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TMI Blog2019 (7) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ities, they drew the attention of the media and the allegations/imputations and the story of removal of the respondent no.2, no wonder, happened to be a hot topic for media. The allegations of the respondent no.2 in respect of disparaging remarks/comments being widely circulated is also not correct since it was only circulated to the shareholders and they had a right to know the background of the resolution on which they were supposed to vote. The Magistrate before issuing the process, has failed to take into consideration the conspectus of the matter and though it is the duty cast upon him to be satisfied before issuance of a process, he had concluded without any material being placed before him that the statement is defamatory. The object of investigation under Section 202 Cr.P.C. is for the purpose of deciding whether or not there is sufficient ground for proceeding . The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner) has damaged his reputation. By the said impugned order, process is issued against the accused Nos.2 to 12 for the offences punishable under Section 500 read with 34 of the Indian Penal Code. 2. Before adverting to the order impugned before us, it would be necessary to refer to the bare minimum facts in a chronological manner to have a better understanding of the issue before us. Tata Sons Ltd., is an unlisted public company registered under the provisions of the Companies Act, 1886. The said company is having substantial shareholdings in various listed and unlisted private companies which form a part of the Tata Group of Companies. The said Tata Sons Ltd., is a shareholder of Tata Steel Ltd., Tata Chemicals Ltd. and Tata Motors Ltd., as it holds ordinary shares representing a marginal percentage of the paid up ordinary share capital of the three companies. Thus, Tata Sons Ltd., is a promoter/share holder in the three operating companies i.e. Tata Chemicals, Tata Motors and Tata Steels. The petitioner No.1 Ratan Tata was an Additional Director and Interim Chairman of the Tata Sons as on 10.11.2016 where as the petitioner Nos.2 to 10 were the Directors of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holders, Management of the company and its subsidiary where ever located of their full confidence and support. The said statement was issued by one Mr.Rajiv Chandan, General Counsel and Company Secretary on behalf of the independent Directors of Tata Chemicals Ltd. It is this conduct of the respondent No.2 which was perceived as unfavourable and prompted the Tata Sons Ltd., which is a shareholder of Tata Chemicals Ltd., to requisition the Board of Directors of Tata Chemicals for convening an Extraordinary General Meeting of its shareholders in the manner prescribed under the law to pass two resolutions. Accordingly, on 10.11.2016 itself the Chief Operating Officer and the Company Secretary of Tata Sons Ltd., i.e. petitioner No.11 issued notice to the Board of Directors of Tata Chemicals Ltd., in its capacity as shareholder of Tata Chemicals Ltd. The Circular Resolution came to be passed by the Board of Directors of Tata Sons Ltd., which included the petitioner Nos.1 to 10 to submit requisition for convening Extraordinary General Meeting of the shareholders of the Tata Chemicals and communication came to be addressed informing that pursuant to Section 100(2)(a) and other applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners as well as the respondents and we would be making reference to the rival contentions of the respective parties by making reference to the voluminous documents placed before us. 4. To continue the assertion of facts, it may be noted that the end result of the proceedings is that the Extraordinary General Meeting of all the three holding companies came to be held and the respondent No.2 was removed as Director by requisite majority and in case of Tata Steel Ltd., on 21.12.2016 in case of Tata Motors on 22.12.2016 and in case of Tata Chemicals on 23.12.2016. 5. It is to be noted that Suit No.50 of 2017 came to be filed by few public shareholders in relation to the removal of the respondent No.2 along with the Notice of Motion No.345 of 2017. The said suit came to be instituted on 13.12.2016 and certain affidavits came to be filed in this suit which have been sought to be relied upon by the parties. It is also to be noted that the respondent No.2 instituted Civil Suit which came to be numbered as Civil Suit No.225 of 2017 before the High Court of Judicature at Bombay (Nusli Wadia V/s. Tata Sons Pvt. Ltd. and Others) for defamation and he has praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Cyrus Mistry as Chairman of the Company, Board and Management of the operating companies, it is not on account of the action on the part of the complainant but the collective and unanimous decision of the independent Director which is reflected in the Minutes of meeting of Tata Chemicals and Tata Motors. It is also stated in the complaint that as an independent Director, the complainant is entitled to express his support in the Chairman, the Board and the Management of the operating companies and he is entitled to do so after exercising his independent business judgment as his fiduciary duty is only to the companies in which he is a Director. In the said complaint, a request is made to the Magistrate to take cognizance of the offence committed under Section 500 of the I.P.C. read with Section 109 and also read with Section 34 of the I.P.C. and a request was made to issue process against the accused persons. 7. On this complaint, the Magistrate recorded the verification of the complainant on 14.12.2018 and passed the impugned order on 15.12.2018 in which the Magistrate recorded a finding that the complainant has made out a case against the accused persons except the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision to replace Mr.Cyrus Mistry as its Chairman on 24.10.2016 and the proceedings came to be initiated to remove him from the operating companies and notices came to be issued for removal of Mr.Cyrus Mistry as Director of all the companies in which he was the Director. In this process on 10.11.2016, the meeting of the Tata Chemicals was being held and in the evening, one of the non executive Director of the Tata Chemicals Mr.Bhaskar Bhat submitted his resignation as Director of the Tata Chemicals and the various events which transpired in the meeting, came to be documented through the affidavits which included the affidavit of Mr.Rajiv ChandanCompany Secretary, Mr.Mukund Manging Director and Mr.Bhaskar Bhat Non executive Director who resigned. This affidavits came to be tendered in suit filed by one Mr.Janak Mathura Das seeking stay of the EGM's of the Tata Companies on account of the resolution proposed for removal of the respondent No.2. Mr.Sanghvi invited our attention to the affidavit reflecting the conduct of the respondent No.2 in the meeting held on 10.11.2016. Shri.Sanghvi, would submit that in the light of the events that took place on 10.11.2016, Board of Tata So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... older had lost confidence and any such comment made for achieving the objective, in any case cannot constitute the defamation. The learned senior counsel further submits that if it leads to a criminal offence of a defamation, it would have a disastrous effect as those who are expected to take an independent and objective decision in an institution would be stalled in exercise of their duty if such a course is permitted. He would further submit that the power of removal of a person including an independent director is vested in the Board of Directors of the company cannot be stultified through threats of criminal prosecution. Shri.Sanghvi has placed reliance on the judgment of the Hon'ble Apex Court in case of Subramanian Swamy V/s. Union of India, Ministry of Law Ors. (2016 7 SCC 221). To support to his submission that there has to be imputation and it must have been made in the manner as provided in the Section 499 of the Indian Penal Code with the intention to cause harm to the reputation of a person about whom it is made. He would submit that the said judgment in unequivocal terms has held that the complainant has to show that the accused has intended or had reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess to the said respondents who were located beyond his jurisdiction. He would place reliance upon judgment of the Apex Court in the case of Abhijit Pawar V/s. Hemant Madhukar Nimbalkar Anr. 2017 3 SCC5 28 where the requirement of the amended Section 202 is reiterated. The submission of Shri.Sanghvi is to the effect that the said approach of the Magistrate in not following the provisions of Section 202 itself discloses the non application of mind on the part of the Magistrate. He would also place heavy reliance on the judgment of the Apex Court in case of Udai Shaker Awasthi V/s. State of Uttar Pradesh Anr. 2013 2 SSC 435 and a judgment in case of Vijay Dhanuka Ors. V/s. Najma Mamtaj Ors. (2014 14 SCC 638) wherein it is held that the requirement to conduct an inquiry and direct investigation before issuing process against the accused beyond the territorial jurisdiction of the Magistrate concerned is held to be mandatory, the object, being to protect innocent persons residing at far off places from being harassed. Apart from the said two points, Shri.Sanghvi would also submit that the complainant was not entitled to approach the Magistrate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the process against the present petitioners, we have heard learned counsel Shri.Abad Ponda. According to Shri.Ponda the statements contained in the Special Notices to which he has exhaustively referred to, are per se defamatory in nature and he would further submit that having regard to the respondent No.2's eminent stature and reputation it was incumbent upon the petitioners before levelling any allegation to ascertain the truthfulness of the same and there ought to have been some care shown on their part to find out whether the allegations are true or false. He would submit that when an independent Director is alleged to be acting in consonance with another, it is a direct affront on his independence and this is no short of questioning his integrity as any independent Director. He would place reliance on the judgment of the Hon'ble Apex Court in case of Shiv Narayan Laxmi Naryan V/s. State of Maharashtra 1980 2 SCC 465 to submit that a conclusion derived by the petitioners that on account of the act of the respondent No.2 as the company is in jeopardy and this has desired effect of harming and tarnishing his reputation. Shri.Ponda is therefore extremely critica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed in the meeting of the independent Directors of the Tata Chemicals on 10.11.2016 which reads thus : On the basis of the above criteria, the independent Directors concluded that in their view the Board, Management and Chairman had been acting in a manner consistent with law and prudence in the best interest of the company and that nothing adverse (covert or avert) had come to their notice which necessitated a revision of their assessment which had been made by them on March 22, 2016. Considering the above the Independent Directors unanimously affirmed their confidence in the Board, its Chairman and the management in the conduct of the Company's business. Independent Directors also reaffirmed that all the decisions taken with regard to the operations and business of the Company had been taken by the Board unanimously and executed by the Chairman and management as per the directions of the Board. 12. Based on the aforesaid statements and the Resolution, Mr.Ponda has vehemently submitted that the material available on record disclose otherwise and in fact there is no basis for making the defamatory allegation by the petitioners a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry material and he submits that the said allegation misleading. Shri.Ponda submit that respondent No.2 has addressed a letter dated 21.11.2016 to the Board of Directors and the Company Secretary of Tata Steel and had asserted that the allegations in the Special Notice are absolutely false and baseless and he had clarified that the draft notice and the explanatory statement circulated by the Company Secretary reproduces the highly defamatory statement made by the Tata Sons Ltd., in the Special Notices and this letter was received by the Tata Sons Ltd., before the Board meeting dated 21.11.2016 where such letter was discussed at length. Shri.Ponda would submit that the petitioners had responded to the respondent No.2's letter and denied the allegation and had re iterated that the Special Notice was confidential communication. He would also invite our attention to the fact that pursuant to the decision of the Board in its meeting held on 21.11.2016 a Board meeting of Tata Steel Ltd., was held on 25.11.2016 to consider and approve the notice convening an Extraordinary General Meeting and prior to it, legal opinion was also sought and circulated to the members of the Board which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate was satisfied that there is sufficient material against the accused persons, he has issued the process. He would further submit that there is absolutely no reason for this Court to resort to its extraordinary jurisdiction to interfere in such a matter since there are several triable issues and under the inherent power of this Court, a just prosecution cannot be stultified. 14. The Writ Petition has been filed before us under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure and relief is sought to the effect of quashing and setting aside the order passed by the Additional Chief Metropolitan Magistrate, Mumbai on 15.12.2018. The present petition was initially listed before the learned Single Judge, however, in light of the judgment in case of Abdul Pal Abdul Rahim V/s. State of Maharashtra 2012 All MR (Criminal) 131, the learned single Judge was pleased to issue direction for listing of the matter before the Division Bench in light of the power sought to be invoked and, that is how, the matter came to be listed before us. It is trite position of law that the power conferred on this Court under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Extraordinary General Meeting of the Shareholders of the Tata Chemicals, Tata Motors and Tata Steels and to issue Special Notices to propose resolution for removal of the respondent No.2 as Director of the Relevant Tata companies. The Special Notice and requisition under the provisions of the Companies Act came to be issued by the Tata Sons Ltd., and was addressed to the Board of Directors of the three holding companies, for convening an Extraordinary General Meeting of the shareholders of the respective companies. The separate notices came to be issued to the Board of Directors of all the three holding companies on 10.11.2016. The Special Notice proceed to state that Tata Sons is a shareholder of the three companies and hold equity shares in the respective companies. After making reference to the provisions of Section 100(2)(a) and other applicable provisions of the Companies Act, 2013, the Notice proceed to state that Tata Sons Ltd., submit the requisition to the Holding Companies for convening an Extraordinary General Meeting of their shareholders in the prescribed manner to pass two resolutions on following subjects: Item No.1 Removal of Mr.Cyrus Mistry as Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copy to :Company Secretary, Tata Chemicals Limited. 17. The contents of the Special Notices issued to all the holding companies contain a similar averment. Based on this Special Notice issued under Section 169(2) read with Section 102 of the Companies Act, the respective holding companies forwarded the copy of the Special Notice and requisition dated 10.11.2016 to the respondent No.2 and drawn his attention to Section 169(4) of the Companies Act and intimated him that in case he intends to make any representation to the members of the company in resolution for his removal as a Director, the same should be forwarded for circulation to the members. Similar communications were addressed by all the three companies to the respondent No.2. On 21.11.2016, the respondent No.2 addressed a letter to the Board of Directors of the three holding companies as well as their respective Company Secretaries and he responded that the statement contained in the Special Notice issued by Tata Sons Ltd., was without any evidence or proof and that the allegations were absolutely baseless, false, defamatory and libelous and with an intention to harm his reputation. He also makes a mention tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the Company and holds 77,89,70,378 Ordinary shares aggregating 26.51% of the Company's voting capital: Tata Sons Limited has pursuant to the Requisition and Special Notice dated November 10, 2016 and in recognition of the legal rights vested in them as a shareholder, decided to convene an EGM, to consider and if through fit, pass an Ordinary Resolution for removal of Mr.Cyrus P. Mistry and Mr.Nusli Wadia as Directors of the Company. Mr.Nusli Wadia is an independent Director of the Company. He was appointed as a Non Executive Director of the Company by the Board on December 22, 1998 and by the shareholders at the AGM held on August 12, 1999. Being a director liable to entire by rotation, Mr.Wadi's re appointment was approved at various, AGM's held on July 26, 2002, July 11, 2005, August 25, 2009, August 12, 2011 and August 21, 2013 in terms of the provisions of the Companies Act, as applicable from time to time. As required under the listing agreement, Mr.Wadia has been an independent Director of the Company since March 2001. As required under Section 149 of the Companies Act, 2013, Mr.Wadia was appointed as an independent Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Operating Officer of Tata Sons Ltd., and the subsequent letter dated 22.11.2016 addressed to all the Directors of the Tata Sons Ltd., was responded to by the Chief Legal and Group General counsel of Tata Sons Ltd. In the said response, it was highlighted that as a shareholder of the Tata Steel, Tata Motors and Tata Chemicals, Tata Sons Ltd., had certain rights, duties, obligations, legal and otherwise towards Tata Sons Ltd., as well as various stake holders and Tata Sons Ltd., has exercised these rights as shareholder of the holding company and issued a Special Notice to the Board of Directors on 10.11.2016 pursuant to Section 100, Section 115 and Section 169 of the Companies Act calling upon the Board of Directors to convene an Extraordinary General Meeting of shareholders of the Companies to pass the two resolutions. It was also clarified that it was a fairly well settled position that there was no requirement, legally or otherwise as a shareholder to provide any reason while seeking the removal of a Director in terms of Section 169 of the Act. The Special Notice was therefore sought to be justified and the respondent No.2 was called upon to consider withdrawal of the notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded promptly. Kindly note that this letter is without prejudice to my rights. The said communication is accompanied with a detailed representation addressed to the shareholders where the respondent No.2 has attempted to relent the imputation against him as contained in the resolution proposing to remove him as an independent Director. In conclusion, he had urged the shareholders to decide his fate as an independent Director and also cautioned that the fate of the very institution of independent Director needs to be protected by the shareholders. He also clarified that the representation preferred by him keeping in mind the spirit of Section 169 of the Companies Act and with no other intention. At the bottom of the said representation, a note similar to the one appended to the letter which we have reproduced above is also added, permitting the shareholder to seek any other clarification on an e mail address of the respondent No.2. Such representations have been addressed to the shareholders of all the three respective companies. In the said representation, the respondent No.2 has deciphered the allegations levelled against him and in great detail has highlighte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements were made after due verification or whether they are baseless, not being backed without any supporting material. The alleged statement is contained as an accompaniment giving the brief background of the subject to be discussed, namely, removal of Mr.Nusli Wadia as a Director by taking recourse to the provisions of Section 169 and other applicable provisions of the Companies Act, 2013. The argument of the learned Senior Counsel for the petitioners is to the effect that the said statement is a part of statutory action which the petitioners proposed under the provisions of the Companies Act and it is contained in the Special Notices which were issued by the Tata Sons Ltd., under Section 169(2) read with Section 115 of the Companies Act, in its capacity as a shareholder of the Relevant Tata Companies inter alia seeking removal of the respondent No.2 as the Director of the Relevant Tata companies. It is also sought to be justified that the issuance of Special Notices by Tata Sons Ltd., was necessitated by conduct of respondent No.2, a matter in which the Tata Sons Ltd., had material interest (being promoter and controlling shareholder of Relevant Tata Companies) and aimed at prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the representation is not sent as aforesaid due to insufficient time or for the company s default, the director may without prejudice to his right to be heard orally require that the representation shall be read out at the meeting: Provided that copy of the representation need not be sent out and the representation need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the Tribunal is satisfied that the rights conferred by this subsection are being abused to secure needless publicity for defamatory matter; and the Tribunal may order the company s costs on the application to be paid in whole or in part by the director notwithstanding that he is not a party to it. 20. The Companies Act also contain a provision in form of Section 115 which provides for resolution requiring a Special Notices which stipulate that where, by any provision contained in the Companies Act or in the Articles of a Company, Special Notice is required of any resolution, notice of the intention to move such resolution shall be given to the Company by such number of members holding not less than one percent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resolution at the meeting. Sub section 4 contemplates a further opportunity to the Director who is sought to be removed and it is open to the Director concerned to make a representation to the Company in writing and he can request its notification to the members of the company and then the Company is duty bound, if the time permits to issue notice of the resolution to the members of the Company stating the fact that the representation has been made and send a copy of the representation to every member of the Company to whom notice of meeting is send. But for if any reason the representation could not be sent due to insufficient time or of the company's default, the Director may without prejudice to this right to be heard orally require that the representation shall be read out at the meeting. The only exception carved out to the said procedure, is proviso appended to sub Section (4) which set out that the copy of representation need not be sent out and the representation need not be read out in the meeting if, on the application either of the Company or of any person who claims to be aggrieved had approached the Tribunal and the Tribunal is satisfied that the rights of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation must have been made either by words either spoken or intended to be read or by sign or by visible representation. (c) The said imputation must have been read with the intention of harming or with the knowledge or having reason to believe that it will harm the reputation of the person concerned. 23. We have perused the imputations contained in the Special Notice. It undisputedly makes a reference to certain acts of the respondent No.2 in reference to the erstwhile Chairman Mr.Cyrus Mistry. The Special Notices contain certain statement in respect of the respondent No.2 and his conduct, but this imputation will have to be read in reference to the purpose for which it find place in the Special Notice. The Special Notice issued by the Tata Sons Ltd., as a promoter is in form of requisition to the holding companies to call for an Extraordinary General Meeting for removal of their independent Director in whom Principal shareholder (Tata Sons) have lost confidence. The Special Notice is thus issued for the purpose of seeking removal of an independent Director of the Company since the principal shareholders are of the opinion that the respondent No.2 is acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to exercise his independent judgment and ceased to act in an independent manner and has issued a statement which is contrary to the interest of the company and if this conduct of a Director is adjudged by the promoter as design to cause harm to the Tata Group, which is put forth as a ground for his removal, we are of the view that the action of the petitioners in exercise of its power conferred under Section 169 of the Companies Act. It is not necessary for us to assess or judge the truthfulness of the imputation/allegation since ultimately the allegations levelled against the respondent No.2 has caused his removal by the Board of Directors of the respective companies. The imputation contained in the Special Notice cannot be viewed independent of the purpose for which it is included in the Special Notice and if the petitioners have adopted a legal course permissible to be adopted under the frame work of the statute governing it, we do not think the allegations can be termed as per se defamatory . The Special Notices though categorically have mentioned that there was no legal requirement, legal or otherwise and is discretion of the Relevant Tata companies that the Special Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g companies have issued the notices of Extraordinary General Meeting to its shareholders and scheduled the holding of the meeting which was accompanied with the copy of Special Notice and also the explanatory statement. We do not intend to precipitate the issue as to whether the circulation was by the respondent No.2's consent as the subsequent conduct of the respondent No.2 reflect that he had submitted a detailed representation under Section 169(4) availing the opportunity to rebute the imputations and while addressing the representation to the respective companies, he has reminded the companies, that they are obliged to circulate the representation to shareholders so that they are able to take an informed decision. He also made it clear that company has reasonable time to circulate the representation to the shareholders in visible as well as electronic form. He also clarified that the documents referred to in the representation are also available for inspection/perusal and supplied his e mail address from where this information can be sought. In the detailed representation, the respondent No.2 himself has referred to the allegation and rebutted them one by one and offered hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his removal before any Court of Law meaning hereby he has accepted his removal as an independent Director from the holding companies of Tata Group and do not question the power of Tata Sons Ltd., to remove him. 26. The learned Magistrate who has passed the impugned order had before him the complaint instituted on 23.12.2016 when the respondent No.2 was already removed as an independent Director from the Company. The Magistrate recorded the verification statement of the respondent No.2 on 14.12.2018. We have carefully perused the said statement. The statement revolves around the Special Notice dated 10.11.2016 and the alleged defamatory imputation contained in the said Notices. The respondent No.2 proceeded to state before the Magistrate the allegations in the Notices were published which were per se defamatory and damaged his reputation. He has also proceeded to state that he has requested the accused person to withdraw the defamatory allegations. It is pertinent to note that even in 2018, he does not make any statement as to the culmination of the said proceedings into his removal as Director of the Company. The Magistrate therefore proceeds only on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied that there is no prima facie case of defamation in the present case as there was no intent on the part of the petitioners to cause harm to the reputation of the respondent as contemplated by Section 499 of the IPC nor can we discern any actual harm caused to his reputation, since the element of mens rea being absent and since the publication was only limited to the Board of Directors of the holding Company and the respective shareholders of these Companies, it could not be said that it was circulated widely over a section of general public. Publication of the news about a resolution being passed by a well acclaimed business house happened to be a business news for the media and both the petitioner no.1 and respondent no.2 being well known business personalities, they drew the attention of the media and the allegations/imputations and the story of removal of the respondent no.2, no wonder, happened to be a hot topic for media. However, it is not conclusively established as to it is the petitioners who have leaked the information to the media and particularly when we have noted that the respondent no.2 himself had addressed the communication to the shareholders indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank Vs. Surendra Prasad Sinha, 1993 Supp (1) SCC 499 : 1993 SCC (Cri), it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage, the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd, Vs. Special Judicial Magistrate ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... innocent persons residing at far off places from being harassed. The Apex Court had construed the word shall applied in the said section and after taking into consideration the intention of legislature in bringing out an amendment by the Central Act No.25 of 2005 held that the object of amendment is to prevent innocent persons from harassment. Therefore, the expression shall would contemplate an enquiry or investigation, as the case may be, being mandatory before issuance of summons against the accused persons living beyond the territorial jurisdiction of the Magistrate. Further, it is no doubt true that the enquiry contemplated under Section 202 contemplate an expression of the complainant and the witnesses and then the Magistrate has to satisfy himself that there are sufficient grounds for proceedings against the accused and the entire purpose of the enquiry is to determine whether a prima facie case is made out. In the judgment in Birla Corporation (supra), the Hon'ble Apex Court after making reference to the earlier precedents observed thus : 30. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in Bhushan Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under: False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused. 34. 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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