P.M. Nalini vs K.M. Mathew

2. We fail to appreciate the legality and propriety of the order passed by the learned Single Judge invoking the inherent powers of the High Court under Section 482 of the CrPC, 1973 with a view to quash the complaint filed by the appellant against the respondent K.M. Mathew, Chief Editor, Malayala Manorama, A Malayalam Weekly having a large circulation, the learned Single Judge was in error in quashing the proceedings on a point not raised by the respondent in his application under Section 482 of the Code, nor argued at the hearing, as is clear from para 11 of the judgment. If the learned Single Judge felt that the point though not taken deserved consideration, he ought to have given notice to the parties and heard them on the question before reaching the conclusion that he did. It is unfortunate that although the learned Single Judge in para 12 of his judgment has observed that he expresses no opinion on the merits of the case, on fact or on law, he has in para 9 of the judgment gone into the merits of the prosecution case and adversely commented upon it.

3. Accordingly, the appeal succeeds and is allowed. The judgment of the High Court is set aside and the case is remitted to it for a decision afresh. If the High Court is of the view that the respondent as Chief Editor of the Malayala Manorama enjoys some kind of immunity by reason of the nature of his duties and functions as such and therefore cannot be made to face a prosecution for defamation under Section 500 of the Indian Penal Code, 1860, it shall direct the respondent to formulate the ground in the form of an affidavit and allow the appellant to file an affidavit-in-rejoinder and thereafter hear the parties on the question as to the maintainability of the complaint against the respondent. Till that question is decided, the proceedings before the Additional Judicial First Class Magistrate, Kozhikode shall remain stayed. The High Court will endeavour to dispose of the matter as early as possible. The appellant would be entitled to her costs quantified at Rs. 3,000 i.e. the amount already deposited by the respondent in compliance with this Court's order dated 17th March, 1988 and since withdrawn by her.