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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 ..... 10 CHALLENGE BEFORE THE HIGH COURT OF DELHI 2. Appellant had approached the High Court of Delhi taking exception to an order dated 25th March 2010 passed by the Additional Chief Metropolitan Magistrate (SE), New Delhi ("Trial Court", hereafter) on a complaint CC No.465/1/09 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). 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 vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions, Ms. Viswanathan prayed that the proceedings emanating from the complaint be quashed. 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 an ex parte interim order on 29th 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 Court of Delhi by presenting a petition CRL. M.C. 3350/2010 under section 482, Cr. PC. By a detailed order dated 10th 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. 9. Mr. Taneja contended that the learned Judge on 10th Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 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. 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 Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 18. The next decision is Sewakram Sobhani v. R.K. Karanjia (1981) 3 SCC 208, rendered by a Bench of 3 (three) Hon'ble Judges. The appeal was directed against an order passed by the Madhya Pradesh High 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 sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication? 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nha (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. 21. In M.A. Rumugam v. Kittu Alias Krishnamoorthy (2009) 1 SCC 101, 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esty 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 lawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a travesty of justice; hence, the decision must be held to be confined to the facts of the case. 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 Kapsikar (1998) 4 SCC 112 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 respondent 1 had filed a complaint on 2nd February, 1987 in the court of the relevant Magistrate alleging that by publishing a news item in its newspaper 'Daily Lokmat', on 4th 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree are decisions of not too distant an origin, viz. Jeffrey J. Diermeier v. State of West Bengal (2010) 6 SCC 243, Manoj Kumar Tiwari v. Manish Sisodia 2022 SCC OnLine SC 1434 and B.R.K. Aathithan v. Sun Group 2022 SCC OnLine SC 1705 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 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 indis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the High Court and upon grant of certificate under Article 134(1)(c) of the Constitution, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to rely upon any material besides this. ***" (underlining ours, for emphasis) In the same paragraph, after referring to the decision in Ramgopal Ganpatrai Ruia v. State of Bombay 1958 SCR 618, 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 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statements, upheld the summons by simply relying on section 499 of the IPC. This Court held that this was an erroneous approach because the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y seeking to avail the same and upon the burden of proof being 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are sufficient for 'proceeding' as the title of the relevant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie 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. 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 25th March, 2010 issuing summons to the accused, it does not appear to us that the finding of a prima facie case having been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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