S.P. Subhan vs State and Another

Kudoor, J.—This criminal revision is by the accused in C.C. No.86/84 on the file of the Munsiff & Addl. J.M.F.C., Nanjangud, directed against the order dated 16-1-1984 passed by the Sessions Judge at Mysore in Cr. R.P. No. 72 of 1983 with a prayer to set aside the said order and also further quash the proceedings in C.C. No. 86/84 initiated against the petitioner-accused.

For the sake of convenience, I shall refer to the parties as they were arrayed in the Court of the first instance in the course of this order.

The matter arises in this way :

T.N. Govindaraju filed a private complaint u/s 202 of the Code of Criminal Procedure (the Code) against S.P. Subhan for an offence punishable u/s 500 I.P.C. in the Court of the Civil Judge and J.M.F.C. Nanjangud which was registered as CR. No. 20/83. The material averments made in the complaint are these :

The complainant was working as a I Division Clerk in the office of the Joint Director of Public Instruction at Mysore. He had a handicapped son in respect of whom he gave an application to the accused who was then the Tahsildar at Nanjangud claiming pension as per the Pension Rules. It is alleged that there was delay in dealing with the application filed by the complainant and that the complainant went to the accused and made enquiries with him about the application filed by him and in the course of the enquiry it is alleged that there was some exchange of words between the complain-ant and the accused. Thereafter, the complainant sent some representations about the conduct of the accused to his superiors. The accused appears to have sent a letter to the Joint Director of Public Instruction complaining that the complainant had used unparliamentary words etc., in the accused''s office and requested him to take action in the matter. Thereafter, the accused sent another letter dated 24-11-1982 addressed to the Deputy Commissioner, Mysore, with a copy forwarded to the Joint Director of Public Instruction for information. It is averred in the complaint that that letter contained certain passages which are per se defamatory. On this basis he lodged the private complaint.

The learned Magistrate, after taking cognizance of the offence as required u/s 200 of the Code, proceeded to conduct the enquiry as contemplated under Chapter XV. In the course of the enquiry he has also recorded the sworn statement of the complainant. After completing the enquiry, the learned Magistrate on assessing the material produced before him dismissed the complaint u/s 203 of the Code as per his order dated 20-8-1983.

The complainant carried the matter in Cr. R.P. No. 72/83 to the Court of the Sessions at Mysore. The Sessions Judge, after hearing the arguments and considering the material on record, allowed the Revision, set aside the order of dismissal dated 20-8-1983 passed by the Magistrate and further directed the Magistrate to register the complaint against the accused for an offence u/s 500 I.P.C. and issue summons to answer the said charge as per his order dated 16-1-1984.

In pursuance of the order of the Sessions Judge, the Munsiff & Addl. J.M.F.C. Nanjangud, registered the complaint in C.C. No. 86/84 for an offence u/s 500 I. P.C. and directed to issue summons to the accused. It is in these circumstances the accused has preferred this Revision requesting to set aside the order of the Sessions Judge dated 16-1-1984 as well as to quash the proceeding in C.C. No. 86/ 84.

Heard the learned Advocates appearing for both the parties and also the learned High Court Government Pleader for the State.

It is seen from the records and also the orders of the courts below that the learned Magistrate dismissed the complaint on two grounds viz, that the allegations contained in the letter dated 24-11-1982 written by the accused addressed to the Deputy Commissioner, Mysore and a copy of which was forwarded to the Joint Director of Public Instruction at Mysore who was the superior officer of the complainant were made in good faith and the conduct of the respondent was saved under exception 8 to Section 499 I.P.C. The learned Sessions Judge in his revisional order has reached the conclusion assigning elaborate reasons which are, in my opinion, just and reasonable that the twin grounds on which the learned Magistrate dismissed the complaint were not legally sustainable and hence the order of dismissal could not be sustained. It is well settled that at the stage of taking a decision on a private complaint whether there are grounds to proceed with or not the materials that are to be taken into consideration are the statements on oath if any of the complainant and of the witnesses and the result of the enquiry or investigation if any u/s 202 of the Code. No other extraneous matter would come into play including any possible and probable defence for the accused to be taken at the stage of the trial and arises for scrutiny or consideration while making an order u/s 203 of the Code. In that view, as rightly pointed out by the Learned Sessions Judge, the Learned Magistrate was not right in dismissing the complaint on the two grounds stated supra which would be available for the accused only at the stage of the trial and the Learned Magistrate in the absence of the accused should not have deliberated upon these questions and made use of them for rendering his order in dismissing the complaint. In this view of the matter, I hold that the order of the Learned Sessions Judge to this extent is unexceptionable.

However, the Learned Sessions Judge, after recording his conclusions regarding the grounds on which the Learned Magistrate dismissed the complaint, did not stop and pronounce his appropriate order as required u/s 398 of the Code. Instead, he proceeded further and took upon himself to assess the material and reached his independent conclusion in the following terms ;

"In view of what I have stated above and in view of the complaint allegations supported by the sworn statement of the petitioner, in my opinion, there are sufficient grounds to proceed against the respondent for offence punishable u/s 500 I.P.C. Therefore, setting aside the order of the learned Magistrate, it must be directed that the complaint filed should be registered and the respondent summoned to answer the charge u/s 500 I.P.C."

He further accordingly directed the learned Magistrate to do so and the learned Magistrate in obedience to the direction of the learned Sessions Judge registered the case and took steps to proceed against the accused for an offence u/s 500 I.P.C. Certainly this part of the order passed by the learned Sessions Judge is in violation of the revisional powers conferred upon the Sessions Judge u/s 398 of the Code.

Section 398 of the Code stipulates that on examining any record u/s 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged provided that no Court shall make any direction u/s 398 for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. All that this Section contemplates is that in the case of a dismissal of a complaint u/s 203, the Sessions Judge exercising his revisional powers holds that the dismissal is not in accordance with law and liable to be interfered with, he could set aside the order and direct one of the Magistrates referred in the section to hold further enquiry into the complaint. It is clear from the provisions that he has no power to take cognizance of the offence, assess the material and reach his own conclusion whether there is ground for proceeding with the complaint or not and further to direct the Magistrate if the Sessions Judge has come to the conclusion that any offence is made out, to register the case and take further action as required under the Code. Thus, it is obvious that the order of the learned Sessions Judge on this Aspect is clearly bad in law. This view I take is supported by a decision of this Court in Lalajibaishah - v. - Aalchand Hukmischand 1978 (2) KarLJ 329.

In the result, this revision is allowed and the order passed by the learned Sessions Judge is modified as under;

The order dated 20-8-1983 passed by the Civil Judge & J.M.F.C., Nanjangud, in CR. No. 20/83 dismissing the complaint of respondent-2 is set aside. The Chief Judicial Magistrate, Mysore, is directed to hold a further enquiry into the complaint of respondent-2 and dispose of the complaint according to law.