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Judgment
Sanjay Yadav, J.—With consent of the parties, matter is heard finally. The relief, i.e., direction to the District Magistrate, Jabalpur to decide the application filed by the petitioner u/s 340 of the Criminal Procedure Code, 1973 before deciding the preliminary objection an application u/s 8-B of the Press And Registration of Books Act, 1867 (hereafter referred as PRB Act) though looks innocuous but is frantically resisted by the respondent Nos. 1 to 5. Objection to the extent of the District Magistrate having locus to entertain an application u/s 340 Cr.P.C. has also been raised.
The controversy emanates with the petitioner filing an application u/s 8B of PRB Act. This Section provides for:
8B. Cancellation of declaration. - If, on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that-
(i) the newspaper, in respect of which the declaration has been made, is being published, in contravention of the provisions of this Act or rules made there under; or
(ii) the newspaper mentioned in the declaration hears a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State; or
(iii) the printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or
(iv) the declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work which is not a newspaper;
the Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and also to the Press Registrar.
In furtherance to the application preferred by the petitioner an inquiry is being caused and on being noticed the respondent Nos. 1 to 5 have raised preliminary objection as to maintainability of the application u/s 8 B of the PRB Act at the instance of the petitioner. Along with the preliminary objections the respondent Nos. 1 to 5 have filed documents and have made averments on oath. Some of these are alleged to be false and, therefore, the petitioner moved an application u/s 340 Cr.P.C. alleging that (i) in the preliminary objection filed on oath, most of the statements and produced documents are false and the false statements and documents have been filed to mislead the Court, to get dismissal of the pending cases of the application on the false grounds with an object to prove the case; (ii) that the false statements and documents filed by the respondent No. 1 has been filed with object to damage the applicant''s application and also to prove their case; (iii) that the production of false documents and information before District Magistrate is offence u/s 195 of Indian Penal Code.
The District Magistrate on receiving the application u/s 340 Cr.P.C. has tendered the same to the opposite side, viz., the respondent Nos. 1 to 5 and posted the matter by order dated 15.2.2012 for arguments on the preliminary objections. The petitioner is aggrieved by the procedure adhered by the District Magistrate.
It is contended that, in a course of enquiry caused on an application u/s 8 B, and in the event of preliminary objection raised, as in the present case, if there is an allegation regarding the preliminary objections being raised on the basis of fabricated documents and false statements has been made, it would be for the District Magistrate to first dwell upon the same and then proceed to hear the preliminary objection.
The respondent Nos. 1 to 5 on their turn besides raising an objection regarding the competence of the District Magistrate to entertain an application u/s 340 Cr.P.C. urged that on merit also the petitioner has no case. It is urged that the documents filed along with the preliminary objection are the orders by various courts including the Supreme Court, High Court and it being not the case of the petitioner that these orders are forged and fabricated, the District Magistrate cannot be compelled to first deal with complaint u/s 340 Cr.P.C. before even formulating an opinion while dealing with the preliminary objection. It is urged that the petition is wholly misconceived and deserves to be dismissed.
Heard the counsel for the parties at length.
The merit of the matter and more particularly the allegations in application u/s 340 Cr.P.C. are not gone into, what is being examined is whether it will be lawful for the District Magistrate to first dwell upon an application u/s 340 Cr.P.C. independently and then set out to hear the preliminary objections raised against applicant u/s 8 B of PRB Act.
Before answering that, it is first to be seen whether the District Magistrate can entertain such application.
"Magistrate" vide Section 1(1) of the PRB Act has been interpreted to mean "any person exercising the full powers of a Magistrate, and includes a Magistrate of police". The Magistrate under the PRB Act is empowered vide Part IV to inflict penalties.
Sub-section (4) of Section 3 of Criminal Procedure Code, 1973 deals with construction of references, which stipulates that:-
(4) Where, under any law, other than this code, the functions exercisable by a magistrate relate to matters-
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of this code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an executive Magistrate.
Thus, even if the Magistrate under PRB Act, if construed to be a class of criminal court u/s 6 Cr. P.C., the same is still qualified by sub-section (4) of Section 3 Cr.P.C. Thus, to the extent where the function of Magistrate under PRB Act is administrative or executive in nature as under Part II of PRB Act it is exercisable by the Magistrate. But when called upon for appreciation or shifting or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, as is vide application u/s 340 of the Cr.P.C. the same would be exercisable by a Judicial Magistrate.
Section 340 Cr. P.C. provides for:
(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) Record a finding to that effect;
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the first class having jurisdiction;
(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) Bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed, -
(a) where the court making the complaint is a High Court, by such officer of the court as the court may appoint;
(b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf.
(4) In this section, "court" has the same meaning as in section 195."
Section 195 (1) (b) and (3) stipulates:
Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No court shall take cognizance-
(b) (i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or
(ii) of any offence described in section 463, or punishable u/s 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate.
except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
(3) In clause (b) of sub-section (1), the term "court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section.
In the considered opinion of this Court, a Magistrate when discharging his function under Part II of the PRB Act which is executive in nature has no power to take cognizance of offence u/s 195 and entertain an application u/s 340 Cr.P.C. in a course of proceedings u/s 8B of P.R.B. Act. In view whereof the relief as sought for by the petitioner cannot be granted.
In the result petition fails and is dismissed. Parties to bear their own costs.