M.R Hariharan Nair, J.:— Among these two, the former appeal is by a police officer, who was the complainant. His grievance is that after trial of the case C.C No. 150/91, the learned Chief Judicial Magistrate, Ernakulam, acquitted the accused Nos. 2 and 4. In the latter appeal filed by the accused Nos. 1 and 3, the challenge is with regard to the conviction entered against them for the offence under S. 500 of the Indian Penal Code and the sentence of fine of Rs. 1000/- imposed against each of them. In view of the fact that Crl. Appeal No. 243/94 would be maintainable only before this Court, the other appeal which was actually pending before the Sessions Court, Ernakulam, was also withdrawn to this Court and both were heard jointly.
2. Sri. T.M Mohammed Youseff, who represented the appellants in Crl. A. No. 111/97, submitted that there is no clear evidence to find that the accused 1 and 3 or either of them was the author of Ext. P3 bit notice or that they published it and that even if they are found to be connected with the publication thereof, the contents of Ext. P3 would not be sufficient to find that there was defamation as defined in S. 499 of the IPC. Yet another contention is that the Court below has erred in finding the said accused guilty based on materials deposed to by P. Ws. 9 and 10 which are not actually those contained in Ext. P3. Sri. T.V Prabhakaran, who appeared for the appellant in Crl. A. No. 243/94, submitted that for the very same reasons on which the appellants in the other case were found guilty, accused Nos. 2 and 4 also should have been convicted.
3. The points for consideration are:-
(i) Whether Ext. P3 is per se defamatory in nature?
(ii) Whether there was publication of Ext. P3 by any of the accused?
(iii) Whether the accused or any of them are liable to be committed of the offence under S. 500 of the IPC?
4. Point No. 1:- Ext. P3 pamphlet, inter alia, contains an imputation that the complainant maintains the behaviour of a street gunda. In Kamalasanan v. Vasudevan (1986 KLT 464) the imputation was that the complainant was an ignoramus () It was held that the adjective was per se defamatory. According to me, the mention in Ext. P3 that the complainant was maintaining behaviour of a street gunda (image) is also per se defamatory.
5. Points 2 and 3 :- These are considered together for convenience. The ingredients of the offence under S. 499 of the IPC are: (1) making or publishing any imputation concerning any person; (2) intending to harm him thereby; and (3) the knowledge or belief that such imputation will harm the reputation of the said person. The question arises so to what is publication? Does it refer to the release of the libellous matter by the author or to the bringing of the libellous matter to the notice of others as well? It was held in Ramakrishnan v. Subbarama Sastrigal (1986 KLT 1361) that it actually refers to making public the matter. It follows that the act of any one who brings to the notice of another the libellous matter can be taken as publication. There are ten exceptions to the S. 499 aforementioned. We are not concerned with those exceptions here as the accused has no case that Ext. P3 comes within the protection of any of those exceptions.
6. Ext. P3 is a printed matter purporting to have been issued by one V.K Ramakrishnan, Secretary, C.P.I Mandalam Committee, Angamaly, who is the 2nd accused. All the accused have a case that Ext. P3 was not actually issued by the 2nd accused or for that matter, by any other accused. The substance of Ext. P3 is that the complainant Sri. S. Gopinathan, the then C.I of Police, Angamaly, was creating terrorism in the area in his jurisdiction and that his activities actually tarnish the image of the Government in power. The specific instance mentioned here is that on 18.1.91 one P.K Ibrahimkutty, who is the leader of the C.P.I, while he was reading a newspaper beside the road at Kanjoor, was showered abuses by Sri. Gopinathan and subsequently manhandled. Yet another instance mentioned in Ext. P3 is an incident which is alleged to have taken place at the scene of protest () at Thoombakkadavu arranged to protest against the fixation of fare stage for the operation of buses. Here the allegation is that Sri. Gopinathan intruded into the canopy () wherein the agitators were sitting; threatened them, disconnected the electrical connection thereto, and ordered demolition of the canopy itself. It is also alleged in Ext. P3 that Sri. Gopinathan took away a sum of Rs. 100/- and a letter pad and some other records from the said place and also abused the agitators and threatened them. The other allegation in Ext. P3 is that one M.S Sasidharan, leader of Congress (I), P.A Suresh, leader of C.P.M and K.B.A Salam, leader of CPI were summoned to the police station under arrest, stripped, locked up and later on produced before Court with false charges and got remanded. Finally, in the last paragraph it is alleged that Sri. Gopinathan was exhibiting the features of a street gunda and his arrogance has to be put an end to immediately.
7. The press in which Ext. P3 was printed is not specifically mentioned therein. No direct evidence has been let in to show that the 2nd accused is the author of Ext. P3 or that he or anyone else got it printed. The trial court was therefore right in concluding that the authorship of the pamphlet remains unestablished. The guilt of accused Nos. 1 and 3 thus remain unestablished and the trial court was hence right in acquitting them.
8. PW4 who is a native of Kanjur has testified that 1st accused who also hails from the same place was in the autorikshaw which distributed Ext. P3 pamphlet to pedestrains. PW4 himself got one such copy and read it.
9. PW.9 is a batchmate of Gopinathan and at the relevant time he was the C.I of Police, Palluruthy. He stated that in February, 1991 the 3rd accused whom he had known 10 years back when PW.9 was a Sub Inspector had taken to him a copy of Ext. P3 enclosed in a cover and he read it. This shows that the 3rd accused had the intention to make publication of the contents to persons other than the complainant, lest it need not have been taken to a colleague of the affected person. Though in answer to a question, PW.9 stated that his reaction, on reading the contents of Ext. P3, was feeling of aversion and slight towards Gopinathan. After reading Ext. P3 he admonished Gopinathan with regard to the incidents mentioned in Ext. P3. This shows that on reading Ext. P3, PW.9 felt that Gopinathan had misbehaved in a manner unworthy of a gentleman inviting the comments in Ext. P3. The substance of evidence of PW.9 is that he felt that the reputation of Gopinathan had gone down in view of the statements contained in Ext. P3. PW.9 stated that after reading he destroyed the copy of Ext. P3 as he believed that if others also happened to peruse the same, they would also form a bad opinion about Gopinathan. The contents of Ext. P3 as already found, are per se defamatory in so far as Gopinathan is picturised as a street gunda, who would engage himself in illegal acts and take away money and valuables illegally.
10. PW. 10, who was the S.I of Police in the Kalady Police Station as on the date of occurrence, has stated that he was also given a copy of Ext. P3; but by the 1st accused. That was while he was in the Kalady Police Station. Earlier PW. 10 had been on duty at the place where the agitation in question was going on and he had seen placards raised there by the agitators including accused Nos. 1 and 3 demanding that “the thief C.I who stole Rs. 100/- should be suspended” and also that “the thief Gopinathan should be suspended”. He specifically mentioned about the presence of the 1st accused in the scene and about the 1st accused setting up the above placard. He also heard a speech by the 1st accused alleging that Gopinathan had trespassed into the agitation pandal and committed theft of Rs. 100/- and a letter pad. He stated that Gopinathan was a person who was held in high esteem and that after reading Ext. P3 his reputation was lowered. Police is a disciplined force. Its proper maintenance forms part of the sovereign function of the State. It is essential that they are allowed to act fearlessly and independently for maintenance of law and order; albeit within the limits allowed by law. For proper and healthy growth of the society, it is essential that the police is allowed to function efficiently irrespective of political affiliations of offenders. Viewed from this perspective, it is necessary that attempts to tarnish their image by making publications like Ext. P3 are discouraged and attempts to malign them without any valid reason deprecated. The complaint does not specifically refer to the public speech aforementioned. Nor does it contain the specific defamatory words contained in the placard. Though Ext. P4 photograph was produced and marked, the photographer concerned has not been examined. In the circumstances, the Court below was right in discarding the oral evidence with regard to defamatory statements allegedly contained in the placards and in the speeches. All the same the evidence of PWs. 4, 9 and 10 are sufficient to show that accused Nos. 1 and 3 have published Ext. P3 the contents of which were highlighted in the complaint. On a re-appraisal of the entire evidence, I am of the view that the evidence adduced is sufficient to find that the accused Nos. 1 and 3 have committed the offence punishable under S. 500 read with S. 34 of the IPC. The sentence imposed is also appropriate and in the circumstances, Crl. A. No. 111/97 is found to be without merit and it is dismissed.
11. As far as Crl. A. No. 243/94 is concerned, there is no clear evidence adduced to show that accused Nos. 2 and 4 had published Ext. P3. As already mentioned, pleadings are inadequate with regard to the speeches and exhibition of placards at the venue of agitation. The Court below was right in its conclusion that there is no justification to convict accused Nos. 2 and 4. In these circumstances, the said appeal is also found to be without merit.
Consequently, both the appeals are dismissed.
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