Furnishing of list of witnesses along with criminal complaint is not mandatory

 Bringing to the notice of this Court the aforesaid provisions, it is contended that the provision is mandatory and in case if list of witnesses is not filed by the complainant, issuance of process itself is illegal. It is relevant to note that provision is incorporated for the reason that accused must have a prior information about the witnesses to be examined by the complainant to prove the case made out by him. It is for this reason that the law prescribes the provision to furnish list of witnesses at the time when the complaint is filed or before the process is issued, but at the same time, it could be remembered that under Section 311 Cr.P.C. the Court has got powers to issue summons to the material witnesses and to recall the witnesses at any stage of the proceedings. Provisions under Section 311 Cr.P.C. facilitate examination of witness even in case where there is no list of witnesses furnished by the complainant or that the complainant intends to examine a person whose name does not appear in the list of witnesses. That apart, in an appeal, the appellate Court has got powers under Section 391 Cr.P.C. to take further evidence or direct the Court below to take such evidence. This provision can also be invoked in case if applicant makes out a case for recording additional evidence and in the circumstances where the name of a witness is not mentioned in the list, the applicant can take the benefit of these provisions and examine the witnesses before the Court. So, when the law prescribes different other provisions to enable the examination of a witness and to record the evidence at any stage of proceedings, even in a case where the list of witnesses is not furnished, in my considered opinion, the provision of Section 204(2) Cr.P.C. cannot be said to be mandatory and it has to be held that it is directory.1

2013(4) AKR 586, 2013(5)KarLJ342, 2013(4)KCCR3124 ;2014 CR LJ (NOC) Kar

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Criminal Petition No. 3905 of 2009

Decided On: 23.07.2013

Appellants: H.N. Dinesh and T.J. Anil
Vs.
Respondent: Malendau Abhivrudhdhi Prathisthana (R) Rep. by its Secretary

Hon'ble Judges/Coram:A.S. Pachhapure, J.

Criminal - Quashing of proceedings - Indian Penal Code, 1860 (IPC) - Whether proceedings were liable to be quashed - Held, when institution claimed that principal, teaching staff and students were dignified and reputed, an allegation that there was illicit relationship between principal, teaching staff and students and even also amongst staff and students in hostel, prima facie it could not be said that imputation did not harm reputation of aforesaid persons, in estimation of others - Hence, explanation 4 to Section 499 of IPC cannot be invoked at this stage - So far as 9th exception to provisions of Section 499 of IPC is concerned, averment that imputation is made in good-faith is matter of defence by Petitioners after their appearance in trial Court and it could not be a ground at time of either taking cognizance or could be just ground to quash proceedings - Petition partly allowed.

ORDER

A.S. Pachhapure, J.

1. The petitioners have sought for quashing the proceedings in CC No. 310/2008 pending on the file of Addl. JMFC, Sagar. The facts relevant for the purpose of this petition are as under:

The petitioners herein are the accused whereas respondent is the complainant and is said to be a reputed society imparting education in Sagar Taluk. It is running Primary, Middle and High Schools at Sagar and Pre-University College at Talaguppa. It has got two colleges at Sagar, apart from a degree college and even B.Ed. course is also introduced. It has the facilities of library and hostel to accommodate the students hailing from different other places. The institution is said to have achieved its goal of imparting education and is said to be a reputed institution. The college has teaching staffs who are qualified, dignified with well built characters. These being the facts, the defamatory imputations were published in the newspaper 'Vidhaata', a weekly, and the first petitioner is said to be the Editor, whereas second petitioner is the Managing Editor. In the article relating to this institution, the imputation is such that it is said to have lowered down the reputation of its members and also office bearers including teaching staffs. In the aforesaid item, it is stated that there are no rest rooms, lavatories in the campus and the allegation is made about the illicit relationship between teaching staff and the students. It is also alleged that there is mal-administration of the college and the hostel and illicit relationship between the inmates of the hostel and staff. Likewise, many other allegations have been made in the item published in the aforesaid newspaper dated 20.10.2004.

The respondent noticing the publication through friends and others alleged that the article is intended to harm the reputation of the institution, office bearers and the staffs and as there is allegation to the effect that Principal of the college is a womanizer, the dignity of the institution is lowered in the eyes of public. Hence, a complaint is filed before the Court below and on 20.10.2005, learned Magistrate perusing the averments in the complaint took cognizance and directed to register a case and posted the matter for recording the sworn statement on 03.12.2005 and subsequent dates. It was adjourned on different dates all along for about 3 years and on 25.06.2008, he recorded the statement and having heard the arguments on taking cognizance., vide order dated 26.07.2008 again took cognizance and issued process to the petitioners. The petitioners aggrieved by the initiation of proceedings by way of complaint and subsequent orders passed by the learned Magistrate taking cognizance of the offence and issuing process have approached this Court to quash the proceedings.

2. I have heard learned Counsel for both the parties.

3. It is the submission of learned Counsel for the petitioners that the order dated 26.07.2008 taking cognizance and issuing process is illegal for the reason that as on that date, the complaint was barred by time and as more than 3 years and 8 months have been elapsed in between the publication and taking cognizance of the order, he would submit that the proceedings initiated are barred by time. So also, it is his contention that the complainant has not furnished the list of witnesses and as there is non-compliance of provisions of Section 204(2) Cr.P.C., the order issuing process is illegal. It is his submission that after taking cognizance on the first occasion, the matter was pending for 3 years and only on two occasions, the complainant was present before the Court, therefore, he would submit that there is abuse of process of Court and for no reason case was adjourned and hence, he contends that continuation of the proceedings is improper. It is also his submission that respondent has not examined any witnesses in support of his case and as there is no case made out against the petitioners, the Trial Court could not have passed the order issuing process. He further submits that publication falls within the purview of Explanation 4 of Section 499 IPC and as publication is made in good faith, the Ninth Exception of the aforesaid provision is very much applicable and hence, he contends that the order impugned is both erroneous and illegal. He would further submit that role of the petitioners is not stated in the complaint and therefore, issuance of process is illegal. On these grounds he has sought to quash the proceedings.

4. On the other hand, learned Counsel for the respondent submits that as the order taking cognizance on 20.10.2005 is within the time, there is no bar to proceed with the case under Section 468 Cr.P.C. So also, it is his submission that a strong case is made out for issuance of process, therefore, there are no reasons to interfere with the proceedings initiated and continue in the Court below.

5. Perusal of the records reveal that the learned Magistrate had taken cognizance of the offence alleged in the complaint on 20.10.2005. A specific order to that effect has been passed and it is extracted hereunder:

Perused. Cognizance taken. Register PC. Sworn statement by 03.12.2005.

So, once the learned Magistrate has taken cognizance on 20.10.2005, there was no necessity for him to take the cognizance again and it appears that after recording the statement under Section 200 Cr.P.C. before passing the order dated 26.07.2008, learned Magistrate has not looked into the order sheet dated 20.10.2005, which reveals that cognizance was taken by him on the said date. It is well established principle that the Magistrate cannot take cognizance on a complaint on two occasions. Therefore, the subsequent order dated 26.07.2008 taking cognizance of the offence once again is both erroneous and illegal and the extent of order passed by the learned Magistrate on 26.07.2008 taking cognizance of offence under Sections 500 and 501IPC for the second time will have to be quashed. Once the order taking cognizance dated 26.07.2008 is quashed, then from the date of offence i.e., publication of defamatory article in the newspaper and the order passed by the learned Magistrate on 20.10.2005 taking cognizance of the offence is well within the time and therefore, there is no bar of limitation under Section 468 Cr.P.C. as contended by the learned Counsel for petitioners.

6. Adjourning a case without assigning any reason may be improper, but that itself is not a ground to quash the proceedings. After taking cognizance on 20.10.2005 till 26.07.2008 for a period of about 3 years, except on two occasions, the complainant was absent on all other dates. If for any insufficient cause, the complainant is absent, the Court has discretion to dismiss the complaint, but in fact he did not do so and granted adjournment again and again, it may be for the reason that the Court was satisfied itself for the cause shown and could have adjourned the matter. The fact that matter was adjourned for about 3 years for the absence of complainant itself cannot be a ground to quash the proceedings and it cannot be said an abuse of process of law.

7. So far as the case made out by respondent is concerned as stated above and the perusal of facts would reveal that it is running educational institutions of different sections including Primary and High School and also Colleges since from the year 1964 onwards and perusal of publication in the newspaper would reveal that there are allegations against the Principal, students in the hostel and colleges alleging that there is illicit relationship between the teaching staffs and the students. So also, it is accused that Principal of the College is a womanizer. So, perusal of the aforesaid facts in the complaint particularly in para 3 would reveal that respondent has made out a strong case of making a defamatory imputations against the institution.

8. So far as taking of cognizance is concerned, it is just an application of mind by the learned Magistrate. In his order dated 20.10.2005, he has mentioned that he has perused the complaint and has taken cognizance. This much of application of mind in my considered opinion is sufficient and the order taking cognizance is just and proper. There is no necessity for the learned Magistrate to assign reasons for taking cognizance of offence alleged in the complaint.

9. So far as the provisions of Section 204(2) Cr.P.C. is concerned, when the Magistrate forms an opinion to take cognizance of offence and feels that there is sufficient grounds to proceed against the accused, Clause (a) says if it is a case of summons, he has to issue summons for the attendance of the accused and Clause (b) says if it is a warrant, he has to issue either summons or warrant as it may appear just and proper. Clause (2) provides No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

10. Bringing to the notice of this Court the aforesaid provisions, it is contended that the provision is mandatory and in case if list of witnesses is not filed by the complainant, issuance of process itself is illegal. It is relevant to note that provision is incorporated for the reason that accused must have a prior information about the witnesses to be examined by the complainant to prove the case made out by him. It is for this reason that the law prescribes the provision to furnish list of witnesses at the time when the complaint is filed or before the process is issued, but at the same time, it could be remembered that under Section 311 Cr.P.C. the Court has got powers to issue summons to the material witnesses and to recall the witnesses at any stage of the proceedings. Provisions under Section 311 Cr.P.C. facilitate examination of witness even in case where there is no list of witnesses furnished by the complainant or that the complainant intends to examine a person whose name does not appear in the list of witnesses. That apart, in an appeal, the appellate Court has got powers under Section 391 Cr.P.C. to take further evidence or direct the Court below to take such evidence. This provision can also be invoked in case if applicant makes out a case for recording additional evidence and in the circumstances where the name of a witness is not mentioned in the list, the applicant can take the benefit of these provisions and examine the witnesses before the Court. So, when the law prescribes different other provisions to enable the examination of a witness and to record the evidence at any stage of proceedings, even in a case where the list of witnesses is not furnished, in my considered opinion, the provision of Section 204(2) Cr.P.C. cannot be said to be mandatory and it has to be held that it is directory.

11. On this aspect of the matter, learned Counsel for the petitioners has placed reliance on the decision of this Court reported in MANU/KA/0478/2001: ILR 2002 KAR 181 (Fakirappa Vs. Shiddalingappa and Another), wherein this Court considering the facts of the case was of the opinion that the provision under Section 204(2) Cr.P.C. are mandatory and in case if the list of witnesses is not accompanied with the complaint or has not furnished by the complainant before issuance of process, issuance of process itself is illegal and had quashed the order. But, at the same time, learned Counsel for the respondent has placed reliance on the subsequent decision of this Court reported in MANU/KA/0126/2002 : 2002 (3) Kar. L.J. 148 (Holiyappa K. Patil alias Ajjappa Vs. Lokappa), wherein in the proceedings under Section 138 of NI Act, there was an occasion to consider provision under Section 204(2)Cr.P.C., this Court held that the provision is directory and not mandatory.

12. In my considered opinion, the subsequent dictum led by this Court holding that that the provision is directory appears to be just and proper in view of the provision under Sections 311 and 391 Cr.P.C. Therefore, the order impugned cannot be quashed for the reason that list of witnesses is not furnished. At the most, the petitioners may seek time after list of witnesses is furnished by the complainant so that they may have an opportunity to know the persons to be examined by the complainant and thereafter may cross examine the witnesses.

13. Perusal of the complaint would reveal that the first petitioner is Editor whereas, the second petitioner is the Managing Editor. In para 4 of the complaint, the respondent except stating that the second petitioner is the Managing Editor, no role is attributed against him so far as involvement in the publication of alleged defamatory article.

14. On this aspect of the matter, learned Counsel for the petitioners has placed reliance on the following decisions:

a) MANU/SC/0434/1992 : (1992) 1 SCC 217 (K.M. Mathew Vs. State of Kerala and Another)

b) MANU/KA/0078/1994: 1995 Cri. L.J. 1922 (Prabhu Chawla and Others Vs. A.U. Sheriff

c) MANU/SI/0002/1991 : 1992 Cri. L.J. 839 (A.K. Jain and Another Vs. State of Sikkim and Another)

Perusal of the judgments aforesaid would reveal that under Section 7, 1(1) of the Press and Registration of Books Act, 1867, there is a presumption only in respect of a person whose name is printed as Editor in the newspaper who has knowledge about the facts printed in the newspaper, it is held that this presumption does not apply to others.

In one amongst the aforesaid cases, the Chairman, Managing Director of the company owned the newspaper was implicated. In the other, Executive editor, Managing Editor and Resident Editor were implicated and the courts in the aforesaid decisions have held that unless a specific role is attributed to the person accused of the offence, taking cognizance itself is illegal.

15. So far as the first petitioner is concerned, he is the Editor of newspaper and therefore, presumption is available under Section 7 of the Press and Registration of Books Act, 1867, but whereas the second petitioner is concerned, he is said to be the Managing Editor and except stating that he is the Managing Editor, no such facts are stated in the complaint about the role of second petitioner in relation to the publication of defamatory article. In this context, I am of the opinion that the order passed by the Court below so far as second petitioner is concerned is illegal and the proceedings against second petitioner will have to be quashed.

16. Lastly, learned Counsel for the petitioners relying upon the decision of High Court of Kerala reported in MANU/KE/0106/2008 : 2008 Cri. L.J. 4221 (V.S. Achuthanandan Vs. G. Kantalamma and Another), contended that no strong case is made out by the respondent and there are no definite pleadings and averments and hence sought for quashing of proceedings.

17. As aforesaid, the respondent has made out a strong case for taking cognizance for the offence under Sections 500 and 501 IPC so far as the first petitioner is concerned. When the institution claims that the principal, teaching staff and the students are dignified and reputed, an allegation that there is illicit relationship between the principal, teaching staff and the students and even also amongst the staff and the students in the hostel, prima facie it cannot be said that the imputation does not harm reputation of the aforesaid persons, in the estimation of the others. Hence, explanation 4 to Section 499IPC cannot be invoked at this stage. So far as the 9th exception to the provisions of Section 499 IPC is concerned, the averment that the imputation is made in good-faith is a matter of defence by the petitioners after their appearance in the trial Court and it cannot be a ground at the time of either taking cognizance or can be a just ground to quash the proceedings.

In these circumstances, I do not think that the petitioners have made out any such grounds to quash the proceedings so far as first petitioner is concerned.

In the result, the petition is allowed in part. The order dated 26.07.2068 taking cognizance for the second time and further the proceedings in CC No. 310/2008 so far as second petitioner is concerned are quashed.

The learned Magistrate is directed to proceed against the first petitioner (accused No. 1) and dispose of the case as expeditiously as possible and in accordance with law.

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