Full Judgment Text
2023INSC880
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1959 OF 2012
M/S IVECO MAGIRUS
BRANDSCHUTZTECHNIK GMBH … APPELLANT
VERSUS
NIRMAL KISHORE BHARTIYA & ANR. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
THE APPEAL
1. This appeal, by special leave, is at the instance of a German
company (“the appellant”, hereafter). It assails a short five-line
order of a learned Judge of the High Court of Delhi (“learned
th
Judge”, hereafter) dated 10 December 2010. By such order, the
1
learned Judge dismissed a petition under section 482 of the Code
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2023.10.06
16:21:57 IST
Reason:
1
CRL. M.C. 2845/2010
1
of Criminal Procedure, 1973 (“Cr. PC”, hereafter) presented by the
appellant as not maintainable relying on the decision of this Court
in Iridium India Telecom Ltd. v. Motorola Incorporated &
2
Ors. and a Bench decision of the High Court of Delhi in Morgan
3
Tetronics Ltd. v. State & Anr. .
CHALLENGE BEFORE THE HIGH COURT OF DELHI
2. Appellant had approached the High Court of Delhi taking exception
th
to an order dated 25 March 2010 passed by the Additional Chief
Metropolitan Magistrate (SE), New Delhi (“Trial Court”, hereafter)
4
on a complaint lodged under section 200, Cr. PC by the
respondent (“complainant”, hereafter). The Trial Court upon
considering the complaint returned a prima facie finding in the said
order that Mr. M.C. Aggarwal (accused no.1), the appellant
(accused no. 2) and its District Manager (Asia), Mr. Lorenzo
Boninsegna (accused no.3) were “jointly and severally responsible
for writing, sending, publishing the above said letters containing
malicious and defamatory statements and imputation against the
complainant” and consequently summoned the three accused for
offences under sections 500/107/34, Indian Penal Code (“IPC”,
hereafter).
2
(2011) 1 SCC 74
3 th
LPA-668/2010 dt. 17 September 2010
4
CC No.465/1/09
2
FACTS
3. The undisputed and relevant facts leading to the summoning order
impugned before the learned Judge is noticed hereunder:
i. Global Tender No. EQ/Global/2007-09/01 was floated by the
Airports Authority of India (“AAI”, hereafter) for supply of 40
(forty) Airfield Crash Fire Tenders at various airports across
the country. The appellant, a Germany-based manufacturer
of fire safety equipment, executed a Power of Attorney in
favour of Mr. M.C. Aggarwal, the respondent no. 2
(“Aggarwal”, hereafter), who happened to be the Managing
Director of Brijbasi Hi-Tech Udyog Ltd. Aggarwal was
appointed to be the local representative of the appellant in
India and he was empowered, inter alia , to file suits and take
all steps which were deemed expedient in furtherance of the
tender process.
ii. The company of the complainant, Bhartiya Vehicles &
Engineering Pvt. Ltd, was the Indian associate of one
Rosenbauer International AG (“Rosenbauer”, hereafter),
another bidder in the aforementioned tender process.
st
iii. On 21 July 2008, AAI rejected the bid of the appellant and
eventually awarded it to Rosenbauer. In the aftermath of the
rejection, on various occasions in 2008, Aggarwal issued
four letters in the nature of complaints to different
authorities including the Minister of Civil Aviation,
3
Government of India, the Chairman of AAI, the Chief
Vigilance Officer, AAI, and the Central Vigilance
Commissioner, Government of India, inter alia, complaining
of favouritism and irregularities in the tender process. These
letters allege that the complainant, through illegal and
wrongful methods, persuaded AAI to award the tender to
Rosenbauer. Enumeration of the contents of such letters is
avoided, lest the same prejudices the rights of the parties.
iv. Dissatisfied with the inaction of the aforementioned
authorities to look into the letters of complaint, Aggarwal, in
his capacity as the local authorised representative of the
appellant, invoked the writ jurisdiction of the High Court on
th 5
or about 12 August 2008 by presenting a writ petition
against the Union of India and AAI. It is pertinent to note
that Bhartiya Vehicles & Engineering Pvt. Ltd., and
Rosenbauer were also made parties to the proceedings. The
th
writ petition was finally dismissed on 13 February 2009
vide a detailed order, which was not challenged thereafter.
th
v. On 30 April 2009, the complainant addressed a legal notice
to the appellant and Aggarwal inter alia alleging that the
contents of the aforementioned four letters of complaint
given to the concerned authorities were defamatory.
th
Pertinently, on 20 May 2009, the appellant responded to
5
WP (C) No.6155/2008
4
the legal notice inter alia stating that it had not authorised
Aggarwal to write any such letter, and that the appellant was
also not involved in their preparation.
vi. It was in this context that the complainant lodged the
complaint before the Trial Court alleging criminal defamation
as well as its abetment under sections 107, 499, and 500
read with section 34 of the IPC against the accused.
vii. The Trial Court, after perusing the complaint and examining
the witnesses in support thereof, ordered the accused to be
summoned as it was of the opinion that a prima facie case
was made out against them.
viii. The challenge by the appellant to the summoning order was
spurned by the High Court vide the impugned order.
CONTENTIONS OF THE APPELLANT
4. On behalf of the appellant, learned counsel Ms. Viswanathan
argued that the High Court committed grave miscarriage of justice
in dismissing the petition by a cryptic order. She contended that
several important questions of law were raised in the petition by
the appellant. Although the objection as to whether a company is
capable of being prosecuted on the ground that it is incapable of
possessing necessary mens rea stood answered by the decisions
relied on by the learned Judge, yet, according to her, the learned
Judge should have considered the other objections raised by the
5
appellant. Not having so considered, it was urged that the
impugned order is indefensible.
5. Ms. Viswanathan, in support of the appeal, raised the following
specific contentions:
i. The impugned order of the learned Judge omitted to
consider that the complaint did not disclose any oral or
written words, spoken or written by the appellant, or sign or
visible representation made by it; and, in the absence of
disclosure of any imputation made by the appellant, the key
ingredient of the offence of defamation did not exist. The
impugned order of the learned Judge failed to appreciate
that issuance of a Power of Attorney cannot by law constitute
an ingredient of an offence under section 499, IPC since
agents, under section 188 of the Indian Contract Act, 1872,
are authorised to do only lawful acts; and, as a corollary,
execution of such power of attorney did not amount to
authorisation or consent given to Aggarwal to commit any
alleged act of defamation.
ii. The learned Judge erred in not considering that a writ
petition instituted on behalf of the appellant cannot
constitute an ingredient of an offence under section 499,
IPC, since documents filed in civil cases are protected by an
6
“absolute privilege” and are also covered under the Fourth
Exception to section 499, IPC.
iii. There has been a gross failure of justice in that the learned
Judge ought to have corrected the manifest error committed
by the Trial Court in issuing process against the accused
without the Trial Court considering whether any of the
exceptions to section 499, IPC was applicable on facts and
in the circumstances of the present case.
iv. The impugned order of the learned Judge fails to explain why
the decision of this Court in Rajendra Kumar Sitaram
6
Pande v. Uttam was not followed, whereby law has been
settled that issuance of process by a Magistrate without
applying the exceptions to section 499, IPC is unreasonable,
excessive and palpably wrong resulting in failure of justice.
7
v. The decision in Aroon Purie v. State of NCT of Delhi was
also cited for the proposition that there is no rigid principle
that the benefit of exception can only be afforded at the
stage of trial.
6. Resting on the aforesaid contentions, Ms. Viswanathan prayed that
the proceedings emanating from the complaint be quashed.
6
(1999) 3 SCC 134
7
2022 (15) SCALE 541
7
CONTENTIONS OF THE FIRST RESPONDENT
7. Mr. Taneja, learned counsel representing the complainant invited
our attention to various documents forming part of his counter
affidavit to the special leave petition. According to him, the
appellant withheld relevant materials from this Court and obtained
th
an ex parte interim order on 29 April 2011 as a sequel whereto
the entire proceedings before the Trial Court have been brought to
a grinding halt.
8. Our notice was first invited to the fact that Aggarwal had
independently challenged the summoning order before the High
8
Court of Delhi by presenting a petition under section 482, Cr. PC.
th
By a detailed order dated 10 December 2010, the same learned
Judge (who dismissed the petition of the appellant) noted that
Aggarwal was taking defence under exceptions to section 499 IPC
and that “the Court cannot take the defence of the petitioner into
account to quash the summoning order or to quash the complaint” .
Based on such finding, the learned Judge rejected the challenge.
th
9. Mr. Taneja contended that the learned Judge on 10 December
2010 had considered the petitions of Aggarwal and the appellant,
one after the other; and, although it is true that the learned Judge
while dismissing the petition of the appellant dealt with the point
8
CRL. M.C. 3350/2010
8
that a company could be proceeded against in view of Iridium
India Telecom Ltd. (supra) and Morgan Tetronics Ltd. (supra)
and did not assign separate reasons for spurning the appellant’s
challenge to the impugned order on the other grounds raised
therein, the appellant was duly represented by its learned
advocate when Aggarwal’s petition was considered and in his
presence, the order of dismissal was dictated. What Mr. Taneja
hinted at was that the learned Judge having passed a reasoned
order rejecting Aggarwal’s challenge to the summoning order, the
learned Judge may not have considered it necessary to repeat the
reasons twice over while dismissing the petition of the appellant.
10. Next, our attention was drawn by Mr. Taneja to the letters of
complaint issued by Aggarwal before the various public
authorities. It was contended that while acting on behalf of the
appellant and also under its instructions, Aggarwal had made
reckless and frivolous allegations against the complainant
amounting to defamation and, in the process, lowered his
reputation and fame in the eyes of the public. He further
contended that the appellant cannot feign ignorance of the letters
of complaint issued by Aggarwal. Referring to the writ petition of
the appellant presented before the High Court of Delhi, he pointed
out that the self-same letters of complaint issued by Aggarwal
were made part of such petition while challenging the appellant’s
9
disqualification in course of the tender process; and, if indeed,
such letters were issued without knowledge and consent of the
appellant, it defies logic as to why they were made part of the writ
petition in the first place where the appellant was arrayed as the
writ petitioner.
11. Relying on the decision of this Court in Supriya Jain v. State of
9
Haryana , it was argued by Mr. Taneja that it is not open to the
Courts to quash a complaint based on additional material placed
by the accused which is not part of the record of proceedings
before the court below. According to him, the Power of Attorney is
not a piece of evidence that has been admitted or accepted by the
complainant and, thus, it requires proof by the appellant. Since
the same is yet not proved by the appellant according to law,
therefore, the same cannot be considered at this stage by this
Court. Also, it is for the appellant to respond to the summons and
to raise whatever defence is available to it by appearing before the
Trial Court.
12. Reliance was also placed on several decisions by Mr. Taneja, some
of which we propose to refer to a little later, to buttress his
contention that the petition of the appellant was rightly dismissed
and that the appeal deserves dismissal with costs.
9
(2023) SCC OnLine SC 765
10
THE QUESTIONS
13. Having heard learned counsel appearing for the appellant and the
complainant and on consideration of the materials on record, we
are of the view that the following questions of law emerge for an
answer:
i. Whether, while considering a private complaint alleging
defamation, the Magistrate before summoning the accused
ought to confine himself to the allegations forming part of
the petition only or he may, applying his judicial mind to the
exceptions to section 499, IPC, dismiss the complaint
holding that the facts alleged do not make out a case of
defamation?
AND
ii. Whether and, if at all, to what extent, is it open to the High
Courts to exercise inherent power saved by section 482, Cr.
PC to quash proceedings for defamation by setting aside the
summoning order upon extending the benefit of any of the
Exceptions to section 499, IPC?
14. After answering the aforesaid questions, we wish to answer the
following questions emerging from the facts and circumstances of
the appeal:
11
a. Whether the appellant has made out any case for
interference with the judicial orders of the Magistrate and
the learned Judge under challenge?
b. Whether a company can be prosecuted for defamation when
the alleged defamatory statements are made not by it (the
company) but by its authorised agent?
c. Depending on the answers to the above, whether the
benefit of the Fourth Exception to section 499, IPC, as
claimed, should be accorded to the appellant?
ANALYSIS
15. A survey of the decisions of this Court which were cited and those
mentioned in the cited decisions as well as some other decisions,
which we had the occasion to read and consider while preparing
this judgment, would provide guidance and pave the way for us to
decide the fate of this appeal.
16. We would first consider the decisions cited by the parties and those
decisions, though not cited by them, are traceable in such
decisions, by maintaining the sequence of their origin.
10
17. In Balraj Khanna & Ors. v. Moti Ram , the respondent lodged
a complaint against the first appellant and 6 (six) others under
section 500, IPC, alleging that they had levelled allegations
10
(1971) 3 SCC 399
12
against him which were defamatory in character. On 2 (two)
grounds, the Magistrate dismissed the complaint. The respondent
unsuccessfully applied for revision of the order of dismissal before
the Additional Sessions Judge, whereafter he approached the High
Court of Delhi with success. The High Court, while setting aside
the orders impugned, directed further inquiry. After considering
various foreign decisions as well as decisions of the High Courts of
Orissa, Nagpur, Allahabad and Mysore that were cited, this Court
in paragraph 29 held as follows:
“29. Before concluding the discussion, it is to be stated that
the trial Magistrate has given an additional reason for
dismissing the complaint. That reason is that the resolution
passed by the Standing Committee on December 11, 1964
and the discussion preceding it by the members of the
Standing Committee including the appellants, is covered by
the Exceptions to Section 499 IPC. Unfortunately, the High
Court also has touched upon this aspect and made certain
observations. In our opinion, the question of the application
of the Exceptions to Section 499 IPC, does not arise at this
stage. Rejection of the complaint by the Magistrate on the
second ground mentioned above cannot be sustained. It was
also unnecessary for the High Court to have considered this
aspect and differed from the trial Magistrate. It is needless
to state that the question of applicability of the Exceptions to
Section 499 IPC, as well as all other defences that may be
available to the appellants will have to be gone into during
the trial of the complaint.”
(underlining ours, for emphasis)
11
18. The next decision is Sewakram Sobhani v. R.K. Karanjia ,
rendered by a Bench of 3 (three) Hon’ble Judges. The appeal was
directed against an order passed by the Madhya Pradesh High
11
(1981) 3 SCC 208
13
Court in exercise of jurisdiction under section 397, Cr. PC,
alternatively under section 482 thereof. The respondent was the
Chief Editor, Blitz. An article was published therein which was per
se defamatory. Prosecution for an offence under section 500, IPC
which was launched stood quashed by the impugned order on the
ground that the case “clearly falls within the ambit of Exception 9
of Section 499 of the Indian Penal Code, 1860” . The appeal was
allowed by the majority and the order under challenge quashed.
This is what the Court, speaking through Hon’ble A.P. Sen, J., said:
“6. The order recorded by the High Court quashing the
prosecution under Section 482 of the Code is wholly perverse
and has resulted in manifest miscarriage of justice. The High
Court has prejudged the whole issue without a trial of the
accused persons. The matter was at the stage of recording
the plea of the accused persons under Section 251 of the
Code. The requirements of Section 251 are still to be
complied with. The learned Magistrate had to ascertain
whether the respondent pleads guilty to the charge or
demands to be tried. The circumstances brought out clearly
show that the respondent was prima facie guilty of
defamation punishable under Section 500 of the Code unless
he pleads one of the exceptions to Section 499 of the Code.
*
It is for the respondent to plead that he was protected under
Ninth Exception to Section 499 of the Penal Code. The
burden, such as it is, to prove that his case would come within
that exception is on him. *
7. We are completely at a loss to understand the reasons
which impelled the High Court to quash the proceedings.
*”
Hon’ble O. Chinnappa Reddy, J., in a concurring judgment, made
an illuminating discussion which would also be relevant for
answering one of the questions formulated by us touching upon
14
the facts of this appeal. We quote the concluding paragraph of His
Lordship’s judgment, reading thus:
“18. Several questions arise for consideration if the Ninth
Exception is to be applied to the facts of the present case.
Was the article published after exercising due care and
attention? Did the author of the article satisfy himself that
there were reasonable grounds to believe that the
imputations made by him were true? Did he act with
reasonable care and a sense of responsibility and propriety?
Was the article based entirely on the report of the Deputy
Secretary or was there any other material before the author?
What steps did the author take to satisfy himself about the
authenticity of the report and its contents? Were the
imputations made rashly without any attempt at verification?
Was the imputation the result of any personal ill will or malice
which the author bore towards the complainant? Was it the
result of any ill will or malice which the author bore towards
the political group to which the complainant belonged? Was
the article merely intended to malign and scandalise the
complainant or the party to which he belonged? Was the
article intended to expose the rottenness of a jail
administration which permitted free sexual approaches
between male and female detenus? Was the article intended
to expose the despicable character of persons who were
passing off as saintly leaders? Was the article merely
intended to provide salacious reading material for readers
who had a peculiar taste for scandals? These and several
other questions may arise for consideration, depending on
the stand taken by the accused at the trial and how the
complainant proposes to demolish the defence. Surely the
stage for deciding these questions has not arrived yet.
Answers to these questions at this stage, even before the
plea of the accused is recorded can only be a priori
conclusions. ‘Good faith’ and ‘public good’ are, as we said,
questions of fact and matters for evidence. So, the trial must
go on.”
(underlining ours, for emphasis)
19. The decision of another Bench of 3 (three) Hon’ble Judges in
12
Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathu
12
(1996) 6 SCC 263
15
outlined the contours for exercise of jurisdiction to quash a
complaint for defamation. Paragraph 13 being relevant is set out
below:
“13. As regards the allegations made against the appellant in
the complaint filed in the Court of Judicial Magistrate, Ist
Class, at Nasik, on a reading of the complaint we do not think
that we will be justified at this stage to quash that complaint.
It is not the province of this Court to appreciate at this stage
the evidence or scope of and meaning of the statement.
Certain allegations came to be made but whether these
allegations do constitute defamation of the Marwari
community as a business class and whether the appellant had
intention to cite as an instance of general feeling among the
community and whether the context in which the said
statement came to be made, as is sought to be argued by
the learned Senior Counsel for the appellant, are all matters
to be considered by the learned Magistrate at a later stage.
At this stage, we cannot embark upon weighing the evidence
and come to any conclusion to hold, whether or not the
allegations made in the complaint constitute an offence
punishable under Section 500. It is the settled legal position
that a court has to read the complaint as a whole and find
out whether allegations disclosed constitute an offence under
Section 499 triable by the Magistrate. The Magistrate prima
facie came to the conclusion that the allegations might come
within the definition of ‘defamation’ under Section 499 IPC
and could be taken cognizance of. But these are the facts to
be established at the trial. The case set up by the appellant
are either defences open to be taken or other steps of
framing a charge at the trial at whatever stage known to law.
Prima facie we think that at this stage it is not a case
warranting quashing of the complaint filed in the Court of
Judicial Magistrate, Ist Class at Nasik. To that extent, the
High Court was right in refusing to quash the complaint under
Section 500 IPC.”
(underlining ours, for emphasis)
13
20. Then followed M.N. Damani v. S.K. Sinha where this Court,
after applying the law laid down in Sewakram Sobhani ( supra )
13
(2001) 5 SCC 156
16
and Shatrughna Prasad Sinha ( supra ) , set aside the order of
the Karnataka High Court and restored the order of the Magistrate
issuing summons to the accused for offence under section 500,
IPC.
14
21. In M.A. Rumugam v. Kittu Alias Krishnamoorthy , the
respondent filed a private complaint against the appellant for
commission of the offence of defamation under section 500, IPC.
Taking cognizance of the said complaint, the Magistrate issued
summons to the appellant. Aggrieved thereby, he filed a petition
before the High Court of Judicature at Madras praying to call for
the records pertaining to the complaint petition filed by the
respondent and to quash the same. Before the High Court, a
contention was raised that the backdrop of events and the manner
in which the complaint petition had to be filed by the appellant
would clearly establish that the action on his part was not in good
faith. The said contention was negatived by the High Court. This
Court had the occasion to consider the applicability of the
provisions of section 482, Cr. PC for quashing of a complaint
petition filed by the respondent against the appellant under
section 500, IPC. While dismissing the appeal, the Court went on
to apply the well-settled principle of law that those who plead
14
(2009) 1 SCC 101
17
exception must prove it and, therefore, the burden of proof that
his action was bona fide would, thus, be on the appellant alone.
15
22. In Subramanian Swamy v. Union of India , this Court
considered the issue from a different angle. We can do no better
than reproduce the contention and how the same was
unhesitatingly repelled in the following words:
“209. We will be failing in our duty if we do not take note of
the submission of Mr. Bhambhani, learned Senior Counsel. It
is submitted by the learned Senior Counsel that Exceptions
to Section 499 are required to be considered at the time of
summoning of the accused but as the same is not conceived
in the provision, it is unconstitutional. It is settled position of
law that those who plead Exception must prove it. It has been
laid down in M.A. Rumugam that for the purpose of bringing
any case within the purview of the Eighth and the Ninth
Exceptions appended to Section 499 IPC, it would be
necessary for the person who pleads the Exception to prove
it. He has to prove good faith for the purpose of protection of
the interests of the person making it or any other person or
for the public good. The said proposition would definitely
apply to any Exception who wants to have the benefit of the
same. Therefore, the argument that if the said Exception
should be taken into consideration at the time of issuing
summons it would be contrary to established criminal
jurisprudence and, therefore, the stand that it cannot be
taken into consideration makes the provision unreasonable,
is absolutely an unsustainable one and in a way, a mercurial
one. And we unhesitatingly repel the same.”
(underlining ours, for emphasis)
23. Now, we take up for consideration the first decision cited by Ms.
Viswanathan, i.e., Rajendra Kumar Sitaram Pande ( supra ) . The
15
(2016) 7 SCC 221
18
facts, the relevant issue and the finding – all are captured in
paragraph 7, which we reproduce hereunder:
“The next question that arises for consideration is whether
reading the complaint and the report of the Treasury Officer
which was obtained pursuant to the Order of the Magistrate
under sub-section (1) of Section 201, can it be said that a
prima facie case exists for trial or Exception 8 to Section 499
clearly applies and consequently in such a case, calling upon
the accused to face trial would be a travesty of justice. The
gravamen of the allegations in the complaint petition is that
the accused persons made a complaint to the Treasury
Officer, Amravati, containing false imputations to the effect
that the complainant had come to the office in a drunken
state and abused the Treasury Officer, Additional Treasury
Officer and the Collector and circulated in the office using
filthy language and such imputations had been made with the
intention to cause damage to the reputation and services of
the complainant. In order to decide the correctness of this
averment, the Magistrate instead of issuing process had
called upon the Treasury Officer to hold an enquiry and
submit a report and the said Treasury Officer did submit a
report to the Magistrate. The question for consideration is
whether the allegations in the complaint read with the report
of the Magistrate make out the offence under Section 500 or
not. Section 499 of the Penal Code, 1860 defines the offence
of defamation and Section 500 provides the punishment for
such offence. Exception 8 to Section 499 clearly indicates
that it is not a defamation to prefer in good faith an
accusation against any person to any of those who have
lawful authority over that person with regard to the subject-
matter of accusation. The report of the Treasury Officer
clearly indicates that pursuant to the report made by the
accused persons against the complainant, a departmental
enquiry had been initiated and the complainant was found to
be guilty. Under such circumstances the fact that the accused
persons had made a report to the superior officer of the
complainant alleging that he had abused the Treasury Officer
in a drunken state which is the gravamen of the present
complaint and nothing more, would be covered by Exception
8 to Section 499 of the Penal Code, 1860. By perusing the
allegations made in the complaint petition, we are also
satisfied that no case of defamation has been made out. In
this view of the matter, requiring the accused persons to face
trial or even to approach the Magistrate afresh for
reconsideration of the question of issuance of process would
19
not be in the interest of justice. On the other hand, in our
considered opinion, this is a fit case for quashing the order of
issuance of process and the proceedings itself. We, therefore,
set aside the impugned order of the High Court and confirm
the order of the learned Sessions Judge and quash the
criminal proceeding itself. This appeal is allowed.”
(underlining ours, for emphasis)
24. The aforesaid determination makes it clear that on perusal of the
allegations levelled in the petition of complaint, the Court was
satisfied that no case of defamation had been made out therein
and this precisely seems to be the reason why the Court felt that
it would not be in the interest of justice to require the accused
persons to face trial or even to approach the Magistrate afresh for
reconsideration of the question of issuance of process. We do not
read any law having been laid down by this Court in Rajendra
Kumar Sitaram Pande (supra) that wherever a challenge to a
summoning order passed on a complaint for defamation is laid
before the High Courts in a petition under section 482, Cr. PC or
such challenge travels to this Court, an endeavour must
necessarily be made whether any of the exceptions is attracted so
that the proceedings may be closed without subjecting the
accused to long drawn proceedings. At best, we read the decision
as one where, in the given facts and circumstances, the Court felt
that requiring the appellants to undergo a trial would be a travesty
of justice; hence, the decision must be held to be confined to the
facts of the case.
20
25. Now, it is time to consider the other decision relied on by Ms.
Viswanathan, i.e., Aroon Purie (supra). In such decision, the
decision in Jawaharlal Darda v. Manoharrao Ganpatrao
16
Kapsikar was considered. Before we look into Aroon Purie
(supra), we propose to ascertain whether Jawaharlal Darda
(supra) lays down a law having the force of a binding precedent.
26. The decision in Jawaharlal Darda (supra) reveals that the
nd
respondent 1 had filed a complaint on 2 February, 1987 in the
court of the relevant Magistrate alleging that by publishing a news
th
item in its newspaper ‘ Daily Lokmat’ , on 4 February, 1984, the
appellant being the then Chief Editor of that daily and 4 (four)
others associated with the newspaper in one capacity or the other,
had committed offences punishable under sections 499, 500, 501
and 502 read with section, 34 IPC. Process was issued against all
the accused by the Magistrate. Upon a challenge being laid to such
order, the relevant Sessions Court quashed it being of the opinion
that by publishing that news item, none of the accused had
committed any offence. That order was challenged by the
complainant by filing a petition in the High Court under section
482, Cr. PC. The High Court was of the opinion that the Sessions
Court misinterpreted the publication. It was also of the view that
16
(1998) 4 SCC 112
21
when the Magistrate had found prima facie case against the
accused and thought it fit to issue process, it was not proper for
the Sessions Court to set aside that order by exercising revisional
power. This Court restored the order of the Sessions Court holding
as follows:
“4. As we have stated earlier, the news item was published
on 4-2-1984. The complaint in that behalf was filed by the
complainant on 2-2-1987. The news item merely disclosed
what happened during the debate which took place in the
Assembly on 13-12-1983. It stated that when a question
regarding misappropriation of government funds meant for
Majalgaon and Jaikwadi was put to the Minister concerned,
he had replied that a preliminary enquiry was made by the
Government and it disclosed that some misappropriation had
taken place. When questioned further about the names of
persons involved, he had stated the names of five persons,
including that of the complainant. The said proceedings came
to be published by the accused in its Daily on 4-2-1984.
Because the name of the complainant was mentioned as one
of the persons involved and likely to be suspended he filed a
complaint before the learned CJM alleging that as a result of
publication of the said report he had been defamed.
5. It is quite apparent that what the accused had published
in its newspaper was an accurate and true report of the
proceedings of the Assembly. Involvement of the respondent
was disclosed by the preliminary enquiry made by the
Government. If the accused bona fide believing the version
of the Minister to be true published the report in good faith it
cannot be said that they intended to harm the reputation of
the complainant. It was a report in respect of public conduct
of public servants who were entrusted with public funds
intended to be used for public good. Thus the facts and
circumstances of the case disclose that the news items were
published for public good. All these aspects have been
overlooked by the High Court.”
(underlining ours, for emphasis)
It is clear from the above reasoning that this Court went on to
reverse the order of the High Court and restore that of the
22
Sessions Court on the grounds that the accused published the
report in good faith and bona fide believing the version of the
Minister to be true, that it cannot be said that they intended to
harm the reputation of the complainant, and that the news item
was published for public good. Therefore, relief was given to the
accused having regard to the facts obtaining therein and without
there being any discussion on the point that we are seized of. This
decision too appears to have been rendered by this Court
considering the special facts and circumstances.
27. Significantly, the precedents which we have referred to at an
earlier part of this judgment do not appear to have been cited by
the parties in Rajendra Kumar Sitaram Pande (supra) and
Jawaharlal Darda (supra) and, thus, the Hon’ble Judges on the
Bench did not have the benefit of considering the same.
28. What Aroon Purie (supra) reveals is that the operative part of the
Trial Magistrate’s order was extracted, wherein the decisions in
Balraj Khanna (supra) and M.N. Damani (supra) were referred
to; however, the case was decided without any express reference
by the Court to such precedents.
29. We need not examine the facts in Aroon Purie (supra) in any
great detail in view of the question of law that the Court
23
formulated and the answer to it. The question, in paragraph 18,
reads as follows:
“We now turn to the question: whether the benefit of any of
the exceptions to Section 499 of the IPC can be availed of
and on the strength of such exception, the proceedings can
be quashed at the stage when an application moved under
Section 482 of the Code is considered?”
After quoting paragraphs 5 and 7 from the decisions in
Jawaharlal Darda (supra) and Rajendra Kumar Sitaram
Pande (supra) , respectively, and conscious of the legal position,
the Court cautiously proceeded to hold as follows:
“21. It is thus clear that in a given case, if the facts so justify,
the benefit of an exception to Section 499 of the IPC has been
extended and it is not taken to be a rigid principle that the
benefit of exception can only be afforded at the stage of trial.”
(underlining ours, for emphasis)
30. Jawaharlal Darda (supra) and Rajendra Kumar Sitaram
Pande (supra) , we reiterate, are decisions where the disputes
arising before the Court were resolved without laying down any
law capable of being treated as precedents within the meaning of
Article 141 of the Constitution. However, the approach adopted
seems to have persuaded the Court in Aroon Purie (supra) to
proceed to make the observation, highlighted above, which has
opened up an arena of debate as to whether, the benefit of an
Exception to section 499, IPC could be afforded at the stage of
trial only or whether, if the facts of a given case so justify, such
24
benefit can be extended and proceedings quashed at the stage a
petition under section 482, Cr. PC is being dealt with.
31. At this stage, it would not be out of place to refer to and discuss a
few other decisions of this Court which are considered relevant for
the present adjudication. In all these decisions, the issue of
legality of summoning orders was examined and resting on the
discussion of the relevant laws vis-à-vis the facts of each case, the
impugned order was either maintained/interdicted. While the first
two decisions are of ancient vintage, viz . Vadilal Panchal v.
17
Dattatraya Dulaji Ghadigaonkar and Chandra Deo Singh v.
18
Prokash Chandra Bose , being decisions rendered by Benches
of 3 (three) and 4 (four) Hon’ble Judges, respectively, the
remaining three are decisions of not too distant an origin, viz.
19
Jeffrey J. Diermeier v. State of West Bengal , Manoj Kumar
20
Tiwari v. Manish Sisodia and B.R.K. Aathithan v. Sun
21
Group rendered by Benches of 2 (two) Hon’ble Judges of this
Court.
32. Vadilal Panchal (supra) arose from the decision of the Bombay
High Court reversing an order of the Presidency Magistrate under
17
(1961) 1 SCR 1
18
(1964) 1 SCR 639
19
(2010) 6 SCC 243
20
2022 SCC OnLine SC 1434
21
2022 SCC OnLine SC 1705
25
section 203, Cr. PC. In course of a public agitation, one Sitaram
died because of a gunshot injury inflicted by the appellant. Upon
a complaint being lodged before the Presidency Magistrate, he
ordered an inquiry by the Superintendent of Police, CID. Materials
collected in course of such inquiry suggested that the appellant,
who was accused of murdering Sitaram, had exercised his right of
self-defence. Considering the same and after extending due
opportunity to the complainant, the Presidency Magistrate
dismissed the complaint. The Bombay High Court set aside the
order of dismissal and directed the Presidency Magistrate to issue
process against the appellant and deal with the case in accordance
with law, on the ground that though Sitaram’s death was
indisputable, the accused would have to establish the necessary
ingredients of the right of private defence as laid down in section
96 and onwards of the Indian Penal Code; that there was nothing
in any of the sections in Chapter XVI to show that such an
exception can be held to be established from the mere report of
the police; that there is nothing in sections 202 or 203 of the Cr.
PC abrogating the rule as to the presumption laid down in section
105 of the Evidence Act and the mode of proof of exception laid
down in imperative language in that section; and that it was not a
proper case in which the Presidency Magistrate should have
dismissed the complaint under section 203, there being no
26
evidence before him as and by way of proof to establish the
exception of the right of private defence pleaded by the accused.
32.1 The question that arose before this Court was, whether the High
Court of Bombay was right in its view that when a Magistrate
directs an enquiry under section 202 of the Cr. PC for ascertaining
the truth or falsehood of a complaint and receives a report from
the enquiring officer supporting a plea of self-defence made by the
person complained against, is it not open to him to hold that the
plea is correct on the basis of the report and the statements of
witnesses recorded by the enquiring officer? Must the Magistrate,
as a matter of law, issue process in such a case and leave the
person complained against to establish his plea of self-defence at
the trial?
32.2 While setting aside the impugned judgment and restoring the
order of the Magistrate, this Court held that the Bombay High
Court was in error in holding in such case that as a matter of law,
it was not open to the Presidency Magistrate to conclude that no
offence had been made out and there was no sufficient ground for
proceeding further on the complaint on the materials before him.
32.3 After discussing the scheme of sections 200, 202 and 203, Cr. PC,
this is what this Court held:
“10. Now, in the case before us it is not contended that the
learned Presidency Magistrate failed to consider the materials
27
which he had to consider, before passing his order under
Section 203 CrPC. As a matter of fact the learned Magistrate
fully, fairly and impartially considered these materials. What
is contended on behalf of the respondent-complainant is that
as a matter of law it was not open to the learned Magistrate
to accept the plea of right of self-defence at a stage when all
that he had to determine was whether a process should issue
or not against the appellant. We are unable to accept this
contention as correct. It is manifestly clear from the
provisions of Section 203 that the judgment which the
Magistrate has to form must be based on the statements of
the complainant and his witnesses and the result of the
investigation or inquiry. The section itself makes that clear,
and it is not necessary to refer to authorities in support
thereof. But the judgment which the Magistrate has to form
is whether or not there is sufficient ground for proceeding.
This does not mean that the Magistrate is bound to accept
the result of the inquiry or investigation or that he must
accept any plea that is set up on behalf of the person
complained against. The Magistrate must apply his judicial
mind to the materials on which he has to form his judgment.
In arriving at his judgment he is not fettered in any way
except by judicial considerations; he is not bound to accept
what the Inquiring Officer says, nor is he precluded from
accepting a plea based on an exception, provided always
there are satisfactory and reliable materials on which he can
base his judgment as to whether there is sufficient ground
for proceeding on the complaint or not. If the Magistrate has
not misdirected himself as to the scope of an enquiry under
Section 202 and has applied his mind judicially to the
materials before him, we think that if (sic, it) would be
erroneous in law to hold that a plea based on an exception
can never be accepted by him in arriving at his judgment.
What bearing such a plea has on the case of the complainant
and his witnesses, to what extent they are falsified by the
evidence of other witnesses — all these are questions which
must be answered with reference to the facts of each case.
No universal rule can be laid in respect of such questions.”
(underlining ours, for emphasis)
33. Profitable reference can next be made to the decision in Chandra
Deo Singh (supra), where a Bench of 4 (four) Hon’ble Judges had
the occasion to consider a challenge to a judgment of the High
28
Court at Calcutta. There, this Court was presented with a
circumstance where two complaints alleging murder of a darwan
were lodged before the Sub-Divisional Magistrate. The first
complaint was lodged by a distant relative of the deceased
accusing three persons of murder whereas the second complaint
was lodged by the appellant accusing the respondent no.1 of
murdering his uncle. By separate orders, the Sub-Divisional
Magistrate directed a Magistrate, First Class, to conduct judicial
inquiry. Separate reports were submitted by the Magistrate, First
Class. In his first report, he opined that a prima facie case to
proceed against the three accused persons had been made out
whereas, in his second report, he opined that no prima facie case
to proceed against the first respondent had been made out. The
Sub-Divisional Magistrate, perusing the second report, dismissed
the complaint of the appellant against the respondent no.1 without
assigning any reason. The Sub-Divisional Magistrate, however,
issued summons against the three other accused. Thereafter, the
appellant approached the Sessions Judge with a revision who,
after hearing the respondent no.1, directed the Sub-Divisional
Magistrate to make a further inquiry against him. Thence, the
respondent no.1 preferred a revision application before the High
Court challenging the direction of the Sessions Judge. The same
was allowed by a Single Judge of the High Court and upon grant
of certificate under Article 134(1)(c) of the Constitution, the
29
matter was carried to this Court. It was held that upon a finding
of a prima facie case, the Magistrate was bound to issue process
despite the charged person having a defence. Further, it was held
that the matter was to be decided by an appropriate forum at the
appropriate stage, and issuance of process could not be refused.
33.1 We consider it appropriate to quote certain pertinent observations
from such decision, hereinbelow:
“7. *, it seems to us clear from the entire scheme of
Chapter XVI of the Code of Criminal Procedure that an
accused person does not come into the picture at all till
process is issued. This does not mean that he is precluded
from being present when an enquiry is held by a Magistrate.
He may remain present either in person or through a counsel
or agent with a view to be informed of what is going on. But
since the very question for consideration being whether he
should be called upon to face an accusation, he has no right
to take part in the proceedings nor has the Magistrate any
jurisdiction to permit him to do so. It would follow from this,
therefore, that it would not be open to the Magistrate to put
any question to witnesses at the instance of the person
named as accused but against whom process has not been
issued; nor can he examine any witnesses at the instance of
such a person. Of course, the Magistrate himself is free to
put such questions to the witnesses produced before him by
the complainant as he may think proper in the interests of
justice. But beyond that, he cannot go. … No doubt, one of
the objects behind the provisions of Section 202 CrPC is to
enable the Magistrate to scrutinise carefully the allegations
made in the complaint with a view to prevent a person named
therein as accused from being called upon to face an
obviously frivolous complaint. But there is also another object
behind this provision and it is to find out what material there
is to support the allegations made in the complaint. It is the
bounden duty of the Magistrate while making an enquiry to
elicit all facts not merely with a view to protect the interests
of an absent accused person, but also with a view to bring to
book a person or persons against whom grave allegations are
made. Whether the complaint is frivolous or not has, at that
stage, necessarily to be determined on the basis of the
30
material placed before him by the complainant. Whatever
defence the accused may have can only be enquired into at
the trial. An enquiry under Section 202 can in no sense be
characterised as a trial for the simple reason that in law there
can be but one trial for an offence. Permitting an accused
person to intervene during the enquiry would frustrate its
very object and that is why the legislature has made no
specific provision permitting an accused person to take part
in an enquiry. *”
(underlining ours, for emphasis)
33.2 Considering the decision in Vadilal Panchal (supra), what was
said therein was explained in the following words:
“13. * we may point out that since the object of an enquiry
under Section 202 is to ascertain whether the allegations
made in the complaint are intrinsically true, the Magistrate
acting under Section 203 has to satisfy himself that there is
sufficient ground for proceeding. In order to come to this
conclusion, he is entitled to consider the evidence taken by
him or recorded in an enquiry under Section 202, or
statements made in an investigation under that section, as
the case may be. He is not entitled to rely upon any material
besides this. *”
(underlining ours, for emphasis)
In the same paragraph, after referring to the decision in
22
Ramgopal Ganpatrai Ruia v. State of Bombay , the Court
proceeded to rule that:
“* Thus, where there is a prima facie case, even though
much can be said on both sides, a committing Magistrate is
bound to commit an accused for trial. All the greater reason,
therefore, that where there is prima facie evidence, even
though an accused may have a defence like that in the present
case that the offence is committed by some other person or
persons, the matter has to be left to be decided by the
appropriate forum at the appropriate stage and issue of
process cannot be refused. Incidentally, we may point out that
the offence with which Respondent 1 has been charged with is
22
1958 SCR 618
31
one triable by jury. The High Court, by dealing with the
evidence in the way in which it has done, has in effect
sanctioned the usurpation by the Magistrate of the functions
of a jury which the Magistrate was wholly incompetent to do.”
(underlining ours, for emphasis)
34. It is true that neither Vadilal Panchal (supra) nor Chandra Deo
Singh (supra) arose out of proceedings for defamation but in both
cases defence of the accused was considered in varying
circumstances. As noted above, in Vadilal Panchal (supra) the
order of the Presidency Magistrate dismissing the complaint on the
ground that the accused had exercised his right of self-defence
was restored upon setting aside of the order of the High Court of
Bombay; whereas, in Chandra Deo Singh (supra), the order of
the Sub-Divisional Magistrate directing further inquiry was
restored upon setting aside the order of the High Court at Calcutta.
The decision in Vadilal Panchal (supra) was not overruled by the
larger Bench in Chandra Deo Singh (supra). Such decisions, in
our opinion, assume relevance because the guidance provided
thereby carries great weight.
35. In Jeffrey J. Diermeier (supra), this Court was called upon to
consider whether the High Court at Calcutta was right in refusing
to quash a private complaint under section 500 read with section
34, IPC. It was held that it is for the accused to demonstrate, by
leading evidence during trial, that the purportedly defamatory
32
statement came under an exception enumerated in section 499,
IPC. The appellants therein had issued a public notice against the
respondent no. 2, which the respondent no. 2 alleged to be
defamatory in nature. The appellants pleaded that the aforesaid
notice was published in public interest, and thus it was covered
under the Tenth Exception to section 499, IPC. This Court held that
it was trite law that the burden of proof for the accused could not
be proof beyond reasonable doubt, yet the accused still had to
show a preponderance of probability that his statement would be
covered under an exception to section 499, IPC. A mere averment
by the accused stating that his statement was in public good was
not sufficient to accept his defence and he must justify the same
by leading evidence during trial. Considering the complaint as a
whole as well as for the aforesaid reasons, this Court held that the
impugned order did not warrant interference.
36. In Manoj Kumar Tiwari (supra), an order refusing to quash a
summoning order was considered by this Court. Therein, the
Additional Chief Metropolitan Magistrate had issued a summons to
one of the accused under section 500, IPC without going into the
contents of the alleged defamatory statement. The High Court of
Delhi, on the other hand, while examining the statements, upheld
the summons by simply relying on section 499 of the IPC. This
Court held that this was an erroneous approach because the
33
Magistrate ought to have applied his mind to the complaint and
determined whether the statement was prima facie defamatory,
before issuing summons to the accused. This Court further held
that a complaint could not be sustained on statements which were,
on the face of it, non-defamatory. Also, it was held that it is a
fundamental rule of criminal jurisprudence that if the allegations
contained in a complaint do not constitute the offence complained
of, then the accused should not be made to undergo the ordeal of
a trial.
37. B.R.K. Aathithan (supra) is the decision of most recent origin.
Therein, the factual conspectus was such that certain reportage
concerning the appellant was telecast on a television channel of
the respondents, and the same was contended as defamatory. This
Court emphasised the need for application of judicial mind by the
Judicial Magistrate, while noting the consideration of the Fourth
Exception to Section 499, IPC at the stage of issuance of process.
This Court observed there as follows:
“16. This essentially involved application of judicial mind to
reach a definite conclusion as to whether or not the accused
be summoned. In the instant case, the learned Judicial
Magistrate having found that the allegations made by the
appellant were in the teeth of fourth exception to Section 499
IPC, he declined to issue process to the respondents. Such
dismissal cannot be said to be without application of judicial
mind. The application of judicial mind and arriving at an
erroneous conclusion are two distinct things. The Court even
after due application of mind may reach to an erroneous
conclusion and such an order is always justiciable before a
34
superior Court. Even if the said Order is set aside, it does not
mean that the trial court did not apply its mind.”
38. We note that in a different context, this Court in National Bank
23
of Oman v. Barakara Abdul Aziz summed up the duty of a
Magistrate as follows:
“8. The duty of a Magistrate receiving a complaint is set out in
Section 202 CrPC and there is an obligation on the Magistrate
to find out if there is any matter which calls for investigation
by a criminal court. The scope of enquiry under this section is
restricted only to find out the truth or otherwise of the
allegations made in the complaint in order to determine
whether process has to be issued or not. Investigation under
Section 202 CrPC is different from the investigation
contemplated in Section 156 as it is only for holding the
Magistrate to decide whether or not there is sufficient ground
for him to proceed further. The scope of enquiry under Section
202 CrPC is, therefore, limited to the ascertainment of truth
or falsehood of the allegations made in the complaint:
( i ) on the materials placed by the complainant before the
court;
( ii ) for the limited purpose of finding out whether a prima facie
case for issue of process has been made out; and
( iii ) for deciding the question purely from the point of view of
the complainant without at all adverting to any defence that
the accused may have.”
(underlining ours, for emphasis)
39. Undoubtedly, the decisions of this Court proceed on two lines.
While there are several decisions where this Court has consistently
laid down the law in one particular line that it is for the Magistrate
to consider the Exceptions to section 499, IPC for extension of
benefit thereof at the trial when a defence is pleaded by the party
seeking to avail the same and upon the burden of proof being
23
(2013) 2 SCC 488
35
discharged by him and that such Magistrate while deciding the
question purely from the point of view of the complainant may not
advert to the possible defence of the accused at the time of
exercising power under section 202, the other line of decisions
seem to proceed on the premise that there is no bar in considering
the Exceptions if the accused, even without appearing before the
Magistrate in response to the summoning order, lays a challenge
thereto under section 482, Cr. PC and satisfies the relevant High
Court, by referring to the complaint itself and the statements of
the complainant and his witness, that the facts alleged (even if
deemed to be true) do not constitute an offence and hence, there
was no sufficient ground for proceeding. In fact, Aroon Purie
(supra) has observed that there is no rigid principle that the
Exceptions can only be considered at the pre-trial stage; in other
words, at the stage of consideration of a petition for quashing, it
can be so extended in a given case, and the Court would be
empowered to quash the proceedings if extension of such benefit
is justified on facts.
40. What applies to Judges of the High Courts faced with decisions of
this Court where a cleavage of opinion is discernible, and
particularly when the High Courts are technically bound by both
decisions, equally applies to Hon’ble Judges of this Court. It would
be inappropriate for a Bench, comprised of 2 (two) Judges of this
36
Court, to hold which line of decisions lays down the correct law. In
such a scenario, when there are decisions of this Court not
expressing views in sync with each other, the first course to be
adopted is to ascertain which is the decision that has been
rendered by a larger Bench. Obviously, inter se decisions of this
Court, a decision of a Constitution Bench would be binding on
Benches of lesser strength. None of the decisions that we have
considered is rendered by a Constitution Bench. However, a sole
judgment rendered by a Bench of 4 (four) Hon’ble Judges and 3
(three) decisions rendered by Benches comprised of 3 (three)
Hon’ble Judges are there, which call for deference. Ordinarily, the
decision of a larger Bench has to be preferred unless of course a
Bench of lesser strength doubts an earlier view, formulates the
point for answer and refers the matter for further consideration by
a larger Bench in accordance with law. If, however, the decisions
taking divergent views are rendered by Benches of co-equal
strength, the next course to be adopted is to attempt to reconcile
the views that appear to be divergent and to explain those
contrary decisions by assuming, to the extent possible, that they
applied to different facts. The other course available is to look at
whether the previous decision has been noticed, considered and
explained in the subsequent decision; if not, the earlier decision
continues to remain binding whereas if the answer is in the
affirmative, the subsequent decision becomes the binding
37
decision. We add a caveat that if the subsequent Bench, instead
of deciding the matter before it finally upon consideration of the
decision of the earlier Bench, formulates the point of difference
and makes a reference for a decision by a larger Bench, it is the
former decision that continues to govern the field so long the
larger Bench does not decide the reference.
41. There is also authority for the proposition that while deciding cases
on facts, more so in criminal cases, the courts should bear in mind
that each case must rest on its own facts and the similarity of facts
in one case cannot be used to bear in mind the conclusion of fact
in another case. We may usefully refer to the decision in Kalyan
24
Chandra Sarkar v. Rajesh Ranjan in this context.
42. Bearing the above principles in mind, we have perused the
decisions, apparently striking discordant notes, with utmost care.
It is observed that the conclusions reached in each of the decisions
are based on the particular facts in each case and that the
questions arising for decision on this appeal can be answered by
harmonising the law as declared upon drawing guidance
therefrom.
24
(2005) 2 SCC 42
38
43. To the extent relevant, section 2(n) of the Cr. PC defines “offence”
as any act or omission made punishable by any law for the time
being in force. Section 200 ordains what a Magistrate, inter alia ,
is required to do on receipt of a complaint. In taking cognizance
of an offence on a complaint, he is required to (i) examine upon
oath the complainant and the witness present, if any; (ii) reduce
in writing the substance of such examination; (iii) get the
signature of the complainant and the witness, if any, on such
writing; and (iv) sign the same too. Section 202 is a provision that
enables the Magistrate to postpone the issue of process against
the accused and, if he thinks fit, either (a) inquire into the case
himself or (b) direct an investigation to be made by (i) a police
officer or (ii) by such other person he thinks fit. The statute
permits the Magistrate to take such steps to facilitate a decision
whether there is sufficient ground for proceeding against the
accused by ascertaining the truth or falsity of the allegations made
in the complaint. Section 203 authorizes the Magistrate, after
considering the statements on oath of the complainant and the
witness, if any, under section 200 or the result of the inquiry or
the investigation under section 202, to dismiss a complaint, with
brief reasons, should in his judgment there be no ‘sufficient ground
for proceeding’. On the other hand, section 204 under Chapter XVI
of the Cr. PC titled ‘Commencement of Proceedings before
Magistrates’ envisages that the Magistrate taking cognizance shall
39
take steps for the issue of necessary process if in his opinion there
is ‘sufficient ground for proceeding’. It is therefore abundantly
clear, from the aforesaid general scheme, that the accused does
not enter the arena of adjudication made by the Magistrate prior
to issuance of process.
44. Thus, when a Magistrate taking cognisance of an offence proceeds
under section 200 based on a prima facie satisfaction that a
criminal offence is made out, he is required to satisfy himself by
looking into the allegations levelled in the complaint, the
statements made by the complainant in support of the complaint,
the documentary evidence in support of the allegations, if any,
produced by him as well as statements of any witness the
complainant may choose to produce to stand by the allegations in
the complaint. Although we are not concerned with section 202
here, if an inquiry or an investigation is conducted thereunder, it
goes without saying that the reports should also be looked into by
the Magistrate before issuing process under section 204. However,
there can be no gainsaying that at the stage the Magistrate
decides to pass an order summoning the accused, examination of
the nature referred to above ought not to be intended for forming
an opinion as to whether the materials are sufficient for a
‘conviction’; instead, he is required to form an opinion whether the
materials are sufficient for ‘proceeding’ as the title of the relevant
40
chapter would indicate. Since the accused does not enter the arena
at that stage, question of the accused raising a defence to thwart
issuance of process does not arise. Nonetheless, the fact that the
accused is not before the Magistrate does not mean that the
Magistrate need not apply his judicial mind. Nothing in the
applicable law prevents the Magistrate from applying his judicial
mind to other provisions of law and to ascertain whether, prima
facie , an “offence”, as defined in section 2(n) of the Cr. PC is made
out. Without such opinion being formed, question of “proceeding”
as in section 204 does not arise. What the law imposes on the
Magistrate as a requirement is that he is bound to consider only
such of the materials that are brought before him in terms of
sections 200 and 202 as well as any applicable provision of a
statute, and what is imposed as a restriction by law on him is that
he is precluded from considering any material not brought on the
record in a manner permitted by the legal process. As a logical
corollary to the above proposition, what follows is that the
Magistrate while deciding whether to issue process is entitled to
form a view looking into the materials before him. If, however,
such materials themselves disclose a complete defence under any
of the Exceptions, nothing prevents the Magistrate upon
application of judicial mind to accord the benefit of such Exception
to prevent a frivolous complaint from triggering an unnecessary
trial. Since initiation of prosecution is a serious matter, we are
41
minded to say that it would be the duty of the Magistrate to
prevent false and frivolous complaints eating up precious judicial
time. If the complaint warrants dismissal, the Magistrate is
statutorily mandated to record his brief reasons. On the contrary,
if from such materials a prima facie satisfaction is reached upon
application of judicial mind of an “offence” having been committed
and there being sufficient ground for proceeding, the Magistrate is
under no other fetter from issuing process. Upon a prima facie
case being made out and even though much can be said on both
sides, the Magistrate would have no option but to commit an
accused for trial, as held in Chandra Deo Singh (supra). The
requirement of recording reasons at the stage of issuing process
is not the statutory mandate; therefore, the Magistrate is not
required to record reasons for issuing process. This is also the law
25
declared by this Court in Jagdish Ram v. State of Rajasthan .
Since it is not the statutory mandate that reasons should be
recorded in support of formation of opinion that there is sufficient
ground for proceeding whereas dismissal of a complaint has to be
backed by brief reasons, the degree of satisfaction invariably must
vary in both situations. While in the former it is a prima facie
satisfaction based on probability of complicity, the latter would
require a higher degree of satisfaction in that the Magistrate has
to express his final and conclusive view of the complaint
25
(2004) 4 SCC 432
42
warranting dismissal because of absence of sufficient ground for
proceeding.
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 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
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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.
46. Adverting to the aspect of exercise of jurisdiction by the High
Courts under section 482, Cr. PC, in a case where the offence of
defamation is claimed by the accused to have not been committed
based on any of the Exceptions and a prayer for quashing is made,
law seems to be well settled that the High Courts can go no further
and enlarge the scope of inquiry if the accused seeks to rely on
materials which were not there before the Magistrate. This is
based on the simple proposition that what the Magistrate could not
do, the High Courts may not do. We may not be understood to
undermine the High Courts’ powers saved by section 482, Cr. PC;
such powers are always available to be exercised ex debito
justitiae , i.e., to do real and substantial justice for administration
of which alone the High Courts exist. However, the tests laid down
44
for quashing an F.I.R. or criminal proceedings arising from a police
report by the High Courts in exercise of jurisdiction under section
482, Cr. PC not being substantially different from the tests laid
down for quashing of a process issued under section 204 read with
section 200, the High Courts on recording due satisfaction are
empowered to interfere if on a reading of the complaint, the
substance of statements on oath of the complainant and the
witness, if any, and documentary evidence as produced, no
offence is made out and that proceedings, if allowed to continue,
would amount to an abuse of the legal process. This too, would be
impermissible, if the justice of a given case does not
overwhelmingly so demand.
47. Based on our understanding of the law and the reasoning that we
have adopted, issue of process under section 204 read with section
200, Cr. PC does not ipso facto stand vitiated for non-consideration
of the Exceptions to section 499, IPC unless, of course, before the
High Court it is convincingly demonstrated that even on the basis
of the complaint and the materials that the Magistrate had before
him and without there being anything more, the facts alleged do
not prima facie make out the offence of defamation and that
consequently, the proceedings need to be closed.
48. The above discussion answers the questions of law formulated by
us.
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49. Moving on to answer question (a), what we find in the present
case is that the Trial Court did not take recourse to section 202,
Cr. PC and hence obtaining reports of inquiry or investigation, as
the case may be, did not arise. Though not under any statutory
requirement, the Trial Court has given brief reasons in its order
showing application of mind. At the stage, when the Trial Court
made the summoning order, two aspects were required to be
satisfied: (1) whether the uncontroverted allegations as made in
the petition of complaint read with the examination of the
complainant, prima facie , tend to suggest an offence having been
committed, and (2) whether it is expedient and in the interest of
justice to proceed. Keeping in view the allegations made in the
petition of complaint and the evidence placed before the Trial
Court by the complainant and on a plain reading of its order dated
th
25 March, 2010 issuing summons to the accused, it does not
appear to us that the finding of a prima facie case having been
made out at that stage is so outrageously illogical or in defiance
of legal principles and acceptable standards that it would merit
interference by this Court. If at all the benefit of the Fourth
Exception or any other pleaded exception is to be availed of, the
appellant would be free to appear before the Trial Court and raise
whatever defence is available to it in law, not necessarily confined
46
to the Fourth Exception, for due consideration thereof by the Trial
Court.
50. On facts of this case, we are satisfied that the Trial Court was not
unjustified in issuing summons to the accused based on the
materials before it.
51. We also hold that the omission of the learned Judge in dealing with
the other points raised in the petition by the appellant does not
afford any ground for us to interfere, having noticed that by a
detailed judgment delivered on the same day on the petition of
Aggarwal, the learned Judge had applied his mind and spurned a
similar challenge. However, it is observed that the learned Judge
would have been well advised to add a sentence in the order
impugned that no separate reason was being assigned to dispose
of the other points raised by the appellant in view of the reasons
already assigned for disposal of Aggarwal’s petition laying
challenge to the summoning order.
52. Question (a), thus, stands answered against the appellant.
53. Having regard to what we have held above, questions (b) and (c)
need not detain us for long. We could have left them unanswered
but since some argument was advanced touching the same, we
propose to briefly deal therewith.
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54. Answer to question (b) must necessarily depend on the facts of
each case, meaning thereby the quality of evidence that is led in
course of the trial and the weight to be attached to it. At this stage
it would not be inappropriate to consider the other line of
argument advanced by Mr. Taneja that those documents/materials
on which the appellant seeks to rely have not been admitted or
accepted by the complainant and are yet to be proved; hence, the
same cannot be looked into while considering a prayer for
quashing. The ratio of the decision in Supriya Jain (supra) finds
support from an earlier decision of this Court in Chand Dhawan
26
(Smt.) v. Jawaharlal , where it was held that the High Court of
Punjab and Haryana was not justified in quashing the complaint
and the criminal proceedings on the ground of abuse of the
process of court by relying on additional material produced by the
accused, which was not admitted in evidence or accepted by the
complainant.
55. The Power of Attorney is yet not proved by the appellant according
to law and, therefore, could not have been considered by the
learned Judge and cannot be considered by this Court as well.
Even if proved, its effect and import necessarily have to be
considered by the Trial Court in the light of the guiding factors for
26
(1992) 3 SCC 317
48
applicability of an Exception as indicated in the concurring
judgment authored by Hon’ble O. Chinnappa Reddy, J. in
Sewakram Sobhani (supra).
56. However, if from evidence led it is established that the authorised
agent had issued defamatory statements with the consent of the
principal or that the principal, without giving consent, had due
knowledge of such defamatory statements, yet, did not
caution/reprimand the agent for doing so or had not disowned the
statements so made, there is no reason why a prosecution for
defamation should be nipped in the bud on the specious ground
that an authorised agent is supposed to act lawfully and not
unlawfully.
57. Turning to question (c), it is for the appellant to demonstrate
before the Trial Court that the Fourth Exception is attracted, or
plead any other defence, and discharge its burden of proof in
respect thereof during the course of the trial. This, in our opinion,
is not the right stage to opine one way or the other and, therefore,
we leave it open for being decided by the Trial Court in accordance
with law.
CONCLUSION
58. Having answered all the questions, what is left for us is to dismiss
the appeal which we hereby order. The appeal is dismissed, with
49
the result that the interim order shall stand vacated forthwith.
There shall, however, be no order for costs.
59. Except to the extent decided by this judgment, all other points are
left open to be urged by the appellant before the Trial Court for a
decision by it.
60. Since the proceedings have been unduly delayed, the Trial Court
is encouraged to expedite the same.
………………………………………J.
(BELA M. TRIVEDI)
………………………………………J.
(DIPANKAR DATTA)
NEW DELHI;
TH
5 OCTOBER, 2023
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