IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.MC.No. 4342 of 2008() ------------------------- (CC.49/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM) .................... PETITIONER/ACCUSED NO.1 ------------------------------------------- VELLAPPALLY NATESAN @ NATESAN, S/O. KESAVAN, VELLAPPALLIYIL KANICHAKULANGARA, ALAPPUZHA. BY ADVS. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWAR LAL RESPONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------- 1. DR. RAVEENDRAN, S/O. NARAYANAN, SREE RAGAM, CHATHANNOOR, KOLLAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.RAJENDRAN R2 BY PUBLIC PROSECUTOR, SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2010 ALONG WITH CRL.MC. NO.3790/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR,J. ---------------------------------------------------- CRL.M.C.NO.4342 & 3790 OF 2008 --------------------------------------------------- Dated 16th November, 2010 O R D E R Petitioner in Crl.M.C.4342/2008 is the first accused and petitioners in Crl.M.C.3790/2008 are accused 2 to 5, in C.C.49/2008 on the file Chief Judicial Magistrate's Court, Kollam. Petitions are filed under Section 482 of Code of Criminal Procedure to quash the complaint filed by the first respondent before Chief Judicial Magistrate and taken cognizance for the offence under Section 500 of Indian Penal Code. Petitioner in Crl.M.C.4342/2008 is Secretary of Sree Narayana Trust and petitioners in Crl.M.C.3790/2008 are the Chief Editor, Editor, Managing Editor and Crmc 4342 & 3790/08 2 Printer and Publisher of Malayala Manorama. First petitioner in Crl.M.C.3790/2008 is now no more. First respondent was the Principal of Sree Narayana College, Chellannur. While functioning as the Principal, disciplinary proceedings was initiated against the first respondent. Though two retired District Judges were appointed as Enquiry Officer, they relinquished the and later late Sri.Aravindaksha Menon, retired District Judge was appointed as the enquiry office. Annexure-E report was submitted by the Enquiry Officer finding that first respondent is guilty of all the charges. The report was accepted and first respondent was terminated from service. That fact was reported in Malayala Manorama daily. Annexure-B is the said news report. Annexure-B was published in the daily, based on Annexure-C Crmc 4342 & 3790/08 3 press release issued by Sri.Bahuleyan, Advocate, Kollam on behalf of Sree Narayana Trust. Annexure-A complaint was filed by the first respondent alleging that publication of Annexure-B report is defamatory and the accused thereby committed offences under Sections 500 and 501(b) and 502(b) read with Section 34 of Indian Penal Code. Petitioners would contend that Annexure-A complaint and the proceedings pending before the Chief Judicial Magistrate is only an abuse of process of the court. Petitioner in Crl.M.C.4342/2008 would contend that Annexure-B news item was published as dismissal of the first respondent from service is to be made transparent and press release was issued based on the findings in Annexure-E report of the Enquiry Officer and in such circumstances, Annexure-A complaint and is only Crmc 4342 & 3790/08 4 an abuse of process of the Court and it is to be quashed. Petitioners in Crl.M.C.3790/2008 would contend that they published Annexure-B news item based on Annexures-C press release and Annexure-D proceedings of the Manager of the Sree Narayana Trust and Annexure-B news item only discloses the contents of the press release and the proceedings and in any case, first petitioner being the Chief Editor is not personally liable or responsible for selection of the new item and hence continuation of the proceedings against them is an abuse of process of the court. 2. Learned counsel appearing for the petitioner in Crl.M.C.4342/2008, learned Senior Counsel appearing for the petitioners in Crl.M.C.3790/2008 and the learned counsel appearing for the first respondent, the Crmc 4342 & 3790/08 5 complainant before the learned Magistrate, were heard 3. Learned counsel appearing for the petitioner in Crl.M.C.4342/2008 and learned Senior Counsel appearing for the petitioners in Crl.M.C.3790/2008 pointed out that disciplinary proceedings were initiated against the first respondent, who was former Principal of Sree Narayana College, Chellannur on various allegations raised against him and retired District Judge, Sri.M.K.Abdullah was appointed as Enquiry Officer and because of the attitude of the first respondent, he resigned and thereafter Mr.K.Sudhakaran another retired District Judge was appointed as Enquiry Officer and first respondent made allegations against him and he also resigned. This court while considering W.A.1274/2003, submission of Crmc 4342 & 3790/08 6 Adv.A.N.Rajan Babu, who was appearing for the Management that he will ensure that a retired District Judge totally unconnected with college and Management will be appointed as Enquiry Officer and Sri.Aravindaksha Menon was appointed as Enquiry Officer. The Enquiry Officer conducted detailed enquiry recording statements of several witnesses. Based on the evidence recorded, Enquiry Officer found the first respondent guilty of all the charges. It was pointed out that charge No.1 was that first respondent was absent unauthorizedly without applying for leave and marked attendance for those days, though he was absent. Based on the materials the said charge was found proved. It is also pointed out that charge No.6 was that first respondent as the President of PTA was controlling the funds of the PTA and he had Crmc 4342 & 3790/08 7 withdrawn Rs.1,60,870/- from the said account and misappropriated it, without the decision of the committee. Based on the materials the said charge was also found proved. It was also pointed out that charge No.10 was that while holding the post of Principal of S.N.Guru College, Chellannur, first respondent took two girls students of the college to Mookambika and stayed with them in Devi Kripa lodge on 18/12/1999 and also unauthorizedly made a payment of Rs.9,000/-, out of the PTA fund for their expenses. Based on the evidence the said charge was also found proved. Learned counsel pointed out that Annexure-C press release and Annexure-D proceedings of the Manager of the Sree Narayana Trust, are based on the facts found in Annexure-E report and therefore, based on publication of Annexure-B news no offence Crmc 4342 & 3790/08 8 under Section 500 or other offences under Indian Penal Code was committed and hence continuation of the proceedings is only an abuse of he process of the court. 4. Argument of the learned counsel appearing for the first respondent is that Annexure-B publication was made at the instance of the petitioner in Crl.M.C.4342/2008 out of malice, as the said petitioner did not like the first respondent to continue as Principal of Sree Narayana College, Chengannur or to transfer him to Sree Narayana College, Kollam, though he is entitled to be posted as Principal at Kollam and in spite of the various petitions filed by the first respondent, he was not given the posting legally due to him. It is argued that the attempt of the petitioners was only to defame the first respondent in the eye of the Crmc 4342 & 3790/08 9 public and therefore, offences were committed. Relying on the decision of the Honourable Supreme Court in Harbhajan Singh v. State of Punjab and another (AIR 1966 SC 97), learned counsel argued that question whether petitioners are entitled to protection under any of the exceptions to Section 499 are to be decided only after recording the evidence and based on the exception available, cognizance taken or the complaint cannot be quashed exercising the inherent powers available under Section 482 of Code of Criminal Procedure. Learned counsel pointed out that the legal position has been reiterated by the Honourable Supreme Court in Sewakram Sobhani v. R.K.Karanjiya (AIR 1981 SC 1514). 5. Annexure-B news item published in Malayala Manorama daily is to the effect that Crmc 4342 & 3790/08 10 the petitioner in Crl.M.C.4342/2008 in his capacity as the Secretary of Sree Narayana Trust, passed an order terminating the service of the first respondent as the Principal of Sree Narayana College, Chengannur, based on the enquiry conducted on the allegation that while functioning as Principal of Sree Narayana Guru College, Chellannur he unauthorizedly spent amount from PTA fund by taking two girl students of the college to Mookambika. News item also shows that during that period students had lead agitation on the demand that the Principal should be changed and during that period first respondent had gone out of the college only with police. Third paragraph of the news item is to the effect that based on the enquiry conducted by the Management it was found that first respondent misappropriated Crmc 4342 & 3790/08 11 Rs.1,60,870/- from PTA fund and instead of Rs.10/- as registration fee he collected Rs.20/- and first respondent received house rent allowance, though he was residing unauthorizedly in the college office. He was also misbehaving with the teachers. A charge sheet was submitted showing these allegations. As directed by the High Court Retired District Judge, Sri.K.Aravindaksha Menon was appointed as Enquiry Officer. Based on the enquiry report with the oral and documentary evidence submitted, committee of the Sree Narayana Trust decided to terminate first respondent from service. Annexure-B is in fact an identical news report of Annexure-C press release issued, for Sree Narayana Trust, by Adv.R.Bahuleyan. Though learned counsel appearing for the first respondent vehemently Crmc 4342 & 3790/08 12 argued that contents of Annexure-B report are per se defamatory and in view of malice, as proved by the previous conduct of the first accused, the petitioner in Crl.M.C.4342/2010 the complainant cannot be quashed and question whether petitioners are entitled to the protection in view of the exceptions to Section 499 of Indian Penal Code cannot be decided in a petition under Section 482 and instead can be taken only on recording the evidence. A perusal of Annexure-E report submitted by Sri.Aravindaksha Menon, the Enquiry Officer, establish that Annexure-C release press report is based on the finding of facts rendered by the Enquiry Officer in Annexure-E report. Learned counsel appearing for the petitioner in Crl.M.C.4342/2008 submitted that first respondent had challenged Annexure-E report as Crmc 4342 & 3790/08 13 well as the order terminating him before this court and also before the Honourable Supreme Court, unsuccessfully and when service of the first respondent was terminated, the management felt that it is their duty to publish the reason and basis for dismissal and hence summary of the enquiry report based on which service was terminated under Annexure-D proceedings were made public by issuing Annexure-C press release. It was published by the Malayala Manorama. In such circumstances, continuation of the proceedings is only an abuse of process of the court. 6. Though Learned counsel appearing for the first respondent argued that findings in Annexure-E report cannot be accepted as the first respondent did not get opportunity to prove that the allegations are not correct, Crmc 4342 & 3790/08 14 learned counsel did not dispute the fact that proceedings initiated by the Management terminating him from service was confirmed by this Court as well as the Apex court. It is not for this court to sit on judgment on Annexure- E report submitted by the Enquiry Officer. The retired District Judge conducted enquiry and based on the materials collected and evidence, found each of the allegations against the first respondent proved. Though learned counsel appearing for the first respondent argued that he did not get opportunity to disprove the materials collected, Annexure-E report shows that first respondent had provided sufficient opportunity. Fact that he did not avail of the opportunity is not a ground to disregard the findings in Annexure-E report. Though first respondent produced various documents to show Crmc 4342 & 3790/08 15 thatinterse litigations as well as pleadings and proceedings, I do not find that they are necessary to resolve the dispute in this petition. 7. Question is whether the publication of the reason for dismissal of the first respondent from service would amount to defamation. Being the Principal of the college, when his service is being terminated by the Management after conducting an enquiry following the procedure provided for disciplinary action, the management felt that it is necessary to make summary of the reasons for termination of the service public. It cannot be said that the said publication is defamatory. As far as the petitioners in Crl.M.C.3790/2008 are concerned, they have only published the report, as furnished to them by Crmc 4342 & 3790/08 16 Annexure-C press release and Annexure-D proceedings. When Annexure-C press release is in accordance with the findings in Annexure-E report submitted by the Enquiry Officer, based on which the service was terminated, petitioners in Crl.M.C.3790/2008 cannot be prosecuted. Hence the prosecution is only an abuse of process of the court. Necessarily it is to be quashed, exercising the inherent power of this court under Section 482 of Code of Criminal Procedure. As far as the petitioner in Crl.M.C.4342/2008 is concerned, he is the Manager of the educational agency. It is under his orders service of the first respondent was terminated. Annexure-C press release shows that the press release was not issued by the Manager, but for the management it was issued by Adv.Bahuleyan. When that press release is Crmc 4342 & 3790/08 17 only explaining the reasons for termination of service, and that too based on the factual findings in Annexure-E report submitted by the retired District Judge, continuation of the proceedings against the petitioner in Crl.M.C.4342/2008 is also an abuse of process of the court. Petitions are allowed. Annexure-A complaint and all further proceedings in C.C.49/2008 on the file of Chief Judicial Magistrate's Court, Kollam is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.