Kerala High Court
M.K.Ali Master vs Abdulla Timber on 19 January, 2021
Equivalent citations: AIRONLINE 2021 KER 41
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
Crl.MC.No.4277 OF 2016(D)
AGAINST THE ORDER/JUDGMENT IN CC 77/2014 OF CHIEF JUDICIAL
MAGISTRATE ,KASARAGOD
PETITIONER/ACCUSED NO.1:
M.K.ALI MASTER
AGED 59 YEARS, S/O.MOHAMMED,VICE PRESIDENT,
MANGALPADY GRAMA PANCHAYAT,POST MANGALPADY,
KASARAGOD.
BY ADVS.
SRI.V.V.ASOKAN (SR.)
SRI.JOSE JOSEPH (CHEMPLAYIL)
SRI.P.P.RAMACHANDRAN
RESPONDENTS/COMPLAINANT, ACCUSED NO.2 AND NON PARTY:
1 ABDULLA TIMBER
AGED 59 YEARS, S/O.M.B.MAMMUNHI,MANNAMKUSHY,
PRESIDING, JANAKEEYA NEETHIVEDI,POST UPPALA,
KASARAGOD-671 322.
2 THE EDITOR AND PUBLISHER
UTTARADESOM DAILY,OLD BUS STAND, KASARAGOD-671 121.
3 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM.
R1 BY ADV. SRI.M.SASINDRAN
R1-2 BY ADV. SRI.V.T.MADHAVANUNNI
R1 BY ADV. SRI.V.A.SATHEESH
OTHER PRESENT:
MAYA.M.N- P.P
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.01.2021, THE COURT ON 19.01.2021 PASSED THE FOLLOWING:
Crl.M.C.No.4277 of 2016
2
O R D E R
Dated this the 19th day of January, 2021 The petitioner is the first accused in C.C.No.77/2014 pending before the Chief Judicial Magistrate Court, Kasaragod. The petitioner along with the second accused (2 nd respondent herein) alleged to have committed an offence punishable under Section 500 r/w. Section 34 IPC. The case arouse out of a private compliant field by the 1st respondent herein. After taking sworn statement of the complainant and witnesses,the Magistrate took cognizance of the offence and the case is now pending before the court for trial. Even if the entire averments in the complaint are accepted, no ingredients of the offence u/s. 499 of IPC is made out. So the continuation of the proceedings is an abuse of process of court. Hence the Crl.M.C. has been filed to quash the entire proceedings in C.C.No.77/2014 pending before the Chief Judicial Magistrate Court, Kasaragod.
2. Notice was issued to the respondent. First respondent appeared through counsel. Third respondent appeared through the learned Public prosecutor.
3. Heard both sides.
Crl.M.C.No.4277 of 20163
4. The petitioner has approached this Court seeking for quashment of C.C.No.77/2014 which was registered based upon a private complaint filed by the first respondent/complainant. The allegation levelled against the petitioner/first accused and the 2nd respondent/second accused is extracted in paragraph No.4 of this petition, which reads as follows:
"On 12.4.2012. Utharadesom Daily of which the 2nd respondent is the Chief Editor and Publisher published a news item in a column with caption "Neethivedi Uppalayile thattippukalum purathu kondu varanam" The news item was signed by the I" accused and published by the 2nd accused in Utharadesom Daily. It was alleged that the news item was published with the malicious intention to injure the reputation of the complainant and is calculated to expose the complainant to hatred, contempt, ridicule and to injure the complainant in his duty as an office bearer of Janakiya Neethivedi. The news item is published only to humiliate the complainant and thus the same is defamatory. Though the name of the complainant is not specifically mentioned in the news item, by way of inference it can be seen that the news is published intended to injure the reputation of Janakiya Neethivedi and its functionaries including the complainant. Thus it was alleged that the accused persons had committed an offence punishable under Section 500 of Indian Penal Code."
5. The main contention of the learned counsel for the petitioner/first accused is that even if the entire allegations are accepted as true, it will not attract the ingredients of the offence Crl.M.C.No.4277 of 2016 4 punishable u/s. 499 IPC. To make the matters more clear, I am extracting the alleged imputation in the news item, which reads as follows:
"¼ÈµàÏ ÈàÄßçÕÆßAÞøáæ¿ ºâ×â ÄáùKáµÞGá¢ÕßÇ¢ ÎÞVºîí 20Èᢠ¯dÉßW 2Èᢠ©JøçÆÖJßW ÕK ÕÞVJµZ dÖÆíÇÞÉâVÕî¢ ÕÞÏߺîá. ÕÞVJÏßæÜ Ø¢ÍÕBZ µÞØVçµÞæGKçÉÞæÜ ©M{ÏßÜᢠ¥øçBùáKá. µÞØVçµÞGáµÞV æÉÞùáÄßÎáGßÏçMÞZ ÉøÞÄßÏᢠÕcÕÙÞøÕáÎÞÏß §ùBßJßøßæºîCßÜᢠ©M{AÞV ɵWæµÞUAÞæø ÍÏæMGá µÝßÏáµÏÞÃí.
©M{ÏßæÜ Ø¢ÍÕBæ{Aáùߺîí ¥çÈb×â È¿Jß ØÄc¢ æÕ{ߺîJáæµÞIáÕøáæÎCßW ©JøçÆÖ¢ ÕÞÏÈAÞV µcÄÞVÄíÅøÞµá¢.
®¢.æµ. ¥ÜßÎÞØíxV, ©M{."
6. The learned counsel for the petitioner/first accused would contend that the case against the second accused/second respondent has already been discharged by the court below. But the discharge petition filed by the petitioner has been dismissed by the learned Chief Judicial Magistrate for the reason that this is a summons trial case and there is no provision in Cr.P.C. to discharge the accused. It is also found that Section 258 of Cr.P.C enables the court to close the proceedings in summons trial cases other than upon complaint. Admittedly, this is case based on a private complaint. Hence Section 258 Cr.P.C. also cannot be invoked. So in the above circumstances, learned Chief Judicial Crl.M.C.No.4277 of 2016 5 Magistrate was of the view that discharge petition cannot be entertained and hence the petition was dismissed as not maintainable.
7. To meet the argument of the learned counsel that the offence u/s. 499 IPC will not be attracted to the alleged imputation, it would be helpful to quote Section 499 IPC.
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 excepted, to defame that person.
Explanation 1. - x x x
8. So on going through the defamatory imputation extracted in the complaint, copy of which has been produced as Annexure A what could be seen is that there is a news reported by the petitioner/first accused about the news report in Uttaradesham Daily on 20th March and 2nd April about the exploitation of Janakeeya Neethivedi people. It is further reported that the incidents as in Kasaragod is taking place at Uppala also. It is further reported that though the people at Kasaragod proceeded with litigations, the people at Uppala are scared of the daylight robbers. It is further reported that if an enquiry is conducted with regard to the happenings at Uppala Crl.M.C.No.4277 of 2016 6 and fact is brought to light the subscribers of Uttaradesham would be thankful.
9. So on a plain reading of alleged defamatory imputation published in the news daily, prima facie there seems to have no intention to harm the reputation of any particular person by that news item. On the other hand, it appears to be a fair criticism of the functioning of the Janakeeya Neethivedi. It also appears that he has made it in good faith for a fair enquiry about the incidents and bringing the fact to light. So prima facie it appears that the alleged imputation would also come within the 10 th exception to Section 499 IPC which expressly provides that it is not defamation to convey a caution in good faith to one person against another provided that such caution to be intended for the good of the person whom it is conveyed or of some person in whom that person is interested or for the public good.
10. In the above context, it is relevant to quote Rajmohan v. Seetha Vedhanayagam & ors. [2017 Crl.L.J. 4334] wherein while dealing with Section 499 Exception 9 and 10 it has been held that an imputation without an intention to harm or without knowing or having reason to believe that it would harm the reputation of such person would not constitute an offence of Crl.M.C.No.4277 of 2016 7 defamation. It is true that in that case civil suit was pending between the parties with regard to the sale of property by complainant in violation of invocation or accused published notice against the complainant for claiming rights over land unlawfully only to safeguard their own interest in property and accused making the imputation against the complainant in newspaper in good faith for protection of interest of concerned person and for public good. In the said context it was held that publication made by the accused will not amount to defamation.
11. In this case, what is alleged to have been done by the petitioner/first accused is making a news item in Uttaradesham on 12.04.2012, about the news in the same publication on 20 th March and 2nd April with regard to the exploitation by Janakiya Neethivedi people at Kasaragod. Further he commented that the same thing is happening at Uppala. He also stated about the inaction of the people at Uppala unlike the people at Kasaragod who had initiated legal proceedings. Further he requested for an enquiry about the incidents at Uppala and make the matters public for the satisfaction of readers of Uttaradesham. So as has been rightly contented by the learned counsel an intention to defame the 'Janakeeya Neethivedi', whom the complainant is Crl.M.C.No.4277 of 2016 8 representing is absent in the alleged news item. On the other hand, it appears to be a fair criticism of the functioning of Janakeeya Neethivedi and he sought for an enquiry with regard to the incidents at Uppala and wanted to bring the matters to light. So, in effect, as has been rightly contended by the learned counsel for the petitioner, in the absence of any material, prima facie, to establish any intention on the part of the petitioner to defame the first respondent/complainant it cannot be found that an offence under Section 499 IPC would be attracted against the petitioner. So also the complaint admittedly has been quashed as against the second accused - the Editor and Publisher of Uttaradesham daily. So the continuation of the proceedings in C.C.No.77/2014 against the petitioner/first accused, pending before the Chief Judicial Magistrate Court, Kasaragod would be an abuse of process of law.
12. In this context it is relevant to quote State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp (1) SCC 335] wherein an elaborate consideration has been made with regard to the exercise of powers under Section 482 Cr.P.C by the High Court. In that the Apex Court has given some guidelines in the matter of exercise of the extra ordinary powers under Article Crl.M.C.No.4277 of 2016 9 226 or the inherent powers under Sec.482. The following in the above is relevant to be extracted here.
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1). Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2).Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3).Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4).Where, the allegations in the FIR do not Crl.M.C.No.4277 of 2016 10 constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5).Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6).Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7).Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. So even if the alleged imputation extracted in the complaint are taken on their face value and accepted in their entirety, it would not prima facie constitute any offence against the petitioner/first accused under Section 499 IPC.
14. In the light of the above discussions, I find that Crl.M.C.No.4277 of 2016 11 continuation of the proceedings against the petitioner/first accused in C.C.No.77/2014 is an abuse of process of court and hence is liable to be quashed.
In the result, Crl.M.C. allowed and all further proceedings in C.C.No.77/2014 on the files of the Chief Judicial Magistrate Court, Kasaragod is hereby quashed.
SD/-
M.R.ANITHA
SHG JUDGE
Crl.M.C.No.4277 of 2016
12
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A: CERTIFIED COPY OF THE COMPLAINT IN CC
NO.77/2014 ON THE FILE OF THE CHIEF
JUDICIAL MAGISTRATE COURT, KASARAGODE DATED 1.6.2012.
ANNEXURE B: TRUE COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD IN CC NO.77/2014 DATED 14.6.2016.