Subal Kumar Dey vs Apangshu Mohan Lodh and Another

D.N. Chowdhury, J.—A complaint petition was made before the Chief Judicial Magistrate, West Tripura, Agartala, arraying the petitioner as an accused for the alleged offence under Sections 500, 501 and 502, IPC. The learned Magistrate took cognizance of the offence, initiated a proceeding and summoned the accused. The accused appeared before the learned Chief Judicial Magistrate, Agartala and submitted an application questioning the maintainability of the proceeding and for dropping the proceeding. The learned Magistrate upon hearing the learnd counsel for the parties, passed an order rejecting the said application of the accused vide his order dated 5-9-98. Hence this application challenging the legality of the order.

Though the present petition has been filed as a revision u/s 397, 401 Cr.P.C., Mr. A.K. Bhowmik, the learned Senior Counsel appearing on behalf of the petitioner accused has virtually advanced his argument for quashing of the proceeding u/s 482, Cr.P.C., Mr. Bhowmik, the learned counsel, submitted that even if the allegations contained in the complaint petition are taken on their face value, no offence as such is disclosed therefrom. Continuance of the proceeding, therefore, amounted to miscarriage of justice, submitted the learned counsel. Mr. Sankar Deb, learned Senior Counsel along with Mr. B.Das, Senior Advocate, assisted by Mr. M. Dutta, the learned Advocate, on the other hand seriously opposed the revision petition. Mr. A.K. Bhowmik, the learned counsel, submitted that the petitioner is only a Chief Editor of the News Paper in which the alleged defamatory news item was published. The alleged publication took place without the knowledge of the petitioner and that too in his absence. Mr. Bhowmik further submitted that the allegation contained in the complaint petition are truthful statements and there is justification for such statement. Mr. Bhowmik, the learned counsel, then submitted that initiation of a proceeding is not an empty formality but a serious matter, which requires due application of mind since it involves the liberty of an individual. The learned senior counsel took pains in referring to the allegation of the FIR which was allegedly relied on in the news item to show that there was no malicious statement requiring continuance of the criminal proceeding against the petitioner/accused. The learned CJM, submitted Mr. Bhowmik, even while dismissing the application dated 5-9-98, did not consider those aspects of the matter which ultimately effected his decision. Mr. Bhowmik in support of his case referred to the decisions of the Supreme Court in the case of Madhavrao Scindia v. Sambhajirao Chandrojirao Angre, reported in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, reported in K.M. Mathew Vs. State of Kerala and another, and that in M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate, reported-in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others,

Mr. S. Deb, the learned Senior Advocate, on the other hand, submitted that this is not a case for invoking the jurisdiction of this Court u/s 482, Cr.P.C. or under Article 226 of the Constitution of India. Mr. A.K. Bhowmik, the learned counsel appearing on behalf of the petitioner, also placed reliance upon the presumption u/s 7 of the Press and Registration of Books Act, 1867.

From a bare perusal of the petition, it cannot be said that the petitioner is a mere Chief Editor. In the complaint petition, the petitioner was referred to as the Owner, Editor, Printer and Publisher of "Syandan Patrika". Presumption u/s 7 of the aforesaid Act, 1867 is only available to those persons whose names are printed as Editor as required u/s 5(1) of the Act. At this stage, whether the petitioner is in fact a Chief Editor or not is yet to be gone into by the trial Court on recording evidence.

The other contention of Mr. Bhowmik, the learned counsel for the petitioner, is that the Court below without satisfying itself about the content of the FIR referred to in the complaint petition, ought not to have initiated a proceeding. To be precise, the bone of contention of Mr. Bhowmik was the sufficiency of the grounds for proceeding. Cognizance of any offence can be taken in three ways u/s 190 of the Code Criminal Procedure-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a Police report of such facts; and

(c) upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed.

A "Complaint" is defined u/s 2(d) of the Code, which means "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". In the case of a complaint, the complainant and his witnesses present, if any shall be examined on oath as indicated in Section 200 of the Code. On receipt of the complaint in a given case, the Magistrate if he thinks fit, postpone the issue of process against the accused and either enquire into the case himself or direct an 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 proceeding. This exercise is meant for a limited purpose of finding out whether a prima facie case for issue of process has been made out from the materials cited in the complaint. This is a discretion conferred on the concerned Magistrate and cannot be insisted as a condition precedent for the issue of process. Section 203 empowered the Magistrate to dismiss a complaint by assigning brief reason where the Magistrate is of opinion that there is no sufficient ground for proceeding. The above mechanism can be adhered to only in cases covered by Section 202 of the Code. If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding in respect of the offence, he shall issue process against the accused. A wide discretionary power is conferred on the Magistrate in the matter of issuing or refusal of process which is to be exercised on sound judicial discretion. At this stage, the Magistrate is concerned with allegations those are made in the complaint or the evidence produced in its support. The Magisrate will issue process under this Section if there be sufficient grounds for proceeding. The words "sufficient ground" is -to be construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit and not sufficient ground for the purpose of conviction Ramgopal Ganpatrai Ruia and Another Vs. The State of Bombay, The Supreme Court dealt with the scheme of Sections 200 to 203 of the Code in the case of Vadilal Panchal v. Ghadigaonkar, reported in Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, and indicated that the enquiry envisaged therein is for ascertaining the truth or falsity of the complaint, i.e., for ascertaining whether there is evidence in support of the complaint so as to justify issue of process. The section does not say that a regular trial of adjuging truth or otherwise of the person complained against should take place at that stage because such a person could be called upon to answer the accusation made against him only when a process has been issued and he is on trial. The stage to adjudge the truth or otherwise of the allegation meticulously by sifting the evidence is yet to reach. As alluded earlier, whether the petitioner can be made responsible for the publication of the news item is yet to be gone into by the trial Court and it is for the trial Court to meticulously go into that issue at the stage of issuing process. The power of the High Court u/s 482, Cr. P.C. as well as under Article 226 of the Constitution of India is an extra-ordinary power which is to be exercised sparingly and with circumspection. The principles of law are already culled down by the Supreme Court. In the case of State of Haryana v. Bhajan Lal, reported in R.S. Raghunath Vs. State of Karnataka and another, the Supreme Court has cited some of the instances. The basic object of exercising the power is to prevent abuse of the process of the Court and for preventing miscarriage of justice and to secure the ends of justice. The trial Court is the Court of fact which is yet to adjudicate upon the matter. The petitioner has not pleaded any bar for initiation of the proceeding. The basic grievance was that the process was issued in a mechanical exercise of powers and that too on a matter which did not disclose any criminal offence. The above contention on the face of it, cannot be accepted.

In the light of the aforesaid discussion, the impugned order of the learned CJM, West Tripura, Agartala, cannot be faulted. However, it will always be open for the petitioner to place materials before the trial Court in support of the innocence of the accused and in such an eventuality, the learned trial Court will definitely take into consideration his case as well as the case of the complainant and pass necessary orders thereon.

Subject to the observation made above, this revision petition is dismissed.