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Issue for consideration:(i) Whether, while considering a private complaint allegingdefamation, the Magistrate before summoning the accusedought to confine himself to the allegations forming part ofthe petition only or he may, applying his judicial mind to theexceptions to s.499, IPC, dismiss the complaint holding thatthe facts alleged do not make out a case of defamation?(ii) Whether and, if at all, to what extent, is it open to the HighCourts to exercise inherent power saved by s.482, Cr. PCto quash proceedings for defamation by setting aside thesummoning order upon extending the benefit of any of theExceptions to s.499, IPC?Code of Criminal Procedure, 1973 – Issue Process – Complaintof Defamation – Application of judicial mind by the MagistrateCode of Criminal Procedure, 1973 – Issue Process – Complaintof Defamation – Application of judicial mind by the Magistrate:Held: In the context of a complaint of defamation, at the stage theMagistrate proceeds to issue process, he has to form his opinionbased on the allegations in the complaint and other material(obtained through the process referred to in section 200/section202) as to whether ‘sufficient ground for proceeding’ exists asdistinguished from ‘sufficient ground for conviction’, which hasto be left for determination at the trial and not at the stage whenprocess is issued – Although there is nothing in the law which inexpress terms mandates the Magistrate to consider whether any ofthe Exceptions to s. 499, IPC is attracted, there is no bar either – Itis not the law that the Magistrate is in any manner precluded fromconsidering if at all any of the Exceptions is attracted in a givencase; the Magistrate is under no fetter from so considering, moreso because being someone who is legally trained, it is expectedthat while issuing process he would have a clear idea of whatconstitutes defamation – If, in the unlikely event, the contents of thecomplaint and the supporting statements on oath as well as reportsof investigation/inquiry reveal a complete defence under any of theExceptions to s. 499, IPC, the Magistrate, upon due application ofjudicial mind, would be justified to dismiss the complaint on suchground and it would not amount to an act in excess of jurisdictionif such dismissal has the support of reasons.[Para 45]Code of Criminal Procedure, 1973 – s. 482 – Power of the HighCourt to quash proceedings for defamation by setting asidethe summoning order upon extending the benefit of any ofthe Exceptions to s.499, IPC:Held: The exercise of jurisdiction by the High Courts u/s. 482,Cr.P.C., in a case where the offence of defamation is claimed bythe accused to have not been committed based on any of theExceptions and a prayer for quashing is made, law seems to bewell settled that the High Courts can go no further and enlargethe scope of inquiry if the accused seeks to rely on materialswhich were not there before the Magistrate – This is based onthe simple proposition that what the Magistrate could not do, theHigh Courts may not do – It may not be understood to underminethe High Courts’ powers saved by s.482, Cr.P.C.; such powersare always available to be exercised ex debito justitiae, i.e., todo real and substantial justice for administration of which alonethe High Courts exist – The issue of process u/s. 204 r/w. s.200,Cr.P.C. does not ipso facto stand vitiated for non-consideration ofthe Exceptions to s.499, IPC unless, of course, before the HighCourt it is convincingly demonstrated that even on the basis of thecomplaint and the materials that the Magistrate had before him andwithout there being anything more, the facts alleged do not primafacie make out the offence of defamation and that consequently,the proceedings need to be closed. [Paras 46 and 47]Penal Code, 1860 – s. 499 – Exceptions to s.499 – Trial Courtupon considering the complaint u/s. 200 Cr.P.C. returned aprima facie finding in order dated 25.03.2010 that accusedno.1, the appellant (accused no.2) and its district manager wereresponsible for writing, sending, publishing letters containingmalicious and defamatory statements and consequentlysummoned the three accused persons u/ss. 500/107/34, IPC– Propriety:Held: At the stage, when the Trial Court made the summoningorder, two aspects were required to be satisfied: (1) whether theuncontroverted allegations as made in the petition of complaintread with the examination of the complainant, prima facie, tendto suggest an offence having been committed, and (2) whetherit is expedient and in the interest of justice to proceed – Keepingin view the allegations made in the petition of complaint andthe evidence placed before the Trial Court by the complainantand on a plain reading of its order dated 25.03.2010 issuingsummons to the accused, it does not appear that the findingof a prima facie case having been made out at that stage isso outrageously illogical or in defiance of legal principles andacceptable standards that it would merit interference by this Court– Appellant would be free to appear before the Trial Court andraise whatever defence is available to it in law, not necessarilyconfined to the Fourth Exception, for due consideration thereof bythe Trial Court – Therefore, the Trial Court was not unjustified inissuing summons to the accused based on the materials beforeit. [Paras 49, 50]Penal Code, 1860 – s.499 – Exceptions to s.499 – Whether acompany can be prosecuted for defamation when the allegeddefamatory statements are made not by it (the company) butby its authorised agent:Held: It must necessarily depend on the facts of each case,meaning thereby the quality of evidence that is led in course ofthe trial and the weight to be attached to it – In the instant case,the Power of Attorney is yet not proved by the appellant-companyaccording to law and, therefore, could not have been consideredby the Judge and cannot be considered by this Court as well– Even if proved, its effect and import necessarily have to beconsidered by the Trial Court – However, if from evidence led itis established that the authorised agent had issued defamatorystatements with the consent of the principal or that the principal,without giving consent, had due knowledge of such defamatorystatements, yet, did not caution/reprimand the agent for doingso or had not disowned the statements so made, there is noreason why a prosecution for defamation should be nipped inthe bud on the specious ground that an authorised agent issupposed to act lawfully and not unlawfully – As far as the benefitof the fourth exception is concerned, it is for the appellant todemonstrate before the Trial Court that the Fourth Exception isattracted, or plead any other defence, and discharge its burdenof proof in respect thereof during the course of the trial. [Paras54, 55, 56, 57] |
