Kerala High Court
V.S. Achuthanandan vs G. Kamalamma on 22 April, 2008
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4159 of 2003()
1. V.S. ACHUTHANANDAN, CHIEF EDITOR,
... Petitioner
Vs
1. G. KAMALAMMA, D/O. GOWRIKUTTY AMMA,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.BALACHANDRAN (MANGALATH)
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :22/04/2008
O R D E R
V.K.MOHANAN,J. (C.R)
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CRL.M.C.NOS.4159/2003, 5631/2003
&
755 OF 2004
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Dated, 22nd April, 2008.
ORDER
The above three Crl.M.Cs are filed by different accused in C.C.No.675/2007 pending before the Additional Chief Judicial Magistrate, Thiruvananthapuram. Crl.M.C.No.4159/2003 is preferred by the Ist accused in the above case and Crl.M.C.No.5631/2003 is preferred by the 3rd accused whereas Crl.M.C.No.755/2004 is filed by the 2nd accused in the same case. Since these Crl.M.Cs are arising out of the same case, all the petitioners are accused in the very same case and factual background and arguments are more or less same, these Crl.M.Cs are heard together and being disposed of by this common order.
2. As stated earlier, the petitioners herein are accused in C.C.No.675/2007 which is a case instituted upon a private complaint for the offence punishable under section 500 read with section 34 of I.P.C. The above private complaint is preferred by one G.Kamalamma who is the Ist respondent in these Crl.M.Cs. The allegations in the complaint can be summarized as follows:
CRL.M.C. 4159/03 & CO.Cases.
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The Ist accused is the Chief Editor of the Malayalam Daily Newspaper `Desabhimani', Trivandrum, printed and published at Trivandrum. Accused No.2 is the Editor of the Trivandrum edition of the said newspaper and accused No.3 is the printer and publisher. One Miss Sudhi Chandran is the granddaughter of the complainant. She lost her parents in her infancy and therefrom she has been brought up by the complainant and her daughter Sujatha and her son in law, one K.Reghunath. According to the complainant, the said Sudhi Chandran is still living under the care and protection of the complainant. It is well known to the public at large that the complainant is the guardian of Sudhi Chandran. Sudhi Chandran has been undergoing treatment for mental illness for the last more than 7 years and she is an inpatient of the Government Mental hospital, Peroorkada. On 23-11-1999, Dr.S.Balaraman, Member, Human Rights Commission (Kerala State) visited the said Government hospital. This visit was given due coverage by the press which include reports and photographs from various newspapers and other media. On the 24-11- 1999 issue of the said Malayalam Daily, Desabhimani, a news item was carried on its front page with a caption:
'" "''
CRL.M.C. 4159/03 & CO.Cases.
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The news item ran which included "5 x 5" photograph of Sudhi
Chandran and the alleged news item has been incorporated in the
complaint which runs :
" .
.
. '
.
. .
.
.
.
. .
.
.
.
. . -
...................
.
. 11 .
........."
(emphasis supplied)
A true translation of the text of the alleged defamatory article including the above passage which reads as follows:
CRL.M.C. 4159/03 & CO.Cases.
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"I am not having any illness. I have been brought by force. I am forced to stay here. I will live in whatever manner, if I am given a job". Many onlookers experienced tears, when 24 year old Sudhi Chandran broke down. This incident occurred in front of Dr.Balram, Member, Kerala State Human Rights Commission when he was on a visit to Mental Health Hospital, Trivandrum .
Sudhi was admitted in the hospital 2 weeks back. According to Sudhi, her grandmother brought her to the hospital by force. Sudhi belongs to Valavuncode, Trivandrum. Her father passed away when she was three years. Her mother married someone else. Thereafter, she was staying with her uncle, aunt and grandmother. Sudhi further stated that two weeks back her grandmother took her in the car on the pretext that a sacred ceremony of tying the thread by chanting verses for obtaining security was to be conducted. But instead she was brought to the Mental Health Hospital.
Sudhi further stated that she passed S.S.L.C. with distinction. Even though she joined the Pre- degree she could not write the examination. She has passed Typewriting (Lower) . She also studied Lab Technician course. However, she has not written the exams of this course. Sudhi rang up her grandmother through a cell phone belonging to the correspondents who had come to report the visit by the Human Rights Commission Member. She told her grandmother "I am not having any illness. If I stay here further, I will get unwell. Come and take me away quickly".
There are about 20 persons who are unable to go to their homes despite the fact that they have recovered from their illness. Eleven of these persons are accused in different cases. As far as others are concerned, none of their relatives have come to pick CRL.M.C. 4159/03 & CO.Cases.
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them up, despite the fact that their problems are well over. Raghuraman belonging to Vattappara, Thiruvananthapuram and Ninan of Thiruvalla were accused in a murder case. They were brought here following a mental health breakdown. Raghuraman was acquitted by the court in the year 1995. Ninan's case was also over in 1997. Both of them recovered from their illness. In this regard, the doctor has issued certificates. But it required orders from the state Government releasing such persons who were having mental health problems while they were arrayed as accused in a case. Even though the State Government was approved by the Hospital Authorities no action in this regard was taken. Eleven persons including Ninan and Raghuraman are residing at the Hospital waiting for issuance of such orders.
Five persons belonging to the ladies' ward are still languishing there despite the fact that they have recovered from their illness. Since no one from their homes have come to collect them. Dr.Jayaram, Hospital Superintendent has stated that under such circumstances, there has been instances that the Hospital authorities themselves take these persons to their homes. Because of this practice the number of those persons whose relatives do not come to collect them up are less in the Hospital.
Dr.Balaram, Member, Human Rights Commission informed the correspondents that the Commission will seriously consider the case of these eleven inmates who are still languishing in the hospital because of non issuance of the order by the State Government".
A copy of the issue of the above said newspaper containing the above news item is produced along with the complaint. According to the CRL.M.C. 4159/03 & CO.Cases.
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complainant, the newspaper report was carefully tailored to raise in the minds of the readers, a feeling and belief that Sudhi Chandran was purposefully and mala fidely confined in the hospital against her wish by the complainant on the false accusation of insanity, and this news item was intentionally printed and published by the aforesaid accused with full and complete knowledge that the information contained therein is false and incorrect. According to the complainant, the accused with the common intention of creating a sensation and thereby profiting their business has acted thus. It is stated that the accused had full knowledge about the treatment and illness of Sudhi Chandran and they had access to the medical records available in the said hospital. The accused also had full knowledge that the allegations contained in the said news item would defame the complainant and destroy her reputation in the society. The complainant hails from a large, old and widely respected Nair family and as one of the eldest members of the large family, she is held in great respect and reverence by the society and family. The complainant's reputation in the society has remained untarnished throughout her long life. According to the complainant, the news item which includes a photograph clearly reveals the identity of the complainant and the said CRL.M.C. 4159/03 & CO.Cases.
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Sudhi Chandran and the relatives and the society of the complainant is entertaining a firm belief that the complainant is mala fidely confining Sudhi Chandran in a mental hospital with the object of shirking away from the responsibility of taking care of the granddaughter. It is the further case of the complainant that though she sent notice through lawyers demanding damages and requesting them to publish an apology in the said newspaper, the accused did not comply with the request nor a reply was sent. Thus according to the complainant, the aforesaid action of the accused is an offence punishable under section 500 of IPC and each of them are liable under section 34 of the I.P.C. as if it were done by each of them alone.
3. On receipt of the complaint, sworn statements of C.Ws 1 and 3 were taken. According to the petitioners, on 1-12-2001, the learned Magistrate found mistakenly that there is a prima facie case in the complaint and issued process to the accused and the matter was posted to 4-3-2002. Thus on taking cognizance, notice was issued for the appearance of the accused. It is at this stage, the above accused approached this Court by filing the above Crl.M.Cs. Along with the Crl.M.C., the petitioners have produced a copy of the issue dated 24-11- CRL.M.C. 4159/03 & CO.Cases.
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99 of the Desabhimani Daily which is the subject matter of the complaint as Annexure A, copy of the complaint in C.C.No.675/2001 of the Addl.Chief Judicial Magistrate's court, Trivandrum as Annexure B and the certified copy of the proceedings dated 4-3-2002 of the learned Magistrate in C.C.No.675/2001 as Annexure C.
4. It is stated that the Magistrate took cognizance only on the basis of the sworn statement of CW3, Dr.K.A.Nazar Ahamed, the Residential Medical Officer of the mental health centre. In his deposition, he had stated that Sudhi Chandran was brought to the hospital on 16-11-99 when she was excited. Therefore she was not in a condition to be handed over to the relatives. On this basis, the learned Magistrate issued process to the accused. According to the petitioners the above approach of the learned Magistrate is illegal and without proper application of mind. It is stated that none of the ingredients of section 499 of I.P.C. attracted. No imputations are levelled against the complainant in Annexure-A. It is submitted that the complaint itself is liable to be rejected for the sole reason that the person alleged to have made the statement is not made as an accused in the complaint. It is also stated that nowhere in the caption or in the news item, name of the complainant is shown. There is no CRL.M.C. 4159/03 & CO.Cases.
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whisper in the complaint as to when and where she did read the news item and in what way her reputation got damaged. It is not stated as to who are the persons or class of persons likely to form an adverse opinion of the complainant after reading the news and there is no disclosure as to how her moral or intellectual character has been lowered by the news item.
5. It is also the case of the petitioners that the learned Magistrate erred in not taking the text of the report as a whole and in its entirety. It is the contention of the petitioners that the intention behind the article was only to report the visit made by the Member of the Kerala Human Rights Commission and the incidents which transpired during the course of his visit. The report only mirrored these incidents at the time of the Member's visit. It is also claimed that this article threw light on the concern, anxiety and frustration of the inmates. The alleged imputations in the article made by the granddaughter were in good faith and for her own protection. There is no common intention on the part of the accused to harm the reputation of the complainant. Therefore, according to the petitioners, the complaint is not sustainable and the learned Magistrate has committed a grave mistake and illegality in taking cognizance upon CRL.M.C. 4159/03 & CO.Cases.
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a frivolous and vexatious complaint and issuing process to the petitioners/accused.
6. I have heard Mr.K.Balachandran, the learned counsel appearing for the petitioners in those cases and Sri Nagraj Narayanan, the counsel for the Ist respondent and also the learned Government Pleader representing the 2nd respondent State.
7. Learned Counsel for the petitioners submitted that in all these cases, the grounds taken are similar and in addition to the common grounds, in the Crl.M.Cs filed by accused Nos.1 and 3, they have raised another common ground to the effect that there is no specific averments and allegations in the complaint to the effect that they are responsible for selecting the news item which is alleged to have defamatory in nature and they have a vital role in the process of selection. The other common grounds raised by the accused on the basis of which the learned counsel fortified his arguments can be sorted out in the following lines. It is a common case of the petitioners/accused that the complainant deliberately excluded Miss Sudhi Chandran, who alleged to have made the statement, from arraying her as an accused. According to the counsel, it is the said Sudhi Chandran who is the best person to deny the statement if the CRL.M.C. 4159/03 & CO.Cases.
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annexure A report is untrue and therefore, she should have been the first witness to be cited and examined in support of the complainant. Otherwise, she must have been arrayed as an accused in the complaint. There is no averment in the complaint that Annexure A news item was selected and published with mala fide intention. It is also their case that mere news report regarding the visit of the Member of the Human Rights Commission, cannot be made as subject matter for the defamation. It is submitted that no ingredients of Section 499 of the IPC can be gathered from the allegation contained in Annexue B complaint even if the same are taken as true. There is no allegation that Annexure A news item was published with wilful or mala fide intention to defame the complainant. There is not even a whisper that the accused had a common intention to malign and damage the reputation of the complainant. Nowhere it is stated that the accused has got personal animosity against the complainant and even there is no allegation to the effect that the accused have got acquaintance with the complainant or vice versa. It is the case of the petitioners that the person who alleged to have made the defamatory remarks has not been arrayed as accused who is none other than the granddaughter of the complainant and the CRL.M.C. 4159/03 & CO.Cases.
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complaint is filed only for publicity. There is no allegation that the news item was selected and published with mala fide intention and there is no specific averments but it is general and vague in nature and therefore the petitioners are entitled to get the protection under section 7 of the Press and Registration Rules Act. It is also the case of the petitioners that no reason is shown by the complainant by which her reputation would be adversely affected on the basis of Annexure A . There is no averment as to how her reputation has suffered. In support of the above contention it is pointed out that the name of the complainant is not mentioned in anywhere in Annexure A news. According to the accused/petitioners, the only intention behind the publication was to report the visit of Dr.S. Balaraman, Member of the Human Rights Commisison (Kerala State) in the Government Mental Hospital, Peroorkada and also the matters transpired during the course of his visit. What the report would disclose is that during his visit, it was found that there are some inmates who are though normal but being confined in the hospital premises as inpatients due to some reason or other. It is argued by the learned counsel for the petitioner that the news item which alleged to be defamatory should be read as a whole and in its entirety. According to him, there is no CRL.M.C. 4159/03 & CO.Cases.
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meaning in reading certain isolated portion from the passage and alleging that the same is defamatory. According to the learned counsel, a person of reasonable prudence would arrive at a conclusion that the attempt of the newspaper daily was to bring to light the hard reality that persons like Sudhi Chandran with no or slight mental trouble, cured after treatment, are still languishing in mental sanatoriums as they are abandoned by near and dear relatives. According to the counsel for the petitioners/accused, in view of sections 19 and 20 of the IPC and section 13 of the Protection of Human Rights Act 1993, the alleged defamatory text and Annexure A will come under the protective umbrella of Exceptions 4, 8 and 9 of Section 499 of I.P.C. The counsel further submitted that after the publication of Annexure A news, the said Sudhi Chandran was taken back from the hospital and the same fact has been suppressed in Annexure B complaint and these facts are sufficient to show the truthfulness and correct state of affairs with respect to the health condition of the said Sudhi Chandran and therefore no complaint will lie against the petitioners/accused and as such, the court below has committed a grave error in taking cognizance upon such vague allegations. It is also the case of the counsel for the petitioners that the CRL.M.C. 4159/03 & CO.Cases.
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Magistrate has taken cognizance simply based upon the statement of CW-3 that Sudhi Chandran was brought to the hospital on 16-11-99 when she was not in a condition to hand over to the relatives. It is also submitted that while issuing process to the accused, the learned Magistrate has decided to go in favour of the complainant which will be evidenced by Annexure C statement of CW-3 and such approach of the Magistrate was prejudicial to the interest of the accused. Thus according to the learned counsel, Annexure B complaint is filed with mala fide intention and the same is only a vexatious complaint and the Magistrate had committed wrong in taking cognizance, especially, when no ingredients of Section 499 of I.P.C.can be gathered from the averments contained in Anenxure B complaint.
8. Per contra, Sri Nagraj Narayanan, learned counsel appearing for the Ist respondent, resisting the contentions raised by the counsel for the petitioners and the averments contained in the Crl.M.Cs submitted that those facts are to be testified on the basis of the evidence to be adduced at the time of trial and no relief can be granted in a proceedings under section 482 Cr.P.C. The learned counsel justifying the action of the learned Magistrate in taking cognizance submitted that the news item CRL.M.C. 4159/03 & CO.Cases.
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contained in Annexure A is absolutely baseless and incorrect since CW3 has categorically stated before the Magistrate as disclosed from Annexure C that Sudhi Chandran was admitted in the hospital due to excitement and her mental condition was not fit to hand over her to the relatives. Therefore, according to the counsel for the Ist respondent the news that Sudhi Chandran was not having any mental trouble or disease is absolutely incorrect and therefore the mala fide intention of the accused can be gathered from the above fact itself. Therefore, on the basis of such statement it is submitted that the petitioners/accused are not entitled to any relief from this Court and he prayed for dismissal of the above Crl.M.Cs.
9. I have carefully perused the documents and the materials available on record, especially, Annexures-A news report and Annexure B complaint and also the persuasive arguments advanced on behalf of the parties. As an outcome of evaluation of the materials and the contentions, the following important facts are emerged out which are beyond dispute:
(i) on 23-11-1999, Dr. S. Balaraman, a Member of the Human Rights Commission (Kerala State) visited the CRL.M.C. 4159/03 & CO.Cases.
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Mental Health hospital, Trivandrum.
(ii) Sudhi Chandran, granddaughter of the complainant was an inpatient and she was present at the time of visit of the above named Member of the Human Rights Commisson (Kerala State).
(iii) All the parties admitted the publication of Annexure A Daily containing the alleged defamatory article.
(iv) It is also beyond controversy that Annexure A news published as part of reporting the visit conducted by Dr.S.Balaraman, a member of the Human Rights Commission (Kerala State).
(v) The report concentrated about the pitiful affairs of certain inmates of the hospital who are constrained to remain there even though their disease already cured.
(vi) The petitioners who are the accused in the above case are not disputing the contents of the alleged defamatory text and they did not disown the authorship of the alleged defamatory text.
(vii) The hospital authorities sent a letter to the complainant on 11-3-2000 and the said Sudhi Chandran was taken back to home only thereafter.
(viii) Annexure B is filed only at the expiring date of 2 months from the date of Annexure A publication.
(ix) The said Sudhi Chandran is made neither an accused nor shown as a witness in Annexure B complaint. CRL.M.C. 4159/03 & CO.Cases.
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(x) The complainant is not a public figure and the parties have no prior acquaintance.
10. According to me, the entire case has to be examined in the light of the above admitted facts and circumstances.
11. Going by the contentions advanced by the petitioners and the averments in the Crl.M.Cs, it can be seen that except in the case of Accused No.1 who filed Cr.M.C.4159/2003, the points urged for consideration based upon the factual and legal aspects involved in the case are more or less same. But in the case of Ist accused in Crl.M.C.4159/2003, it is specifically averred that there is no averments in Annexure B complaint that the Ist Accused is the person responsible for the selection and the publication of the so called defamatory article contained in Annexure A publication. In the light of the above fervent plea, I was forced to peruse Annexure B complaint very cautiously, which revealed that there is no allegation or averments against the Ist accused that he is the person responsible for selection, printing and publishing the so called defamatory article. In the first paragraph of the complaint, what CRL.M.C. 4159/03 & CO.Cases.
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stated is that the Ist accused is the Chief Editor of the Malayalam Daily Newspaper, "Desabhimani" and gave the registration number etc. Paragraph 7 of the complaint contained certain vague and general statement which is reproduced here for convenience.
"The newspaper report was carefully tailored to raise in the minds of the readers, a feeling and belief that Sudhi Chandran was purposefully and mala fidely confined in the hospital against her wish, by the complainant on the false accusation of insanity. This news item was intentionally printed and published by the aforesaid accused with full and complete knowledge that the information contained therein is false and incorrect. The accused with the common intention of creating a sensation and thereby profiting their business has acted thus. The accused had full knowledge about the treatment and illness of Sudhi Chandran and they had access to the medical records available in the said hospital. The accused also had full knowledge that the allegations contained in the said news item would defame the complainant and destroy her reputation in the society.....".
(emphasis supplied)
12. Absolutely there is no positive allegation that the Ist accused is responsible for the selection of the news article and printing and publishing the same. For the above sole reason, it can be seen that the averments contained in annexure B complaint CRL.M.C. 4159/03 & CO.Cases.
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are not sufficient to constitute the essential ingredients of Section 499 of IPC and therefore, the Magistrate has committed a grave error in taking cognizance against the A1, the petitioner in Crl.M.C. 4159/2003, based upon the above complaint.
13. In support of the fervent plea for quashing the complaint against A1, the learned counsel invited my attention to the two decisions of this court. The first one is the decision reported in Jacob Mathew v Gangadharan Nair (2001 (2) KLT 412). In paragraph 4 of the above decision, this court has held :
"A reading of Annexure A complaint shows that nowhere in it the first respondent, the complainant in C.C.No.108 of 1999 of the C.J.M, Manjeri has alleged that the petitioner herein was responsible for the selection of the news item published in the Malayala Manorama or that he was directly involved in the publication of the news item. In paragraph 7 of Annexure A complaint it is stated that accused 1 and 2 preferred a complaint before the police alleging that the complainant/first respondent and his brother were responsible for the death of Srijith and his mother and that after the death of Madhavikutty Amma, the first respondent and others had taken possession of her properties and ornaments and that the first and second accused had given the copies of the petition to the 3rd and 4th accused and they published the same in Malayala Manorama and Kerala Kaumudi. It is further averred in paragraph 8 of the complaint that the first and second accused had filed the petition before the police and gave copies of the same to the newspaper for CRL.M.C. 4159/03 & CO.Cases.
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publication just to defame him and to torture him mentally. In para 9 it is averred that as a result of the publication of the news item by A3(petitioner) in the Malayala Manorama and A4 in Kerala Kaumudi, he was put to mental agony and he could not face public as before. Apart from the averments, nowhere in Annexure A complaint, the first respondent has stated that the petitioner who is A3 in the complaint was responsible for the selection of the news item or for publication of the news.."
(emphasis supplied) Then, this Court relied on the decision of the Apex Court in K.M.Mathew v. State of Kerala, (1992 (1) KLT 1), wherein it is held as follows:
"10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.
The complaint in the instant case does not
contain any such allegation. In such the
absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without prima facie case".
(emphasis supplied) Referring to the above decision this Court held in paragraph 5 as follows:
CRL.M.C. 4159/03 & CO.Cases.
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"In that case, according to the Supreme Court, there is no averment against the Chief Editor except the motive attributed to him and that even the motive alleged is, general and vague. The Apex court further held the presumption under S.7 of Press and Registration of Books Act, 1867 is not available as against the Chief Editor. It was held in that case that S.7 of the said Act has no applicability for a person who is simply named as Chief Editor. The presumption under S.7 is only against the person whose name is printed as "Editor" as required under S.5(1). "There is a mandatory (though rebuttable) presumption that the person whose name is printed as Editor" is the editor of every portion of that issue of the newspaper of which a copy is produced. S.1(1) of the Act defines, "Editor" to mean the person who controls the selection of the matter that is published in a newspaper". S.7 raises the presumption in respect of a person who is named as the Editor and printed as such on every copy of the newspaper. The Act does not recognize any other legal entity for raising the presumption. Even if the name of the Chief Editor is printed in the newspaper, there is no presumption against him under S.7 of the Act".
Further in the very same decision , in paragraph 7, this Court held:
"In K.M.Mathew v. Abraham (1997(2) KLT
803) the petitioner had raised a plea that the complaint was not maintainable against the Chief Editor. But that plea was rejected because in the complaint and in the legal notice, a specific imputation of responsibility was raised, but was not denied in the reply. From the decisions quoted it is clear that presumption under S.7 of the Press and Registration of Books Act is available only against the "Editor". In this case, it is clear that there must be positive averments in the complaint of the knowledge by the Executive Editor of the objectionable character of the matter. As CRL.M.C. 4159/03 & CO.Cases.
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stated, Annexure A complaint does not contain any such allegations".
Therefore, in the light of the above decisions and in the absence of any positive averments implicating A1 for selection, printing and publishing the so called defamatory article, I am of the view that no complaint will lie against him and therefore, annexure B complaint is liable to be quashed.
14. In a recent decision reported in Mammen Mathew v. Radhakrishnan M.N. (2007(4)ILR 406), a learned Judge of this Court held:
"It is also doubtful whether a complaint of defamation would lie against the first accused Editor.............. At the top of the relevant page of the daily is given the names of Associate Editor, Managing , Editor, Chief Editor etc. After the names of the last two functionaries it is printed as follows:
"Responsible for selection of news item
under the P.R.B.Act".
Therefore, the learned Judge found that A1 Mammen Mathew who is the Editor of Malayala Manorama daily is responsible for selection of news item under the P.R.D. Act and he is not responsible for the CRL.M.C. 4159/03 & CO.Cases.
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printing and publishing the article which alleged to be defamatory and therefore it is held that the editor cannot be held liable for the offence of defamation under section 499 of IPC. In the present case also, even though such details are not given in Annexure A news paper, it is for the complainant to plea that A1 is responsible for the selection, printing and publishing the alleged defamatory text. Hence, even in the light of the above decision also, no complaint will lie against A1 in the absence of positive averments as stated earlier.
15. Therefore, the averments contained in Annexure B complaint are not sufficient and it does not constitute the essential ingredients of Section 499 of IPC against A1, who is the petitioner in Crl.M.C.4159/2003. Therefore, the court below has committed mistake in taking cognizance against A1 and hence Annexure B complaint is liable to be quashed as far as A1 is concerned.
16. The next points argued on behalf of the petitioners is that there is no specific allegation and averments to the effect that annexure A report was published with mala fide intention. The learned Counsel took me through Annexure B complaint. The main CRL.M.C. 4159/03 & CO.Cases.
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statement in the complaint are contained in paragraph 7 of the complaint which I have already quoted earlier. On a perusal of paragraph 7 of the compliant, it can be seen that except the vague and general allegation, there is no specific averments and allegations that Annexure A Article was published with mala fide intention. In the very same decision, cited supra in Mamman Mathew's case ((2007 (4) ILR 406), the learned Judge of this Court held as follows:
" The offence of defamation consists of three essential ingredients, namely, (1) making or publishing an imputation concerning a person, (2) such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations and (3) the said imputation must have been made with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of the person concerned".
It is also held:
"The mere publication of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that such imputation will harm the reputation of the person concerned. By no stretch of imagination could it be said that Annexure B news item was published with the intention of harming the reputation of the complainant. If it were so, then as soon as the complainant voiced his protest, the first accused would not have published Annexure C news item faithfully CRL.M.C. 4159/03 & CO.Cases.
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conveying to the public what the complainant had represented to the Malayala Manorama daily. Merely because in the reply to the lawyer notice the first accused had informed the complainant that the correspondent of Malayala Manorama was present when the agitating employees gave the information to Malayala Manorama, it cannot be said that a case has been made out for evidence. The important aspect to be examined is as to whether Annexure-A complaint together with the news item prima facie makes out the offence under section 499 of IPC. A reading of Annexure B news item does not give the impression that it was actuated by any malevolent motive or a desire to calumniate or cast aspersions on the complainant or to expose him to public ridicule or to inflict even the slightest injury to his reputation. If so, it will be an abuse of the process of the court to drag the Ist accused to face the ordeal of a trial".
In the light of the above decision and on examination of facts and circumstances involved in the case on hand it can be seen that first of all there is no averments in Annexure B complaint that annexure A article was published with mala fide intention. From paragraph 7 of the complaint, it can be seen that there are only vague and incomplete averments. The case of the complainant is crystal clear from paragraph 7 of the complaint wherein it is stated that "the accused with the common intention of creating a sensation and thereby profiting their business has acted thus". (emphasis suplied). So according to the complainant, the CRL.M.C. 4159/03 & CO.Cases.
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intention behind Annexure A article was to create sensation and thereby profiting their business. In the absence of any specific allegation of mala fide intention, no offence under section 499 is disclosed, especially when the positive allegation is otherwise as mentioned above. It is an admitted case of the complainant as well as the accused that Annexure A article was published as part of reporting the visit paid by a member of the Human Rights Commission (Kerala State) at the mental hospital at Trivandrum. No prudent man can come into a conclusion that Annexure A article was published for tarnishing anybody or with mala fide intention to lower the reputation of the complainant. But the same was flashed so as to report the visit of a statutory authority and this is the view of the complainant also which she expressed in the complaint in an unequivocal language. In this context, unless specific pleading and averment that the complainant is a public figure or the accused have prior acquaintance with her and her reputation and they maintained some animosity towards her, nothing can be attributed against the accused that they have done the act with mala fide intention. Therefore, no offence under section 499 is disclosed against any of the accused and therefore, the court below has committed wrong in taking cognizance against the CRL.M.C. 4159/03 & CO.Cases.
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petitioners/accused based upon annexure B complaint. Hence, Annexure B complaint is liable to be quashed.
17. Another point argued by the learned counsel for the petitioners is that in view of Explanation 4 to section 499, Annexure A report will not come within the purview of Section 499. Explanation 4 to Section 499 reads:
"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 state, or in a state generally considered as disgraceful".
The Counsel took me through Annexure A article and submitted that nowhere in Annexure A news article mentioned the name of the complainant and further submitted that therefore it cannot be said that the report was intended to adversely affect the reputation of the complainant in the estimation of others. It is true that there is no averments in the complaint that some of the witnesses or persons CRL.M.C. 4159/03 & CO.Cases.
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have read Annexure A report and there is no details regarding the places where it has been read, the date on which the article was read and the name of persons who read the article and as to how in their mind lowered the reputation of the complainant. It is also an admitted fact that both the complainant and the accused have no previous acquaintance and the complainant is not a public figure so as to come into a conclusion that the article was prepared and calculated in such a manner so as to lower the reputation of the complainant in the estimation of others. Regarding all these aspects, the complaint is silent and there is no sufficient averments and allegations so as to attract the ingredients of Section 499. But the available materials and averments will show that Annexure A article will come within the clutches of Explanation 4 of Section 499 of IPC. Therefore I am of the view that no complaint will lie against the petitioners/accused.
18. On the strength of the first Exception to section 499, the learned counsel for the petitioners submitted that even if Annexure A report contained some defamatory element, it will not be an CRL.M.C. 4159/03 & CO.Cases.
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offence since it is an imputation of truth which the public good requires for its publication. The learned counsel for the Ist respondent submitted that as mentioned in the statute itself, whether or not it is for the public good, is a question of fact which can be settled only at the time of trial and not in a proceedings under section 482 of Cr.P.C. It is true that if there is any dispute regarding the facts, the same can be settled only on the basis of evidence to be adduced at the time of trial. But in the present case, especially, in the light of the admission, there is no meaning in directing the accused to face the trial if such admission brings the case of the petitioners under the above exception. As pointed out earlier, Annexure A is a report regarding the visit paid by one of the Members of the Human Rights Commission (Kerala State), and Annexure A report contains, not only the state of affairs of Sudhi Chandran, granddaughter of the complainant, but also the state of affairs with respect to 20 other inmates of the hospital. It is also a fact that Sudhi Chandran was taken back only on the basis of the letter sent by the hospital authorities and if there was proper attention CRL.M.C. 4159/03 & CO.Cases.
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and care from the part of the complainant or any other person, the hospital authorities would not have sent letter requesting to take back Sudhi Chandran. There is no averment in Annexure B complaint that Sudhi Chandran has not stated anything as appeared in Annexure A report. There is no denial in Annexure B complaint that Sudhi Chandran did not utter such words as shown in Annexure A report. It is also a matter to be considered very seriously that the said Sudhi Chandran is not arrayed as an accused in the complaint and there is no explanation forthcoming as to why the said Sudhi Chandran is not made an accused in the complaint. According to the complainant, what defamatory is the contents of the statement made by the said Sudhi Chandran and its publication. In the absence of denial, the question as to whether Sudhi Chandran had made such statement need not enquire into through a trial. If the contents of that statement are untrue, it is for the complainant to make that spokesman to be an accused or else to make her a witness. If the complainant has got a case that the said Sudhi Chandran had spoken to such untrue fact due to her illness that has to CRL.M.C. 4159/03 & CO.Cases.
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be specifically pleaded in the complaint and in that event also the outcome would be that the report was fair, proper and correct and it correctly reflects what Sudhi Chandran had spoken to the Member. If the complainant has got a case that Sudhi Chandran had not uttered such words, the best witness to substantiate such allegation would be the said Sudhi Chandran, but she is not made even as a witness in the complaint. So, the above facts and circumstances would show that the case in question will fall within the first Exception to section
499. But the court below failed to consider the above facts and mistakenly took cognizance against the petitioners/accused. Hence, Annexure B complaint is liable to be set aside.
19. Another important contention advanced by the learned counsel for the petitioners is that Annexure A report is saved by fourth Exception to Section 499. For the convenience, fourth Exception to Section 499 is extracted:
"Fourth Exception.- Publication of reports of proceedings of Courts.- It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
CRL.M.C. 4159/03 & CO.Cases.
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Explanation.- A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section".
20. Opposing the submission of the petitioners' counsel, Counsel for the Ist respondent vehemently submitted that whether Annexure A report is a true report or not, even if it is admitted as a proceedings of a court of justice, it has to be tested at the time of trial on the basis of evidence to be adduced. It is quite impossible to accept the above contention in the light of the admitted facts in the case. As shown earlier, Dr. S.Balaraman paid a visit in the mental hospital, Trivandrum on 23-11-1999 and Annexure A report was published on 24-11-99 as evidenced by Annexure A. These two facts are not disputed by either of the parties. It is beneficial to reproduce the version of the complainant herself from the complaint regarding this aspect. It says: ``....This visit was given due coverage by the press which included reporters and photographers from various newspapers and other media". (emphasis supplied). The petitioners/accused, on the other hand, very much stick on their stand CRL.M.C. 4159/03 & CO.Cases.
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that they have published the news item with regard to the visit of a member of the Human Rights Commission (Kerala State) and they have simply reported what happened during such visit.
21. According to the petitioners/accused, function of the Commission and its members will come within the proceedings of Court of justice or of the result of any such proceedings. Chapter III of the Protection of Human Rights Act 1993 deals with functions and powers of the Commission. Section 12 further deals with functions of the Commission. The relevant provisions of Section 12 extracted herein:
"12.Functions of the Commission- The commission shall perform all or any of the following functions, namely:-
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of-
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation by a public servant;
(b) xx xx xx xx CRL.M.C. 4159/03 & CO.Cases.
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( c ) visit, under intimation to the State Government any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment reformation or protection to study the living conditions of the inmates and make recommendations thereon:"
(emphasis supplied) Section 13 says:
"13. Powers relating to inquiries-
(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters namely:-
(a) xx xx xx
(b) xx xx xx
(c) xx xx xx
(d) xx xx xx
(e) xx xx xx
(f) xx xx xx
(2) xx xx xx
(3) xx xx xx
(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a CRL.M.C. 4159/03 & CO.Cases.
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Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal code, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973"
As per subsection (4) of section 13 that the Commission shall be deemed to be a civil court for the purposes of Sections 175, 178,179,180 or section 228 of the Indian Penal Code. Similarly, Section 13(5) says that every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the I.P.C, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the code of the Cr.P.C. It is also relevant to note that Section 21 in Chapter V of the above Act deals with the constitution of State Human rights CRL.M.C. 4159/03 & CO.Cases.
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Commissions. Thus I am of the opinion that Annexure A item of news is with regard to the visit of Dr. S Balaraman who was one of the member of the Kerala State Human Right Commission and his visit will come within Section 12 ( c ) of the functions of the Commission and in view of Section 13(1), (4) and (5), his proceedings will come within the purview of judicial proceedings and hence, Annexure A report is saved by fourth Exception of Section 499. As stated earlier, the facts and circumstances involved are admitted by the parties including the Ist respondent. The only case alleged by the complainant is that the words contained in the above report will adversely affect the reputation of the Ist respondent/complainant. As long as the Ist respondent/complainant did not deny the other facts and circumstances and especially when there is no specific denial or challenge regarding the truth contained in the proceedings, it can be safely concluded that Annexure A will come within the umbrella of Exception 4 to Section 499. The court below miserably failed to consider the above aspects. Before taking cognizance, had the court below applied its mind regarding those CRL.M.C. 4159/03 & CO.Cases.
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circumstances, in the light of the above statutory provisions, the lower court could not have taken cognizance upon Annexure B complaint. Hence, the cognizance taken by the court below against the accused upon Annexure B complaint is absolutely illegal and improper.
22. The learned counsel further contended that Annexure A article cannot be made for initiating prosecution for the offence under section 499 of IPC in the light of Ninth Exception to Section 499 which reads as follows:
"Ninth Exception.- Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good".
The learned Counsel further submitted that on a reading of Annexure A report it would show that the same is reported for the welfare of Sudhi Chandran, the granddaughter of the Ist respondent and also for the welfare of other 20 persons who were continuing in CRL.M.C. 4159/03 & CO.Cases.
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the mental asylum though their diseases were completely cured. In this case also, it is relevant to note that the Ist respondent/ complainant did not deny those aspects contained in Annexure A report. If the said Sudhi Chandran has not made such statement, she should have been the best person to depose in favour of the complainant, but unfortunately, she is not made a witness. If the statement is untrue, it was for the Ist respondent to make the said Sudhi Chandran as one of the accused in the complaint and that also was not done for which there is no explanation. If the complainant has got a case that Sudhi Chandran has uttered such words due to her illness, the same should have been specifically pleaded and averred that the accused should have verified the records before publication. In the absence of such pleadings and averments, no cognizance can be taken in the light of the above exception to Section 499 of IPC. On a reading of Annexure A report, it can be seen that it is reported for public good and for the welfare of the category of persons mentioned therein and with a view to caution the persons concerned. Hence, Annexure A report will come CRL.M.C. 4159/03 & CO.Cases.
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within the Ninth Exception to Section 499 of IPC and therefore, the court below ought not have taken cognizance upon Annexure B complaint against the petitioners.
23. From the above three points, it appears to me that the above three Exceptions, viz., first, fourth and ninth Exceptions to Section 499 is inextricably interconnected with the freedom of press which is guaranteed by Article 19(1)(a) of the Constitution of India, namely freedom of expression. The origin of 4th Exception to Section 499 of IPC is from the English Law. The Counsel for the petitioners has produced a photocopy of the extract of page No.4779 from the text of Dr.Sir Hari Singh Gour on analytical commentary on the Indian Penal Code, which contained a passage of Lord Campbell.
Lord Campbell in Davison v. Duncan (2 E & B.229 at p.231) said:
"A fair account of what takes place in a Court of Justice is privileged. The reason is, that the balance of public benefit from publicity is great. It is of great consequence that the public should know what takes place in Court; and the proceedings are under the control of the Judges. The inconvenience, therefore, arising from the chance of injury to private character is infinitesimally small as compared to the convenience of publicity".
(emphasis supplied) CRL.M.C. 4159/03 & CO.Cases.
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In our country, the fundamental rights guaranteed by the Constitution of India is treated as the soul of a democratic society and government. Article 19(1)(a) conferring right to freedom of speech and expression. Freedom of speech and expression includes freedom of press. Freedom of press is not used in Article 19. It is inclusive within article 19(1)(a). In the decision in Indian Express News Papers v. Union of India (1985 (1) SCC 641), the Apex Court has held :
"...The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate".
In the present case, while considering Annexure B private complaint as to whether cognizance be taken or not, it appears to me that the court below, who expected to imbibe the above fundamental right given to the press and to protect the same, has failed to keep in mind the above constitutional safeguard given to press. Here, CRL.M.C. 4159/03 & CO.Cases.
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Annexure A report, a report regarding the visit of one of the members of the Kerala State Human Rights Commission in a mental hospital and certain particular facts connected with such visit which is a judicial proceedings, sought to be treated as defamatory one. The particular facts and circumstances involved in the case shows that the complainant did not deny the fact that the report just contain what spoken to by Mrs. Sudhi Chandran. But here, the only grievance is that the wording used therein will amount to affect her reputation. The above approach is against fair reporting. Thus it can be seen that there is no specific and serious pleadings and allegations against Annexure A report and the attendant circumstances and other facts would justify Annexure A report. In such circumstances, the courts which are conferred the jurisdiction to take cognizance upon private complaint have to bear in mind the freedom of press as guaranteed by Article 19(1)(a) of the Constitution of India and unless and until a strong case is made out on the basis of specific and definite pleadings and averments, the press persons shall not be dragged into the court proceedings. As held in the CRL.M.C. 4159/03 & CO.Cases.
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decision reported in Mammen Mathew's case (2007(4) ILR 406) (cited supra), the mere publication of an imputation by itself may not constitute the offence of defamation unless such imputation has been made with the intention, knowledge or belief that such imputation will harm the reputation of the person concerned. In the present case, it is not disputed by the Ist respondent that the report was published as part of publishing a news item concerning the visit of a member of the Kerala State Human Rights Commission and the words spoken to the member, which will come within the purview of report regarding judicial act. Therefore, the court below ought to have been more careful and vigilant when it confronted with the question of taking cognizance or not on the available materials.
24. The last point argued by the counsel for the petitioners is that the alleged defamatory text has to be read as a whole and not to isolate certain lines or passage from the same and to say that it is defamatory. On a reading of Annexure A report, it can be seen that what contained therein is the words uttered by Sudhi Chandran, the granddaughter of the Ist respondent, and also the fate of similarly CRL.M.C. 4159/03 & CO.Cases.
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situated persons who were continuing there. As pointed out earlier, the news appeared as per Annexure A as part of report regarding the visit conducted by Dr. S.Balaraman, Member of Human Rights Commission (Kerala State). On a close reading of Annexure A , it can be seen that there is only an indirect report as to what uttered by Sudhi Chandran to the Member of the Human Rights Commission and the response of the said Member in the course of his visit. Besides the report about Sudhi Chandran, the report further continues and contained the details of about 20 persons among which 11 are accused in certain criminal cases. In this juncture it is relevant to note that for the sake of filing a complaint, what the complainant has relied is only a portion of the report which is evidenced by the mere quoting or incorporation of that passage in the complaint which I have already referred. The report has to be considered in its entirety, if so it will disclose that the report was about the unfortunate situation and fate of 20 persons who are similarly situated. Even in the report with respect to Sudhi Chandran, the Ist respondent's name was not mentioned and CRL.M.C. 4159/03 & CO.Cases.
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therefore it cannot be said that the petitioners/accused published the same with mala fide intention to lower the reputation of the complainant, but only for the interest of the persons mentioned therein. In support of the above contention, the counsel for the petitioners relied upon the decision of this Court in Kunhikannan v. Kalliani (1972 KLT 619) wherein it is held:
"Where some passage in a written matter is alleged to be defamatory, the document should be read as a whole with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. It is not permissible in law in cases like this to take one portion alone of the document which is the subject matter under attack and consider it without reference to the whole matter which alone would help the court to appreciate the real intention of the parties. The objected portion of the written matter will gain added significance and disclose the real intention of the maker of that statement only when the entire subject matter is read and the intention clearly made out from the whole subject matter. It is the context that is important and not the actual words that are used. In the present case the expression ' ' can have different meanings. If the statement is taken as a whole we get a vulgar import for the expression. If that be so, the accused should have been brought to trial and asked to discharge their liability to substantiate their case that they meant something other than the vulgar import for the expression".
CRL.M.C. 4159/03 & CO.Cases.
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On a careful examination of the whole Annexure A report, especially, in the light of the above decisions, it can be seen that there is nothing defamatory against the Ist respondent/complainant, but it is only a report regarding the visit of the Member of the Kerala State Human Rights Commission and the state of affairs of the persons who are continuing in the mental hospital though their illnesses were already cured and as such the report is for the welfare and interest of such persons. No prudent man can come into a different conclusion on a reading of those report.
25. In the light of the above materials and the facts which are beyond dispute and in view of the settled position of law, I am of the view that on a reading of Annexure B complaint and Annexure A report, no offence under section 499 is disclosed against the petitioners who are accused Nos.1 to 3. Therefore, the court below ought not have taken cognizance against the petitioners/accused.
In the result, Annexure B complaint and C.C.No.675/2001 and all proceedings thereon pending before the Addl.Chief Judicial Magistrate, Thiruvananthapuram are quashed. Accordingly, the CRL.M.C. 4159/03 & CO.Cases.
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above Crl.M.C. Nos.4159/2003, 5631/2003 and 755/2004 are allowed. There will be no order as to costs.
V.K.MOHANAN JUDGE.
kvm/-
CRL.M.C. 4159/03 & CO.Cases.
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(C.R) V.K.MOHANAN, J.
CRL.M.C.NOS.4159/2003, 5631 OF 2003 & 755 OF 2004.
ORDER 22-4-2008