A lack of governmental consent under Section 196(2) Cr.P.C. does not bar prosecution for defamation offences, emphasizing the media's role in reporting on public matters.

JUDGMENT

Meenakshi Madan Rai, J. - By filing this Petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, 'Cr.P.C.'), the Petitioners seek quashing of the impugned Order dated 02-03-2021 passed by the Learned Judicial Magistrate (First Class), East Sikkim, at Gangtok, in Private Complaint Case No.09 of 2020 (Shri Santiago Martin v. Dr. T. M. Thomas Issac and Others), wherein cognizance was taken of the offences under Sections 499 , 500, 501, 502 and 120B of the INDIAN PENAL CODE , 1860 (hereinafter, 'IPC'), and the impugned Summons, dated 03-03-2021, issued to the Accused Persons/Petitioners herein.

(ii) The Petitioners No.1 to 8 herein were arrayed as Accused Nos.2, 3, 4, 6, 7, 8, 9 and 10 before the Learned Trial Court. The Respondent No.1 herein was the Complainant before the Learned Trial Court. The Respondent No.2 herein was arrayed as Accused No.1 before the Learned Trial Court. The Complainant had arranged one M. P. Veerendra Kumar at Serial Number 5 in the Complaint as one of the accused persons, however he is not before this Court as a Petitioner.

2(i). It is the Petitioners' case that the Respondent No.1 is aggrieved by the alleged defamatory statements, viz., 'lottery mafia like Santiago Martin will not be allowed to operate in Kerala', attributed to Respondent No.2, the then Finance Minister of the Government of Kerala, alleged to have been published by the Petitioners in their publication 'Mathrubhumi'. That, charges of criminal conspiracy have been falsely alleged against the Petitioners and the co-accused under Section 120B of the IPC along with Sections 499 , 500, 501 and 502 of the IPC.

(ii) In the first leg of his argument, Learned Senior Counsel for the Petitioners contended that, in the absence of any consent in writing from the State Government or the District Magistrate the impugned Order is liable to be quashed in view of the express bar of Section 196 (2) of the Cr.P.C., which provides that, no Court shall take cognizance of the offence of any criminal conspiracy punishable 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 proceedings. The allegation against the accused persons under Section 120B of the IPC is that they have conspired to publish articles in the daily newspaper and the online version, with the sole intention of causing damage to the name and reputation of the Respondent No.1. That, the Patna High Court in Raghav Bahi v. The State of Bihar and Another with Rajdeep Sardesai v. The State of Bihar and Another 2017 SCC OnLine Patna 1386 held that the offence of defamation is punishable with simple imprisonment for a term of two years, hence cognizance for its conspiracy under Section 120B of the IPC without the consent of the State Government or the District Magistrate is bad in law and as such, not sustainable. That, this Order was tested before the Hon'ble Supreme Court which upheld the Order of the Hon'ble Patna High Court. In light of this position of law the Learned Magistrate could not have taken cognizance of the offence under Section 120B of the IPC.

(iii) That, in Jawaharlal Darda and Others v. Manoharrao Ganpatrao Kapsikar and Another (1998) 4 SCC 112 the Respondent No.1 therein filed a Complaint in the Court of Chief Judicial Magistrate, Nanded, alleging that by publishing a news item in the newspaper 'Daily Lokmath' on 04-02-1984, the Appellant J. L. Darda, the Chief Editor of the newspaper and other Editors connected with the publication had committed offences punishable under Sections 499 , 500, 501 and 502 read with Section 34 of the IPC. The Supreme Court observed that what the accused had published in its newspaper was an accurate and t