M.M. Hassan v. State of Kerala and Thyagarajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938** ## **Crl.MC.No. 3534 of 2014 ()** ## **---------------------------** ## **C.C. NO.300/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT- I, KOTTARAKKARA** ## **PETITIONER(S)/4TH ACCUSED:** **--------------------------------------------** **M.M.HASSAN, MANAGING DIRECTOR, JAIHIND T.V., KARIMPANAL ARCADE, KIZHAKKEKOTTA,THIRUVANANTHAPURAM.** ## **BY ADV. SRI.M.V.S.NAMBOOTHIRY** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **2. THYAGARAJAN,** **S/O. GOPALAN, DEEPTHI, KADAKKODE (P.O.), KAREEPRA, KOLLAM DISTRICT- 691 505.** **R1 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE. R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3534 of 2014 () ------------------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** **ANNEXURE A-1 TRUE COPY OF THE NOTICE ISSUED BY ADV.P.K.RAVEENDRAN, KOTTARAKKARA TO THE PETITIONER ANNEXURE A-2 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT IN C.C.300/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KOTTARAKKARA** ## **RESPONDENTS' ANNEXURES** ## **NIL** **//True Copy//** **P.A. To Judge** **Bb** ## **RAJA VIJAYARAGHAVAN V, J. -------------------------------------------------------Crl.M.C.No.3534 of 2014 -------------------------------------------------------Dated this the 08[th] day of April, 2016** ## **O R D E R** 1.This petition is preferred under S.482 of the Cr.P.C seeking to quash all further proceedings in C.C.No.300/2011 on the files of the Judicial First Class Magistrate Court – I, Kottarakkara. The petitioner is the 4[th] accused in the said prosecution initiated by the 2[nd] respondent herein alleging commission of offence punishable under S. 499 and 500 r/w S.34 of the IPC. - 2.The complaint is seen preferred by the 2[nd] respondent / complainant who was the then President of Kareepra Grama Panchayath. The allegation in the complainant can be summarized in the following lines : There existed a dispute between the 2[nd] respondent and accused Nos. 1 and 2 in respect of a pathway which was allegedly shared by the parties. The accused Nos.3 Crl.M.C.No.3534 of 2014 : 2 : and 4 are the Managing Directors of two TV Channels. Allegation is that on 30.07.2010, at various times, the channel of which the petitioner herein is the Managing Director aired scandalous news against the 2[nd] respondent at the instance of accused Nos. 1 and 2. The news essentially was that the 2[nd] respondent who was the Panchayath president of Kareepra had closed down the access of the 1[st] accused and his family. Certain visuals depicting the sorry plight of the accused Nos. 1 and 2 were aired in the channels. This, according to the 2[nd] respondent, lowered his image and reputation in the estimation of right thinking people of the locality and made him the subject of ridicule. According to the 2[nd] respondent, there was no truth in the allegations and by airing the news without ascertaining its authenticity, the petitioner, who is arrayed in his capacity as the Managing Director of Jaihind TV has committed the offence under S.500 of the IPC. Crl.M.C.No.3534 of 2014 : 3 : - 3.The learned Magistrate took cognizance of the offence after examining the complainant and his witnesses. The aforesaid proceedings are under challenge in this petition. - 4.I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Though notice was served on the 2[nd] respondent, he has not chosen to enter appearance. 5. The learned counsel appearing for the petitioner took grave exception in the learned Magistrate taking cognizance of the offence against the petitioner without a semblance of an allegation in the complaint showing his culpability. By referring to Annexure A2 complaint, it was argued that as the Managing Director of Jaihind TV, the petitioner is concerned only with the business of running the TV Channel and he has no connection with the selection of the news item or the content of the news. The News editor, Content editor, Sub editor and reporter are the persons involved in the choosing and selection of news Crl.M.C.No.3534 of 2014 : 4 : and without specific allegations in the complaint, the petitioner, as the business head, cannot be held liable under section 500 of the IPC. The learned counsel would further contend that the 3[rd] accused, who is the Managing Director of Surya TV had earlier approached this Court by filing a petition under S.482 of the Code and this Court as per order dated 14.07.2014 in Crl.M.C.No.4655/2013, had quashed the proceedings. The allegation in the complaint are exactly identical viz a viz the 3[rd] accused and there is no reason why the petitioner should be subjected to the ordeal of a criminal trial when prima facie materials are not placed before court to take cognizance against the petitioner. - 6.I have considered the submissions of the learned counsel. - I have also gone through Annexure A2 complaint. The allegation in the complaint is directed against the Managing Director of Jai Hind Channel, who, according to the complainant, was instrumental in airing the news item Crl.M.C.No.3534 of 2014 : 5 : without ascertaining its authenticity. Nowhere in the complaint has it been alleged that the Managing Director of the company was responsible for the selection of the news item or that it was aired with his connivance or knowledge. 7. S.499 of IPC 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 believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter excepted, to defame that person". Therefore, it is obligatory on the part of the complainant to specifically allege in the complaint that the person who had undertaken the acts enumerated in the section was having the intention to harm that person or was having knowledge or having the reason to believe that such imputation will harm the reputation of such person. In the Crl.M.C.No.3534 of 2014 : 6 : absence of such specific allegation the magistrate is not empowered to take cognizance of such complaint. 8.The Supreme Court in **K. M. Mathew v. State of Kerala and another [AIR 1992 SC 2206]** , though in respect of a matter involving print media, had occasion to observe that unless there is a specific averment in the complaint that the accused was having knowledge of publication of such imputations or was having reason to believe that such imputation is or would be likely to be published in the newspaper under his direct control, no cognizance should be taken on the complaint. Lack of positive averments in the complaint so as to bring in the ingredients as indicated in S.499 of the Indian Penal Code was held to be fatal. 9. In **Dasari Narayana Rao v. R.D. Bhagvandas and another [1986 Cri LJ 888]** it was held that Chairman of the company which published the newspaper, not being the Printer, Editor or Publisher, could not be imputed with Crl.M.C.No.3534 of 2014 : 7 : knowledge of contents over the articles published in the news paper. Holding so the proceedings against him were quashed. 10.In **Prabhu Chawla and others v. A.U. Sheriff [1995 Cri LJ 1922]** it was held that Executive Editor, Managing Editor and Resident Editor cannot be prosecuted for offence of defamation when there are no allegations against them to the effect that they have any hand in selection of the alleged defamatory matter that was published in the news paper. - 11.In **S. Nihal Singh and others v. Arjan Das New Delhi** - **[1983 Cri LJ 777]** it was held that Chairman of a company which owns and publishes a news paper can be held liable for publication of the offending news item, only if it is shown that he was some how concerned with publication of the defamatory news item. He cannot be asked to answer a charge of defamation merely because he happened to be Chairman of the company owning the Crl.M.C.No.3534 of 2014 : 8 : news paper. 12. In the present case, it is blatantly obvious that there is no allegation against the present petitioner that he was having knowledge of the publication of such imputation or that he was directly responsible for publication of such imputation. The Managing Director is supposed to have the control over the management of the Television Channel and its financial aspects. He is not directly concerned with the airing of the news items and unless there are materials to come to such a conclusion, he cannot be roped in for having committed the offence under section 499 of the IPC. Principles of vicarious liability is not applicable to Criminal offences and in the absence of any provision laid down in the statute, the Managing Director cannot be held vicariously liable for the offence committed by the Company or its employees. Merely because the accused happened to be the Managing Director of the T.V. News Channel, no criminal case can lie Crl.M.C.No.3534 of 2014 : 9 : against him for offence punishable under Section 500 of the IPC. 13.Further, this Court had quashed the proceedings against the 3[rd] accused holding that continuance of the proceedings as against him is nothing, but, an abuse of process of law. The 3[rd] accused was arrayed in his capacity as the Managing Director of Surya Channel and as is evident from the complaint the role alleged against the 4[th] accused is exactly identical. - 14.The Apex Court in **Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [1998 (5)** ## **SCC 749]** , held as under: _"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the_ Crl.M.C.No.3534 of 2014 : 10 : _evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."_ - 15.I am of the view that the allegation in the complaint, even if it is taken at their face value and accepted in its entirety will not prima facie constitute any offence or make out a case against the petitioner. This court will therefore be justified in exercising its inherent jurisdiction to quash the proceedings. - 16.In the result, the Crl.M.C. is allowed. Annexure A2 complaint and all further proceedings against the petitioner are quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE.** Bb _[True copy]_ _P.A to Judge_