M.K.Ali Master vs Abdulla Timber
2021 Latest Caselaw 1932 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MRS. JUSTICE M.R.ANITHA

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                       Crl.MC.No.4277 OF 2016(D)

    AGAINST THE ORDER/JUDGMENT IN CC 77/2014 OF CHIEF JUDICIAL
                      MAGISTRATE ,KASARAGOD


PETITIONER/ACCUSED NO.1:

             M.K.ALI MASTER
             AGED 59 YEARS, S/O.MOHAMMED,VICE PRESIDENT,
             MANGALPADY GRAMA PANCHAYAT,POST MANGALPADY,
             KASARAGOD.

             BY ADVS.
             SRI.V.V.ASOKAN (SR.)
             SRI.JOSE JOSEPH (CHEMPLAYIL)
             SRI.P.P.RAMACHANDRAN

RESPONDENTS/COMPLAINANT, ACCUSED NO.2 AND NON PARTY:

      1      ABDULLA TIMBER
             AGED 59 YEARS, S/O.M.B.MAMMUNHI,MANNAMKUSHY,
             PRESIDING, JANAKEEYA NEETHIVEDI,POST UPPALA,
             KASARAGOD-671 322.

      2      THE EDITOR AND PUBLISHER
             UTTARADESOM DAILY,OLD BUS STAND, KASARAGOD-671 121.

      3      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
             KERALA,ERNAKULAM.

             R1 BY ADV. SRI.M.SASINDRAN
             R1-2 BY ADV. SRI.V.T.MADHAVANUNNI
             R1 BY ADV. SRI.V.A.SATHEESH

OTHER PRESENT:

             MAYA.M.N- P.P

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
05.01.2021, THE COURT ON 19.01.2021 PASSED THE FOLLOWING:
 Crl.M.C.No.4277 of 2016

                                 2




                          O R D E R

Dated this the 19th day of January, 2021

The petitioner is the first accused in C.C.No.77/2014

pending before the Chief Judicial Magistrate Court, Kasaragod.

The petitioner along with the second accused (2 nd respondent

herein) alleged to have committed an offence punishable under

Section 500 r/w. Section 34 IPC. The case arouse out of a private

compliant field by the 1st respondent herein. After taking sworn

statement of the complainant and witnesses,the Magistrate took

cognizance of the offence and the case is now pending before the

court for trial. Even if the entire averments in the complaint are

accepted, no ingredients of the offence u/s. 499 of IPC is made

out. So the continuation of the proceedings is an abuse of

process of court. Hence the Crl.M.C. has been filed to quash the

entire proceedings in C.C.No.77/2014 pending before the Chief

Judicial Magistrate Court, Kasaragod.

2. Notice was issued to the respondent. First respondent

appeared through counsel. Third respondent appeared through

the learned Public prosecutor.

3. Heard both sides.

Crl.M.C.No.4277 of 2016

4. The petitioner has approached this Court seeking for

quashment of C.C.No.77/2014 which was registered based upon

a private complaint filed by the first respondent/complainant.

The allegation levelled against the petitioner/first accused and

the 2nd respondent/second accused is extracted in paragraph

No.4 of this petition, which reads as follows:

"On 12.4.2012. Utharadesom Daily of which the 2nd respondent is the Chief Editor and Publisher published a news item in a column with caption "Neethivedi Uppalayile thattippukalum purathu kondu varanam" The news item was signed by the I" accused and published by the 2nd accused in Utharadesom Daily. It was alleged that the news item was published with the malicious intention to injure the reputation of the complainant and is calculated to expose the complainant to hatred, contempt, ridicule and to injure the complainant in his duty as an office bearer of Janakiya Neethivedi. The news item is published only to humiliate the complainant and thus the same is defamatory. Though the name of the complainant is not specifically mentioned in the news item, by way of inference it can be seen that the news is published intended to injure the reputation of Janakiya Neethivedi and its functionaries including the complainant. Thus it was alleged that the accused persons had committed an offence punishable under Section 500 of Indian Penal Code."

5. The main contention of the learned counsel for the

petitioner/first accused is that even if the entire allegations are

accepted as true, it will not attract the ingredients of the offence Crl.M.C.No.4277 of 2016

punishable u/s. 499 IPC. To make the matters more clear, I am

extracting the alleged imputation in the news item, which reads

as follows:

"¼ÈµàÏ ÈàÄßçÕÆßAÞøáæ¿ ºâ×â ÄáùKáµÞGá¢ÕßÇ¢ ÎÞVºîí 20Èᢠ¯dÉßW 2Èᢠ©JøçÆÖJßW ÕK ÕÞVJµZ dÖÆíÇÞÉâVÕî¢ ÕÞÏߺîá. ÕÞVJÏßæÜ Ø¢ÍÕBZ µÞØVçµÞæGKçÉÞæÜ ©M{ÏßÜᢠ¥øçBùáKá. µÞØVçµÞGáµÞV æÉÞùáÄßÎáGßÏçMÞZ ÉøÞÄßÏᢠÕcÕÙÞøÕáÎÞÏß §ùBßJßøßæºîCßÜᢠ©M{AÞV ɵWæµÞUAÞæø ÍÏæMGá µÝßÏáµÏÞÃí.

©M{ÏßæÜ Ø¢ÍÕBæ{Aáùߺîí ¥çÈb×â È¿Jß ØÄc¢ æÕ{ߺîJáæµÞIáÕøáæÎCßW ©JøçÆÖ¢ ÕÞÏÈAÞV µcÄÞVÄíÅøÞµá¢.

®¢.æµ. ¥ÜßÎÞØíxV, ©M{."

6. The learned counsel for the petitioner/first accused

would contend that the case against the second accused/second

respondent has already been discharged by the court below. But

the discharge petition filed by the petitioner has been dismissed

by the learned Chief Judicial Magistrate for the reason that this

is a summons trial case and there is no provision in Cr.P.C. to

discharge the accused. It is also found that Section 258 of Cr.P.C

enables the court to close the proceedings in summons trial

cases other than upon complaint. Admittedly, this is case based

on a private complaint. Hence Section 258 Cr.P.C. also cannot be

invoked. So in the above circumstances, learned Chief Judicial Crl.M.C.No.4277 of 2016

Magistrate was of the view that discharge petition cannot be

entertained and hence the petition was dismissed as not

maintainable.

7. To meet the argument of the learned counsel that the

offence u/s. 499 IPC will not be attracted to the alleged

imputation, it would be helpful to quote Section 499 IPC.

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.

Explanation 1. - x x x

8. So on going through the defamatory imputation

extracted in the complaint, copy of which has been produced as

Annexure A what could be seen is that there is a news reported

by the petitioner/first accused about the news report in

Uttaradesham Daily on 20th March and 2nd April about the

exploitation of Janakeeya Neethivedi people. It is further

reported that the incidents as in Kasaragod is taking place at

Uppala also. It is further reported that though the people at

Kasaragod proceeded with litigations, the people at Uppala are

scared of the daylight robbers. It is further reported that if an

enquiry is conducted with regard to the happenings at Uppala Crl.M.C.No.4277 of 2016

and fact is brought to light the subscribers of Uttaradesham

would be thankful.

9. So on a plain reading of alleged defamatory imputation

published in the news daily, prima facie there seems to have no

intention to harm the reputation of any particular person by that

news item. On the other hand, it appears to be a fair criticism of

the functioning of the Janakeeya Neethivedi. It also appears that

he has made it in good faith for a fair enquiry about the incidents

and bringing the fact to light. So prima facie it appears that the

alleged imputation would also come within the 10 th exception to

Section 499 IPC which expressly provides that it is not

defamation to convey a caution in good faith to one person

against another provided that such caution to be intended for

the good of the person whom it is conveyed or of some person in

whom that person is interested or for the public good.

10. In the above context, it is relevant to quote Rajmohan

v. Seetha Vedhanayagam & ors. [2017 Crl.L.J. 4334] wherein

while dealing with Section 499 Exception 9 and 10 it has been

held that an imputation without an intention to harm or without

knowing or having reason to believe that it would harm the

reputation of such person would not constitute an offence of Crl.M.C.No.4277 of 2016

defamation. It is true that in that case civil suit was pending

between the parties with regard to the sale of property by

complainant in violation of invocation or accused published

notice against the complainant for claiming rights over land

unlawfully only to safeguard their own interest in property and

accused making the imputation against the complainant in

newspaper in good faith for protection of interest of concerned

person and for public good. In the said context it was held that

publication made by the accused will not amount to defamation.

11. In this case, what is alleged to have been done by the

petitioner/first accused is making a news item in Uttaradesham

on 12.04.2012, about the news in the same publication on 20 th

March and 2nd April with regard to the exploitation by Janakiya

Neethivedi people at Kasaragod. Further he commented that

the same thing is happening at Uppala. He also stated about the

inaction of the people at Uppala unlike the people at Kasaragod

who had initiated legal proceedings. Further he requested for an

enquiry about the incidents at Uppala and make the matters

public for the satisfaction of readers of Uttaradesham. So as has

been rightly contented by the learned counsel an intention to

defame the 'Janakeeya Neethivedi', whom the complainant is Crl.M.C.No.4277 of 2016

representing is absent in the alleged news item. On the other

hand, it appears to be a fair criticism of the functioning of

Janakeeya Neethivedi and he sought for an enquiry with regard

to the incidents at Uppala and wanted to bring the matters to

light. So, in effect, as has been rightly contended by the learned

counsel for the petitioner, in the absence of any material, prima

facie, to establish any intention on the part of the petitioner to

defame the first respondent/complainant it cannot be found that

an offence under Section 499 IPC would be attracted against the

petitioner. So also the complaint admittedly has been quashed as

against the second accused - the Editor and Publisher of

Uttaradesham daily. So the continuation of the proceedings in

C.C.No.77/2014 against the petitioner/first accused, pending

before the Chief Judicial Magistrate Court, Kasaragod would be

an abuse of process of law.

12. In this context it is relevant to quote State of

Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp (1) SCC

335] wherein an elaborate consideration has been made with

regard to the exercise of powers under Section 482 Cr.P.C by the

High Court. In that the Apex Court has given some guidelines in

the matter of exercise of the extra ordinary powers under Article Crl.M.C.No.4277 of 2016

226 or the inherent powers under Sec.482. The following in the

above is relevant to be extracted here.

"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1). Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2).Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3).Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4).Where, the allegations in the FIR do not Crl.M.C.No.4277 of 2016

constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5).Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6).Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

              (7).Where   a    criminal      proceeding       is    manifestly
              attended    with   mala        fide    and/or        where   the

proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

13. So even if the alleged imputation extracted in the

complaint are taken on their face value and accepted in their

entirety, it would not prima facie constitute any offence against

the petitioner/first accused under Section 499 IPC.

14. In the light of the above discussions, I find that Crl.M.C.No.4277 of 2016

continuation of the proceedings against the petitioner/first

accused in C.C.No.77/2014 is an abuse of process of court and

hence is liable to be quashed.

In the result, Crl.M.C. allowed and all further proceedings

in C.C.No.77/2014 on the files of the Chief Judicial Magistrate

Court, Kasaragod is hereby quashed.

SD/-

                                          M.R.ANITHA

SHG                                         JUDGE
 Crl.M.C.No.4277 of 2016




                              APPENDIX
PETITIONER'S/S EXHIBITS:

ANNEXURE A:               CERTIFIED COPY OF THE COMPLAINT IN CC
                          NO.77/2014 ON THE FILE OF THE CHIEF

JUDICIAL MAGISTRATE COURT, KASARAGODE DATED 1.6.2012.

ANNEXURE B: TRUE COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD IN CC NO.77/2014 DATED 14.6.2016.