Ram Nath Goenka vs Ram Gopal Sharma

Bhawani Singh, J.—This petition u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, seeks to invoke the inherent jurisdiction of this Court to quash criminal proceedings as well as the orders of 17-6-1989, 20-7-1989 and 25-8-1989 passed by the Courts below in Criminal Case No. 54/2 of 89, u/s 500 read with Section 34, Indian Penal Code, pending in the Court of Chief Judicial Magistrate, Nahan.

The Petitioner is the Chairman, Indian Express News Papers (Bombay), Private Limited, engaged in the publication of newspapers and periodicals including the daily ''Jansata'' published from Chandigarh. The Petitioner submits that he is not directly concerned with the actual reporting, editing, printing or publishing of the newspapers. However, the Respondent initiated proceedings u/s 500 read with Section 34, Indian Penal Code in the Court of Judicial Magistrate, Nahan against the Petitioner and the Chief Editor, Resident Editor and the Correspondent of the Paper. According to the Petitioner, neither any case is made out nor did the Judicial Magistrate, who took cognizance of the complaint, have jurisdiction to do so, since such a complaint could be tried by a Judicial Magistrate First Class. The Judicial Magistrate, who was not Judicial Magistrate First Class at the relevant time, had no jurisdiction to deal with the matter, therefore, the proceedings stand vitiated.

Further, case of the Petitioner is that on transfer, the transferee Magistrate did not examine the complainant and his witnesses and issued the process for the appearance of the Petitioner and others without due application of mind, thereby not only acting against the mandatory requirement of law, but also causing immense injustice to the Petitioner. Finally, it is also stated that no case u/s 500 read with Section 34, Indian Penal Code is made out against the Petitioner and others who have been added as parties along with him.

After hearing the ld. counsel for the parties and looking to the record of the case, it is quite clear that the complaint was preferred before the Magistrate who was not Judicial Magistrate First Class. Despite lack of powers to take cognizance of the complaint, the complainant as well as his witness was examined u/s 200 of Chapter XV of the Code of Criminal Procedure. Thereafter, it appears from the order of 17-6-1989 that the matter was transferred to the Court of Chief Judicial Magistrate who issued the process summoning the Petitioner and others for 20-7-1989. From the case file it is also clear that the Chief Judicial Magistrate issued the process u/s 204 of Chapter XVI of the Code of Criminal Procedure without the examination of the complainant and his witness(es) before the issue of process. When it was amply clear that the Judicial Magistrate who examined the complainant and his witness, had no jurisdiction to do so, it was incumbent upon the Chief Judicial Magistrate to have proceeded right from the beginning, namely, by the examination of the complainant and his witnesses, because whatever had happened before that Court was no nest, since the Magistrate was lacking jurisdiction to deal with the complaint.

Now, the question arises whether it is mandatory for the Magistrate who may be competent to deal with the matter, to examine the complainant and his witnesses before issuing the process u/s 204 of the Code of Criminal Procedure? The answer to this question is in the affirmative since the scheme of the provisions falling under Chapter XV and Chapter XVI points out that a Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate, unless the case falls under items (a) and (b) of the first proviso or the case falls under the second proviso of this Section. The Magistrate, before whom the complaint has been filed right from the beginning or who comes to deal with the same u/s 190 or to whom it has been returned u/s 201 of the Code of Criminal Procedure, may postpone the issue of process and either inquire into the case himself or direct the investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for further proceedings. Except where the case is covered by the first proviso to Section 202 or the proviso to Sub-section (2) of Section 202, the Magistrate may, if he thinks fit, take evidence of witnesses on oath.

Then comes Section 203 which envisages that if, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in case he finds sufficient ground for proceeding, he shall issue the process u/s 204, Code of Criminal Procedure.

The result of the examination of aforesaid provisions is that the Magistrate has to examine the complainant or his witness(es) or may inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding u/s 204, Code of Criminal Procedure and in case he comes to the conclusion that there is no sufficient ground, he will dismiss the complaint, and if he sees sufficient ground for proceeding, he will issue the process. One thing is clear that the Magistrate must have material before coming to the conclusion that there is sufficient ground for proceeding against the person(s) named in the complaint. This material he can have only if he proceeds in the manner discussed above.

Coming to the case in hand, the Chief Judicial Magistrate had no material before him, still he proceeded to issue the summons for the appearance of the Petitioner and others in this case. The order further discloses that it has been passed in a mechanical form, since no ground for proceeding against the Petitioner and others has been recorded. This cannot stand judicial scrutiny and is, therefore, liable to be set aside.

There is another aspect of the case which deserves to be examined. The Petitioner has been described to be the owner/Managing Director of ''Jansata'' (Indian Express Group, Chandigarh). The complainant is not clear whether the Petitioner is owner or the Managing Director, since both ''owner'' and ''Managing Director'' have different connotations. It may be that a person may be owner as well as the Managing Director. But the way the complainant has described, it is not possible to say the exact relationship of the Petitioner with the publication in question. In this way, it is not a proper complaint in the eye of law. However, the Petitioner has described his status in his petition to this Court. According to him, he is the Chairman of the Indian Express Newspapers (Bombay) and ''Jansata'' is one of its publications. But in the absence of any allegation in the complaint pointing out that the Petitioner is directly concerned with the actual reporting, editing, printing or publishing of the Paper, it cannot be said that the Petitioner is liable to be proceeded against for the impugned publication. In the absence of any allegation in the complaint that the Petitioner or the Chief Editor or the Local Editor was directly in charge of and responsible to the Company for the conduct of the business of Co., liability for the offence u/s 40 of the Companies Act cannot be attributed to any of them. The words directly in charge of are significant and exclude persons who may be indirectly responsible for the business of the Co. In the absence of specific averments in the complaint that the Petitioner or the Chief Editor or the Local Editor of the publication was directly in charge of and responsible to the Co. for the conduct of the business of the Co., it is difficult to make them liable for the allegations. [See: State of Madras Vs. C.V. Parekh and Another, AIR 1983 SC 87 (Delhi Municipality v. Ram Krishan) and 1990 (2) Crimes 170 (N.A. Palkhivala and Anr.v. Madhya Pradesh Pradushan Niwaran Mandal).

Going to the averments in the complaint, the basis of joining the Petitioner and others in this complaint u/s 34, Indian Penal Code have not been explained. It has not been explained how these people hatched scheme or connived with each other to form a common intention to damage the reputation of the complainant by making the impugned publication. There is complete lack of material to support this allegation. Simply because the complainant may have some kind of grievance against the local correspondent, others involved in this case cannot be added as parties.

The result of the aforesaid examination of the matter is that it is a lame prosecution and cannot be allowed to continue, since it amounts to gross abuse of the process of Court. The proceedings in case No. 54/2 of 89, pending in the Court of Chief Judicial Magistrate, Nahan, are hereby quashed.