Rajeev Chandrasekhar v. Anayara Shaji and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 CRL.MC NO. 9019 OF 2019 [TO QUASH ANNEXURE-1 COMPLAINT NUMBERED AS CC 18/2018 PENDING BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT,PATHANAMTHITTA] ## PETITIONER/ACCUSED: RAJEEV CHANDRASEKHAR,AGED 55 YEARS S/O AIR COMMODORE. M.K. CHANDRASEKHAR, RESIDING AT NO. 408, 2ND CROSS, 3RD BLOCK, KORAMANGALA, BANGALORE - 560 034. BY ADVS. SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE SHRI.ABI BENNY AREECKAL ## RESPONDENTS/COMPLAINANT & STATE: 1 ANAYARA SHAJI,AGED 55 YEARS S/O BALAKRISHNAN, RITHU, T.C. 14/2056(4), VENNPAALAVATTOM, ANAYARA P.O., THIRUVANANTHAPURAM - 695 029. 2 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGHCOURT OF KERALA, ERNAKULAM, COCHIN - 682 031. ## OTHER PRESENT: R2 BY PP-SRI.ARAVIND V. MATHEW THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC No.9019 of 2019 2 ## O R D E R The petitioner is the 3[rd] accused in C.C.No.18/2018 on the file of the Judicial First Class Magistrate Court, Pathanamathitta which was instituted on the basis of a complaint submitted by the 1[st] respondent for the offences punishable under Section 500 r/w. Section 34 of the Indian Penal Code (IPC). 2. The basic allegation in Annexure-1 private complaint is relating to certain defamatory statements alleged to have been made by the 1[st] accused, the editor and anchor of Asianet News,a Malayalam T.V. news channel, against certain Advocates who are the members of Thiruvananthapuram Bar Association. The 1[st] respondent herein is a lawyer practicing at Thiruvananthapuram and also the Secretary of Thiruvananthapuram Bar Association. It was alleged in Annexure-1 complaint that, the Crl.MC No.9019 of 2019 3 statements made by the 1[st] accused during the News Hour programme at 9 a.m. on 15.10.2016, to the effect that, the lawyers have committed atrocities inside the court room and the 1[st] respondent herein has acted like a goonda etc are defamatory in nature. It was also averred in the said complaint that, the aforesaid statements are incorrect and were made by the 1[st] accused with the intention to defame the lawyer fraternity and also the 1[st] respondent herein. 3. The case of the petitioner is that he was arraigned as one of the accused persons under the impression that, he was the Chairman and Managing Director of Asianet News channel. But, by relying upon Annexures II and III documents, it is pointed out that he resigned from the Directorship of M/s Asianet News Network Private Ltd, with effect from 4.11.2013 Crl.MC No.9019 of 2019 4 and as on the date of airing the news item which is the subject matter of Annexure-I complaint, he was not a Director. It is also his case that, Annexure-I complaint do not contain any specific allegations indicating that the petitioner herein had any role in selection of news item and had any control over the discussion during which the aforesaid defamatory statements were alleged to have been made. In such circumstances, the petitioner is seeking to invoke inherent powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC) to quash all proceedings against him pursuant to Annexure-I. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor for the 2[nd] respondent. Even though notice was served to the 1[st] respondent, there is no appearance for him. Crl.MC No.9019 of 2019 5 5. The first contention of the learned counsel for the petitioner is that as on the date of occurrence of the alleged crime, the petitioner was not the Director of the Company. In support of the said contention, Annexure-II which is a Form 20B under Section 159 of the Companies Act, 1956 wherein the details of the status of the Directors of M/s Asianet Network Private Limited which is the Company managing the news channel are mentioned. On going through the said document, which is a public document, it is evident that he was a Director of the said Company for the period from 29.9.2008 till 4.11.2013. Annexure-III is Form 32 issued pursuant to Section 303(2), 264(2) or 266(1)(a) and 266(1)(b)(iii) of the Companies Act, 1956 which is a document containing the particulars of appointment of Managing Director, Directors, Manager and Secretary. In the aforesaid document Crl.MC No.9019 of 2019 6 also, it is shown that, the petitioner herein had resigned from the Board of Directors with effect from 4.11.2013. As per Annexure-I complaint, the programme which allegedly contained defamatory statement against the 1[st] respondent was aired on 15.10.2016. Going by the aforesaid documents, it is evident that as on the date of occurrence of the offence, the petitioner was not holding any official position so as to control the affairs of the said Company. 6. Another contention put forward by the learned counsel for the petitioner is that even if it is assumed for argument sake that the petitioner was the Chairman and Managing Director of the Company, which is running the news channel, no offence under Sections 499 and 500 of the IPC would get attracted even going through the averments contained in Annexure-I Crl.MC No.9019 of 2019 7 complaint. It is pointed out by the learned counsel for the petitioner that, in order to attract an offence under Section 499 of IPC, there must be specific allegation in the complaint that the accused who is allegedly holding the charge of Chairman and Managing Director, was responsible for selection of the news item. In this case, Annexure-1 complaint does not contain any such allegation. In support of the said contention, the learned counsel relies on the judgment rendered by this Court in M.M.Hassan v. State of Kerala [(2016)SCC Online Ker.16925]. In the said judgment, a learned Single Judge of this Court has considered the said question in similar circumstances in respect of another news channel. The defamatory statements alleged therein, were in respect of a programme aired in a T.V.channel and the Managing Director of the Company which was Crl.MC No.9019 of 2019 8 running the news channel was sought to be implicated for the offence under Section 499 of IPC. In the said case, after referring to a number of decisions rendered by the Hon’ble Supreme Court, it was concluded that, in the absence of any specific allegations as to the role of the accused in selecting the news item, the charges under Section 499 of IPC would not get attracted. In paragraph 12 of the said judgment, it is observed as follows: _“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 against him for offence punishable under Section 500 of the IPC.”_ Crl.MC No.9019 of 2019 9 7. In K.M. Mathew v. State of Kerala [AIR 1990 SC 2206], the aforesaid legal principle has been clearly clarified by the Hon’ble Supreme Court. It was held therein that, in the absence of any specific averment in the complaint to the effect that the Managing Director is responsible for selecting the news item, he cannot be roped in as an accused in a proceeding under Section 499 of the IPC. The aforesaid view was taken in Dasari Narayana Rao v. R.D.Bhagvandas [1986 Cri.LJ 888] and Prabhu Chawla v. A.U.Sheriff [1995 Cri.LJ 1922] as well . 8. In the light of the above judicial precedents, the petitioner is entitled for the relief sought for in this Crl.M.C. This is because, a reading of Annexure-1 complaint would clearly reveal that the entire allegations made therein were with respect to the 1[st] accused. No where in the said complaint, the role of the Crl.MC No.9019 of 2019 10 petitioner herein is mentioned. As held in the aforesaid judgments, there is no concept of vicarious liability in a criminal proceedings unless the statute specifically contemplates for the same. As far as the Indian Penal Code is concerned, there is no provision which contemplates vicarious liability and hence in the absence of any specific pleading as to the role of the petitioner, no offence under Section 499 of the IPC can be alleged against him. Moreover, as I have already observed above, Annexures II and III would clearly indicate that the petitioner was not the Director of the Company which is running the news channel as on the date of occurrence of the offence. It is seen from Annexure-I complaint that he was arraigned as one of the accused in his capacity as the Chairman and Managing Director of the Crl.MC No.9019 of 2019 11 Company and in fact he was not holding the said position as on the date of the offence. 9. In such circumstances, considering the entire materials available on record, I am of the view that, no proceedings against the petitioner herein are warranted pursuant to Annexure-I complaint as no offence against him is made out. Accordingly, this Crl.M.C is allowed and all the proceedings in C.C.No.18/2018 on the file of the Chief Judicial Magistrate Court, Pathanamthitta, as against the petitioner herein alone is quashed. The proceedings can, however, be continued against the other accused persons. Sd/- ZIYAD RAHMAN A.A JUDGE pkk Crl.MC No.9019 of 2019 12 ## PETITIONER’S ANNEXURES: ANNEXURE-1 : CERTIFIED COPY OF THE COMPLAINT C.C.NO.18 OF 2018 PENDING BEFORE THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA ANNEXURE-II : TRUE COPY OF THE ANNUAL RETURN FILED BY ASIANET NEWS NETWORK PRIVATE LIMITED IN FORM 20 WITH THE MINISTRY OF CORPORATE AFFAIRS. ANNEXURE-III : TRUE COPY OF THE FORM 32 FILED BY ASIANET NEWS NETWORK PRIVATE LIMITED WITH THE MINISTRY OF CORPORATE AFFAIRS, INTIMATING THE MINISTRY OF CORPORATE AFFAIRS ABOUT THE RESIGNATION OF THE PETITIONER AS DIRECTOR OF ASIANET NEWS NETWORK PRIVATE LIMITED. ANNEXURE-IV : TRUE COPY OF THE PROCEEDINGS (DAILY STATUS) OF THE C.C. PENDING BEFORE THE CJM, PATHANAMTHITTA OBTAINED FROM E-COURTS WEBSITE. //TRUE COPY// SD/- P.S. TO JUDGE