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TMI Blog2023 (10) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... s pertaining to the complaint petition filed by the respondent and to quash the same - 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 exception must prove it and, therefore, the burden of proof that his action was bona fide would, thus, be on the appellant alone. 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, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, on various occasions in 2008, Aggarwal issued four letters in the nature of complaints to different authorities including the Minister of Civil Aviation, 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 or about 12th August 2008 by presenting a writ petition WP (C) No.6155/2008 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 writ petition was finally dismissed on 13th February 2009 vide a detailed order, which was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "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 Pande v. Uttam (1999) 3 SCC 134 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Haryana (2023) SCC OnLine SC 765, it was argued by Mr. Taneja that it is not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17. In Balraj Khanna & Ors. v. Moti Ram (1971) 3 SCC 399, the respondent lodged a complaint against the first appellant and 6 (six) others under section 500, IPC, alleging that they had levelled allegations 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of issuance of process would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 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 maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of 4 (four) Hon'ble Judges had the occasion to consider a challenge to a judgment of the High 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 Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 refusin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions 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 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 Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proceedings before Magistrates' envisages that the Magistrate taking cognizance shall 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 Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 declared by this Court in Jagdish Ram v. State of Rajasthan (2004) 4 SCC 432. 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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. 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 rati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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