IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 Crl.MC.No. 168 of 2008() --------------------------------- CC.525/2006 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... PETITIONERS/ACCUSED: ------------------------------------ 1. T.S. ABRAHAM, GENERAL PRESIDENT, HEBRON, KUMBANAD. 2. K.M. JOSEPH, GENERAL SECRETARY, P.B.NO.28, PERUMBAVOOR. BY ADV. MR.S.M.PREM SMT.K.P.SANTHI MR.S.S.HUSSAIN MR.P.K.NIJOY RESPONDENTS/ COMPLAINANT: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. DHANIYEL, SON OF MATHEW, KURUMATTAM HOUSE, PEECHI VILLAGE, KERI CAMPUS 111/19, QUARTERS, PEECHI P.O. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R2 BY ADV. MR.V.PHILIP MATHEW. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.168 OF 2008 ------------------------------------------ Dated 22nd September 2009 O R D E R Petitioners are accused and second respondent, the complainant in C.C.525/2006 on the file of Judicial First Class Magistrate-III, Thrissur taken cognizance for the offences under Sections 499 and 500 read with Section 34 of Indian Penal Code, on Annexure-II complaint filed by the second respondent. Case of the second respondent in Annexure-II complaint is that petitioners published the original of Annexure-I letter, through Defender weekly on 31/8/2005 which contains false allegations defamatory to the second respondent and copy of the letter was sent to several persons as shown in the publication and petitioners thereby committed the offence under Sections 499 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure contending that the averments in Annexure-I notice are not defamatory and in any case, there was no publication of notice by the petitioners and CRMC 168/2008 2 therefore, the prosecution is only abuse of process of the court. 2. Learned counsel appearing for petitioners and second respondent were heard. 3. Learned counsel appearing for petitioners vehemently argued that Annexure-I notice does not contain any defamatory statement and in any case, there is no publication of it by the petitioners and neither the publisher nor the editor of the Defender weekly was made an accused in the case and in such circumstances, the case is only to be quashed. Learned counsel also argued that it is the second respondent who is actually involved in such activities and not the petitioners and therefore, in the interest of justice, the case is to be quashed. 4. Learned counsel appearing for second respondent pointed out that a reading of Annexure-I notice shows that second petitioner was one among the persons who participated in the illegal acts which cannot be accepted by their community and hence his reputation is badly affected and thereby it is defamatory and Annexure-I notice itself shows that the letter was not only addressed to the I.P.C, CRMC 168/2008 3 Kerala State Council, but its copies were sent to several persons including the brothers at Thrissur, State Council members and General council members and the question whether Annexure-I amounts to defamatory statement is to be decided only on the evidence and complaint cannot be quashed. Learned counsel also argued that in any case, it is for the petitioners to raise these contentions at the time when charge is framed and the case cannot be quashed under Section 482 of Code of Criminal Procedure. 5. Learned counsel appearing for petitioners submitted that first petitioner has to go all over the world and in such circumstances, it is difficult for the petitioners to appear before the learned Magistrate on all the posting dates to seek discharge. 6. On hearing the learned counsel, I find no reason to exercise the inherent extra ordinary powers of this court under Section 482 of Code of Criminal Procedure to quash the case. Prima facie, it cannot be said that there was no publication. Question whether the allegations in Annexure-I amounts to defamation, has to be considered by the learned CRMC 168/2008 4 Magistrate. Petitioners are entitled to raise all the contentions before the learned Magistrate before framing charge. If case of the petitioners is that they cannot personally appear before the court on all the posting dates, it is up to them to file proper application before the learned Magistrate for exemption. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.