IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 Crl.MC.No. 2317 of 2010() ----------------------- CC.4/2010 OF SESSIONS COURT, ERNAKULAM ................ PETITIONERS / ACCUSED : ------------------------------------ 1. G.NIRMALA, SPECIAL CORRESPONDENT, SAMAKALIKA MALAYALAM VAARIKA, C/O.THE NEW INDIAN EXPRESS, EXPRESS HOUSE, KALOOR, KOCHI-682 017. 2. P.J.ALEX, @ SAJI JAMES, SPECIAL CORRESPONDENT, SAMAKALIKA MALAYALAM VAARIKA C/O.THE NEW INDIAN EXPRESS, EXPRESS HOUSE, KALOOR, KOCHI-682 017. 3. S.JAYACHANDRAN NAIR, EDITOR, SAMAKALIKA MALAYALAM VAARIKA C/O.THE NEW INDIAN EXPRESS, NO.55, VRINDAVAN COLONY, PATTOM, THIRUVANANTHAPURAM-695 004. 4. SUNIL NAMBIAR, PRINTER & PUBLISHER, SAMAKALIKA MALAYALAM VAARIKA C/O.THE NEW INDIAN EXPRESS, EXPRESS PUBLICATIONS (MADURAI) LIMITED,, EXPRESS HOUSE, KALOOR, KOCHI-682 017. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT / COMPLAINANT : -------------------------------------------- 1. PUBLIC PROSECUTOR, ERNAKULAM DISTRICT & SESSIONS COURT, ERNAKULAM DISTRICT, ERNAKULAM FOR AND ON BEHALF OF SRI.ELAMARAM KAREEM, HON'BLE MINISTER FOR INDUSTRIES, GOVT.OF KERALA, THIRUVANANTHAPURAM-695 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ...2/- Crl.MC.No. 2317 of 2010() -2- 3. MR.ELAMARAM KAREEM MINISTER FOR INDUSTRIES, THIRUVANANTHAPURAM. BY SRI.P.M.SUKUMARAN, ADGP BY PUBLIC PROSECUTOR SRI. P.A. SALIM PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/10/2010, ALONG WITH CRMC NO. 2493/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2317 & 2493 OF 2010 =========================== Dated this the 19th day of October,2010 ORDER Accused in C.C.4/2010 of Principal Sessions Court, Ernakulam are the petitioners. Crl.M.C.2317/2010 is filed under section 482 of Code of Criminal Procedure to quash the cognizance taken for the offence under section 499 punishable under sections 500, 120B, 501 and 502 of Indian Penal Code, on Annexure II complaint filed by the Public Prosecutor under section 199(2) of Code of Criminal Procedure. Crl.M.C.2493/2010 is filed under section 482 of Code of Criminal Procedure to declare that Annexure VII order granting sanction for institution of the complaint, taken cognizance in C.C.4/2010 is insufficient and invalid and therefore to quash the proceedings as there is Crl.M.C.2317 & 2493/2010 2 no sanction as contemplated under section 199(4) of Code of Criminal Procedure. Public Prosecutor filed Annexure II complaint alleging that petitioners published articles in Samakalika Malayalam Varika which contained defamatory statements against the Minister of Industries, Government of Kerala. 2. Learned counsel appearing for the petitioners and learned Additional Director General of Prosecution were heard. 3. Learned counsel appearing for the petitioners, based on the order taking cognizance by Sessions Judge, Ernakulam dated 22.4.2010, argued that learned Sessions Judge has not applied his mind as only the complaint was perused and not the defamatory articles. It was argued that the question whether the complaint was filed within the statutory period was also not properly taken into consideration and in any case the order of sanction was not perused as the sanction is to prosecute only on one article. Learned counsel relied on Crl.M.C.2317 & 2493/2010 3 the decision of the Apex Court in Indian Express Newspapers (Bombay) Private Ltd and Others v. Union of India and others (1985) 1 SCC 641), Life Insurance Corporation of India v. Prof.Manubhai D. Shah (AIR 1993 SC 171), Ramoji Rao, Chairman Ramoji Group of Companies and another v. State of A.P. (2006) 8 SCC 321), P.C. Joshi and another v. The State of Uttar Pradesh (AIR 1961 SC 387), Gour Chandra Rout and another v. The Public Prosecutor, Cuttack (AIR 1963 SC 1198) and argued that freedom of the press was not taken into consideration and if the articles were properly read, learned Sessions Judge would have found that it was only a fair criticism of the conduct of the Minister and not an attempt to defame the Minister and learned Sessions Judge should not have taken cognizance. Learned counsel also submitted that the sanction order does not show that the authority granting sanction perused the entire articles stated in the complaint and instead it is clear that only one Crl.M.C.2317 & 2493/2010 4 article was perused and in such circumstances based on the sanction order, learned Sessions Judge should not have taken cognizance of the offence against all the accused. Relying on the document produced by the petitioners to show that the concerned weekly was despatched on 19.10.2009, it was argued that if that be so, the complaint was not fild within the period of six months from th date of publication as provided under section 199 and therefore the cognizance taken was bad. 4. Learned Additional Director General of Prosecution relied on the decision of the Apex Court in Major Som Nath v. Union of India (AIR 1971 SC 1910), Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and Others (1996 SCC (Cri) 1310), Balraj Khanna v. Moti Ram (AIR 1971 SC 1389), Sewakram Sobhani v. R.K.Karanjia, Chief Editor, Weekly Blitz and others (1981) 3 SCC 208) and argued that there is no reason to quash the cognizance taken. It was pointed out that as Crl.M.C.2317 & 2493/2010 5 provided under section 237 of Code of Criminal Procedure, a Sessions court taking cognizance under sub section (2) of Section 199, shall try the case in accordance with the procedure for trial and warrant cases instituted otherwise than on a police report before a Magistrate and therefore petitioners could raise all the contentions raised herein and seek an order of discharge under section 245(1) of Code of Criminal Procedure. Learned Additional Director General of Prosecution also pointed out that the sanction order shows that entire weekly as such was examined and the authority granted sanction to prosecute all the accused as sought for in the complaint and therefore the order of sanction to prosecute all the accused as sought and hence it is valid. It is also pointed out that the complaint was filed within the period of six months as provided under sub section (5) of Section 199 and in such circumstances there is no reason to interfere with the order. Crl.M.C.2317 & 2493/2010 6 5. On hearing the learned counsel and the learned Additional Director General of Prosecution, I do not find that it is for this court to analyse the articles to find whether they contain defamatory statements or not. So also the validity of the sanction order or the question whether the complaint was filed within the period of limitation are not to be decided in this petition under section 482 of the Code of Criminal Procedure. The order taking cognizance show that learned Sessions Judge had taken all the relevant facts into consideration and applied his mind and had taken cognizance of the offences having satisfied that there exists a prima facie case to proceed further. Petitioners are entitled to raise all the contentions including the question whether the articles contain any defamatory materials or not and if so whether the accused are to be prosecuted and whether the order of sanction is sufficient to prosecute all the accused and whether the complaint was filed within the period provided under sub Crl.M.C.2317 & 2493/2010 7 section (5) of Section 199 and seek an order of discharge as provided under section 245(1) of Code of Criminal Procedure. As the learned Sessions Judge has to try the case in accordance with the procedure for trial of warrant cases otherwise than on police report, necessarily in the presence of the petitioners, witnesses are to be examined as provided under section 244. Petitioners are at liberty to cross -examine or not to cross examine the witnesses at that stage. After recording the evidence of the complainant, petitioners could very well seek an order of discharge under section 245(1) of Code of Criminal Procedure, raising all the contentions raised herein. 6. Learned counsel then submitted that presence of the petitioners may not be insisted for the purpose of claiming an order of discharge under section 245(1) of Code of Criminal Procedure. If petitioners file an application under section 205 of Code of Criminal Procedure to dispense with their personal presence, for the purpose of Crl.M.C.2317 & 2493/2010 8 recording the evidence of the complainant under section 244 of Code of Criminal Procedure and to seek an order of discharge under section 245(1), learned Sessions Judge shall not insist for their presence. Petitions are disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006