## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE SUNIL THOMAS**
**MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938**
**Crl.Rev.Pet.No. 1131 of 2016 ()**
**--------------------------------**
**AGAINST THE ORDER IN CMP NO.2014/2016 IN CMP NO.1282/2016 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM**
## **REVISION PETITIONER:**
## **----------------------**
**OOMMEN CHANDY**
**AGED 72 YEARS, S/O. K.O.CHANDY, PRESENTLY RESIDING AT CLIFF HOUSE, THIRUVANANTHAPURAM AND HAVING PERMANENT ADDRESS AT PUTHUPALLY HOUSE, JAGATHY, THIRUVANANTHAPURAM.**
**BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.SREEJITH S.NAIR SRI.ANIL VINCENT**
**RESPONDENT(S):**
**--------------**
## **1. M.G. RADHAKRISHNAN**
**EDITOR, ASIANET NEWS, PULIYARAKONAM, THIRUVANANTHAPURAM, PIN-695573.**
## **2. VINU V.JOHN**
**SENIOR NEWS EDITOR, ASIANET NEWS, PULIYARAKONAM, THIRUVANANTHAPURAM, PIN-695573.**
## **3. MANOJ K.VARMA**
**CHIEF NEWS EDITOR, KAIRALI T.V., MALAYALAM COMMUNICATIONS, KAIRALI TOWERS, ASAN SQUARE, UNIVERSITY P.O., PALAYAM, THIRUVANANTHAPURAM, PIN-695146.**
## **4. K.RAJENDRAN**
**SENIOR NEWS EDITOR, KAIRALI T.V., MALAYALAM COMMUNICATIONS, KAIRALI TOWERS, ASAN SQUARE, UNIVERSITY P.O., PALAYAM, THIRUVANANTHAPURAM, PIN-695146.**
**Crl.Rev.Pet.No. 1131 of 2016**
## **5. SARITHA S.NAIR**
**AGED 36 YEARS, D/O. SOMARAJAN, VATTAPARA, PADINJARETHIL HOUSE, CHENGANNUR, PIN-689121.**
## **6. JOHN BRITTAS**
**MANAGING DIRECTOR, KAIRALI T.V., MALAYALAM COMMUNICATIONS, KAIRALI TOWER, ASAN SQUARE, PALAYAM, PIN-695146.**
**7.JOSHI KURIAN REPORTER, ASIANET NEWS, PULIYARAKONAM PIN-695146**
## **8. STATE OF KERALA**
**REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.**
**R3,R4 & 6 BY ADV. SRI.P.VIJAYA BHANU (SR.) R3,R4 & 6 BY ADV. SRI.M.REVIKRISHNAN R3,R4 & 6 BY ADV. SMT.MITHA SUDHINDRAN R1,R2,R 7 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR BY PUBLIC PROSECUTOR:SRI RAMESH CHAND**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**Crl.Rev.Pet.No. 1131 of 2016**
## **APPENDIX**
## **PETITIONERS EXHIBITS:**
**ANNEXURE A1 : TRUE COPY OF THE COMPLAINT IN CMP NO.1282/2016 ON the FILE OF THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM DATED 7.4.16**
**ANNEXURE A2 : TRUE COPY OF THE CMP NO.2014/2016 IN CMP NO.1282/2016 ON the FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM**
**ANNEXURE A3 : TRUE COPY OF THE ORDER IN CMP NO.2014/2016 ON the FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM DATED 5.7.16**
## **RESPONDENTS EXHIBITS:**
**True Copy / P A to Judge**
## **SUNIL THOMAS, J.**
## =================
## **Crl.R.P.No.1131 of 2016**
=================
Dated this the 6[th] day of March, 2017
## **ORDER**
Revision petitioner assails the order in C.M.P.No.2014 of 2016 in C.M.P.No.1282 of 2016 of Chief Judicial Magistrate Court, Ernakulam, in a proceeding initiated by the revision petitioner.
2. Revision petitioner alleged that respondents 1 to 4 in connivance with the 5[th] accused had made certain disclosures which were allegedly intended to defame him in his capacity as the then Chief Minister of the State. It was alleged that respondents 1 to 4, who are the editors and reporters of various TV channels, had telecast the alleged disclosures of the 5[th] respondent to defame him in the eye of law. Consequently, invoking sections 499 and 120(b) of IPC, complaint was laid on 07.04.2016. On 20.06.2016, Annexure-A2, C.M.P.No.2014 of 2016 was filed. It was claimed in the petition that the case was at the pre-cognizance stage and the petitioner was yet to be examined under section 202 Cr.P.C. The evidence of the witnesses were yet to be recorded. The petitioner was responsibly informed that the 5[th] accused had given the interview in dispute to 6[th] respondent herein, which was consciously crafted and scripted in such a way to permit the 6[th] accused to castigate the petitioner herein. It was stated that it did not fall
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within the ambit of regular interview normally conducted by the Journalist in pursuit of bonafide journalism. Questions were consciously suggested and answers extracted, in such a manner as to touch upon his integrity. Hence, it was requested that the 6[th] and 7[th] respondents herein may be impleaded as the additional accused. It was stated that the 6[th] respondent was the managing director of a channel and 7[th] respondent was the reporter of another channel.
3. The Court below, by the impugned order, held that the above application was not liable to be allowed. It was held that the decision reported in **Sukumar S.R. v. S.Sunaad Raghuram (2015 KHC 4424)** was not applicable to the facts of the case. It was further held that it was not an amendment with respect to the complaint, but it was with respect of impleadment by adding new parties. It was further held that section 319 Cr.P.C was also not applicable.
4. This order is under challenge in the present proceedings. Heard both sides.
5. It is an admitted fact that the summons had not been issued to the accused at that stage. Even though in the CMP it is stated that the statement of the petitioner was not recorded, as on the date of order, petitioner stood examined and was posted for further evidence. Admittedly, the Court had not applied its mind to
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decide whether summons should be issued to the accused. It is pertinent to note that the petitioner herein relied heavily on the decision in **Sukumar S.R.'s case** (supra) though not accepted by the court below, on facts. The Court below, after referring to the above decision, proceeded to consider the question whether the Court had taken cognizance at that point of time. Thereafter, the Court proceeded to consider whether section 319 Cr.P.C was applicable to the facts of the case. It was contended by the learned senior counsel for the petitioner that in fact an argument on section 319 Cr.P.C was not advanced nor was intended to be relied on by the petitioner.
6. It is pertinent to note that the inclusion of two new accused was sought without changing the structure of the complaint and nature of allegations in the complaint. Possibly, the stand taken by the petitioner was that the available materials itself was sufficient as against the additional accused also, sought to be brought on record.
7. Though the court below, relying on **Sukumar S.R.'s case** had considered the question whether petition was liable to be allowed, it seems that the court had missed the actual issue decided by the Supreme Court. In that case, amendment was sought to be made at the precognizance stage before notice was issued. The
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Honourable Supreme Court, considered the question whether the High Court was justified in dismissing the petition challenging the order of the trial court allowing the amendment application. It was held by the Honourable Supreme Court that since cognizance was not taken, no prejudice would be caused to the appellant. It was also held by the Hon'ble Court that if amendment was not allowed, multiple proceedings may arise between the parties. The question of prejudice does not arise at this moment, since even the accused to whom summons was not issued is entitled to object this revision on merits.
8. The Honourable Supreme Court dealt with the essential issue, at paragraph 17 of the above judgment. It was noticed that regarding the amendment, there was no specific provision in the Code, to amend either the complaint or a petition filed under the provisions of the Code. However, Supreme Court proceeded to hold that petitions seeking such amendment to correct the curable infirmities can be allowed, even in respect of complaints. The Honourable Supmre Court placed reliance on the decision in
## **U.P.Pollution Control Board v. Modi Distillery and Ors. (AIR**
**1988 SC 1128),** wherein the name of the company which was wrongly mentioned in the complaint was permitted to be corrected. Relying of the above decision, it was held by the Supreme Court
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that easily curable legal infirmities can be cured by means of formal application of amendment. If amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there was no enabling provision in the Code for entertaining such an amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint is not related either to a curable infirmity or the same cannot be corrected by a formal amendment or if there was likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint. In that case, the Court took note of the fact that the magistrate at that point of time had not applied judicial mind to the contents of the complaint and had not taken cognizance of the matter. Consequently, summons was yet to be issued to the accused and hence, no prejudice could be caused to the accused. Further, amendment did not change the original nature of the complaint being one for defamation. All the above three factors cumulatively are applicable to the facts of this case also. It is to be noted that in the case at hand, no new fact was alleged against the proposed additional respondent. It was also to be noticed that no prejudice have been caused to respondents 6 and
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7 herein since summons had not been ordered on them. Further, had the above accused not been in the party array, a further proceeding against them alone with the junction of 5[th] accused would have resulted in multiplicity of proceedings and given rise to a contention to the 5[th] respondent herein that she has been called to face the trial twice. Further, not proceeding against the respondent 6 and 7 would have given rise to another objection from the remaining accused that they were singled out and others were not proceeded against.
9. Having regard to this, I feel that the decision of the Honourable Supreme Court is squarely applicable to the facts of this case and the court below ought to have allowed the application. I find no reason to sustain the impugned order.
In the result, Crl.M.C is allowed. Impugned order is set aside. C.M.P.No2014/2016 stands allowed. Court below shall now proceed in accordance with law.
Sd/-
**SUNIL THOMAS Judge**
Sbna/3/3/17
True Copy / P A to Judge
