Neha Agarwal vs Manoj Kumar Agarwal

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GAHC010245432025

2026:GAU-AS:12516
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./464/2025
NEHA AGARWAL
W/O LATE VIKASH KUMAR AGARWAL,D/O SHRI DULI CHAND
AGARWAL,R/O GARG HARDWARE AND ELECTRICALS,A.T. ROAD, NEAR
NIRMAL CHARIALI, JORHAT - 785001, ASSAM.

PRESENTLY RESIDING AT
26B, 2ND FLOOR, PP ROAD, REHABARI, GUWAHATI-781008, ASSAM,
MOBILE NO. 9540230003.
VERSUS
MANOJ KUMAR AGARWAL
S/O SHRI MADAN LAL AGARWAL
R/O KHUSHI COTTAGE,
PRIYAMGIRI BUILDING, 3RD AND 4THFLOOR, NEAR RAILWAY GATE NO.
9, BHARALIMUKH, GUWAHATI-781009, ASSAM
MOBILE NO. 7002702851/9864422851
Advocate for the Petitioner : PETITIONER IN PERSON,
Advocate for the Respondent : MR. B KAUSHIK, MR. SARFRAZ NAWAZ, AMICUS
CURIAE,MS. SUDAKSHINA K.,MS. P BARUAH

:::BEFORE:::
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

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Date on which judgment is reserved : 11.08.2026

Date of pronouncement of judgment : 27.08.2026

Whether the pronouncement is of the
Operative part of the judgment : NA

Whether the full judgment has been
Pronounced : YES

Judgment & Order (CAV)
Heard Ms. N. Agarwal, the petitioner in person assisted by Mr. S. Nawaz, learned Amicus Curiae.
Also heard Mr. S. Khanikar, learned counsel for the respondent.
2. This Revision is directed against the Order dated 13.08.2025 passed by the Learned Special
Judicial Magistrate, First Class Kamrup(Metro), Guwahati dismissing the complaint filed by the
petitioner in CR Case No. 293/2024.
3. The petitioner, as complainant, had preferred a complaint before the Learned Chief Judicial
Magistrate, under sections 499/500/501 of the Indian Penal Code, alleging that the accused, who is her
brother-in-law, made false and defamatory statements questioning the paternity of her minor daughter
and imputing illicit relations to her, thereby tarnishing her reputation and that of her family. In her
complaint petition, she narrated various incidents said to have occurred between the years 2012 &
2024, including that the accused threatened through his staff in 2016 to create a rift between her and her
husband and ensure a divorce, attempted to malign her character in 2012, harbored a motive to grab her
husband's property, removed her stridhan, caused others to make explicit sexual comments against her,
and engaged in systematic character assassination over the years causing trauma to her children.
4. The aforesaid complaint was made over to the learned Special Judicial Magistrate, First Class,

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Kamrup (Metro), Guwahati. The learned Special Judicial Magistrate examined the complainant and her
witness under Section 200 CrPC and came to the finding that the deposition of the complainant is
confined to the allegation that the accused told her relatives, her landlord, her employer, and also stated
in a court proceeding that her daughter was not fathered by her husband and that she had an illicit
relationship with someone else, and that there was no reference in her deposition to the remaining
allegations. During further inquiry, the complainant examined her own father and no one else, and he
deposed that the accused used to say to people that his brother was not the father of the complainant's
daughter, but made no mention of other incidents set out in the complaint petition. Furthermore, the
persons to whom the alleged defamatory statements were said to have been made were never produced
as witnesses during the process of further inquiry.
5. The learned Special Judicial Magistrate was of the view that the aforesaid averments in the
complaint petition which are not supported by the depositions of the complainant and her witnesses
cannot form the basis for summoning an accused. It was held by the learned Special Judicial Magistrate
that apart from a general assertion that the accused made statements to various persons, there is no clear
and specific evidence as to the exact words used, the specific date, time, and place of such utterance, or
the identity of the persons who directly heard them, and much of the case is based on what unnamed
persons have allegedly told the complainant or her father. Furthermore, there was no publication of any
defamatory matter in the sense required under Section 499 IPC, in that the imputation was
communicated to a third person and that it directly harmed the complainant's reputation, and
furthermore, there was no allegation or evidence that the accused printed or engraved any defamatory
matter so as to attract Section 501 IPC.
6. The learned Special Judicial Magistrate was also of the view that some of the defamatory
materials arising from the pleadings of a complaint case filed by the accused/respondent herein were

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made in the course of judicial proceedings and are protected under Exceptions 8 and 9 to Section 499
IPC, and that the complaint contains no material to prima facie show lack of good faith or irrelevance,
so as to take such statements out of the protection of the aforesaid exceptions. Ultimately, the learned
Special Judicial Magistrate came to the view that several of the allegations made in the complaint are
not supported by the depositions of the complainant or her witness, and as far as the remaining
allegations are concerned which are supported by such depositions, the essential ingredients of the
offences under Sections 499/500/501 IPC are not made out. Accordingly, the learned Special Judicial
Magistrate declined to entertain the complaint and dismissed the case.
7. The learned Amicus Curiae assisting the petitioner in person has formulated two questions for the
consideration of the Court, namely:
i) Whether the Magistrate can reject a complaint if it prima facie discloses an offence, and
ii) Whether the Magistrate can suo moto make out any of the exceptions to Section 500 IPC and
thereby dismiss the complaint.
8. The learned Amicus Curiae has referred to the decision of the Hon’ble Apex Court in the case of
Fiona Shrikhande Vs State of Maharashtra & Anr reported in (2013) 14 SCC 44 , wherein it has been
held as follows:
“ 11. We are, in this case, concerned only with the question as to whether, on a reading of
the complaint, a prima facie case has been made out or not to issue process by the
Magistrate. The law as regards issuance of process in criminal cases is well settled. At
the complaint stage, the Magistrate is merely concerned with the allegations made out
in the complaint and has only to prima facie satisfy whether there are sufficient grounds
to proceed against the accused and it is not the province of the Magistrate to enquire
into a detailed discussion on the merits or demerits of the case. The scope of enquiry
under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is
expected to examine prima facie the truth or falsehood of the allegations made in the

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complaint. The Magistrate is not expected to embark upon a detailed discussion of the
merits or demerits of the case, but only consider the inherent probabilities apparent on
the statement made in the complaint. In Nagawwa Vs Veeranna Shivalingappa Konjalgi,
this Court held that once the Magistrate has exercised his discretion in forming an
opinion that there is ground for proceeding, it is not for the Higher Courts to substitute
its own discretion for that of the Magistrate. The Magistrate has to decide the question
purely from the point of view of the complaint, without at all adverting to any defence
that the accused may have.
9. The next decision of the Hon’ble Apex Court relied upon by the petitioner is in the case of Kamal
Shivaji Pokarnekar Vs State of Maharashtra & Ors reported in (2019) 14 SCC 350 , wherein it has
been held as follows:
“ 4. The only point that arises for our consideration in this case is whether the High
Court was right in setting aside the order by which process was issued. It is settled law
that the Magistrate, at the stage of taking cognizance and summoning, is required to
apply his judicial mind only with a view to taking cognizance of the offence, or in other
words, to find out whether a prima facie case has been made out for summoning the
accused persons. The learned Magistrate is not required to evaluate the merits of the
material or evidence in support of the complaint, because the Magistrate must not
undertake the exercise to find out whether the materials would lead to a conviction or
not.”
10. Reliance has also been placed on the decision of the Hon’ble Apex Court in the case of
Subramanian Swamy Vs Union of India , reported in (2016) 7 SCC 221 , in support of the petitioner's
contention that it is not open for the Magistrate to consider at that stage as to whether any of the
exceptions to Section 500 would be attracted.
11. Countering the aforesaid submissions, the learned counsel for the respondent submitted that a

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perusal of the depositions of the complainant and her witness, who is her own father, does not disclose
any offence under Sections 499/500/501 IPC, and that the learned Special Judicial Magistrate has
rightly perused the material available before him at that stage and duly applied his mind and only
thereafter refused to issue summons to the respondent/accused.
12. The learned counsel has referred to the decision of the Hon’ble Apex Court in the case of Dilip
Kumar Vs Brajraj Shrivastava & Anr reported in (2024) 14 SCC 295 , wherein it has been held as
follows:
“ The law is well settled, which is found to have been reiterated in the decision in
Mohinder Singh. After taking recourse to sub-section (1) of Section 202 CrPC, before
dismissing a complaint by taking recourse to Section 203 CrPC, the learned Magistrate
has to consider the statements of the complainant and his witnesses. In this case, the
learned Magistrate has not examined the other witnesses. The view taken by this Court
in Nagawwa is no different.”
13. In the case of M/s Pepsi Food Lid. & Anr Vs Special Judical Magistrate & Ors reported in
(1998) 5 SCC 749 , the Hon’ble Apex Court held as follows:
“ 22. Summoning of an accused in a criminal case is a serious matter. Criminal law
cannot be set into motion as a matter of course. It is not that the complainant has to
bring only two witnesses to support his allegations in the complaint to have the criminal
law set into motion. The order of the Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case and the law applicable thereto. He
has to examine the nature of allegations made in the complaint and the evidence both
oral and documentary in support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of recording of preliminary evidence before
summoning of the accused Magistrate has to carefully scrutinize the evidence brought

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on record and may even himself put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.”
14. Another decision of the Hon’ble Apex Court relied upon by the learned counsel for the respondent
is Mehmood UI Rehman & Ors Vs Khazir Mohammad Tunds & Ors reported in (2015) 12 SCC 420 ,
wherein it has been held as follows:
“ 1. Cognizance of an offence is taken by the Magistrate under Chapter XIV Section 190
of The Code of Criminal Procedure, 1973 hereinafter referred to as 'Code of Criminal
Procedure'). The Chapter deals with "Conditions Requisite For Initiation of
Proceedings". The Magistrate is empowered to take cognizance of an offence Under
Section 190(1)(a) of Code of Criminal Procedure upon receiving a complaint of facts
which constitute such offence. Chapter XV Code of Criminal Procedure deals with the
further procedure for dealing with "Complaints to Magistrate". Under Section 200 of
Code of Criminal Procedure, the Magistrate, taking cognizance of an offence on a
complaint, shall examine upon oath the complainant and the witnesses, if any, present
and the substance of such examination should be reduced to writing and the same shall
be signed by the complainant, the witnesses and the Magistrate. Under Section 202of
Code of Criminal Procedure, the Magistrate, if required, is empowered to either inquire
into the case himself or direct an investigation to be made by a competent person "for
the purpose of deciding whether or not there is sufficient ground for proceeding". If,
after considering the statements recorded Under Section 200 of Code of Criminal
Procedure and the result of the inquiry or investigation Under Section 202 of Code of
Criminal Procedure, the Magistrate is of the opinion that there is no sufficient ground
for proceeding, he should dismiss the complaint, after briefly recording the reasons for
doing so. Chapter XVI Code of Criminal Procedure deals with "Commencement of
Proceedings before Magistrate". If, in the opinion of the Magistrate taking cognizance
of an offence, there is sufficient ground for proceeding, the Magistrate has to issue
process Under Section 204(1) of Code of Criminal Procedure for attendance of the
accused.”

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“ 11. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors., (1976) 3 SCC 736,
this Court took the view that in the process of taking cognizance and issue of process to
the accused, Magistrate has to form an opinion that a prima facie case is made out
against the accused. At that stage, the Magistrate is also competent to consider whether
there are inherent improbabilities appearing on the face of the complaint or in the
evidence led by the complainant.”
"23. It is a settled legal position that at the stage of issuing process, the Magistrate is
mainly concerned with the allegations made in the complaint or the evidence led in
support of the same and he is only to be prima facie satisfied whether there are
sufficient grounds for proceeding against the accused."
15. Lastly, the learned counsel for the respondent has referred to the decision of the Hon’ble Apex
Court in the case of M/s Iveco Magirus Brandschutztechnik Gmbh Vs Nirmal Kishore Bhartiya &
Anr reported in (2024) 2 SCC 86 , wherein it has been held as follows:
“ 45. In the context of a complaint of defamation, at the stage the Magistrate proceeds to
issue process, he has to form his opinion based on the allegations in the complaint and
other material (obtained through the process referred to in section 200/section 202) as
to whether sufficient ground for proceeding' exists as distinguished from 'sufficient
ground for conviction' which has to be left for determination at the trial and not at the
stage when process is issued. Although there is nothing in the law which in express
terms mandates the Magistrate to consider whether any of the Exceptions to section
499, IPC is attracted, there is no bar either. After all, what is 'excepted' cannot amount
to defamation on the very terms of the provision. We do realize that more often than not,
it would be difficult to form an opinion that an Exception is attracted at that juncture
because neither a complaint for defamation (which is not a regular phenomenon in the
criminal courts) is likely to be drafted with contents, nor are statements likely to be
made on oath and evidence adduced, giving an escape route to the accused at the
threshold. However, we hasten to reiterate that it is not the law that the Magistrate is in

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any manner precluded from considering if at all any of the Exceptions is attracted in a
given case; the Magistrate is under no fetter from so considering, more so because
being someone who is legally trained, it is expected that while issuing process he would
have a clear idea of what constitutes defamation. If, in the unlikely event, the contents of
the complaint and the supporting statements on oath as well as reports of
investigation/inquiry reveal a complete defence under any of the Exceptions to section
499, IPC, the Magistrate, upon due application of judicial mind, would be justified to
dismiss the complaint on such ground and it would not amount to an act in excess of
jurisdiction if such dismissal has the support of reasons.”
16. I have given my anxious consideration to the rival submissions and have also heard the petitioner
in person. In the case of Fiona Shrikhande (Supra) cited on behalf of the petitioner, what the Supreme
Court has held is that the learned Magistrate has only to prima facie satisfy himself whether there are
sufficient grounds to proceed against the accused, and the scope of the inquiry under Section 202 is
extremely limited in the sense that the learned Magistrate at this stage is expected to examine prima
facie the truth or falsehood of the allegations made in the complaint and he is not expected to embark
upon a detailed discussion of the merits or demerits of the case, but only to consider the inherent
probabilities apparent on the statement made in the complaint. The aforesaid observations cannot be
interpreted to mean that while arriving at satisfaction as envisaged above, the Magistrate is debarred
from looking into the depositions of the complainant and his/her witnesses. The same does not also
appear to be a view that would logically follow from the provisions of Sections 200 and 202 of the
CrPC, since the provisions themselves provide for the examination of the witnesses of the complainant
and for further inquiry where necessary.
17. The position has been made clear in the decision of the Hon’ble Apex Court in the case of Dilip
Kumar (Supra) , wherein the Hon’ble Apex Court has held that before dismissing a complaint by taking
recourse to Section 203 of the CrPC, the learned Magistrate has to consider the statements of the

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complainant and his witnesses (emphasis supplied). The aforesaid decision follows a previous decision
of the Hon’ble Apex Court in the case of Mohinder Singh Vs Gulwant Singh reported in (1992) 2
SCC 213 . Furthermore, in M/s Pepsi Foods Ltd. (Supra) , it has been explicitly held that the learned
Magistrate has to examine the nature of the allegations made in the complaint and the evidence, both
oral and documentary, in support thereof, and whether that would be sufficient for the complainant to
succeed in bringing the charge home to the accused. It has been further held in the aforesaid decision
that the learned Magistrate is not a silent spectator at the time of recording preliminary evidence before
summoning the accused, and the learned Magistrate has to carefully scrutinize the evidence brought on
record and may even himself put questions to the complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or otherwise.
18. Similarly, in the case of Mehmood UI Rehman (Supra) , it was specifically held that if, after
considering the statements recorded under Sections 200/202 of the CrPC and the result of the inquiry or
investigation under Section 202 of the CrPC, the learned Magistrate is of the opinion that there is no
sufficient ground for proceeding, he should dismiss the complaint after briefly recording the reasons for
doing so. In the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors reported in (1976)
3 SCC 736 , which was referred to and relied upon in the decision of Mehmood UI Rehman (Supra) , it
has been held that at the stage of issuing process, the learned Magistrate has to take into account the
allegations made in the complaint and the evidence adduced in support thereof.
19. From the above, it appears that the weight of judicial authority leads to a position where the
learned Magistrate has to consider not only the allegations made in the complaint itself, but also the
evidence recorded under Section 200 of the CrPC, and/or the findings of any inquiry or investigation
held under Section 202 of the CrPC. The decision in the case of Kamal Shivaji Pokarnekar (Supra)
relied upon by the petitioner does not say anything different from the above view. Thus, question no. 1

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framed by the learned Amicus Curiae as to whether the learned Magistrate can reject a complaint if it
prima facie discloses an offence has already been answered by the Hon’ble Apex Court as above.
20. As to the second question raised on behalf of the petitioner as to whether it is open for the learned
Magistrate to take into consideration any of the exceptions to Section 499 of the IPC at the stage of
taking cognizance, it would first be apposite to examine the factual backdrop against which the
aforesaid question has arisen. A perusal of the complaint petition reveals that the complainant had
stated therein as follows:
“ 3. That in the Complaint Petition filed by the accused before the Learned Chief
Judicial Magistrate, Kamrup (M), Guwahati which is registered as Complaint case No.
5149/2022, the Complainant in paragraph 4 of Complaint Petition has written that
"there is no conjugal relationship between the accused (here complainant) and her
husband since 2014". Further he has stated in the same paragraph that the husband of
the Complainant had left Delhi in 2014 and thereafter he is not staying with the accused
since then but the travelling of both together along with their children abroad in the
year 2017 clearly establishes the conjugal relationship existed even in the year 2017.
Thus the accused is making false allegations in public and systematically damaging the
reputation of the complainant, their children and her parents-family. Further, who is the
accused to say about the bedroom relation between the husband and wife? It clearly
shows the malafide intention of the accused having turbid mind.”
21. The present complaint petition does not provide any context in which the aforesaid statement, that
there is no conjugal relationship between the accused and her husband since 2014, has been made. Per
se, the above statement may not be capable of being termed as defamatory. Although it is stated
beneath the aforesaid paragraph that the copy of the complaint petition of the accused in CR Case No.
5149/2022 is annexed and marked as Annexure-2, no such copy is found to have been annexed to the
complaint filed by the petitioner upon perusal of the record. Further to that, the depositions of the

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complainant and her witness make no mention of the respondent having made any such defamatory
statement in his complaint petition against the present petitioner, i.e., in CR Case No. 5149/2022.
Therefore, in the aforesaid state of the pleadings and evidence, there appears to be no sufficient ground
to proceed against the respondent under Section 499 of the IPC, regardless of the applicability of any
exception thereto, insofar as the alleged statement of the respondent made in the complaint petition
filed by him before the Court is concerned. Hence, the decisions in Subramanian Swamy (Supra) &
M/s Iveco Magirus Brandschutztechnik Gmbh (Supra) need not be discussed in the instant case.
22. Furthermore, since the respondent as complainant in the aforesaid case is entitled to adduce
evidence in order to prove the allegations made in the complaint, it would also be premature to initiate
proceedings against the said respondent/complainant under Section 499 of the IPC. This is because in
the event that the present respondent/complainant in the aforesaid CR Case No. 5149/2022 succeeds in
establishing the said statement to be true, a presumption of the complaint having been made bonafide
and in good faith arises. In such a situation, an action under Section 499 of the IPC may not lie against
the respondent/complainant of the said case.
23. In most proceedings initiated before a Court, the pleadings must necessarily include facts or
claims as part of the bundle of facts necessary to constitute the cause of action for the proceedings,
some of which may be defamatory to the other or a third party. If in every such case, the
complainant/petitioner is permitted to be exposed to proceedings for defamation, he/she would be
discouraged or even prevented from stating his own case before the Court, which indeed would lead to
an untenable state of affairs. Therefore, it is only termination of the earlier complaint proceedings that
an action for defamation may lie, depending on the result thereof.
24. Deciding the issue whether statements made to the lawful authorities can be made ground for

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defamation, in the case of Pandey Surendra Nath Sinha & Anr Vs Bageshwari Pd. reported in AIR
1961 Pat 164 , it was observed that:
"If a person who makes the statements has an interest or duty, legal, social or moral to
make it to the person to whom it is made, and the person to whom it is so made has as
corresponding interest or duty to receive it such statement commands a privilege and
cannot be made basis of an action for defamation.”
25. The defendant has an interest in making the communication to the third party, and the third party
has a corresponding interest in receiving it. Reciprocity of interest is essential. In the case of Hebditch
Vs MacIIwaine reported in (1894) 2 Q.B. 54 , it was observed that:
“ The interest must exist in the party to whom the communication is made as well as the
party making it. It is sufficient that the defendants honestly and reasonably believe that
the person whom he made communication had an interest in the subject matter thereof.”
26. The same has been held in the case of Prof. Imtiaz Ahmad Vs Durdana Zamir reported in 2009
(109) DRJ 357 , wherein it was observed that:
"Whenever a person makes a complaint against someone to the lawful authorities and in
that complaint he makes imputations against the person complained of, it cannot be
considered that the person has publicized or publically made defamatory averments
against a person. If a prosecution is initiated against the person on the basis of such
averments and the person is acquitted holding that the complaint was false, then only a
cause of action arises against the complainant for launching a case for false
prosecution or for damages on other grounds. Until and unless a competent court holds
that complaint was false, no cause of action arises. Approaching a competent authority
and praying that the authority should come to the rescue of the complainant and prevent
the interference of the plaintiff (in the family affairs of the defendant) cannot amount to
defamatory imputation per-se and even if it is published, it does not tend to show that
the defendant had intended to lower the reputation of the plaintiff."

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27. In the aforesaid view of the matter, the second question formulated by learned Amicus Curiae is
not required to be answered in the instant case.
28. It has been held in the case of Shri. Ram Singh Batra Vs Smt. Sharan Premi reported in (2006)
133 DLT 126 , that:
“ A complaint to a lawful authority is not actionable if it is not defamatory per-se unless
it is established that the complaint is false and defamatory. Thus, till before the court of
law it is not established that the FIR in question is based on a false allegation, no action
is even maintainable.”
No submissions have been advanced with regard to any other infirmity in the findings of the
learned Magistrate vis-à-vis the materials placed before the Court, apart from the contents of the
complaint case (CR No. 5149/2026). However, as rightly observed by the learned Magistrate, there is
no specific mention of the exact words used or of the identity of the persons before whom the words
were uttered. Neither did the complainant produce any such person at the pre-cognizance stage on the
basis of whose deposition the learned Magistrate could draw the necessary satisfaction to issue process
against the accused. In a case of this nature, it is essential that the person to whom the oral defamatory
words were addressed be produced and examined. In the absence thereof, the complaint certainly risks
dismissal.
29. In view of the above discussion, I find no such infirmity in the impugned order warranting
interference and consequently, the Revision Petition stands dismissed.
30. Send back the TCR
JUDGE

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Comparing Assistant