[Cites 9, Cited by 0]
Kerala High Court
C.N.Purushothaman vs P.M.Jamal on 19 January, 2026
Crl.L.P.No.39 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 19TH DAY OF JANUARY 2026 / 29TH POUSHA, 1947
CRL.L.P. NO. 39 OF 2024
AGAINST THE JUDGMENT DATED 12.07.2019 IN CC NO.170 OF
2018 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER/COMPLAINANT:
C.N.PURUSHOTHAMAN
AGED 70 YEARS, S/O.NANU,
RESIDING AT PRANAVAM, AYYAMBILLYKAVU,
EROOR P.O., THRIPUNITHURA,
ERNAKULAM DISTRICT, PIN - 682 306.
BY ADV SRI.V.A.AJIVAS
RESPONDENTS/ACCUSED & STATE:
1 P.M.JAMAL
AGED 51 YEARS
SECRETARY, ERNAKULAM DISTRICT LOTTERY AGENTS AND
SELLERS UNION (CITU), CITU DISTRICT COMMITTEE
OFFICE, AZAD ROAD, KALOOR, ERNAKULAM DISTRICT,
PIN - 682017.
//DELETED//
2 V.V.DHAKSHINAMOORTHY
CHIEF EDITOR, DESABHIMANI, KALOOR,
ERNAKULAM DISTRICT, PIN - 682 017 (NO MORE)
//DELETED//
R1 AND R2 DELETED FROM THE ARRAY OF PARTIES AS
PER ORDER DATED 20/08/2020 IN CRL.M.A.NO.2/2020.
Crl.L.P.No.39 of 2024
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3 E.P.JAYARAJAN
AGED 67 YEARS, PRINTER AND PUBLISHER,
DESABHIMANI, KALOOR, ERNAKULAM DISTRICT,
PIN - 682 017.
4 STATE OF KERALA
REP. BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
BY
ADV.ASWIN P KUMAR - FOR R3
ADV.DEEPA NARAYANAN - SENIOR GOVERNMENT PLEADER
THIS CRIMINAL LEAVE PETITION HAVING BEEN CAME UP FOR
HEARING ON 29.10.2025, THE COURT ON 19.01.2026 DELIVERED
THE FOLLOWING:
Crl.L.P.No.39 of 2024
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"C.R."
O R D E R
Dated this the 19th day of January, 2026
The scope and ambit of the grant of leave under Section
378(4) of the Code of Criminal Procedure, 1973, is the issue
involved in this Criminal Leave Petition.
2. The instant leave petition is filed under Section
378(4) of the Code of Criminal Procedure, 1973, seeking
leave of this Court to prefer an appeal against the judgment
dated 12.07.2019 in C.C.No.170/2018 passed by the Additional
Chief Judicial Magistrate (for the trial of criminal cases
against sitting and former M.Ps/M.L.As of the district of
Ernakulam), whereby the third respondent was acquitted of
the offence punishable under Section 500 of the Indian Penal
Code. The petitioner herein is the complainant in the above
calendar case, registered pursuant to a complaint filed
under Section 190 of the Code of Criminal Procedure, 1973.
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3. Heard Sri.V.A. Ajivass, learned counsel for the
petitioner, Sri. Aswin P. Kumar, learned counsel for the
third respondent and Smt. Deepa Narayanan, learned Senior
Government Pleader for the fourth respondent/State. Perused
the records.
4. THE FACTUAL MATRIX :-
The factual matrix of the instant case reveals that the
petitioner is a lottery seller and the District Vice-
President and Area President of Lottery Agents and Sellers
Union (C.I.T.U.), Ernakulam. The petitioner was the
complainant before the trial court, alleging that a news
item published in the daily newspaper Deshabhimani, dated
10.02.2006, which has wide circulation in the State of
Kerala, caused injury to his reputation by reporting his
expulsion from District Lottery Agents and Sellers Union
(C.I.T.U.), on the allegation that he had committed
misappropriation of funds and engaged in anti-union
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activities. The third respondent was arrayed as Accused No.3
in his capacity as the printer and publisher of the said
newspaper. According to the petitioner, the publication
amounted to defamation and attracted penal liability under
Section 500 of the Indian Penal Code. The prosecution
contended that the imputation was made without due care and
verification, and with the intention of harming the
reputation of the petitioner, thereby constituting
defamation under Section 499 of the Penal Code.
5. The 3rd accused, on the other hand, contended that the
publication was based on information received through press
release, that it reflected an existing factual event, and
that the same was published in good faith and in the
interest of the public, after exercising due care.
6. THE JUDGMENT OF ACQUITTAL :-
Upon a full-fledged trial and appreciation of the evidence
on record, the learned Magistrate found that the prosecution
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had failed to establish the offence of defamation and held
that the publication was protected under Exceptions 1, 9 and
10 to Section 499 of the Penal code. Consequently, the third
respondent was acquitted. Aggrieved by this judgment of
acquittal, the present Criminal Leave Petition has been
filed.
7. LEAVE UNDER SECTION 378(4) - LEGAL PRE-REQUISITES :-
Section 378(4) of the Code of Criminal Procedure reads as
follows:
" 378. Appeal in case of acquittal
(1) xxx
(2) xxx
(3) xxx
(4) If such an order of acquittal is
passed in any case instituted upon
complaint and the High Court, on an
application made to it by the complainant
in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal to
the High Court."
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Section 378(4) employs the language 'special leave' to
appeal, whereas, in the case of an appeal to the High Court
against acquittal, by the public prosecutor under Sections
378(1) and 378(2), the language employed in Section 378(3)
is merely the 'leave' of the High Court. It could,
therefore, safely be concluded that the standards for the
grant of 'special leave' in a case covered by Section 378(4)
are much higher than the 'leave' contemplated in cases
covered by Sections 378(1) and 378(2). This aspect has been
taken stock of and highlighted by the Hon'ble Supreme Court
in Subhash Chand v. State (Delhi Administration) [(2013) 2
SCC 17 - paragraph no. 17]. It is settled that there exists
no vested or inherent right to appeal, unless conferred by
the statute. Section 378(4) confers a limited right to
appeal on the complainant, subject to grant of 'special
leave'. A fortiori, the 'special leave' contemplates a
strong prima facie case that the judgment of acquittal
requires a relook. To demonstrate the same, the petitioner
will have to prima facie establish that the judgment cannot
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be sustained for the reasons/grounds to be urged in the
leave petition and further that, there exists factual
materials and evidence in support of the contentions/grounds
urged. After the above exercise, if the High Court is
satisfied that the petitioner has a strong prima facie case,
leave is liable to be granted; else, declined. Thus, the
requirement of special leave acts as a statutory filter,
ensuring that only those acquittals which reveal gross
miscarriage of justice, illegality or perversity are liable
to be reopened, thereby making Section 378(4) exceptional.
The right to appeal, is therefore, conditional and
contingent, and arises only upon the Court being satisfied
that the case requires appellate interference.
8. It is well settled that once an Order of acquittal is
passed, there arises a double presumption of innocence in
favour of the accused. Firstly, the general presumption that
every accused is innocent, until proven guilty; and the
second, the augmentation of that presumption by a judicial
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pronouncement of acquittal. The following excerpts from the
judgment of a learned single Judge of this Court in Benny
Daniel v. M/s Gold Galaxy and Others [(2017) 4 KLJ 222 -
paragraph no. 18] is apposite and extracted herebelow:
"18. There is yet another aspect of the
matter. It has been held by the Apex Court
in Pudhu Raja v. State reported in (2012)
11 SCC 196 = (2013) 1 SCC (Cri) 430, that,
the elementary principle of criminal
jurisprudence in commonwealth jurisdictions
is that the accused is presumed to be
innocent until he is found guilty in the
trial and over and above that, the
acquittal rendered by the trial court would
bolster the innocence of the accused. When
that be the position, the Parliament has
felt it necessary that stringent provisions
as in Sec.378(4) of the Cr.P.C. should be
engrafted so as to strictly fetter and
regulate the appellate process to impugn
involving acquittal of the accused. It may
also be noted that for the cases covered by
sub-secs.(1) & (2) of Sec.378, the
Parliament has envisaged that appeals in
such cases would be instituted only with
"leave of the High Court". Whereas in the
case of acquittal in private complaints,
Parliament has more emphatically mandated
in Sec.378(4) that special leave of the
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High Court has to be obtained before the
institution of Criminal Appeal to impugn
the judgment of acquittal. So compared to
the provisions in Sub-secs.(1) and (2) of
Sec.378 or other provisions facilitating
appellate remedy, the Parliament has
certainly envisaged a more strict and
rigorous filtering process before a
Criminal Appeal could be instituted in
acquittal matters and such criminals
appeals could be filed only after securing
special leave of the High Court in terms of
Sec.378(4) of the Cr.P.C. These aspects
should be viewed from the backdrop of the
principles in criminal jurisprudence that
criminal legal system should not be
permitted to be shamefully perverted to
serve private purposes and also taking into
account the crucial principles that the
acquittal of an accused would bolster his
innocence. It is to be seen that these
provisions as in Sec.378(4) of the Cr.P.C.
should be strictly construed for its
effective enforcement as otherwise it would
lead to upsetting the whole scheme laid
down by the Parliament for regulating the
appeals against acquittal which should be
appreciated in the backdrop of the above
said crucial principles of criminal
jurisprudence as mentioned hereinabove."
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Therefore, unless the findings of the trial court are shown
to be prima facie perverse or grossly illegal, interference
with the same is impermissible.
9. ANALYSIS :-
In the present case at hand, the learned Magistrate has
undertaken a careful appreciation of evidence and has
returned findings which are not only plausible, but also
supported by the materials on record. The allegations
against the 3rd respondent arise from the publication of a
news item reporting expulsion of the petitioner from
District Lottery Agents and Sellers Union (C.I.T.U.). The
fact that the petitioner was expelled was not disputed, but
he would contend that such expulsion is illegal. The learned
Magistrate found that the publication was based on the
information received through legitimate sources. Examining
the scope of exceptions 1, 9 and 10 to Section 499 I.P.C, it
was found that the publication was made in good faith and in
public interest. The degree of care expected of the accused,
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having regard to his role as a printer and publisher, was
found to be duly satisfied.
10. It is also significant to point out that the leave is
sought only against the 3rd respondent, the printer and
publisher. The duty of a publisher includes ensuring that
the information pertains to a factual occurrence, which
stems from a credible source. The evidence on record
sufficiently establishes that this degree of care was
exercised. Thus, criminal liability cannot be imputed to him
merely on the basis of publication. The findings recorded by
the learned Magistrate are thus not only plausible, but also
firmly rooted in statutory provisions and settled legal
principles. This Court finds no material warranting grant of
leave.
11. Except for some bare allegations, the petitioner could
not substantiate that the publication intends to harm the
reputation of the petitioner, especially when the petitioner
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would not dispute the factum of expulsion, but would only
maintain that such expulsion was illegal. Prima facie, this
Court finds no perversity, misreading of evidence, or
misapplication of legal principles in the impugned judgment.
The findings recorded by the learned Magistrate are
reasonable and supported by evidence. Granting leave in such
circumstances would amount to reopening a well-reasoned
acquittal, which is impermissible under Section 378(4)
Cr.P.C.
The upshot of the above discussion is that the leave sought
for cannot be granted and Crl.L.P. will consequently stand
dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
