IMPORTANT POINT
The court clarified that the requirement for prior consent under Section 196(2) of the Cr.P.C. does not apply when the cognizance is taken for offences not punishable with rigorous imprisonment for two years or more, and established that liability for defamation cannot be attributed to a Managing Director when the publication is primarily the responsibility of the Chief Editor.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’ hereinafter), by the petitioners, who are accused Nos.1 and 2 in C.C.No.128/2018 on the files of the Judicial First Class Magistrate Court, Sasthamcotta. They seek quashment of the above proceedings.

2. Heard Adv.Sri.Jomy George, the learned counsel for the petitioners, Adv.Sri.M.R.Sarin, the learned counsel appearing for the 1st respondent/original complainant, Sri.M.P.Prasanth, the learned Public Prosecutor and also Adv.Sri.Firoz K.M., who is appointed as Amicus Curiae, to assist the Court, to decide the question of law involved in this matter.

3. Perused the judgments placed by the learned counsel for the petitioners as well as the learned Amicus Curiae, in detail, in a paper booklet form, along with the complaint, the order taking cognizance and the relevant materials.

4. The prosecution case buds from a private complaint, (a copy of which is produced as Annexure A1), filed by the de facto complainant before the Judicial First Class Magistrate Court, Sasthamcotta, alleging commission of offences punishable under Sections 499, 500, 501 and 120B r/w Section 34 of the Indian Penal Code (for short, ‘the IPC’ hereinafter). The allegation in the complaint is that, the accused herein published a news item with heading in ‘Rashtra Deepika Evening Daily’, viz., and it was published that the complainant constructed house after misappropriating fund of the Residence Co-operative Society, Kunnathur. It was alleged further that the complainant misappropriated a total sum of Rs.3 Crores from the Co-operative Society.

5. The learned Magistrate proceeded with the complaint and recorded sworn statement of the complainant as PW1 and on perusal of the sworn statement along with the materials, the learned Magistrate took cognizance for the offence punishable under Section 501 r/w Section 34 of the IPC.

6. While challenging the order of cognizance taken by the learned Magistrate and other proceedings, the learned counsel for the petitioners raised a specific contention on the premise that the Magistrate Court took cognizance for the offences under Sections 499, 500, 501 and 120B r/w Section 34 of the IPC, that in order to take cognizance for an offence under Section 120B of the IPC, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding, cognizance is bad in law, since cognizance for the said offence is barred under Section 196(2) of the Cr.P.C., if initiation of the criminal proceedings is without the consent in writing from the State Government or the District Magistrate. It is fervently argued that no consent obtained in this matter as stipulated in Section 196(2) of the Cr.P.C. and therefore, the entire proceedings are non est and accordingly, the prayer for quashment is liable to succeed.

7. Dispelling this argument, the learned counsel for the de facto complainant read out the order of cognizance and submitted that, this challenge does not arise in the present case, since the Magistrate Court did not take cognizance for the offence under Section 120B of the IPC and the offence, for which cognizance taken, is confined to one under Section 501 r/w Section 34 of the IPC and therefore, the prayer for quashment is liable to fail.

8. Adv.Sri.Firoz K.M., who is appointed as Amicus Curiae, has argued at length, with reference to the earlier provisions in the Cr.P.C., 1898, in comparison with the new provisions dealing with the heading, ‘Prosecution for offences against the State and for criminal conspiracy to commit such offence’ along with the report of the Law Commission.

9. Insofar as the bar under Section 196(2) of the Cr.P.C. is concerned, it is vehemently argued by the learned counsel for the p