IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.MC.No. 1003 of 2009() --------------------------------------- C.C.125/2008 OF CHIEF JUDICIAL MAGISTRATE COURT,KASARAGOD .................... PETITIONER(S): ACCUSED AND 2: --------------------------------------------------- 1. JOSE.V.J, AGED 45 YEARS, S/O.V.C. JOSEPH, VADAKKECHIRAYATH HOUSE, MANKOB, MUNNILAVU VILLAGE AND POST, KOTTAYAM. 2. JOTHIS THOMAS, AGED ABOUT 34 YEARS, S/O.V.C. JOSEPH, VADAKKECHIRAYATH HOUSE, MANKOB, MUNNILAVU VILLAGE AND POST, KOTTAYAM. BY ADVS. MR.C.HARIKUMAR, MR.ARAVINDA KUMAR BABU T.K., SMT.MADHURI ANAND. RESPONDENT(S): DEFACT COMPLAINANT AND STATE: ----------------------------------------------------------------------------------- 1. SCARIA.V.J, AGED 47 YEARS, S/O.V.C. JOSEPH, VADAKKECHIRAYATH HOUSE, CHALA ROAD, VIDYANGAR POST, KASRAGOD TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.JAWAHAR JOSE R2 BY PUBLIC PROSECURTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/07/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1003 OF 2009 ------------------------------------------ Dated 27th July 2009 O R D E R Petitioners are accused 1 and 2 in C.C.125/2008 on the file of Judicial First Class Magistrate-I, Kasaragod. Annexure-A1 complaint was filed by first respondent alleging that three accused committed offence under Section 499 punishable under Section 500 read with Section 34 of Indian Penal Code. Learned Magistrate conducted an enquiry under Section 202 and called for a report from the Sub Inspector. Annexure-A6 report was filed by Assistant Sub Inspector, Kasaragod police station after conducting an enquiry, that third accused, editor and publisher of Karavel evening daily did not disclose the source of his information based on which the alleged defamatory news item was published and nothing could be traced out to connect accused 1 and 2 with the publication of the news item and therefore only third accused committed the offence. Learned Chief Judicial Magistrate took cognizance of the CRMC 1003/09 2 offence against all the accused and made over the case to Judicial First Class Magistrate for trial. Petitioners appeared and charge was also framed. This petition is filed under Section 482 of Code of Criminal Procedure on 16/3/2009. first respondent was subsequently examined in part as PW1. Case of the petitioners is that Annexure-A1 complaint is an abuse of process of court as there is nothing to connect the petitioners with the publication of news item by the third accused and therefore the case as against them is to be quashed. 2. Learned counsel appearing for petitioners and first respondent were heard. 3. Learned counsel appearing for petitioners pointed out that Annexure-A6 report furnished by Assistant Sub Inspector in the Section 202 enquiry establish that there is no material to connect petitioners with the news item published by third accused and Annexure-A1 complaint also does not disclose anything to connect the petitioners with the offence and therefore the case as against them is to be quashed as there is no likelihood of a conviction, even if petitioners are to be tried. CRMC 1003/09 3 4. Learned counsel appearing for first respondent relying on the decision of the Apex court in State of Delhi v. Gyandevi and others (2000 (8) SCC 239) argued that when charge has already been framed and the complainant has already been partly examined it is not for this court to interfere with the prosecution and petitioners are entitled to take up all the defence before the learned Magistrate and therefore case cannot be quashed. Relying on the decision in Harbans Kaur and another v. State of Haryana (2005 (9) SCCC 195) it is argued that when Section 34 of Indian Penal Code is invoked, even if news item was published by third accused, when it is in furtherance of the common intention of the petitioners, they are also liable. 5. On going through Annexure-A1 complaint it is seen that there is no specific allegation in the complaint as to how petitioners are connected with news item published by third accused in his evening daily. The only allegation, apart from case about property dispute between the brothers, is in paragraph 6 of the complaint. Allegation is that petitioners hatched conspiracy themselves and CRMC 1003/09 4 reached Kasaragod and met their friend the third accused and all them together even threatened first respondent over telephone to give up his idea for more share for Julie and also for first respondent. Apart from this allegation there is no case that conspiracy was to publish a news item in the evening daily of third accused so as to defame first respondent. There is also no allegation in Annexure-A1 complaint that petitioners had a common intention with the third accused to defame first respondent. There is absolutely nothing in Annexure-A1 complaint to connect petitioners with the publication of news item, except the conspiracy alleged. What was the conspiracy was also not disclosed in paragraph 6. Even if there is a conspiracy as alleged, if that conspiracy was not to defame first respondent, even if third accused defamed first respondent, petitioners cannot be prosecuted for the said offence, in the absence of a case that conspiracy was to defame first respondent. Added to this, result of the enquiry conducted by learned Chief Judicial Magistrate by calling a report from the police evidenced by Annexure-A6, establish that even the CRMC 1003/09 5 police could not unearth any material to connect petitioners with the news item published by third accused. Therefore, even if petitioners are to be tried, there is no chance for a conviction. In such circumstances, continuation of the proceedings as against petitioners is only an abuse of process of court. Hence petition is allowed. C.C.125/2008 on the file of Judicial First Class Magistrate-I, Kasaragod as against the petitioners, accused 1 and 2 is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.