1. The scope and ambit of the grant of leave under Section 378(4) of the Code of Criminal Procedure, 1973, is the issue involved in this Criminal Leave Petition.

2. The instant leave petition is filed under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to prefer an appeal against the judgment dated 12.07.2019 in C.C.No.170/2018 passed by the Additional Chief Judicial Magistrate (for the trial of criminal cases against sitting and former M.Ps/M.L.As of the district of Ernakulam), whereby the third respondent was acquitted of the offence punishable under Section 500 of the Indian Penal Code. The petitioner herein is the complainant in the above calendar case, registered pursuant to a complaint filed under Section 190 of the Code of Criminal Procedure, 1973.

3. Heard Sri.V.A. Ajivass, learned counsel for the petitioner, Sri. Aswin P. Kumar, learned counsel for the third respondent and Smt. Deepa Narayanan, learned Senior Government Pleader for the fourth respondent/State. Perused the records.

4. THE FACTUAL MATRIX:-

The factual matrix of the instant case reveals that the petitioner is a lottery seller and the District Vice- President and Area President of Lottery Agents and Sellers Union (C.I.T.U.), Ernakulam. The petitioner was the complainant before the trial court, alleging that a news item published in the daily newspaper Deshabhimani, dated 10.02.2006, which has wide circulation in the State of Kerala, caused injury to his reputation by reporting his expulsion from District Lottery Agents and Sellers Union (C.I.T.U.), on the allegation that he had committed misappropriation of funds and engaged in anti-union activities. The third respondent was arrayed as Accused No.3 in his capacity as the printer and publisher of the said newspaper. According to the petitioner, the publication amounted to defamation and attracted penal liability under Section 500 of the Indian Penal Code. The prosecution contended that the imputation was made without due care and verification, and with the intention of harming the reputation of the petitioner, thereby constituting defamation under Section 499 of the Penal Code.

5. The 3rd accused, on the other hand, contended that the publication was based on information received through press release, that it reflected an existing factual event, and that the same was published in good faith and in the interest of the public, after exercising due care.

6. THE JUDGMENT OF ACQUITTAL:-

Upon a full-fledged trial and appreciation of the evidence on record, the learned Magistrate found that the prosecution had failed to establish the offence of defamation and held that the publication was protected under Exceptions 1, 9 and

10 to Section 499 of the Penal code. Consequently, the third respondent was acquitted. Aggrieved by this judgment of acquittal, the present Criminal Leave Petition has been filed.

7. LEAVE UNDER SECTION 378(4) – LEGAL PRE-REQUISITES :-

Section 378(4) of the Code of Criminal Procedure reads as follows:

                  “ 378. Appeal in case of acquittal

                  (1)               xxx

                  (2)               xxx

                  (3)               xxx

                  (4)      If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

                  Section 378(4) employs the language ‘special leave’ to appeal, whereas, in the case of an appeal to the High Court against acquittal, by the public prosecutor under Sections 378(1) and 378(2), the language employed in Section 378(3) is merely the ‘leave’ of the High Court. It could, therefore, safely be concluded that the standards for the grant of ‘special leave’ in a case covered by Section 378(4) are much higher than the ‘leave’ contemplated in cases covered by Sections 378(1) and 378(2). This aspect has been taken stock of and highlighted by the Hon’ble Supreme Court in Subhash Chand v. State (Delhi Administration) [(2013) 2 SCC 17 - paragraph no. 17]. It is settled that there exists no vested or inherent right to appeal, unless conferred by the statute. Section 378(4) confers a limited right to appeal on the complainant, subject to grant of ‘special leave’. A fortiori, the ‘special leave’ contemplates a strong prima facie case that the judgment of acquittal requires a relook. To demonstrate the same, the petitioner will have to prima facie establish that the judgment cannot be sustained for the reasons/grounds to be urged in the leave petition and further that, there exists factual materials and evidence in support of the contentions/grounds urged. After the above exercise, if the High Court is satisfied that the petitioner has a strong prima facie case, leave is liable to be granted; else, declined. Thus, the requirement of special leave acts as a statutory filter, ensuring that only those acquittals which reveal gross miscarriage of justice, illegality or perversity are liable to be reopened, thereby making Section 378(4) exceptional. The right to appeal, is therefore, conditional and contingent, and arises only upon the Court being satisfied that the case requires appellate interference.

8. It is well settled that once an Order of acquittal is passed, there arises a double presumption of innocence in favour of the accused. Firstly, the general presumption that every accused is innocent, until proven guilty; and the second, the augmentation of that presumption by a judicial pronouncement of acquittal. The following excerpts from the judgment of a learned single Judge of this Court in Benny Daniel v. M/s Gold Galaxy and Others [(2017) 4 KLJ 222 - paragraph no. 18] is apposite and extracted herebelow:

                  “18. There is yet another aspect of the matter. It has been held by the Apex Court in Pudhu Raja v. State reported in (2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430, that, the elementary principle of criminal jurisprudence in commonwealth jurisdictions is that the accused is presumed to be innocent until he is found guilty in the trial and over and above that, the acquittal rendered by the trial court would bolster the innocence of the accused. When that be the position, the Parliament has felt it necessary that stringent provisions as in Sec.378(4) of the Cr.P.C. should be engrafted so as to strictly fetter and regulate the appellate process to impugn involving acquittal of the accused. It may also be noted that for the cases covered by sub-secs.(1) & (2) of Sec.378, the Parliament has envisaged that appeals in such cases would be instituted only with “leave of the High Court”. Whereas in the case of acquittal in private complaints, Parliament has more emphatically mandated in Sec.378(4) that special leave of the High Court has to be obtained before the institution of Criminal Appeal to impugn the judgment of acquittal. So compared to the provisions in Sub-secs.(1) and (2) of Sec.378 or other provisions facilitating appellate remedy, the Parliament has certainly envisaged a more strict and rigorous filtering process before a Criminal Appeal could be instituted in acquittal matters and such criminals appeals could be filed only after securing special leave of the High Court in terms of Sec.378(4) of the Cr.P.C. These aspects should be viewed from the backdrop of the principles in criminal jurisprudence that criminal legal system should not be permitted to be shamefully perverted to serve private purposes and also taking into account the crucial principles that the acquittal of an accused would bolster his innocence. It is to be seen that these provisions as in Sec.378(4) of the Cr.P.C. should be strictly construed for its effective enforcement as otherwise it would lead to upsetting the whole scheme laid down by the Parliament for regulating the appeals against acquittal which should be appreciated in the backdrop of the above said crucial principles of criminal jurisprudence as mentioned hereinabove.”

                  Therefore, unless the findings of the trial court are shown to be prima facie perverse or grossly illegal, interference with the same is impermissible.

9. ANALYSIS :-

In the present case at hand, the learned Magistrate has undertaken a careful appreciation of evidence and has returned findings which are not only plausible, but also supported by the materials on record. The allegations against the 3rd respondent arise from the publication of a news item reporting expulsion of the petitioner from District Lottery Agents and Sellers Union (C.I.T.U.). The fact that the petitioner was expelled was not disputed, but he would contend that such expulsion is illegal. The learned Magistrate found that the publication was based on the information received through legitimate sources. Examining the scope of exceptions 1, 9 and 10 to Section 499 I.P.C, it was found that the publication was made in good faith and in public interest. The degree of care expected of the accused, having regard to his role as a printer and publisher, was found to be duly satisfied.

10. It is also significant to point out that the leave is sought only against the 3rd respondent, the printer and publisher. The duty of a publisher includes ensuring that the information pertains to a factual occurrence, which stems from a credible source. The evidence on record sufficiently establishes that this degree of care was exercised. Thus, criminal liability cannot be imputed to him merely on the basis of publication. The findings recorded by the learned Magistrate are thus not only plausible, but also firmly rooted in statutory provisions and settled legal principles. This Court finds no material warranting grant of leave.

11. Except for some bare allegations, the petitioner could not substantiate that the publication intends to harm the reputation of the petitioner, especially when the petitioner would not dispute the factum of expulsion, but would only maintain that such expulsion was illegal. Prima facie, this Court finds no perversity, misreading of evidence, or misapplication of legal principles in the impugned judgment. The findings recorded by the learned Magistrate are reasonable and supported by evidence. Granting leave in such circumstances would amount to reopening a well-reasoned acquittal, which is impermissible under Section 378(4) Cr.P.C.

                  The upshot of the above discussion is that the leave sought for cannot be granted and Crl.L.P. will consequently stand dismissed.