*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU +Crl.P. No.4427 of 2009 % 30-08-2009 #P. Kiran S/o P.B.V.S.V. Gopal Rao ….petitioner Vs. $ The State of Andhra Pradesh represented by its PP High Court of A.P. and one another …. Respondents !Counsel for the petitioner : M/s K. Ramakanth Reddy Counsel for the Respondents: Additional P.P. for R1 and G. Tuhin Kumar for R2 <Gist : >Head Note: ? Cases referred: 1. 2010 (1) ALD (Crl.) 575 (AP) 2. AIR 1992 SC 2206 3. 1986 Crl LJ 888 4. 1995 Crl.LJ 1922 5. 1983 Crl.LJ 777 HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO. 4427 OF 2009 Between: P. Kiran S/o P.B.V.S.V. Gopal Rao ..... Petitioner (A1) AND 1. The State of Andhra Pradesh represented by its PP High Court of A.P. and one another .....RESPONDENTS ORAL ORDER: The petitioner/A1 is accused of offence punishable under Section 500 IPC in C.C.No. 601 of 2008 on the file of Judicial Magistrate of the First Class of Narsipatnam along with another. As per allegations in the complaint filed by the second respondent/complainant in the lower Court, A1 is Managing Director of Gemini Television and A2 is Chief Reporter of Gemini Television of Visakhapatnam. The second respondent / complainant has been in Telugu Desham Party. The offence took place on 8.9.2008. The imputation in nutshell, which is stated to have been telecasted in Gemini Television is that the second respondent was going to resign from Telugu Desham Party and was joining the Congress. The complainant is stated to have received the said information of telecasting in Gemini Television when he was traveling in Godavari Express and when he received several cell phone calls from his party friends and relatives. It is stated in the complaint that the second respondent tried to contact A2 on his Cell Phone No. 9949129399 to ascertain the basis for the alleged defamatory news item and that A2 did not respond and that ultimately the complainant sent S.M.S through Mobile Phone No. 9866666568 to A2 on the same day questioning and protesting on that news item. It is further stated in the complaint that on 10.9.2008 he along with other Telugu Desham Party leaders staged protest in front of office of A1 at Hyderabad on the said news item and that A1 did not oblige to rectify their conduct by telecasting the earlier news item dated 8.9.2008 as false. 2. It is contended by the petitioner’s counsel that A1 is not Managing Director of Gemini Television and that one Karunanidhi Maran was the Managing Director thereof. It is a question of fact as to who is the Managing Director of Gemini Television; and the said question cannot decide the fate of this petition. 3. It has to be seen whether allegations contained in the charge sheet as they stand disclose offence punishable under Section 500 IPC. Offence of defamation is defined in Section 499 IPC and is made punishable under Section 500 IPC. Section 499 reads as follows: “499. Defamation. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, 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, except in the cases hereinafter excepted, to defame that person.” 4. Thus Mens rea on the part of the accused is essential for defamation. In order to constitute Mens rea, the accused must have prior knowledge of commission of the offence. At this stage, it may be noted that A2 who is the Chief Reporter of Gemini Television at Visakhapatnam is not the petitioner herein and he is not seeking quashing of complaint in so far as he is concerned. The petitioner herein is A1 and he seeks quashing of the complaint in so far as he is concerned, under Section 482 Cr.P.C. 5. In para 2 of the complaint it is stated that A1 is Managing Director of the Gemini Television and Teja News Electronic Media, Telecasting news through out the State and also at the National level and that A2 is the Chief Reporter of Gemini Television at Visakhapatnam “responsible for gathering news and making news items from the Visakhapatnam District and causing its telecast through the Main station at Hyderabad.” Thus even in the complaint, the complainant did not plead and allege that A1, as Managing Director had any role in gathering news or in making news items or in causing its telecast through the channel. No role is attributed to A1 by the complainant in telecasting the alleged defamatory news item. When A1 had no role in telecasting the news items and when A1 is only a Managing Director at the helm of affairs in Gemini Television, no vicarious liability on criminal side can be attributed to him unless there is any special or specific provision in Section 499 IPC mulcting him with such vicarious liability. It was so held by this Court in RAVI PRAKASH VS. J.C. DIWAKR REDDY AND ANOTHER[1], after surveying case law in the subject including K.M. MATHEW VS. STATE OF KERALA[2], DASARI NARAYANA RAO VS. R.D. BHAGVANAS[3] by this Court, PRABHU CHAWLAAND VS. A.U SHERIFF[4] of the Karnataka High Court and S. NIHAL SINGH VS. ARJAN DAS[5] of the Delhi High Court. 6. It is contended by the second respondent’s counsel that A1 had knowledge of the telecast when the second respondent sent S.M.S message to A1. In the complaint there is absolutely no mention of the complainant giving S.M.S message to A1. On the other hand, it was specifically stated in the complaint that such S.M.S was given by the complainant to A2 after the complainant was informed by his fellow party men and others through Cell Phone about telecast of the impugned news item. It is contended by the second respondent that a mistake crept in the complaint to the effect that S.M.S message was given to A2 instead of A1. No Cell number of A1 is disclosed in the complaint. In the complaint cell numbers of the second respondent as well as A2 were given. Assuming for a moment for the sake of arguments that any S.M.S message was given by the second respondent to A1 also after he received information of telecasting the objectionable news item, it will not clothe A1 with prior knowledge or prior approval of the news item before it was telecasted in Gemini T.V. The alleged S.M.S message after telecasting of the news item had started and the alleged protest staged in front of Gemini Television Office after two days, will not have any bearing in deciding the complicity of A1 in gathering the news item, selecting the news item for telecasting and in fact telecasting the same through Gemini TV Channel. Thus, viewed from any angle, A1 who is stated to be Managing Director or who may be a Chief Executive of Gemini Television at Hyderabad, cannot have any criminal liability for defamation for the alleged defamatory news item. 7. Hence, the Criminal Petition is allowed quashing C.C.No. 601 of 2008 on the file of Judicial Magistrate of the First Class, Narsipatnam in so far as the petitiner/A1 is concerned. ______________________________ SAMUDRALA GOVINDA RAJULU, J Date: 30.08.2010 KA Note: LR copy to be marked. (Yes) ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] 2010(1) ALD (CRL.) 575 (AP) [2] AIR 1992 SC 2206 [3] 1986 CRI.LJ 888 [4] 1995 CRI.LJ 1922 [5] 1983 CRL.LJ 777