Mr.Rajeev Chandrasekhar vs State Of Kerala
2021 Latest Caselaw 4593 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                      Crl.MC.No.2462 OF 2019(G)

   AGAINST THE ORDER/JUDGMENT IN CC 172/2017 OF CHIEF JUDICIAL
                   MAGISTRATE COURT, ERNAKULAM


PETITIONER/ACCUSED:

             MR.RAJEEV CHANDRASEKHAR,
             AGED ABOUT 53 YEARS,
             SON OF AIR COMMODORE M.K. CHANDRASEKHAR,
             RESIDING AT 375, 13TH MAIN, 3RD BLOCK,
             KORAMANGALA, BENGALURU- 560 034.

             BY ADVS.
             SRI.SANTHOSH MATHEW
             SRI.ARUN THOMAS
             SRI.JENNIS STEPHEN
             SRI.VIJAY V. PAUL
             SMT.KARTHIKA MARIA
             SRI.ANIL SEBASTIAN PULICKEL
             SMT.DIVYA SARA GEORGE
             SMT.JAISY ELZA JOE

RESPONDENTS/STATE COMPLAINANT:

      1      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM,
             KOCHI 31.

      2      MR. PRADEEP PARAPPURAM,
             AGED 49 YEARS,
             S/O. M.K ETTAVUNNY, MUVATTY HOUSE,
             KALATHIPARAMBY CROSS ROAD, 39/1499, NEAR LEELA
             KRISHAN INN. VALANJAMBALAM,
             ERNAKULAM SOUTH, KOCHI 682 016.


             PUBLIC PROSECUTOR SRI.M.R.DHANIL

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD          ON
09.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.2462 OF 2019(G)                2




                                   ORDER

Cognizance was taken on a private complaint

alleging offence punishable under Section 499 and

500 IPC by the Chief Judicial Magistrate, Ernakulam

on a complaint made by one Pradeep Parappuram

(second respondent) claimed to be an active worker

of Nationalist Congress Party (NCP). The allegation

is that the first respondent from 11.8.2017 onwards

started to publish news items in connection with

Sri.Thomas Chandy, a Minister from NCP, regarding

his involvement in the encroachment over government

land through a company by name Lake Palace Resort

owned by him, construction of a road by using MP

Fund without any tender, encroachment over

Punnammada lake extending approximately to 5 acres,

acquisition of property in large scale from the

person to whom the excess lands were given,

reclamation of paddy land and its conversion as

parking area connected with Lake Palace resort,

reclamation of paddy land for constructing a road

leading to Lake Palace, real estate business and the

missing of files from village office, Alappuzha

connected with the property owned by Lake Palace

Resort etc..

2. Going by the entire publication, it is

clear that what is alleged is against a private

company by name Lake Palace Resort owned by

Sri.Thomas Chandy. He happened to be a Minister

from the Nationalist Congress Party. No where it is

stated with respect to any allegation as against the

Nationalist Congress Party, its ideology or its

involvement. The allegations levelled is against

the Lake Palace Resort owned by Sri.Thomas Chandy

and his various business and encroachment over the

Punnamada Lake and government property, acquisition

of property in large scale given to the landless

person from excess land and the like. Neither

Sri.Thomas Chandy, the then Minister, nor the

private company by name Lake Palace Resort or any of

its directors or any person directly aggrieved by

the said publication not came up to prosecute the

first respondent and the media by name Asianet News

Channel who aired the news item. The learned

counsel Sri.Harindranath submitted that the

petitioner, who is a party worker came up to

prosecute the accused person without having a

grievance either in his personal capacity or as a

member of political party, the NCP. The fact that

Sri.Thomas Chandy happened to be the Minister from

the said political party may not by itself give any

locus standi for prosecution regarding the

defamatory statement, if any, made against

Sri.Thomas Chandy and his company, Lake Palace

Resort. It appears that the learned Magistrate took

cognizance without the compliance of requirement

under Section 199 Cr.P.C.. A complaint can be

maintained only by a person aggrieved by the

offence. Section 199 Cr.P.C. is extracted below for

reference:

"199.Prosecution for defamation.- (1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code(45 of 1860), except upon a complaint made by some person aggrieved by the offence:

Provided that where such person is under the age of eighteen years, or is an idiot

or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. (2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code, 1860 (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

(3) Every complaint referred to in sub- section (2) shall set forth in the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction-

(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;

(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;

(c) of the Central Government, in any other case.

(5) No Court of Session shall take cognizance of an offence under sub- section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."

3. The aggrieved person need not be the

defamed person, but there should be a direct nexus

between the imputation and the complainant. In the

absence of such a nexus between the imputation and

the complainant, it cannot be said that he can

maintain an action for the offence of defamation.

No cognizance can be taken for the offence of

defamation under Chapter XXI of IPC, unless there is

a complaint lodged by the aggrieved or defamed

person. It is not permissible to permit any

ill-motivated person to harass or prosecute the

accused in substitution of the aggrieved person or

defamed person. The very act and the intention of

the complainant is well explicit even going by the

allegation levelled in the complaint stating that he

is a party worker occupying an official position and

hence aggrieved by the abovesaid publication, though

the same is not focused against any particular

political party or their ideology. It is against

the institution run by Sri.Thomas Chandy and

encroachment over the government properties and

acquisition of property given as excess land to the

poor persons. The complainant without having any

personal grievance came up to prosecute the accused

person for the defamation and thereby misused the

judicial machinery so as to show his loyalty

towards Sri.Thomas Chandy and his private company.

Necessarily, the second respondent should not be

allowed to go with free hand and as such, it is fit

and proper to direct him to pay an amount of

Rs.5,000/- (Rupees five thousand only) to the KELSA

within one month from today, failing which, KELSA

shall recover the same from the second respondent.

Hence the complaint and the entire proceedings

thereof including cognizance taken are liable to be

quashed. I do so.

Crl.M.C. is allowed accordingly. The Registry

is directed to send a copy of this order to the

KELSA.

Sd/-

P.SOMARAJAN

JUDGE

msp

APPENDIX PETITIONER'S/S ANNEXURES:

ANNEXURE 1 TRUE COPY OF THE COMPLAINT IN CC NO.

172/2017 PENDING BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.

ANNEXURE II A CERTIFIED TRUE COPY OF THE ANNUAL RETURN FILED BY ASIANET NEWS NETWORK PRIVATE LIMITED IN FORM 20 WITH THE MINISTRY OF CORPORATE AFFAIRS.

ANNEXURE III TRUE COPY OF FORM 32 FILED BY ASIANET NEWS NETWORK PRIVATE LIMITED WITH THE MINISTRY OF CORPORATE AFFAIRS, INTIMATING THE MINISTRY OF CORPORATE AFFAIRS.

ANNEXURE IV TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER IN CC NO. 172/2017.

RESPONDENTS ANNEXURES: NIL

//TRUE COPY//

P.A. TO JUDGE