Karnataka High Court

Sri. Selvarangam vs Sri. Ms.Ranjitha Menon on 27 October, 2021

Author: Sreenivas Harish Kumar

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 27TH DAY OF OCTOBER 2021

                        BEFORE

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL PETITION No.2021 OF 2020

BETWEEN

1.   Sri Selvarangam,
     S/o N.Munusamy,
     Aged about 74 years,
     The Publisher,
     Kumudam Publications (P) Ltd.,
     Old No.151, New No.306,
     Purasawalkam Main Road,
     Chennai-600010.

2.   Sri S.Paul Antony Raj,
     S/o Susainathan,
     Aged about 53 years,
     The Printer,
     Kumudam Publications (P) Ltd.,
     Old No.151, New No.306,
     Purasawalkam Main Road,
     Chennai-600010.

3.   Sri Charu Nivedita,
     S/o G.Krishnaswamy,
     Aged about 66 years,
     The Writer,
     Kumudam Publications (P) Ltd.,
     Old No.151, New No.306,
     Purasawalkam Main Road,
     Chennai-600010.
                                        ...Petitioners
(By Sri Amar Correa, Advocate)
                              2


AND

Ms. Ranjitha Menon,
D/o P.Ashok Kumar,
Aged about Major,
R/at No.72, C.V.Raman Road,
Annapoorneshwari Layout,
Kodipalya, Kengeri Hobli,
Off Uttarahalli, Kengeri Main Road,
Bengaluru-560060.

Also at:
C/o Sri Nithyananda Dhyanapeetam,
Kallugopanahalli,
Mysuru Road,
Bidadi-562109.
                                               ...Respondent
(vide order dated 22.01.2020,
notice to respondent held sufficient)


       This Criminal Petition is filed under Section 482
Cr.P.C., praying to (i) set aside the order dated
30.11.2011, passed by the III Addl.C.M.M., Bengaluru in
P.C.R.No.21959/2011          (now        registered        in
C.C.No.35950/2011 pending before the XXXII Addl.C.M.M.,
Bengaluru) Directing to register a criminal case against the
petitioners, who are accused No.3, 4 and 8 for the offences
punishable under Section 499 and 500 of IPC and issuing
summons and etc.

       This Criminal Petition coming on for admission this
day, the court made the following:

                       ORDER

This is a petition filed under Section 482 Cr.P.C.

for quashing the entire proceedings in C.C.No.

35950/2011 (arising from PCR No.21959/2011) on the

file of 32nd ACMM, Bengaluru. The 2nd respondent

initiated proceeding under Section 200 Cr.P.C. for

prosecuting the petitioners and other accused for the

offences punishable under Section 499 and 500 of

IPC.

2. I have heard the arguments of Sri. Amar

Correa, learned counsel for the petitioners. The 2nd

respondent is served with notice, but she has not

appeared before the court.

3. Sri. Amar Correa submitted that he would not

press the petition in so far the 3rd petitioner is

concerned.

4. The petitioners 1 and 2 are the publisher and

the printer of a magazine viz., 'Kumudam'

respectively. The main allegation of the 2nd

respondent in the complaint is that the 8th accused

i.e., the 3rd petitioner authored and got published an

article titled, 'Sarasam Sallabam Samaiar' (Frolicking

Flirtatious Swamy) in the magazine Kumudam. The

article was published in 30 serials from 18.3.2010 to

27.06.2010. The 2nd respondent has alleged that the

articles contained defamatory statements and

morphed and fabricated obscene pictures of her with

Swamy Nithyananda. The 2nd respondent is a cine

actress and stated that these articles are bereft of

truth. Therefore she initiated criminal action for

defamation.

5. Sri. Amar Correa, learned counsel for the

petitioners submitted that the petitioners 1 and 2

being the publisher and the printer of the Kumudam

Publications Pvt. Ltd., respectively are not responsible

if the article contained defamatory statements. If the

complaint made by the 2nd respondent is read, it can

be made out that there are no specific allegations

against the petitioners 1 and 2. There are no

allegations also that the article was published in the

magazine intending to harm the reputation of the 2nd

respondent in the society. If at all the article is

defamatory, only the editor of the magazine can be

prosecuted in view of presumption being drawn

against the editor in accordance with Section 7 of

Press and Registration of Books Act. Since such a

presumption cannot be drawn against the printer and

the publisher, the complaint must contain specific

allegations against them, otherwise they cannot be

prosecuted. In this view the action initiated against

the petitioners 1 and 2 is abuse of process of court

and hence, the proceedings against them is required

to be quashed. In support of his arguments, he has

garnered support from the judgments of the Supreme

Court in the case of State of Maharashtra Vs. Dr.

R.B. Chowdhari and others (1967 3 SCR 708)

and K.M.Mathew Vs. State of Kerala and another

[(1992) 1 SCC 217].

6. In order to appreciate the argument of Sri.

Amar Correa, it is necessary to peruse the complaint

made by the 2nd respondent. She has given the details

of her career and areas of interest and stated that the

article has harmed her reputation in the society. But

what is conspicuously absent is specific allegations

against the petitioners 1 and 2, what is found is

omnibus allegations against all the accused. Section

499 of IPC defines the offence of 'defamation'. The

basic requirement is intention to harm the reputation.

Therefore, the complaint must unequivocally contain

allegation against each accused. But specific

allegation against the editor of a magazine or a

newspaper is not necessary in view of Section 7 of

The Press and Registration of Books Act. In the case

of R.B.Chowdhari (supra), it is observed that the term

editor is defined in The Press and Registration of

Books Act that he is a person who controls the

selection of the matter that is published in the

newspaper. Therefore, it is at the instance of the

editor of a news magazine that an article is published

and in this view presumption has been provided in the

said Act. But the position is not so in the case of

printer or publisher. In the decision of K.M.Mathew, a

question arose whether the Chief Editor of a

newspaper can be prosecuted for defamation. The

Hon'ble Supreme Court has observed that

"10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate

was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside".

7. Since in this case there are no specific and

positive averments against the petitioners 1 and 2,

the motive to defame the 2nd respondent cannot be

attributed to them. The learned Magistrate ought to

have applied his mind before proceeding against

them. In this view, I do not think the petitioners 1

and 2 can be prosecuted, and if they are prosecuted it

is nothing but abuse of process of court. Hence the

following :

ORDER

The petition is dismissed as withdrawn so far as

3rd petitioner is concerned. Liberty is granted to the