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C. KUNJUKUTTY versus DR. K.R. VASUDEVAN MD

High Court of Kerala

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C. KUNJUKUTTY v. DR. K.R. VASUDEVAN MD - Crl MC No. 2117 of 2000 [2006] RD-KL 11 (28 February 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 2117 of 2000()

1. C.KUNJUKUTTY
... Petitioner

Vs

1. DR. K.R.VASUDEVAN MD
... Respondent

For Petitioner :SRI.C.KHALID

For Respondent :SRI.K.M.SATHYANATHA MENON

The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :28/02/2006

O R D E R

K. P. BALACHANDRAN, J

Crl.M.C. No.2117 of 2000

Dated this the 28th day of February, 2006

ORDER

The petitioners in this Crl.M.C. filed under Section 482 of the Cr.P.C. are the accused in C.C.264/99 on the file of the Chief Judicial Magistrate's Court, Manjeri registered on the basis of Annexure-A2 complaint filed by the first respondent complaining of commission by the petitioners of offence punishable under Sections 499 and 500 of the IPC. A series of writings published in the Chandrika daily under the caption "Athuralayathinde Andhakara Parvathiloode" is what is complained of as publication which are defamatory to the complainant. The first accused is the Printer and Publisher and the second accused is the Chief Editor of Chandrika daily. The third accused is the author of the writings under the caption aforesaid. The writings under the said caption was a series which began to be published from 18.11.1997 onwards in relation to the District Hospital, Manjeri. The grievance of the complainant is that the writings under the said caption published on 18.11.1997 and 22.11.1997 were intended to defame him.

2. The publication on 18.11.1997 is related to the death of one Pushpa on account of excessive bleeding in connection with delivery which was attended to by a lady doctor. The allegation was that the death was due to the negligence of Crl.M.C. No.2117 of 2000 -2- the doctor who so attended on the patient. The publication on 18.11.1997 refer to the fact that the committee which was appointed for an enquiry into the matter was being headed by the husband of the lady doctor in whom negligence was alleged and that it was so got manipulated on account of the influence the doctor had with the ruling party. According to the petitioner, the reference is to himself though neither his name nor his wife's name had been referred to in the matter so published. All the same, there is no denial of the fact that the committee that was appointed to enquire into the negligence of the lady doctor was being headed by the petitioner himself.

3. In the publication on 21.11.1997, the report related to death of one Ali who was brought over to the hospital with acute suffocation. The report was to the effect that the patient was taken before a specialist doctor who did not give any treatment at all to the said patient or give him any relief rendering him some first aid treatment at least but referred him to a Surgeon in the presence of his own junior doctors who were astonished to hear the direction and that in their presence itself within a span of 15 minutes the said Ali breathed his last. It was also observed in the report that probably the specialist doctor was avoiding taking any risk as he was of the view that it would not be of any material benefit to him. Here also the name of the doctor is not mentioned in the report but the petitioner claims it as a reference to him. Crl.M.C. No.2117 of 2000 -3-

4. It is worthy to note that here also the petitioner does not say that late Ali has not been brought before him. He does not deny the version that he did not give him any treatment even to give temporary relief to his suffocation but was referring the patient to a surgeon and that the patient breathed his last in the presence of the said doctor and his juniors. If the matters alleged to be defamatory are based on true facts, it cannot be defamatory and it could be defamatory only if the report is not at all true to facts and is aimed at defaming the petitioner. No doubt the burden is on the petitioner to establish that he is defamed. If at all the report is defamatory and not true to facts the third accused being the writer of the series in the Chandrika daily is responsible for the defamatory statement. The question as to whether accused Nos.1 and 2 also will be liable is a matter that has to be established on the evidence that may be brought in at the time of trial especially when there is allegation in the complaint that all the accused were responsible for having wilfully defamed him by making such publications. If at all there is truth in the publication, I am of the view that the matter has to be established on evidence by the accused and that it should be so established for the benefit of the public. Viewed either way, I am not of the view that the complaint is to be quashed by invoking the jurisdiction of this Court under Section 482 of the Cr.P.C.

5. Counsel for the petitioners submits that at least petitioners 1 and 2 may Crl.M.C. No.2117 of 2000 -4- be exempted from making personal appearance before the Chief Judicial Magistrate at the time of trial. If such application is made before the Chief Judicial Magistrate, the Chief Judicial Magistrate shall consider the application favourably and shall not insist for the personal appearance of accused Nos.1 and 2 unless their presence is felt absolutely necessary for the purpose of the case on any day.

6. This Crl.M.C. is disposed of as above. K. P. BALACHANDRAN,

(JUDGE)

kns/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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