-Chairman of the Municipal Council. The ``` ``` complaint was submitted in respect of a news item ``` CRL.MC No.70 of 2017 3 ``` published by the petitioner in the Mathrubhumi Daily on 01.05.2014 and the said publication is produced along with the Crl.M.C as Annexure-B. The aforesaid news item was published with a caption that there is increase of crores of rupees in the assets of the Councillors of Pathanamthitta Municipality. In the said news item, the details of assets of the Councillors of the Municipality were published based on their declaration made in the year 2010 before the Returning Officer at the time of election and also another declaration made ``` ``` by them before the Lok Ayukta in the year 2013. A ``` ``` comparative analysis is seen made in the aforesaid ``` ``` news item. According to the 1[st] respondent/ ``` ``` complainant, the said news item was published in ``` ``` such a manner that it created an impression among the local people that the Councillors of the said Municipality have amassed wealth by adopting corruptive measures. Therefore, it is contended ``` CRL.MC No.70 of 2017 4 ``` that the contents of the said news item are defamatory, and the same was published by the accused persons total of five in number, with the intention to defame the Municipal Councillors. ``` ``` 3.The learned Chief Judicial Magistrate had taken cognizance of the same and is now pending as C.C.No.81/2014. This Crl.M.C. is filed by the petitioner for quashing the said complaint, which is produced as Annexure-A in the Crl.M.C. and all further proceedings pursuant to the same. ``` ``` 4.Heard Sri. M. Ravikrishnan, the learned counsel for the petitioner and Sri.Manu ``` ``` Ramachandran, the learned counsel appearing for ``` ``` the 1[st] respondent and Sri.Sudheer Gopalakrishan, the learned Public Prosecutor for the State. ``` ``` 5.One of the crucial contentions raised by the petitioner is that, even if the contents of Annexure-B are taken into consideration along with ``` CRL.MC No.70 of 2017 5 ``` the averments made in the Annexure-A complaint, no ``` ``` offence under Sections 499 and 500 would get attracted. According to the learned counsel for the petitioner, the said news item was only about the declarations made by the Municipal Councillors before the Returning Officer at the time of election and also before the Lok Ayukta at a later point of time. According to the learned counsel for the petitioner, under no circumstances the contents of the same can be treated as defamatory. ``` ``` 6.On the other hand, the learned counsel for the 1[st] respondent would stoutly oppose the aforesaid contentions, and he reiterates that the said publication was made in such a way as to ``` ``` create a wrong impression among the public about the Municipal Councillors. ``` ``` 7.I have carefully gone through the contents of Annexure-B and the specific averments made in ``` CRL.MC No.70 of 2017 6 ``` Annexure-A complaint with respect to the publication of Annexure-B. On going through Annexure-B news item, it can be seen that the contents of the same are basically the details of the declarations made by the Municipal Councillors, as rightly contended by the learned counsel for the petitioner. Even though it is stated in the heading of the news item that there is an increase of crores of rupees in the assets of the Municipal Councillors, specific details of the declaration of assets made by each of the Municipal Councillors are given in the new item. The crucial aspect to be noticed in this regard is that, apart from highlighting the increase in the asset value of the Municipal Councillors, absolutely no statements are seen made to the effect that the said increase is on account of any illegal acts or corrupt practices committed/adopted by any of the Municipal ``` CRL.MC No.70 of 2017 7 ``` Councillors. On the other hand, the said news item ``` ``` contains the details of the comparative analysis of the declarations made by the Municipal Councillors in the year, 2010 before the Returning ``` ``` Officer at the time of election and in the declaration made in the year, 2013 before the Lok Ayukta. As far as the complainant is ``` ``` concerned, the amount declared by him in the year, ``` ``` 2010 was shown as 12 lakhs, whereas in the declaration made in the year, 2013, the same was shown as 16 lakhs. ``` ``` 8.Annexure-D is the lawyer notice sent by the 1[st] respondent/complainant to the petitioner ``` ``` herein. In the said lawyer notice also, it is not ``` ``` stated by the complainant that the details of the asset value as published in Annexure-B news item are false. Similarly, in Annexure-A complaint submitted by the 1[st] respondent also, there are no such averments. On the other hand, the averments ``` CRL.MC No.70 of 2017 8 ``` in the complaint and the lawyer's notice are to the effect that the publication of such details are creating an impression among the public that the Municipal Councillors have acquired wealth by committing corrupt practices. However, I am of the view that, when taking into account the contents of Annexures A & B, no materials are there to attract the offence under Sections 499 r/w. ``` ``` Section 500 IPC. This is particularly because, ``` ``` what is stated in the news item is the contents of the declarations made by the respective ``` ``` Councillors before the authorities concerned. The declarations were made by them to make the general public aware of the financial position of the respective Municipal Councillors. In other words, ``` ``` it was intended to ensure transparency and to make the public aware of the financial position of their representatives; hence, it is for the purpose of the public good. Therefore, the ``` CRL.MC No.70 of 2017 9 ``` publication of such details would not in any manner attract the offence under Section 499 of IPC. First of all, such publication cannot be treated as a statement which was intended to harm the reputation of the persons concerned. In the first exemption to Section 499 of IPC, it is ``` ``` stipulated that, it is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published.Therefore, in the light of the explanation, the imputation of truth concerning a person cannot be treated as a defamatory statement if the publication was for the public good. As mentioned above, the news item was related to the declarations made by the ``` ``` Municipal Councillors before the authorities referred to above and such declarations are part of the measures intended to make the system more transparent. Therefore publication of the details ``` CRL.MC No.70 of 2017 10 ``` of such declarations would not attract any ``` ``` culpability whatsoever, as the same can only be treated as for public good, being a measure for ensuring transparency in the matters relating to the same. ``` ``` 9.The learned counsel for the petitioner relies on the observations made by this Court in Mammen Mathew v. Radhakrishnan [2007(4) KLT 833]. ``` ``` In the said decision, it was clearly observed ``` ``` that, the mere publication of an imputation by ``` ``` itself would not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that, such ``` ``` imputation will harm the reputation of the person ``` ``` concerned. However, as mentioned above, in this ``` ``` case, what is published is the details of the ``` ``` declarations made by the Municipal Councillors, ``` ``` which were intended to be published and hence no ``` ``` offence would be attracted in respect of the same. ``` CRL.MC No.70 of 2017 11 ``` 10.It is also the contention of the petitioner that, there are no materials to conclude that the publication was with an intention to harm the reputation of the Municipal ``` ``` Councillors or with the knowledge that by making ``` ``` such publication, the reputation of Municipal Councillors would be adversely affected. On ``` ``` 3.5.2014, the Mathrubhumi Daily published a news item (Annexure G), in relation to the contents of Annexure B, wherein the explanations offered by the Municipal Councillors as to the contents of ``` ``` Annexure B are published. On carefully going ``` ``` through the contents of Annexure-G, it can be seen ``` ``` that the details of the assets as revealed in ``` ``` Annexure-B are not denied, and instead, the ``` ``` respective Municipal Councillors were explaining ``` ``` the reasons for such an increase in their asset ``` ``` value. The contention of the learned counsel for ``` ``` the petitioner in this regard is that the fact ``` CRL.MC No.70 of 2017 12 ``` that the explanation on the part of the Municipal Councillors was published by the newspaper of which the petitioner is the Printer and Publisher would clearly indicate that he had no intention to defame any of the persons concerned. For substantiating this contention, the learned counsel for the petitioner relies on the decision inMammen Mathew’s case (supra). In the said decision, this Court, while taking the view that ``` ``` the publication of imputation was without any intention to harm the reputation of the ``` ``` complainant, relied on a subsequent publication made by the newspaper with regard to the explanation of the complainant in respect of the contents of the news item published earlier. After appreciating the aforesaid aspects, it was held by this Court in the said decision that in the light of the publication of the explanation, no criminal intention can be attributed against the accused ``` CRL.MC No.70 of 2017 13 ``` for attracting the offence under Sections 499 and ``` ``` 500 of the Indian Penal Code. In this case, the ``` ``` aforesaid principles are squarely applicable. As ``` ``` mentioned above, immediately after the publication ``` ``` of Annexure-B news item, Annexure-G news item ``` ``` containing an explanation of the contents of Annexure-BbyMunicipalCouncillorsof ``` ``` Pathanamthitta Municipality has been published. Therefore, for that reason also, it cannot be concluded that the imputation contained in ``` ``` Annexure-B was with an intention to cause harm to ``` ``` the reputation of the persons concerned. ``` ``` 11.Another contention put forward by the ``` ``` learned counsel for the petitioner is that, as per ``` ``` Section 499(1)Cr.PC, no court shall take ``` ``` cognizance of an offence punishable under Chapter XXI of IPC, which includes the offence under Section 499, except upon a complaint made by some persons aggrieved by the offence. It was contended ``` CRL.MC No.70 of 2017 14 ``` by the learned counsel for the petitioner that, in Annexure-B, no individual reference of any corruptive practices by the complainant has been made therein. Therefore, he cannot be treated as a person who is personally aggrieved so as to enable him to submit a complaint as contemplated under Section 199(1) of Cr.PC. From the averments in Annexure-A complaint, it can be seen that the same was not only filed because of the reason that, the ``` ``` publication is harming the reputation of the complainant as an individual, but the complaint also refers to the loss of reputation of all the ``` ``` Municipal Councillors. Therefore, the complaint submitted by him was not only in his individual capacity but also in his capacity as a Municipal ``` ``` CouncillorofPathanamthittaMunicipality. According to him, the imputation made in the publication affects all the Municipal Councillors as a class/category. Therefore, he, a member of ``` CRL.MC No.70 of 2017 15 ``` that class of persons, is entitled to submit a ``` ``` complaint alleging the commission of an offence ``` ``` under Section 499 of IPC. This is mainly because, when the publication specifically refers to MunicipalCouncillorsofPathanamthitta ``` ``` Municipality, it addresses a specific/definite ``` ``` class of people, and hence all the members of such ``` ``` class of people can be treated as persons ``` ``` aggrieved by the same. Therefore, I do not find ``` ``` any merit in the contention raised by the learned ``` ``` counsel for the petitioner with regard to the ``` ``` competence of the petitioner herein to submit this ``` ``` complaint since the same was filed in his capacity as one of the Municipal Councillors also. ``` ``` 12. Another contention of the learned counsel ``` ``` for the petitioner is that he being a Printer and ``` ``` Publisher of the Newspaper, in the absence of a ``` ``` specific allegation indicating his role in selection and publication of new item, cannot be ``` CRL.MC No.70 of 2017 16 ``` implicated as an accused. However, I am not inclined to accept the said contention. Section 5 ``` ``` of the Press and Registration of Books Act, 1987, contemplates that every Printer and Publisher shall make a declaration with regard to certain matters prescribed therein. Section 7 makes the Printer and Publisher, along with the Editor of the Newspaper, responsible for every portion of every newspaper. Therefore, the aforesaid provision contemplates a presumption against the petitioner, who admittedly is a Printer and Publisher of the newspaper. Thus, the question relating to the role of the petitioner is something which can be presumed, and unless such ``` ``` presumption is rebutted, it cannot be concluded ``` ``` that he is not responsible for the contents of the publication made in the newspaper. ``` ``` 13.As observed above, I have already found ``` ``` that the contents of Annexure-B publication and ``` CRL.MC No.70 of 2017 17 ``` the averments made in Annexure-A complaint do not make out the necessary materials to attract the offences alleged against the petitioner. Hence, ``` ``` the entire proceedings pursuant to Annexure-A ``` ``` against the petitioner are clear abuse of the process of the court. For that reason, this is a fit case in which the powers of this Court under ``` ``` Section 482 Cr.PC can be invoked. ``` ``` In the result, this Crl.M.C. is allowed. ``` ``` Annexure-A complaint in C.C.No.81/2016 on the file ``` ``` of the Chief Judicial Magistrate Court, Pathanamthitta and all further proceedings pursuant to it, as against the petitioner herein, are hereby quashed. ``` ``` Sd/- pkk ZIYAD RAHMAN A.A., JUDGE ``` CRL.MC No.70 of 2017 18 ## PETITIONER’S ANNEXURES ``` ANNEXURE-A: TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 1ST RESPONDENT BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA ``` ``` ANNEXURE-B: TRUE COPY OF THE RELEVANT PAGE OF THE MATHRUBHOOMI DAILY DATED 01.05.2014 CONTAINING THE NEWS ITEM WHICH IS ALLEGED TO BE OBJECTIONABLE BY THE 1ST RESPONDENT IN HIS COMPLAINT ``` ``` ANNEXURE-C: TRUE COPY OF THE RELEVANT PAGE CONTAINING THE NEWS ITEM PUBLISHED BY THE MANGALAM DAILY ON 01.05.2014 ``` ``` ANNEXURE-D: TRUE COPY OF THE LAWYER NOTICE DATED 07.05.2014 CAUSED TO BE ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND THE 5TH ACCUSED IN THE CASE. ``` ``` ANNEXURE-E: TRUE COPY OF THE REPLY NOTICE CAUSED TO BE ISSUED BY THE PETITIONER TO ANNEXURE-D. ``` ``` ANNEXURE-F: TRUE COPY OF THE NOTICE ACKNOWLEDGMENT CARD EVIDENCING RECEIPT OF ANNEXURE-D. ``` ``` ANNEXURE-G: TRUE COPY OF THE RELEVANT PAGE OF THE MATHRUBHOOMI DAILY DATED 03.05.2014 IN WHICH THE VERSION OF THE MUNICIPAL COUNCILLORS IN THE MATTER IN ISSUE WAS REPORTED BY THE NEWSPAPER WITH DUE PROMINENCE. ```