Kerala High Court
Surya T.V vs State Of Kerala on 28 August, 2008
Author: M.C.Hari Rani
Bench: M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1710 of 2004()
1. SURYA T.V., PANICKER'S LANE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. B. RAGHU KUMAR, ADVOCATE,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :SRI.M.RAJASEKHARAN NAYAR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :28/08/2008
O R D E R
M.C. HARI RANI, J.
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CRL.M.C.NO. 1710 of 2004
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Dated this the 28th day of August 2008
ORDER
This petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the 5th accused in C.C.No.490/2004, on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara to quash Annexure-A1 complaint dated 25-3-2004 filed by the second respondent against the petitioner and five other accused and Annexure-A4- summons issued to the petitioner as the 5th accused in the above case. C.C.No.490/2004 arose out of private complaint filed by the second respondent herein alleging commission of an offence under Section 499 punishable under Section 500 I.P.C.
2. The petitioner herein is the General Manager of Surya T.V.,who is entrusted with the general administration of the Surya T.V.,who is shown as the 5th accused in Annexure-A1 complaint filed by the 2nd respondent. It is alleged in this petition CRL.M.C.NO. 1710/2004 -2- that the petitioner has no connection with the production of the programme alleged to be defamatory in Annexure-A1 complaint. The programme "Aniyara" was broadcasted by NTV on 18-1-2004 at 4 p.m. and the same was telecasted through the petitioner. It was independently produced by NTV and the petitioner's role was only to allot a time slot for their telecast on sufficient payment. The relationship of the petitioner with the telecast of the alleged defamatory item was only a contractual one. There is no allegation in the complaint to connect the petitioner herein to the alleged offence. Annexure-A4 notice was issued by the learned Magistrate to the petitioner without considering the facts and due to non-application of mind. Therefore, the complainant/2nd respondent has unnecessarily dragged the petitioner to face the criminal trial in C.C.No.490/2004 and Annexure-A1 complaint as against the petitioner is an abuse of process of the court and is liable to be quashed.
2. The relevant averments in the private complaint, a copy of which is produced as Annexure-A1 wherein paragraphs 5,6,7,8,9 and 13 read as follows:
CRL.M.C.NO. 1710/2004 -3-
"5. On 18th January 2004 at 08 p.m.the fifth accused in its programme styled as "ANIYARA" which is produced by the sixth accused has broadcasted an interview with accused number 1,2 and 3. In that interview the accused numbers 1,2 and 3 with all enmities they have with the complainant have uttered filthy and false statements knowing that such imputation will harm the complainant and with the intention of tarnishing the image and reputation of the complainant among the advocates as well as the society as a whole. So far as an advocate is concerned there cannot be any other statement as defamatory in the words used against the complainant.
6. Accused numbers 1,2 and 3 have expressed in public-in the presence of the audience of the programme Aniyara and lakhs and lakhs of the viewers of the programme have seen it and heard it. The viewers at large include colleagues, relatives, neighbours and the clients of the complainant. The colleagues, clients, relatives and neighbours of the complainant are viewing the complainant with a different view after seeing the programme. Especially the photo of the complainant was shown at the time of broadcast of the said programme. The words used in the programme by accused numbers 1,2 and 3 were "
- . .
CRL.M.C.NO. 1710/2004 -4-
.
7.The abovesaid statement is highly defamatory and has shattered the reputation of the complainant as he is one of the senior Advocate of Neyyattinkara Bar association. The accused numbers 1,2 and 3 have done this with the intention of defaming the complainant can be smelt from the projection of photo itself during the interview.
8. The next day when the complainant came to the court and the Association hall, colleagues of the complainant has shown disrespect towards him and some of them even said " ".
9. The complainant through advocate issued notice to all the accused on 29-1-2004. The fourth accused has sent a reply on 25-2-2004 stating no permission has been sought to shoot the programme and no permission has been granted and no information has been passed. So the fifth and sixth accused has shot the programme without the consent of the official concerned. Moreover the fourth accused has no grievance with the complainant in conducting cases. The accused numbers 1,2 and 3 have no direct knowledge about the cases and they are not councilors at that time. Moreover accused numbers 1, 2 and 3 do not represent Neyyattinkara Municipality. They have no locus standi to express the above said statements against the complainant.
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CRL.M.C.NO. 1710/2004 -5-
13. So the complainant hereby humbly prays that this
honourble court may be pleased to prosecute the accused and punished for the offence committed under Section 499 and 500 of Indian Penal Code and in the interest of justice adequate compensation may also be awarded to the complainant as per Section 357 of Criminal Procedure Code and out of the fine amount that may be imposed against the accused."
3. After considering the sworn statement of the complainant, the learned Magistrate took cognizance of the offence and registered the case as C.C.No.490/2004 and issued process to the petitioner, who is the 5th accused. It is the said cognizance and the consequential proceedings against the 5th accused, which is challenged in this petition.
4. The learned counsel appearing for the petitioner submitted that the programme Aniyara telecasted on 18-1-2004 at 4 p.m. by Surya T.V. was produced by the N.T.V. and it was handed over to the petitioner and telecasted through television channel and after telecast those cassettes were returned immediately to the Producer, NTV as the owner of the cassette. Thus the petitioner is in no way responsible for the alleged CRL.M.C.NO. 1710/2004 -6- defamatory statements mentioned in Annexure-A1 complaint filed by the second respondent herein. Further, Annexure-A1 complaint does not disclose the ingredients of an offence against the petitioner. The learned Magistrate without applying his mind that no offence is disclosed against the petitioner by Annexure-A1 complaint took cognizance of the offence under Section 400 I.P.C. and issued summons against the petitioner.
Section 499 of I.P.C. reads as follows:
"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.
5. In the light of the provisions contained in Section 499 of the Indian Penal Code as above mentioned, the important aspect to be examined is whether Annexure-A1 complaint together with the programme telecasted by the petitioner, prima facie, makes out the offence of defamation against the petitioner. A reading of CRL.M.C.NO. 1710/2004 -7- the averments in the aforementioned paragraphs of Annexure-A1 complaint does not give the impression that it was telecasted by the petitioner with any malevolent motive or desire to cast aspersions on the complainant or to expose him to inflict or to affect his reputation amongst public. In order to attract the offences under Section 499 I.P.C., the offender must intent to harm the reputation of the victim or must do the culpable act with the contumacious knowledge and belief and that such harm would result the reputation of the aggrieved complainant.
6. 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 5th 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 5th accused as an offender under Section 499 I.P.C.,who had no role CRL.M.C.NO. 1710/2004 -8- either in the making or in the telecasting of the programme so as to affect the reputation of the 2nd 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 Section 499 I.P.C., it is essential to plead that the accused was responsible for the selection of the programme, "Aniyara" and its telecast and that the 5th accused has perused and edited that item before its telecast or that it was telecasted with such knowledge or consent to effect the reputation of the 2nd 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 2nd respondent herein so as to attribute the offence of defamation against the CRL.M.C.NO. 1710/2004 -9- petitioner, 5th accused, and that he has done the act with mala fide intention. Therefore, no offence under Section 499 I.P.C. is disclosed against the petitioner and the learned Magistrate has committed wrong in taking cognizance against the petitioner, the 5th accused, based upon Annexure-I complaint and issued summons to the petitioner as per Annexure-A4. Hence, Annexures A1 and A4 are liable to be quashed.
In the result, this petition is allowed and further proceedings pursuant to Annexure-A1 complaint and Annexure- A4 summons in C.C.No.490/2004 pending before the Judicial First Class Magistrate Court-I, Neyyattinkara against the petitioner,5th accused is quashed.
Sd/-
M.C. HARI RANI JUDGE ks.