K. Ramakrishnan, J.Dissatisfied complainant in C.M.P. No. 30/14 on the file of the Judicial First Class Magistrate Court, Ramankary is the revision petitioner herein.

2. The revision petitioner filed the above complaint against respondents 2 to 5 alleging that their act amounts to defamation under Section 499 punishable under Section 500 of Indian Penal Code.

3. It is alleged in the complaint that on 19.10.2013, her paternal aunt (complainants fathers brothers wife) by name Rosamma Kunjeria died. The third accused who is the son of Rosamma Kunjeria and 4th accused is his wife. In the obituary column of Malayala Manorama of which the second respondent is the publisher, Third respondent is the Chief Editor, published the photograph of the sister in law of the complainant by name Aleykutty Jacob showing it as photograph of Rosamma Kunjeria containing details of deceased Rosamma Kunjeria relates to the deceased Aleykutty Jacob. In fact, Aleykutty Jacob died long ago without issues. The description under the photograph shows that, she was having children and grand children and also having son in law and daughter in laws. This has been caused insult to the family members of the complainant who belong to a well known family by name Kannadi Prayilkalam Valiyathara Family in that area. So, she filed a complaint under Section 200 of Code of Criminal Procedure. The complainant and two witnesses were examined and after conducting enquiry under Section 202 of Code of Criminal Procedure, the learned magistrate dismissed the complaint under Section 203 of Code of Criminal Procedure on the ground that, there is no to prima facie case made out to proceed against the accused as there is no willful intention or malice on the part of the accused in making the publication which is being challenged by the revision petitioner by filing this revision petition.

4. Since the respondents have entered appearance, this court felt that the same can be admitted and disposed of after hearing both sides on merit. So, the revision is admitted and disposed of after hearing both the Counsels.

5. Counsel for the revision petitioner vehemently argued that the court below at this stage is not expected to go into the defence of the accused as to whether it was done with bona fides or without any mala fides or it is a mistake etc., Court is not entitled even to rely on the reply that has been produced in which, they have stated that, it was by mistake the photograph published but, when they came to know about the mistake, the real photograph has been published on the next day itself. So, according to the learned Counsel, the court below had committed illegality in dismissing the complaint under Section 203 of Code of Criminal Procedure.

6. On the other hand, the Counsel for respondents 2 and 3 submitted that, as far as the publisher is concerned, there is no mala fide intention on their part. The description of the deceased person has been correctly mentioned, but, only the photograph of wrong person was shown which was handed over to them by one of the relatives. When the mistake was brought to their knowledge, it was corrected by publishing the correct photograph without any delay. The Counsel for the respondents 4 and 5 submitted that the photograph was by mistake given and when they came to know about the mistake, it was corrected by providing correct photograph and it was published by the publisher as well. So, there is no mala fide intention on their part in giving a wrong photograph so as to cause any loss of reputation to the complainant or her family members.

7. It is an admitted fact that the revision petitioner as well as respondents 4 and 5 are relatives and belonging to the same family namely, Prayilkalam Valiyathara in Kannadi Village. It is also an admitted fact that deceased Rosamma Kunjeria and Aleykutty Jacob were relatives of both parties. It is an admitted fact that Aleykutty died long ago without any issues and Rosamma Kunjeria who is the paternal aunt of the complainant died on 19.10.2013. It is also an admitted fact that, in the obituary column of the publication made by the second respondent, the obituary news of Rosamma Kunjeria was published as given by the accused numbers 3 and 4, but, it carried the photograph of Aleykutty instead of Rosamma Kunjeria which, according to the complainant, had caused loss of reputation in their family. It is also seen from the evidence adduced and also the documents produced by the complainant along with the complaint itself that the publication was made on 20.10.2013 and on 22.10.2013 itself, a correction obituary note with the correct photograph of Rosamma Kunjeria was published. Further, when a notice has been issued by the complainant demanding compensation, the respondents 1 and 2 have sent a reply stating that it was a mistake and it was not with any malice or mala fide intention to cause of reputation to the family that it was done.

8. Section 499 of Indian Penal Code defines defamation.

Defamation:- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases hereinafter expected, to defame that person.

9. It may be mentioned here that when both the accused numbers 3 and 4 and the complainant belong to the same family, if a wrong photograph has been published and if the allegation in the complaint has been accepted, that may not only affect the imputation of one family or one person alone, but, it may affect the reputation of entire family to which both are members. Further, there is no case that the photograph of Aleykutty and the name of Aleykutty was mentioned with the particulars as described in the obituary column. If it is so, it may be said that there is something to show that it was made with an intention to defame a person as married in fact she is unmarried and died issue less. That was not the case here. Except the photograph, other particulars mentioned in the obituary column really related to the real person namely Rosamma Kunjeria. Further, even the document produced by the complainant herself will go to show that a correction publication has been made immediately by publishing the correct photograph by the publishers as well. That also will go to show that as far as the publisher namely accused numbers 1 and 2 that when they came to know about the mistake committed, they have corrected the same as well. It is true that at the time when the enquiry under Section 202 of Code of Criminal Procedure is conducted, court need only consider as to whether there is prima facie case for proceed against the accused so as to issue process under Section 204 of Code of Criminal Procedure. But, if on the basis of the materials not only the allegations but, also the documents produced by the complainant if taken together will go to show that there is no prima facie case made out then, court can take into all those aspects before issuing summons to the accused and if the court feels that it is unnecessary to summon the accused to harass them, court can dismiss the complaint under Section 203 of Code of Criminal Procedure. In this case, on the basis of the materials produced by the complainant herself, it will be seen that, what is happened is only a bona fide mistake by giving a wrong photograph and it was not with any willful intention of causing any loss of reputation to anyone as contended by the complainant in the complaint. So, under the circumstances, court below was perfectly justified in coming to the conclusion that the materials produced are not sufficient to proceed against the accused for issuing the summons and rightly dismissed the complaint and that does not call for any interference at the hands of this court. So, the revision lacks merit and the same is liable to be dismissed.

In the result, the revision is dismissed.