Surya T V v. Thyagarajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936** **Crl.MC.No. 4655 of 2013 () ---------------------------** **CC 300/2011 of J.M.F.C.-I, KOTTARAKKARA.** ## **PETITIONER(S)/3RD ACCUSED:-:** **-----------------------------** **SURYA T V,** **HEAVENLY PLAZA, VAZHAKKALA, ERNAKULAM KOCHI - 21, REPRESENTED BY KOSHY THOMAS GENERAL MANAGER (ADMINISTRATION AND OPERATIONS).** **BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN** ## **RESPONDENT(S)/COMPLAINANT AND STATE:-:** **---------------------------------------** **1. THYAGARAJAN, S/O.GOPALAN, DEEPTHY, KADAIKODE P.O. KAREEPRA, KOTTARAKARA-691018.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS BY PUBLIC PROSECUTOR ADV.SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 4655 of 2013 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------** **ANNEXURE A1. TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT NOW NUMBERED AS C.C.NO.300/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA.** **RESPONDENT(S)' EXHIBITS** **-------------------------** **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.M.C.No.4655 of 2013 ------------------------------Dated this the 14[th] day of July, 2014.** ## **O R D E R** The petitioner, who is the 3[rd] accused in C.C.No.300/11 on the file of the court of Judicial First Class Magistrate-I, Kottarakara, approached this Court under section 482 of Cr.P.C. with a prayer to quash Annexure-A1 complaint filed against the petitioner in the above calendar case. 2. Annexure-A1 complaint is filed at the instance of 1[st] respondent herein alleging offences punishable under sections 499 and 500 IPC against the accused 4 in numbers including the petitioner herein, which is the 3[rd] accused. I have gone through Annexure-A1 complaint. The complainant therein, at the time of the alleged incident was the President of Kareepra Grama panchayat. The allegation is that, accused nos.1 and 2, by furnishing false **Crl.M.C.No.4655 of 2013** 2 information, had influenced accused nos.3 and 4, the Managing Directors of different T.V. Channels, and thereby they published defamatory news against the complainant which adversely affected the reputation of the complainant. According to the complainant, the news was telecasted in the Surya T.V. on 29.7.2010 at 6 p.m., 10.30 p.m. and thereafter at 7 a.m., 1 p.m., 6 p.m. and at 10.30 p.m. on 30.4.2010, on the basis of the false information furnished by A1 and A2, and it was published without conducting any enquiry. In paragraph 3 of the complaint, the defamatory statement, which according to the complainant was sufficient to adversely affect his reputation among the public, has been extracted and quoted by him. So, according to the complainant, the said act of the accused, including the petitioner herein which is the 3[rd] accused therein, lowered the reputation of the de facto complainant among general public who honoured and loved him. Thus, according to the complainant, the accused has committed the offences **Crl.M.C.No.4655 of 2013** 3 punishable under sections 499 and 500 of IPC. On receiving the complaint, C.C.No.300/11 has been instituted in the trial court and on receiving the summons, the petitioner herein appeared in the said court. Thereafter, moved the present application to quash Annexure-A1 complaint. 3. Heard Adv.Sri.Nagaraj Narayanan, the learned counsel appearing for the petitioner and Adv.Sri.M.K.Chandramohan Das, the learned counsel appearing for the 1[st] respondent/complainant. 4. The learned counsel for the petitioner vehemently submitted that Annexure-A1 complaint does not disclose the ingredients of Sections 499 and 500 of IPC, since there is no specific allegation or positive averment of mala fide intention on the part of the petitioner. It is contended by the learned counsel that, in order to attract Section 499 IPC, there must be specific allegation to the effect that the alleged imputation has harmed the reputation of the complainant and the accused had an intention to hurt the **Crl.M.C.No.4655 of 2013** 4 feelingness of the complainant. It is also the contention of the learned counsel that the General Manager (Operations and Administrations), who is the Administrative head of Surya T.V., is not responsible for the selection of news items telecasted and for telecasting the news items, since the news desk and news bureau of Surya T.V. are functionally independent and autonomous to select news items and news bureau consisting of Chief Editor and other editors select news items and telecast of the same is not interfered with Surya T.V. administration for preserving freedom of press and press autonomy. So, according to the learned counsel, in the light of the decision of this Court reported in **V.S.Achuthanandan v. Kamalamma (2008(3) KLT 346)** , Annexure-A1 complaint and all proceedings therein are liable to be quashed. 5. On the other hand, Adv.Sri.Chandramohan Das, the learned counsel for the 1[st] respondent has vehemently submitted that on going by Annexure-A1 complaint, it can be **Crl.M.C.No.4655 of 2013** 5 seen that necessary factual averments are put forward in the complaint which are sufficient to constitute the offences punishable under sections 499 and 500 IPC against the petitioner herein. It is also contended by the learned counsel that the complainant is not aware as to who are responsible for the selection and publication of news items and as to the defamatory statement published by Surya channel. The Managing Director of the company, namely Surya T.V., is responsible for the act of its employees and the company, and therefore the M.D. is the competent person to implead as the accused. To support the above submission, the learned counsel has placed reliance upon a decision reported in **Mammootti and another Vs. Rajaji Mathew Thomas and another (2006(2) ILR Kerala Series, page 707)** . It is the further contention of the learned counsel that the proceedings in the court below have just been started only and this Court will not be justified in interfering with the proceedings of the court below by exercising the inherent **Crl.M.C.No.4655 of 2013** 6 jurisdiction at the threshold of the proceedings, since it is for the trial court to come into a conclusion whether the offence under sections 499 and 500 IPC are disclosed or not, on the basis of the evidence yet to be adduced during the trial. 6. I have carefully considered the rival contentions advanced by the learned counsel for the petitioner as well as the contesting respondent. The offences alleged in AnnexureA1 complaint are under sections 499 and 500 IPC against the accused, who are 4 in numbers, including the petitioner herein which is the 3[rd] accused. In Annexure-A1 complaint, the 3[rd] accused is shown as “Managing Director, Surya T.V., Sasthamangalam, Thiruvananthapuram.” No details of the corporate address of the company is given in the complaint. It is beyond dispute that Surya T.V. is run by a company and normally a company is always represented by a person who is authorised by the Director Board of the company through a special resolution or under the provisions of the Article of Association. Anyhow, a juristic person like a company can be **Crl.M.C.No.4655 of 2013** 7 represented only through a living person. But in the present case, the name of such a real person if any, who is representing the company, is not mentioned. As rightly pointed out by the learned counsel for the respondent, finally if it is found that, the company is responsible and convicted, a juristic person can be sentenced with fine only. Even then, according to me, in proper proceedings, such person shall be represented by a real person. In the present case, as I indicated earlier, even the corporate address of the 3[rd] accused was not mentioned in the complaint and as such, it cannot be said that the 3[rd] accused shown in the complaint, is a juristic person or a real person. 7. As I indicated earlier, the counsel for the petitioner, after having taken me through Annexure-A1 complaint, contended that there is no specific averment or allegation against the 3[rd] accused to attract either Section 499 or Section 500 of IPC. Having regard to the legal position involved in the present case, according to me, this Court **Crl.M.C.No.4655 of 2013** 8 need not go into those aspects. The offences alleged in the complaint against the accused, including the petitioner herein, are for the offences punishable under sections 499 and 500 IPC. The complainant has no case that the petitioner/3[rd] accused, in Annexure-A1 complaint, has committed any statutory offence. So, essentially when the offences alleged against the accused are under sections 499 and 500 IPC, it is upto the complainant to specifically plead the necessary ingredients of section 499 and section 500 IPC. Section 499 of IPC reads as follows : “499.Defamation.-- 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 cases hereinafter expected, to defame that person. Explanation 1.-- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.-- It may amount to defamation to **Crl.M.C.No.4655 of 2013** 9 make an imputation concerning a company or an association or collection of persons as such. Explanation 3.-- An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.-- No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome slate, or in a state generally considered as disgraceful.” In the present case, even according to the complainant, the 3[rd] accused who is the petitioner herein is a juristic person. In the decision reported in **South Indian Bank Ltd., Thrissur and others Vs. Paul Vareed Cheruvathoor and another (2013(4) KHC 742)** , a learned Judge of this Court has held that, “10. Further, for the purpose of attracting the offence under Section 499 of the Indian Penal Code, mens rea is an ingredient to be proved. No offence of defamation will lie if there is no mens rea established. Admittedly, the first accused is a bank, registered under the provisions of the Indian Companies Act and it is only a juristic person and not a real person. So, in **Crl.M.C.No.4655 of 2013** 10 such cases, mens rea cannot be attributed to a juristic person. If mens rea cannot be attributed to such person, then, no offence under Section 500 of the Indian Penal Code can be attracted against such persons. In the case of statutory offences, a company can be made liable for the offence alleged under that Statute, where mens rea is not an ingredient to be proved. Where in a Statute, it was specifically mentioned that a company can also be implicated as an accused under certain circumstances, then a company can be proceeded against for such offences under that Statute as mens rea is irrelevant in such statutory offences committed by the company. This was so held in the decisions reported in Anath Bandhu v. Corporatin of Calcutta, AIR 1952 Cal.759, B.N.Mehrotra and Others V. State, AIR 1956 Cal.137, Sunilakhya Chowdhury v. H.M.Jadwet and another, AIR 1968 Cal.266 and Standard Chartered Bank v. Vinay Kumar Sood and Others, 2010 KHC 7231. In the decision reported in R.Kalyani v.Janak Mehta and Others, 2009KHC 4064, in paragraphs 33 an 34 of the judgment, it has been discussed as follows : “In Sham Sunder v. State of Haryana, 1989(4) SCC 630, this Court held : “9. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the Statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.” 34. Yet again, in Radhey Shyam Khemka v. State of Bihar, 1993(3) SCC 54, the law has been laid down by this Court, thus : “6. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the shareholders which constitute one **Crl.M.C.No.4655 of 2013** 11 offence or other under the Penal Code, Court must be satisfied that prima facie and offence under the Penal Code has been disclosed on the materials produced before the Court. If the screening on this question is not done properly at the stage of initiation of the criminal proceedings, in many cases, some disgruntled shareholders may launch prosecutions against the promoters, Directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code, the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions, which constitute the different ingredients of the offences under the Penal Code. It cannot be overlooked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and Statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient ; the concerned Statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But, for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed.” So, under such circumstances, it cannot be said that the first accused bank committed any offence even if the allegations mentioned in the complaint are admitted to be true and amounts to defamation.” (emphasis supplied). In the light of the above decision it can be seen that, since the petitioner herein, which is the 3[rd] accused in Annexure **Crl.M.C.No.4655 of 2013** 12 A1 complaint, is a juristic person, in the absence of any special statute and provisions, no intention can be attributed against the juristic person. Therefore, no complaint would lie against the 3[rd] accused, the petitioner herein. 8. Similarly, in another decision reported in **Surya T.V.** **Vs. State of Kerala and another (2008(4) KHC 290)** , another learned Judge of this Court has held that, “I have gone through Annexure A1 complaint as a whole. On going through the entire averments in the complaint, I find nothing to implicate the petitioner herein, who is the 5[th] accused, Surya T.V. to make it responsible either for making the programme “Aniyara” or in telecasting the same through the said T.V. programme. If only the 5th accused had a role in making or publishing of the programme, the said accused can be prosecuted for the offence. Even on the basis of the averments in the complaint, there are no allegations whatsoever to make the 5[th] accused as an offender under S.499 IPC, who had no role either in the making or in the telecasting of the programme so as to affect the reputation of the 2[nd] accused in this petition. Thus, the mere telecasting of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, notwithstanding that such imputation will harm the reputation of the person concerned. Further for attracting the ingredients of S.499 IPC, it is essential to plead that the accused was responsible for the selection of the programme, “Aniyara” and its telecast and that the 5[th] accused has perused and edited that item before its telecast or that it was telecasted with such knowledge or consent to effect **Crl.M.C.No.4655 of 2013** 13 the reputation of the 2[nd] respondent herein. It is not averred in Annexure A1 complaint whether the General Manager or the Managing Director of Surya T.V. had selected the said item for telecast or that it was telecasted with their knowledge or consent or that they have perused or edited it with the intention to defame the 5th respondent. There are no specific pleading and averments in Annexure A1 complaint filed by the 2[nd] respondent herein so as to attribute the offence of defamation against the petitioner, 5th accused, and that he has done the act with mala fide intention. Therefore, no offence under S.499 IPC is disclosed against the petitioner and the learned Magistrate has committed wrong in taking cognizance against the petitioner, the 5[th] accused, based upon Annexure I complaint and issued summons to the petitioner as per Annexure A4. Hence, Annexuers A1 and A4 are liable to be quashed.” (emphasis supplied). In the present case also, there is no specific averment or allegation that the Managing Director of Surya T.V. is responsible for selecting the news and publishing the same. In fact, no specific role is attributed on the 3[rd] accused in the alleged commission of the offences. 9. When the complainant admits that the petitioner herein, which is the 3[rd] accused, is a juristic person, in the absence of any specific statutory offences, no offence would lie against the petitioner herein. In this case it is relevant to note that, as I indicated earlier, the petitioner herein is **Crl.M.C.No.4655 of 2013** 14 though shown as the 3[rd] accused, the same is not represented by any living or real person. In view of the decision reported in 2013(4) KHC 742, mens rea cannot be attributed to a juristic person and therefore no offence of defamation would lie against the petitioner herein which is the 3[rd] accused and a juristic person. If that be so, there is no meaning, rather it is quite unjust and improper, in permitting the court to continue the proceedings against the petitioner and it is for this Court to invoke section 482 Cr.P.C. and to quash the proceedings against the petitioner and thereby to render justice. In the result, this M.C. is allowed, quashing AnnexureA1 complaint to the extent it is against the petitioner and it is made clear that, all further proceedings are hereby quashed against the petitioner alone. As requested by the learned counsel for the 1[st] respondent, it is made clear that what all observations that are made herein, are only for the purpose of disposing this Crl.M.C. and that too, with respect to the ## **Crl.M.C.No.4655 of 2013** **==> picture [13 x 9] intentionally omitted <==** petitioner herein, who is the 3[rd] accused in the complaint and not against the other accused. Accordingly, the above Crl.M.C. stands allowed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge