Kerala High Court
Mammootti vs Rajaji Mathew Thomas on 5 June, 2006
Equivalent citations: 2006(3)KLT335
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. This Criminal Miscellaneous Case is filed by the petitioners, who are accused Nos. 1 and 2 in S.T.No. 2240 of 2004 on the file of the Judicial First Class Magistrate-III, Thrissur to quash a private complaint filed by the first respondent, Sri Rajaji Mathew Thomas.
2. S.T.No. 2240 of 2004 arises from a private complaint filed by the first respondent alleging that the petitioners along with four others committed an offence punishable under Section 499 and 500 of the Indian Penal Code. The complainant/first respondent is a follower of Communist Patty of India and General Secretary of All India Youth Federation; a Youth Wing of C.P.I. He was also stated to be the Vice President of World Youth Federation known as WFDY for a period of 11 years and a person who presented papers in Seminars held in 40 countries. He is working as Executive Member of C.P.I., Thrissur District and also working as a co-ordinator for Kerala Social Forum.
3. Petitioners, who are accused Nos. 1 and 2, are the Chairman and Managing Director respectively of a Company by name Malayalam Communications Limited, which is telecasting a television channel by name Kairali T.V. The third accused is the production executive of the television programme by name "Aswamedham" telecasted by Kairali T.V. 4th accused is the producer of that programme. 5th accused is the host and 6th accused was a participant selected from the audience of the above said programme aired on 10-03-2004.
4. In the Crl.M.C. it is averred that the averments in the complaint do not prima facie constitute an offence against the petitioners and it is an abuse and misuse of the process of court. It is averred that the allegations made in the complaint, even if taken in its face value, do not make out a prima facie case to attract the offence alleged against the petitioners and they have been implicated due to extraneous reasons. It is alleged that there is no allegation in the complaint that either the petitioners or any of the employees of the Malayalam Communications Limited had made any defamatory statement against the complainant. No such allegation is levelled against the 5th accused also. It is averred that in the complaint itself it is admitted that the defamatory statement was made by the 6th accused who was a participant in the programme. The only allegation made against the petitioners is that they knew that the alleged statement made against the complainant was being broad casted and they knew that the complainant was not expelled from the Communist Party for committing financial irregularities. It is also averred that there is no allegation in the complaint to the effect that the petitioners were in any manner directly or indirectly involved in the production of recording of the programme or that they had any role or control over the contents of the programme in which the alleged defamatory statement was made. It is also alleged that the petitioners were arrayed as accused based on their designation alone and there is no averment in the complaint that the petitioners were in charge and responsible for the conduct of the business of the company or that they had any control over the day to day affairs of the company. It is also averred that in the complaint itself it is admitted that the recorded programme was subjected to editing and screening by a number of persons before broadcasting it. There is no allegation that the petitioners were also involved or responsible for the editing and screening of the programme so as to make them liable for the statements made by the participant in the programme. It is also alleged that there is no allegation that the petitioners are involved in the selection of any of the programme for broadcasting in the T. V. channel or that they were in charge and responsible for the day today affairs of the company or that they had any manner of control over the production of the particular programme "Aswamedham". It is also alleged that the petitioners were arrayed as accused only to get undue publicity . Hence this Crl.M.C. to quash to quash the complaint.
5. "Aswamedham" is a television programme telecasted by Kairali T.V. It is telecasted during the prime time in the night. It will be repeated during day time on the next day. 5th accused is the host of the programme. A number of persons will be invited to the studio. From such audience, one person will be selected to participate in the programme. The selected participant from audience will think about a famous personality but will not reveal the identity of such person. The host of the programme will make an attempt to identify the personality by asking a limited number of questions to the participant. The 6th accused was selected from the audience to participate in the programme held on 10-03-2004. On that day, the 5th accused failed to identify the personality thought by the 6th accused. So the 5th accused asked the 6th accused to reveal the identity of the personality whom he had in his mind. The 6th accused revealed the name of the first respondent as the personality in his mind but added that the first respondent was expelled from the Community Party for misappropriation of amounts. According to the complainant, he was a person who had adorned many high posts in the Youth Wing of C.P.I and the accused were fully aware of his political activities. According to the first respondent, he was never expelled from the party and the accused are also fully aware of that fact.
6. The first respondent filed a private complaint against the petitioners and four others alleging that the statement that he was expelled from the Communist Party for misappropriation of amounts was a false statement intended to defame him. It is averred that normally a programme which was telecasted during night will be repeated during day time on the next day. It was averred that because of the objection raised by a lot of viewers, Kairali Channel did not repeat the programme "Aswamedham" on 11-03-2004. In paragraph 4 of the complaint it was averred that the programme "Aswamedham" is not a live telecast. It is a prerecorded programme, which is recorded after sufficient rehearsal. It was also averred that the programme is shown after screening and if it contains any statement which is likely to create disputes, that will be deleted by editing. It was averred that unnecessary incidents and comments will be edited and removed. The programme will be viewed by a number of persons at different levels before telecasting the same. It is further averred that the statement that the complainant was a person who was expelled from the Communist Party for misappropriation of funds was made with malicious intention. It was also alleged that accused Nos. 1 to 5 were fully aware of the fact that the statement was false and that was made with malicious and mala fide intention of defaming the complainant among the ordinary people. It was also alleged that accused Nos. 1 to 5 were fully aware of the fact that the complainant was never expelled from the Communist Party for any misappropriation of amounts. It was further averred that because of the telecasting of such a programme the image of the complainant was lowered in the minds of the common people and the people are seeing him as a person who committed misappropriation of the funds of the Party. It was also averred that because of that statement, various Associations who used to invite him for public functions had stopped inviting him and he is looked down by the ordinary common man. It was also averred that with a mala fide intention of defaming the complainant, accused Nos. 1 to 5 did not delete the statement even though the programme was subjected to scrutiny and editing before the programme was telecasted by the Kairali T.V. It was also averred that the complainant issued a notice to accused demanding withdrawal of the statement, tendering unconditional apology and also compensation. It is averred that though accused Nos. 1 to 5 received the notice, they did not bother to send any reply. Notice sent to the 6th respondent was returned unserved stating that he was out of station. Hence the complaint.
7. The learned Magistrate recorded the sworn statement of the complainant and took cognizance on the complaint. At that point of time, accused 1 and 2 have filed this Criminal Miscellaneous Case to quash the complaint and all further proceedings.
8. The learned Counsel appearing for the petitioners has argued that all the allegations raised in the complaint are against the 6th accused who was a participant in the programme. It is also argued that the alleged defamatory statement was made by the 6th accused and the other accused including the petitioners have no control over the 6th accused. It is also argued that there is no allegation that the petitioners are in charge and responsible for the conduct of the functioning of the Malayalam Communications Limited. They were implicated only because they happened to be the Chairman and Managing Director of the Malayalam Communications Limited, a Company which is a different entity from the Kairali T.V. which telecasted the programme and as such the complaint and all further proceedings against the petitioners are liable to be quashed.
9. The learned Counsel appearing for the first respondent has argued that the petitioners cannot plead ignorance or claim immunity. It is argued that they are also liable for the offences alleged. It is argued that there is specific allegation that the accused had knowledge of the publication of the alleged defamatory statement and they are responsible for such publication. It is argued that the Magistrate had taken cognizance holding that there is prima facie case against the petitioners also. It is argued that in view of the specific allegation levelled against the petitioners this Court shall not quash the complaint invoking powers under Section 482 of the Code of Criminal Procedure. It is also argued that at that stage this Court shall not sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. The learned Counsel for the first respondent relied on a decision reported in Mathew v. Abraham 2002 (3) K.L.T. 282(S.C.) and argued that when allegations are levelled against the accused, the court which is seized of the matter shall be allowed to proceed with the trial.
10. The allegation levelled against the accused in the complaint is that the statement made by the participant in the programme telecasted by the Kairali T.V. a Channel owned by the Malayalam Communications Limited is defamatory. It is admitted by both sides that the Parliament has not made any law to regulate or control the functioning of Television Channels. It is brought to my notice that the Union Government has issued guidelines for up linking of News and current affairs in the T.V. channels from India. It is also pointed out that for telecasting different types of programmes the T.V channels will have to obtain separate licences from the competent authority. But the guidelines issued are of no help to decide the issues arising for consideration in this case. The only enactment made so far is the Cable Television Net Works (Regulation) Act, 1996 which regulates the working of cable operators. The provisions of that enactment are not applicable to T.V. channels.
11. In Secretary, Ministry of I. & B. v. Cricket Association of Bengal a three Judge Bench of the Apex Court has held that though several countries had enacted laws on the subject of broadcasting and telecasting, India has not made any law on the subject and the only enactment relevant in this behalf is the Indian Telegraph Act. The Apex Court has elaborately considered the system of telecasting and it was held as follows:
Telecasting is a system of communication either audio or visual or both. We are concerned in the present case with audio-visual telecommunication. The first stage in telecasting is to generate the audio-visual signals of the events or of the information which is sought to be communicated. When the event to be telecast takes place on the earth, necessarily the signal is generated on the earth by the requisite electronic mechanism such as the audio-visual recorder. This stage may be described as the recording stage. The events may be spontaneous, accidental, natural or organised. The spontaneous, accidental and natural events are by their nature uncontrollable. But the organised events can be controlled by the law of the land.
It was held that telecasting is of three types,- (a) terrestrial, (b) cable and (c) satellite. The Apex Court has also considered whether there is any distinction between the system of print media and electronic media such as Radio and Television. It was held that the electronic media such as Television has a greater impact in the minds of the viewers and is also more readily accessible to all including the children. The Apex Court has also considered the importance and significance of the Television in the modern world. It was held as follows:
The television is unique in the way in which it intrudes into our homes. The combination of picture and voice makes it an irresistibly attractive medium of presentation. Call it idiot box or by any other pejorative name, it has a tremendous appeal and influence over millions of people. Many of them are glued to it for hours on end each day. Television is shaping the food habits, cultural values, social mores and what not of the society in a manner no other medium has done so far. Younger generation is particularly addicted to it. It is a powerful instrument, which can be used for greater good as also for doing immense harm to the society. It depends upon how it is used. With the advance of technology, the number of channels available has grown enormously. National borders have become meaningless. The reach of some of the major net works is international; they are not confined to one country or one region. It is no longer possible for any government to control or manipulate the news, views and information available to its people.
The Supreme Court held that Section 4 of the Telegraph Act is the only Section which deals with granting of licence to Television Channels but that Section has no application. It was also held thus:
The Indian Telegraph Act, 1885 is totally inadequate to govern an important medium like the radio and television, i.e. Broadcasting media. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraphic other provision of the Act is shown to have any relevant to broadcasting media.
Since there is no special enactment governing the field, this case will have to be decided applying the general law applicable to the prosecution for an offence of defamation.
12. The allegation in the complaint is that the statement made by the 6th accused in a programme telecasted by the Kairali T.V. which is owned by the Malayalam Communications Limited is per se defamatory, Kairali T.V is owned by Malayalam Communications Limited which is a Company registered under the provisions of the Companies Act is not disputed. Malayalam Communications Limited own another channel also by name People. The fact that the petitioners are the Chairman and Managing Director of the Company, Malayalam Communications Limited, which owns Kairali T.V is not disputed. No materials to show the constitution and functioning of Kairali Channel or Malayalam Communications Limited is produced. There is nothing on record to show that Kairali T.V is an independent entity and Malayalam Communications Limited have no control over Kairali T.V.
13. The contention raised by the petitioners appears to be simple. According to them, if at all the statement made by the 6th respondent during the course of the programme "Aswamedham" is defamatory, no liability can be fastened on other accused. They have no connection or control over a statement made by a participant in that programme. According to them, that statement was made by the 6th accused and in the absence of an averment to the effect that the petitioners, the host of the programme and employees had instigated or encouraged the 6th accused he alone is responsible. So the complaint and all further proceedings against the petitioners are to be quashed.
14. Section 499 of the Indian Penal Code deals with defamation. The essence of the offence of defamation is the intention to harm the reputation and it necessarily requires the publicity to be given to the imputation. The essence of the offence of defamation under Section 499 IPC is that the imputation must have been made either with the intention of causing harm or knowing or having reason to believe that such imputation would cause harm to a person. Section 499 I.P.C 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............
Explanation 2.- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanations............
Explanation4.........
A reading of Explanation 2 to Section 499 I.P.C. makes it clear that the defamatory statements can be made against a company or class of persons also. But the explanation only explains that a company or an association or collection of persons may maintain an action for defamation. There is no reference as to what is the position when the allegation is that defamatory statement is made by a company or association or collection of persons. The word "Company" is not defined in the Indian Penal Code, But in view of the definition given to the word "person" in Section 11 of the Indian Penal Code, a company will also come within such a definition. Section 11 of the Indian Penal Code states that the word "person" includes any Company or Association or body of persons, whether incorporated or not. In Reg v. Birmingham and Gloucester Railway Company (3 QB 223) it was held that an incorporated company might be indicated for nonfeasance. In Reg v. Great North of England Railway Company (9 QB 315) it was held that an incorporated company could be indicted for misfeasance. In Pharmaceutical Society v. London and Provincial Supply Association (4 QBD 310) it was held that the word "person" used in Section 1 of the Pharmacy Act will include a juridical person also. If a juridical person can maintain an action, such an action can be maintained against a juridical person also. So though it is not specifically provided in Section 499 IPC that a Company can also be prosecuted for committing an offence of defamation in view of the second explanation, the Company or association of persons can also be prosecuted for committing an offence of defamation.
15. The next question arising for consideration is when a Company makes a defamatory statement who are all answerable. The word "Company is not defined in the Criminal Procedure Code. The Criminal Procedure Code does not contain specific procedure to be followed in prosecuting the offence against Companies. Section 63 of the Code of Criminal Procedure provides that service of a summons on a Corporation may be effected by serving it on the Secretary, Local Manager or other principal officers of the Corporation. Explanation to 63 provides that Corporation means an incorporated Company or other body Corporation and includes a Society registered under the provisions of the Societies Registration Act. It is trite law that when a juridical person is arraigned as an accused, it must be represented by a human being.
16. A company is owned by the share-holders. The share holders appoint a Board of Directors to manage the affairs of the Company. The Board of Directors are responsible for managing the affairs of the Company and not the share holders. When a Company is alleged to have made a defamatory statement, the Company and all the Directors or the Board of Directors are equally liable. In such cases, it is not necessary to allege that the accused is in charge and responsible for the conduct of the business of the Company.
17. The learned Counsel appearing for the petitioners has argued that there is no allegation that the accused 1 to 5 are in charge of and responsible to the Company for the conduct of the business of the company at the relevant point of time and as such the petitioners are not liable for the offence. It is true that to prosecute a Director of a Company for the offences under certain special enactments like Prevention of Food Adulteration Act, Negotiable Instruments Act, Copy Right Act etc. it must be shown that he is in charge of and responsible to the company for the conduct of the business of the Company. It is to be noted that in those enactments there are special provisions dealing with offences by Companies. In the Indian Penal Code, there is no special provision dealing with offences by Companies similar to the provisions contained in the Prevention of Food Adulteration Act, Negotiable Instruments Act etc. If a defamatory statement is published in news paper owned by a Company, there could be a presumption that the editor is responsible for selecting that matter for publication. In Mathew's case (supra) it was held that if there is an allegation in the complaint that the Chief Editor, Resident Editor or Managing Editor had knowledge and they were also responsible for the publication, they are also liable in addition to the editor. In the absence of any statutory provision, it is not possible to limit the liability on the Directors who are in charge of and responsible to the Company for the conduct of the business so far as it relates to the prosecution for publication of defamatory statement by a Company telecasting television programmes. Hence I reject the contention of the petitioners that in the absence of an averment in the complaint to the effect that the petitioners are in charge or and responsible to the company for the conduct of its business, the complaint is liable to be quashed.
18. The learned Counsel appearing for the petitioners has argued that in view of . the facts and circumstances of the case the complaint as against the petitioners may be quashed. The television has tremendous influence over the people. When a television kept in a house is switched on all the members of the house, whether they like it or not will be compelled to see or at least hear the programme: If a person makes any defamatory statement, the damage such a statement can cause is manifold than that a print media can make by publishing the very same statement. The Kairali channel is a multi purpose channel which is telecasting news, films, serials etc. There are a number of television channels and there is stiff competition among these channels. Some of the channels are telecasting programmes regarding criminal cases in which investigation is going on, send greetings and permit viewers to send messages to friends, relatives etc. There is every possibility that a person with a mala fide intention of ruining the life of another person may make deliberate false statement in the pretext of sending message or greeting. Such statement will cause irreparable damage to the victim. Members of his family, relatives and friends will see the defamatory statement or hear the same. The impact such a statement can make is tremendous. So it is only just and proper that the Company and its Board of Directors who are telecasting the Television Channel are made liable so that the victim may get atleast exemplary damages from the company and also from the Directors who control the Company which owns the channel.
19. According to the complainant, the programme Aswamedham is a prerecorded programme and it is not a live telecast. It is also alleged that the programme is subjected to editing and scrutiny and it is being viewed at different stages by different persons. It is also alleged that the petitioners were aware of the statement made by the 6th accused and with the intent to defame the complainant among the people, the petitioners and other accused telecasted such a programme. It is also alleged that the programme which was telecasted at 10.00 p.m. on 10-03-2004 ought to have been repeated on the next day during day time, but due to the protest raised by various viewers, the programme was not repeated. It is also averred that the complainant caused to send a notice to all the accused claiming damages and an unconditional apology. The petitioners reqeived the notice, but they did not send any reply. Since it is admitted by the petitioners that they are the Chairman and Managing Director of the Company by name, Malayalam Communications Limited, which owns the Kairali T.V. Channel, prima facie they are also responsible for telecasting the statement made by the 6th accused. The first respondent could have arrayed the Company also as accused. But the Company is not arraigned as an accused. The petitioners, who are the Chairman and Managing Director along with the Production Executive, Producer, the host of the programme and also the person who participated in the programme are made accused. I have gone through the averments in the complaint. It is not possible to hold that the averments in the complaint do not make out any offence. The petitioners have no case that the first respondent was expelled from the Communist Party of India. It is admitted by both sides that the first respondent contested in the last general election as a candidate sponsored by CPI and he was declared elected. There is allegation that the defamatory statement was made with the knowledge and consent of the petitioners and hence they are also liable. So I do not find any ground to quash the complaint. It is open to the petitioners to prove that they are not responsible for telecasting the statement during trial.
In the result, the Criminal Miscellaneous Case is dismissed. It is made clear that the dismissal of this Crl.M.C. will not be a bar for the petitioners to raise all the contentions available to them at the appropriate stage. Crl.M.A.No. 7428 of 2004 shall also stand dismissed.