(2012) 3 KerLJ 567 : (2012) 3 KLT 824 : (2014) 11 RCR(Criminal) 2489
KERALA HIGH COURT
( Before : S.S. Satheesachandran, J )
JACOB MATHEW AND ANOTHER — Appellant
MANIKANTAN ALIAS G. MANI AND ANOTHER — Respondent
Criminal M.C. No. 663 of 2012
Decided on : 13-07-2012
Criminal Procedure Code, 1973 (CrPC) – Section 482
Penal Code, 1860 (IPC) – Section 34, Section 499, Section 500, Section 501, Section 502
V. Subair Vs. P.K. Sudhakaran, (1987) CriLJ 736
Counsel for Appearing Parties
Sumathy Dandapani and Millu Dandapani, for the Appellant; B. Mohanlal, T. Prasad, Saiju S. and R. Ranjith, PP, for the Respondent
S.S. Satheesachandran, J.—Petitioners are the accused in a pending case on the file of the Judicial First Class Magistrate Court-II, Kollam. That case has arisen on a private complaint filed by the 1st respondent alleging commission of offences under Sections 499, 500, 501 and 502 read with Section 34 of the Indian Penal Code against the accused persons – printer and publisher of a daily and its editor. In the Malayala Manorama daily, in its Kollam Edition, published on 21.08.2008, four photographs over an incident were published, in which, one photograph showed the complainant more or less nude, and, that, publication has caused defamation and harm to him, was the case presented by the complainant to prosecute the printer and publisher and also the editor of the above daily for the offences stated supra. The learned Magistrate, recording the sworn statement of the complainant, ordered summons to the petitioners, the accused persons. Cognizance taken of the offences against them on the complaint is challenged in the petition invoking the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, for short, the ‘Code’.
2. Annexure A is copy of the complaint and Annexure B, copy of the publication in the daily showing the photographs published, one of which is alleged to have defamed and caused loss of reputation to the complainant. The 1st respondent/complainant is an autorickshaw driver. He claims to be the leader of Autorickshaw Drivers Union. In the Malayala Manorama newspaper of Kollam Edition, on 21.08.2008, four photographs depicting a sequence of events which occurred during a strike conducted by the autorickshaw drivers on the previous day, were published. Those photographs published mainly center around the de facto complainant, is not disputed. The 1st respondent/de facto complainant is shown in the first photograph pelting a stone at an autorickshaw, plying through the public road, presumably, discarding the strike call given by his Union. Second photograph shows the complainant throwing yet another stone at the autorickshaw, which, by then, had passed him. The third photograph shows the complainant caught by the police being taken to a police jeep. The fourth photograph shows the de facto complainant being forcefully pulled out from the police jeep by his associates, presumably, striking autorickshaw drivers, and that being prevented by a policeman sitting in the jeep. That photograph shows the complainant suspended horizontally in midair, with his pants partially removed revealing his buttocks bare and naked, while he was being pulled out from the jeep with both his hands held by his associates, and a policeman sitting in the jeep catching hold of his lower limbs preventing his forcible removal. Publication of that photograph has caused loss of reputation to him, his wife and other family members, is his case. His wife is now made fun of by her colleagues and friends asking her to see that the complainant/her husband leave the house only after wearing an undergarment. He is also made fun of by his friends and associates stating that they would purchase an undergarment for him if he has no money. Publication of the four photographs, referred to above, has defamed the complainant and the members of his family, and so much so, the accused persons are liable to be prosecuted for the offences imputed, is his case.
3. The question emerging for consideration is whether the publication of photographs, in the circumstances under which they were published, with regard to the sequence of events depicted by such publication, would give rise to criminal act/acts constituting the offences imputed against the petitioners, the publisher and printer and also the editor of the daily. What has been depicted in the four photographs as a sequence of events commencing from the pelting of stones at an autorickshaw plying through the road by the petitioner, and, culminating in the forcible removal of accused from police custody in the jeep by his associates – striking autorickshaw drivers – is not at all impeached. When that be so, publication of photographs covering the sequence of events whether it would give rise to prosecution of the accused persons on the case set up by the complainant that he had been defamed by such publication, is the question to be considered. Complainant has no case that the publication of the first three photographs covering the sequence of events had caused him any loss of reputation. He pelted stones at an autorickshaw plying through the public road. While he continued with pelting of stones at the autorickshaw he was caught hold of and taken to a police jeep by the policemen, are the pictures shown in the first three photographs. His associates – striking autorickshaw drivers – forcefully tried to take him out from the police jeep and it was prevented by a policeman. In the course of forcibly pulling him out from the police jeep, with his associates catching hold of both his hands, and a policeman preventing his removal, catching hold of his lower limbs, pants worn by the accused got removed partially. Photograph taken thereof showing his buttocks naked on partial removal of the pants worn by him and published in the newspaper as part of the sequence of events is taken exception to by the complainant to prosecute the accused persons for the offence of defamation. The most essential ingredient to constitute the offence of defamation is that the making of publication of imputations by words, either spoken or intended to be read, or by signs or by visible representations, must have been made with the intention of forming, or with the knowledge or having reason to believe that it will harm the reputation of the person concerned to whom it is made. In the backdrop of the incident that transpired if we examine the sequence of events which were depicted in the four photographs, it can never be stated that the publication of the photographs in the newspaper was with the intention of forming or with knowledge or having reason to believe that it will harm the reputation of the complainant. In publishing the photographs, apparently, what has been done by the daily is only of showing a sequence of events which has newspaper value over an incident that occurred during a strike. The accused persons – the printer and publisher and also the editor of a daily – could not be imputed of having had any intention or knowledge or reason to believe that such publication will harm the reputation of the complainant, when relevant facts relating to the incident that occurred are presented truthfully. The daily, in publishing the photographs, it is seen, has only followed “Pathradharma’ and it can never be taken exception to for the reason that the publication has invited some comments or derision against him, that too, taking exception to his habit of not wearing an undergarment. If we look at the whole incident in a lighter vein, the publication has got newspaper value since in the tussle between the policemen and the associates of the complainant, the pants worn by the complainant got loosened and his private parts were shown as bare and naked. When such an incident took place, having regard to the sequence of events that transpired earlier, it can never be stated that in publishing the fourth photograph, the accused persons have any malice in their mind or any intention or knowledge or having reason to believe that such publication will harm the reputation of the complainant. Complainant did not have the habit of wearing an undergarment led to his being undressed and shown as bare and naked when a tussle took place between his associates and the policeman with him as the object of such tussle. The allegation that somebody made fun of him and also his wife, for his habit of not wearing an undergarment, cannot be taken as a circumstance or a ground to cause any aspersion or imputation against the accused persons of having intentionally or with knowledge caused defamation to him in publishing the photographs in the newspaper.
4. The freedom of press is considered as “the mother of all other liberties” in a free society. The press has not only an active role in such a society but a primary function to provide comprehensive and objective information of all aspects of the country’s political, social, economic and cultural life. The press plays a significant role in mounting public opinion. Mahatma Gandhi in ‘Hind Swaraj or Indian Home Rule’ published in the Gujarat columns of Indian Opinion 11th and 18th December, 1909, in answering to a query of a reader has stated the objects of a newspaper thus:
One of the objects of a newspaper is to understand popular feeling and to give expression to it, another is to arouse among the people certain desirable sentiments, and the third is fearlessly to expose popular defects.
Publication of the photographs in the newspaper, in the present context, has necessarily to be viewed with reference to the sequence of events that transpired when a strike was conducted by an Autorickshaw Union with one among the participants of such strike, the complainant, who claims to be a leader of a Union which spearheaded the strike, indulging in pelting of stones at a moving auto transporting passengers discarding the strike call. Publication of the photographs in the newspaper, under the aforesaid circumstances, is at the most a fair comment or criticism over the events that occurred during the strike and that too for public good.
5. The press should have the right to present anything which it thinks fit for publication. True, the freedom of press is not absolute, unlimited and unfettered. It has no right to intrude into the privacy of an individual and it has to function responsibly respecting public order, decency and morality. A learned Single Judge of this Court, on the role and liberty of press, has stated thus in V. Subair Vs. P.K. Sudhakaran, .
…………….. the liberty of press, by its history and connotation must be deemed to have certain limitations. It has to keep within these bounds, and not transgress frontiers of decency and propriety. Vituperative exercises, or yellow journalism, cannot pass muster under the guise of freedom of press, no more than shilling shockers, or salacious prose can masquerade, as literary works.
In viewing the role of press, its freedom of expression, and, of course, with the limitations thereto, it cannot be lost sight of that what is expected from a newspaper is accurate and impartial presentation of news and dispassionate evaluation of the facts and information received by it in the publication of a news item. News published should be faithful and objective, and not distorted or false.
6. In the given facts of the case, where the photographs published depicted a sequence of events, which, without the last photograph, would have little news value, it cannot be stated that there has been an abuse of freedom of expression by the newspaper in publishing them. In publishing the photographs and, particularly, the last one showing the complainant partially naked, if some injury has been suffered by him, in the given facts of the case, he has primarily to blame himself, and, then his associates who had brazenly dared to remove him forcibly from police custody. Prosecution of the petitioners – printer and publisher of the daily and its editor – on the facts and circumstances presented in the case, for having published some photographs which had some newspaper value, and that too, without any criticism other than a fair comment – ‘Views on a striking day’ looked upon in the backdrop of freedom of press and the duty cast upon the newspaper to present news truthfully, that too, for public good, will not be proper, and more so, not conducive to justice. None of the offences alleged in the complaint could be imputed against the petitioners in the given facts of the case. When that be so, cognizance of the offences taken on the basis of the complaint and criminal proceedings against the petitioners, is an abuse of process of a court and it is liable to be quashed. Criminal proceedings against the petitioners in S.T. No. 3641 of 2010 on the file of the Judicial First Class Magistrate Court-II, Kollam are quashed u/s 482 of the Code.
Crl. M.C. is disposed of.