IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 9TH DAY OF APRIL 2010/19TH CHAITHRA,1932 Crl.MC.No. 454 of 2005 ( ) -------------------------- CC.164/2003 of CHIEF JUDL.MAGISTRATE, ERNAKULAM PETITIONER(S)/ACCUSED:: ---------------------- 1. THE MALAYALA MANORAMA CO. LTD., MALAYALA MANORAMA PRESS, KOCHI-682 036. 2. MAMMAN VARGHESE, PRINTER AND PUBLISHER, MALAYALA MANORAMA PRESS KOCHI-682 036. 3. K.M.MATHEW, CHIEF EDITOR, MALAYALA MANORAMA PRESS KOCHI-682 036. 4. PHILIP MATHEW, MANAGING EDITOR, MALAYALA MANORAMA PRESS KOCHI-682 036. 5. MAMMAN MATHEW, EDITOR, MALAYALA MANORAMA PRESS, KOCHI-682 036. 6. THOMAS JACOB, ASSOCIATE EDITOR, MALAYALA MANORAMA PRESS KOCHI-682 036. 7. JACOB MATHEW, EXECUTIVE EDITOR, MALAYALA MANORAMA PRESS KOCHI-682 036. 8. E.V.SREEKUMAR, CHIEF PHOTOGRAPHER, MALAYALA MANORAMA KOCHI-682 036. 9. TONY DOMINIC, PHOTOGRAPHER, MALAYALA MANORAMA, KOCHI-682 036. 10. JAVEDH PARVESH, CORRESPONDENT, MALAYALA MANORAMA, KOCHI-682 036. BY ADV. SRI.K.P.DANDAPANI (SR.) COMPLAINANT(S)/COMPLAINANT AND STATE:: -------------------------------------- 1. SHRI BENNY CHACKO, S/O. CHACKO, MAROTTICKAL HOUSE, T.V.PURAM P.O., VAIKOM KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.NIRMAL KUMAR FOR R1. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-04-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No. 454 of 2005 ------------------------------------------------------------- Dated this the 9th day of April, 2010 ORDER This is a petition filed to quash a complaint filed against petitioners under Section 482 Cr.P.C. 2. An article was published in a Malayalam daily indicating that there were “bribe counters” of police in the city. Eight photographs were also given and referred to. In each photograph indications were given in the article showing that policeman was taking bribe from a person. Evey stage of taking bribe was depicted in the photographs. Even with respect to the time, a photograph of particular policeman was published. 3. First respondent herein is the said policeman who was on traffic duty. He filed a complaint alleging defamation against Editor, Printer and Publisher, Chief Editor, Managing Editor, Associate Editor, Executive Editor, Chief Photographer, the correspondent and also the Malayalam daily. According to complainant, the article is highly defamatory. The accused acted [Crl.M.C.No.454/05] 2 in furtherance of common intention to effect the publication having or knowing reasons to believe that the imputations in the publication will harm the reputation of the complainant. 4. According to complainant, all the persons arrayed as accused have committed the offence. There is also a specific allegation that the Managing Editor, Chief Editor and other Associates of the publication published and sold the newspaper containing imputation against the complainant knowing very well that such imputation will harm the reputation of the complainant and thereby, defame him before the public. 5. An allegation was also made that there was specific motive for effecting such publication. As per the allegations in the complaint, nearly one week prior to the publication, on enquiry made by the complainant, it is understood that employees in Malayala Manorama were charged by city traffic police and this sort of publication is effected, with a view to wreak vengeance. Names of two employees are also stated in the complaint. 6. Heard both sides. Learned counsel for petitioner argued that name of the complainant is not mentioned in the alleged defamatory publication. The photographs are given in such a way that identity of the person cannot be made out. The publication [Crl.M.C.No.454/05] 3 was effected only for public good. In cases in which publications are effected for public good, courts have given protection to the media, it is submitted. He referred to the decisions reported in Vishan Sarup v. Nardeo Shastri (AIR 1965 Allahabad 439) and Dainik Jagaran v. Krishna Bhargava (1985(2) Crime M.P.617) in support of the contention. 7. It is also argued that most of the accused cannot be prosecuted in the light of the various decisions of the Supreme Court. This Court also laid down that in the absence of an averment that the Chief Editor was the person who selected the material for publication or that he was in any manner responsible for the publication, he cannot be prosecuted. Broad assumptions may not be sufficient to rope in persons like the Chief Editor, Managing Editor etc. it is contended. Reference was made to the decisions reported in Mathew v. Nalini (1987(2)KLT 286), Mamman Mathew v. Instrumentation Ltd. (1988(2) KLT 438) , Haji C.H. Mohammad Koaya v. TKSMA Muthukoya (AIR 1979 SC 154) and V.S. Achuthanandan v. Kamalamma (2008 (3) KLT 346). 8. Learned counsel for petitioner also argued that the reproduction of the defamatory statement in the complaint is [Crl.M.C.No.454/05] 4 mandatory and in the absence of such reproduction, the complaint will have to be quashed. Learned counsel for petitioner also argued that the allegations in the complaint will not show the portions of the news item affected the reputation of the complainant. Therefore, in the light of the decision reported in Madhavi Amma v. Sherief (1985 KLT 330) the complaint deserves to be quashed. Reliance was also placed on the decisions reported in Balraj Khanna v. Moti Ram (1971 SCC (Crl.) 647) and Surya T.V. v. State of Kerala (2008(4) KHC 290). 9. Learned counsel for respondent strenuously argued that the contention raised by the petitioner that the identity of the complainant will not be revealed in the photograph cannot be accepted. It is submitted that a notice was issued by the complainant to the accused and in the reply, accused did not dispute that the photograph or the article did not relate to complainant. In fact, the accused were only taking up a defence of justification by truth, as seen from the contents of the reply notice. Having put forward a defence of justification by truth, the burden is on the accused to establish and this can be done only at the trial, it is submitted. [Crl.M.C.No.454/05] 5 10. It is pointed out by learned counsel for respondent that after publication of the article, proceedings were initiated against complainant by the Department but proceedings were dropped subsequently and the DGP made a statement that the report was not a correct report. These were published in the newspapers also. It is also submitted that the complainant was exonerated and no action was taken against the complainant, after an enquiry. 11. It is also argued that this is not a case where something is done in good faith for the public good. Specific motive is alleged against the newspapers and the officials who are working in the Malayala Manorama office and the names of persons involved are also mentioned therein. Therefore, there is a calculated attempt on the part of the accused to defame not only the complainant but even the Department as a whole, it is argued. 12. According to respondent, three enquiries were conducted by higher officials against the petitioner. 24 witnesses were examined and the complaint was exonerated, after a detailed enquiry by the Department. Learned counsel for petitioner submitted that to his knowledge, respondent is not [Crl.M.C.No.454/05] 6 exonerated and no documents are produced by the complainant to show that he was exonerated as represented. 13. Learned counsel for respondent also argued that in the light of the decisions reported in Mammoottie v. Rajaji Mathew Thomas (2006(3) KLT 335), Mathew v. Abraham 2002(3) KLT 282 (SC) and Kunhambu v. Sojath (1989 (1) KLT 305), it would be clear that the Chief Editor and the other persons who are arrayed as accused in this case can be prosecuted. From the dictum laid down in those decisions, it would be clear that persons other than the Editor can be prosecuted. There are specific allegations in the complaint that the accused effected publication with the knowledge (vide paragraph 13). 14. Learned counsel for the respondent also contended that even if entire arguments advanced on behalf of petitioners are accepted, the burden is on the accused to establish that the case falls under Exception to Section 499 as held in Arumugam v. M.V. Kittu @ Krishsnamoorthy (2008 KHC 6989 = 2009(1) SCC 101). In such a case, it is not proper or legal to quash a complaint on the basis of the materials placed before this Court, it is submitted. It cannot be stated that petitioners have established their burden of proof that they come under the [Crl.M.C.No.454/05] 7 Exception to Section 499. 15. This is a case where evidence is required and hence the complaint may not be quashed in a proceedings under Sections 482 Cr.P.C., it is submitted. Reliance was also placed on the decisions reported in Prabhakaran v. Gangadharan (2006(2) KLT 122), K. Gopalakrishnan v. A.C. Thomas (2007(1) KLJ 385) in support of this argument. It is argued that in the decision referred to in 2006(2) KLT 122, this Court refused to quash a complaint in a case where the accused was relying upon Exception (8) to Section 299 IPC. 16. It is held by this Court that it is the duty of the accused to establish that they are justified in making the alleged defamatory statement under any of the Exception to Section 499 IPC. Therefore, without considering the evidence to be adduced and the defence to be set up, it is not possible to reach a conclusion whether the statements made against respondent are defamatory or not, it is argued. Citing the decisions reported in Abdul Hakkim v. Ramesan (2007(2) KLT 376), it was also argued that the publisher, as also the Editor, are responsible for the entire portion of the publication in the newspaper. The printer or publisher who has declared himself to be so under Section 5 [Crl.M.C.No.454/05] 8 has liability for the publication in its entirety until he discharges the burden to rebut the presumption under Section 7, it is argued. 17. Learned counsel for respondent also placed reliance on the decision reported in K. Gopalakrishnan v. A.C. Thomas (2007(1) KLJ 385) and strenuously contended that merely being the Managing Editor of newspaper will not justify quashing of the charges, if allegations show his involvement. Charges against the Editor, Publisher and Printer and the persons who are referred to in the complaint may not be quashed, since there are allegations in the complaint to show their role in effecting the publication, it is submitted. Referring to the decision in Arumugham v. M.V. Kittu @ Krishsnamoorthy (2009(1) SCC 101), learned counsel for respondent pointed out that it would be premature for the High Court at this stage in a case filed under Section 482 to arrive at a conclusion whether the accused had any role and whether the burden of proof is on the accused etc. 18. On hearing both sides and on going through the decisions cited by both sides and the documents produced, I find that several disputed questions of facts are involved in this case. Even the fact whether publication effected is [Crl.M.C.No.454/05] 9 with respect to the complainant itself is disputed now. It can also be seen that while complainant would allege that there is a specific motive for effecting a publication, petitioner has disputed even such motive. He put forward a case that the publication was not effected for public good. Petitioners have also put forward a defence that they come under the Exception (8) to Section 499 IPC and they are justifying the allegations made in the complaint by truth. Even with respect to the conclusion of the enquiry and result of enquiry there is dispute. 19. In such circumstances, it may not be proper on the part of this Court to resolve disputed questions of facts in a case of this nature. Such disputes can be resolved only during trial at the appropriate stage. In a proceeding under Section 482 Cr.P.C., the court can only go by the allegations made in the complaint to see whether those prima facie constitute any offence but the court shall not enter a finding in respect of truth or the falsity in the allegations made. 20. Learned counsel for petitioners however submitted that the allegations made in the complaint are totally insufficient to [Crl.M.C.No.454/05] 10 rope in the Chief Editor, Managing Editor, Associate Editor, Executive Editor as accused in this case. There is only bare allegations in paragraph 9 that all accused are equally liable for the publication of impugned news item. There is only bare allegation that in furtherance of common intention they acted in a particular manner. These are not sufficient to make accused nos. 3, 4, 6 and 7 liable for the alleged defamatory publication, it is submitted. 21. It is also pointed out that it is specifically mentioned at the foot note of the newspaper that the Editor, who is accused no.5 in this case is responsible for the selection, as per the Press and Registration of Books Act ('P.R.B. Act' for short). In the light of this specific declaration contained in the newspaper, there will be no justification to proceed against the Chief Editor and other accused for the alleged defamatory statement, it is submitted. It is also submitted that Chief Editor is aged 94 years and he is not all connected with any selection of news or for publication of the same. So also, accused no. 4, 6 and 7 are not related to the selection of the news item or publication, especially since accused no.5 himself has taken up the responsibility. 22. Learned counsel for respondent however pointed out that though allegations were made in the notice against all the [Crl.M.C.No.454/05] 11 accused, they have not denied or disputed their liability in the reply notice. Therefore, there is no reason to quash the complaint filed against them. On going through the allegations in the complaint, however, I am satisfied that the name of accused no.5 is printed in the newspaper and he is styled as the Editor of the publication. It is also declared in the foot note of the newspaper that Editor is “responsible for selection of news under the PRB Act”. 23. A reading of Section 499 IPC shows that if a person 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 to defame that person except in cases referred to in Exception 1 to 10. The complainant would allege that by the publication of the news item in the newspaper accused nos. 1 to 10 have made and published imputation concerning him intending to harm his reputation. 24. In the case of a newspaper wherein a defamatory statement is made or any imputation which is defamatory to any person is made or published, the person who makes or publishes such imputation will be liable for defamation. The question is , who has made or published such imputation by words intended to [Crl.M.C.No.454/05] 12 be read. As per the allegations in the complaint, accused no.10 is the Correspondent, who has made the article or written the article. The 8th and 9th accused are Chief Photographer and Photographer who are involved in taking photographs which are published in the news item. They are, thus, directly involved in making the imputation. 25. When an article or news item is prepared by a Correspondent along with photograph, Editor's role comes in. The writing is not published as such. It is being edited and it is also selected for publication. In the bottom of the relevant newspaper, there is a declaration which shows that Editor is responsible for the selection as per the PRB Act. Therefore, the persons who are prima facie responsible for making the writing of the defamatory statement and for selection of the article for publication are accused nos. 8, 9, 10 and 5 respectively. This is revealed from a reading of complaint and the relevant newspaper wherein the defamatory statement is published. 26. Section 499 of IPC shows that not only the person who has made defamatory publication but who has published the same also will be liable. As per the details in the newspaper, there is a declaration that the Printer and Publisher is accused no.2. The question which arises before me is whether apart from [Crl.M.C.No.454/05] 13 accused nos. 2, 5, 8, 9 and 10, the other accused can be prosecuted for offence under Section 499 IPC. First accused in this case is the Company. To prosecute a person for offence under Section 499 IPC, it is not sufficient that a person makes or publishes any defamatory statement, but he must have the “intention” to harm the person defamed or he must have the “knowledge” or reason to “believe” that such imputation will harm the reputation of the person defamed. The Company cannot be attributed with any such intention, knowledge or belief, as referred to in Section 499 IPC. So first accused cannot be prosecuted for offence under Section 499 IPC. 27. Now, coming to the other accused, namely, Chief Editor, Managing Editor, Associate Editor (accused nos. 3, 4, 6 and 7 respectively) the complainant seeks to prosecute them under Section 499 of IPC. The complainant is relying upon the averment in paragraph 9, “all the accused are equally liable for the publication of the impugned news item.” First of all, when there is a Printer and Publisher in respect of a Newspaper, Editors cannot be said to publish the news. They are only responsible for selection and editing the news item. 28. The Editors cannot be called upon to hold the responsibility or liability for publication. The Editor's role is only [Crl.M.C.No.454/05] 14 for selection and editing of the relevant news item. Therefore, the allegation that they published the news item and they are liable for the publication cannot be accepted. In paragraph 13 also, it is alleged that the accused being the Editors have “printed, published and sold” the newspaper containing the imputation. Editors cannot be said to be printing and publishing the newspaper. Their role is different. Therefore, the allegation that they had the knowledge that imputation will harm the reputation of complainant is of no consequence under Section 499 of IPC. 29. It is only if a person makes or publishes the imputation that his knowledge becomes relevant. The Managing Editor, Chief Editor, Associate Editor and Executive Editor cannot be held liable for printing and publishing the relevant news item. On a reading of Section 7 of the PRB Act also, I am satisfied that the Chief Editor and the Managing Editor etc. cannot be proceeded against, on the ground that they have effected publication or made the publication. Therefore, accused numbers 1, 3, 4, 6 and 7 cannot be prosecuted on the basis of Annexure A1-complaint. In the result, the following order is passed: 1) Complaint (Annexure A1) so far as it relates to accused nos. 1, 3, 4, 6 and 7 is quashed. [Crl.M.C.No.454/05] 15 2) The above accused shall not be proceeded against on the basis of Annexure-A1. This petition is partly allowed. Sd/- K. HEMA, JUDGE. krs.