The benefit of first Exception to Section 499
IPC is also not available at this stage to the accused for
reason
that
the
imputations
made
even
if
the
defamatory, however, are true and for the public good,
the onus to prove the same is on him. Merely because
the complainant has been convicted by learned Special
Judge, Hamirpur and his conviction and sentence
affirmed by this Court, is not sufficient to discharge the
onus. Such onus can only be said to have been
discharged by producing in evidence the record
pertaining to the criminal proceedings against the
accused, the judgment of conviction and sentence
passed against him by learned Special Judge, Hamirpur
and the judgment passed by this Court, during the
course
of
trial
had
he
been
charged
with
the
commission of alleged offence and tried. Admittedly,
the judgment
is under challenge in the Apex Court.
The findings of conviction and sentence so
recorded against the complainant, therefore, have not
yet attained finality. Unless and until the judgment attains
finality, it cannot be said that the imputations made
against the petitioner are true, hence cannot be said to
be defamatory or that even prima-facie, no case is
made out against the accused. The protection of first
fourth
exceptions
below
Section
499
IPC
is,
and
therefore, also not available to the accused at this
stage.
Cr. Revision No. 19 of 2006
Decided on: 21.03.2014
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Shri S.M. Katwal
Vs
Shri Virbhadra Singh & another
Citation; 2014 CRLJ 3036 Himachal pradesh
Ground to proceed further against the respondent
(hereinafter referred to as ‘the accused’) under Section
500 IPC, process against him, was ordered to be issued.
2.
Petitioner, hereinafter referred to as ‘the
complainant’, allegedly felt defamed from the speech
made by the accused in a public meeting at Rohara in
rt
District Kangra on 3.12.2003. The relevant extract of the
speech published in the issue of Punjab Kesari, a Hindi
Daily, dated 4th December, 2003, in vernacular, reads in
its English version as follows:
“......Despite there being thousands-lakhs
of unemployed persons in the State, jobs
have been sold to people of Punjab, Uttar
Pradesh and Bihar, and thus committed
breach
of
faith
of
competent
and
intelligent people of Himachal.
He (Chief Minister Virbhadra Singh)
said
the
Government had
surpassed all limits of corruption. The
Subordinate
Dhumal
Services
Selection
Board,
Hamirpur has become a den of corruption
the inquiry got made into which will bare
the faces of many.
A charge-sheet
against the persons found involved in the
Board bungling would be presented in
Court in this week.....”
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3.
The complainant, therefore, filed a complaint
in
Magistrate,
the
Una,
Court of
learned
H.P. Learned
Chief
Judicial
accused
under Section 500 of the Indian Penal Code against the
Magistrate,
after
recording the preliminary evidence consisting of the own
statement of the complainant as well as that of
Navdeep
Kashyap,
Manohar
Singh,
Safi
S/Shri
rt
CW-2 Brijesh Kaushal, Press Reporter “Punjab Kesari”, and
Mohammad and Dharam Singh, analyzed the same vis-
a-vis the news item. After being satisfied prima-facie
about the commission of the offence, under Section 500
IPC, ordered to issue process against the accused, vide
Learned Sessions Judge, Una,
order dated 11.3.2005.
however, quashed the same and concluded that the
imputations made do not relate to the complainant,
there is no evidence to show that the complainant did
not make any recommendation with respect to the
appointments in the Govt. jobs after the accused having
taken over as the Chief Minister of the State till he
demitted the office on the completion of his tenure and
that since the accused being the then Chief Minister has
made the imputations in the discharge of his official
dut ies to awaken the public about the evil of corruption,
the protective cover of sub-section (1) of Section 197 Cr.
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P.C. comes into play in this case and as such learned
except
competent
for
the
authority.
previous
The
sanction
of
offence
Magistrate had no power to take cognizance of the
impugned
order
the
has,
therefore, been sought to be set aside being legally
unsustainable.
4.
rt
Legality and validity of the impugned order
has been challenged on the following grounds:
“(B)............In
continuation
accusation
was made that Dhumal Government had
crossed
all
limits
Subordinate
of
Service
corruption.
Selection
Board,
Hamirpur has become den of corruption.
During
the
statement,
Chairman
period
the
of
the
referred
Petitioner
in the
was the
Subordinate
Service
Selection Board and between the period
after retirement of the petitioner and
making
impugned
statement,
no
recommendation was ever made by the
Subordinate Service Selection Board to the
Government rather no requisition was sent
to the Board by the Government after Sh.
Virbhadra Singh became Chief Minister of
the State.
All these circumstances are
sufficient to connect the statement with
the petitioner particularly at this stage of
preliminary
evidence
and
taking
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cognizance of the offence. The learned
has
discussed
the
Judge
Sessions
evidence like a trial court at final stage
whereas the learned Sessions Judge was
exercising Revisional jurisdiction and not
even appellate jurisdiction.
Pre-charge
evidence is yet to be led and the whole
evidence was/is to be considered at the
rt
stage of framing charge.
Therefore,
interference of the learned Sessions Judge
unwarranted,
is
jurisdiction
at
illegal
this
and
stage.
beyond
Hence,
5.
impugned order deserves to be set aside.
Also that learned Sessions Judge has neither
considered nor referred the case law cited at the bar
and that there being no jurisdictional error or miscarriage
of justice or any other patent error or defect in the order
passed by learned trial Magistrate, the same should
have not been interfered with by learned Sessions Judge
in the exercise of revisional jurisdiction. Also that at this
stage
when
learned
trial
Magistrate
has
only
appreciated the preliminary evidence, the imp ugned
order could have not been the subject matter of
revisional jurisdiction. The protection of Section 197 Cr.
P.C. cannot be extended to the accused as the
imputations
he
made
had
absolutely
no
nexus
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whatsoever with his official duties. It was never the
official duty of the accused to utter derogatory and
vulgar remarks against the complainant . Also that it is
only the prima-facie evidence and not conclusive proof
of a fact like final stage of a case is required to form an
opinion to proceed further against an accused in a case
rt
of this nature.
6.
It has been pointed out that neither there
was any jurisdictional error nor any miscarriage of justice
caused to the accused nor any other patent error or
defect apparent on the face of the record, warranting
exercise of revisional jurisdiction to quash the order
It has also been pointed
passed by learned Magistrate.
out that the aim of revisional jurisdiction is to set right a
patent error or defect occurred on the face of record
and not to stall the proceedings before the lower court
at its threshold. The order impugned in this petition has,
therefore, been sought to be quashed and set aside.
7.
Learned counsel representing the petitioner-
complainant has urged that the imputations made by
the accused in his speech directly hit the integrity,
reputation and unblemished service career of the
complainant , who was an IAS Officer having been
initially appointed Member and subsequently Chairman
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of H.P. Subordinate Services Selection Board, and
discharged his duties as such during the period referred
to in the speech and as such he is the person aggrieved
and has a legal right to file the complaint. Otherwise
also, according to him, the Board, being collection of
persons and the complainant having remained its
rt
Member and subsequently Chairman, has locus-standi to
Also, that there being no
prefer the complaint.
connection between the imputations so made and the
official duties, protection of Section 197 Cr. P.C. cannot
be extended in favour of the accused in the case in
hand. It has further been alleged that learned Sessions
Judge has exceeded the revisional jurisdiction, as the
order passed by learned trial Judge neither suffers from
any illegality nor amounts to miscarriage of justice and
as such could have not been interfered with in the
exercise of such jurisdiction.
8.
On the other hand, Mr. Nareshwar Chandel
learned counsel appearing on behalf of the accused
has strenuously contended that the alleged imputation
on the face of it does not relate to the complainant and
that whatever the accused said in his speech and
published in the newspaper, was in the discharge of his
official duty and as such without obtaining sanction no
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cognizance could have been taken against him being
otherwise also, in view of the complainant
counsel,
barred under Section 197 Cr. P.C. According to learned
having been convicted by learned Special Judge,
Hamirpur, and his conviction even affirmed by this Court
also, the imputations made by the accused against the
rt
complainant are true and also for the public good,
because being the Chief Minister of the State, it was his
duty to apprise the public about the rampant corruption
prev ailing in H.P. Subordinate Services Selection Board,
Hamirpur during BJP regime when Professor Prem Kumar
Dhumal was the Chief Minister. It is further submitted that
copy of a news paper is not legally admissible in
evidence unless and until proved in accordance with
law.
9.
Although the respondent -state is a formal
party, however, learned Deputy Advocate General
while adopting the contentions raised on behalf of the
accused has further added that charge of corruption
against the complainant while functioning as Chairman
of H.P. Subordinate Services Selection Board stand
established during the course of trial conducted by
learned Special Judge, Hamripur and he has been
convicted and sentenced also. This Court, in an appeal
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he preferred, has also affirmed his conviction and
sentence. It has, therefore, been contended that on
account of the alleged imputations having been turned
as correct, no case against the accused is made out
and as such, learned Sessions Judge has rightly quashed
the order of learned Magistrate qua issuance of process
rt
against him. Also that the alleged imputations do not in
any manner relate to the compla inant and rather the
accused being a public servant, has rightly highlighted
the issue of corruption in the Subordinate Services
Selection Board to make the public aware about this.
On this score also, protection of Section 197 Cr. P.C. is
stated to be available to the accused.
10.
On analyzing the arguments addressed on
both sides, following points arise for determination:
1)
Whether
directly
the
or
alleged
indirectly
imputations
relate
to
the
complainant or not and is he an
aggrieved person to have locus-standi
to
file
the
complaint
against
the
accused?
2)
Whether the accused has made the
alleged
imputations
against
the
complainant in the discharge of his
official duties and as such is he entitled
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to the protection as envisaged under
What
material
3)
Section 197 Cr. P.C?
the
Magistrate
is
required to take into consideration at
the time of issuance of process against
accused
and
the
an
scope
of
interference by the superior Court with
an order of this nature in revisional
rt
jurisdiction?
11.
Before
proceeding
to
adjudicate
the
to
aforesaid points, it is deemed appropriate to discuss as
what
constitutes
an
offence
of
defamation
punishable under Section 500 of the Indian Penal Code.
A reference in this behalf has to be made to the
provisions contained under Section 499 IPC relevant for
the purpose of present controversy. The same read as
follows:
“499. Defamation
- Whoever, by words
either spoken or intended to be read, or
by signs or by visible representations,
makes
or
publishes
any
imputation
concerning any person intending to harm,
or knowing or having reason to believe
that
such
imputation
will
harm,
the
reputation of such person, is said, except
in the cases hereinafter expected, of
defame that person.
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defa mation
2-It
to
may
xxxxx.
amount
make
an
to
Explanation
xxxxx
Explanation 1-xxx
imputation
concerning a company or an association
or collection of persons as such.
Explanation 3-xxxx
xxxxxx
xxxxx
When an imputation not amounts to
rt
defamation can be gathered from the exceptions
below Section 499 of the Code. In the light of the
arguments addressed for our purpose, it is the
following first three exceptions relevant to the present
controversy:
First Exception-Imputation of truth which
public good requires to be made or
published: -- It is not defamation to impute
anything which is true concerning any
person, if it be for the public good that the
imputation should be made or published.
Whether or not it is for the public good is a
question of fact.
Second
Exception-Public
conduct
of
Public servants: -- It is not defamation to
express in a good faith any opinion
whatever respecting the conduct of a
public servant in the discharge of his
public
functions,
or
respecting
his
character, so far as his character appears
in that conduct, and no further.
Third Exception-Conduct of any person
touching any public question: -- It is not
defamation to express in good faith any
of
any
person
opinion whatever respecting to conduct
touching
any
public
question, and respecting his character, so
far as his character appears in that
conduct, and no further.
12
It is, therefore, to be seen that the essential
ingredients of an offence, punishable under Section 500
IPC are that there should be an imputation concerning
any person having been made or published; such
imputation must have been made by words either
spoken or intended to be read or by signs or by visible
representations and that the said imputation must have
been made intentionally knowing fully to harm or having
reasons to believe that it will harm the reputation of the
person concerned. In this behalf I draw the support from
the judgment of Calcutta High Court in Sunilakhya
Chowdhury Vs. H.M. Jadwet and another,. AIR 1968
Calcutta 266
13
However,
irrespective
of
there
being
pleadings and proof qua the commission of an offence
punishable under Section 500 IPC, if the accused
succeeds in proving his defence that he is entitled to the
protective umbrella of either of the exceptions below
Section 499 IPC, would be entitled to the benefit of
doubt and ultimately acquittal. The protection of either
exception however, can be sought by the accused
during the course of trial by way of raising a plea in this
behalf in his defence.
14
The present is a case where the imputations
made by the accused against Shri Dhumal and the
Subordinate Staff Selection Board are part and parcel of
his speech made in a public meeting at Rohara in District
Article 19(1)(a) of the Constitution of India of
Una.
course provides that subject to reasonable restrictions,
every citizen has freedom of speech and expression.
Meaning thereby that such freedom cannot be taken to
mean absolute freedom to say or write whatever a
person, chooses recklessly and without regard to any
person’s honour and reputation. The right, therefore, has
its own natural limitations.
15
If coming to Section 499 IPC, referred to
hereinabove, only such imputations as are malicious and
reckless and not for public good, tranquility or peace or
public security and are not made in good faith, have
been brought within the domain of defamation being
abuse of freedom of speech and expression, hence
16
punishable under Section 500 IPC.
A bare reading of first Exception reveals that
Section 499 IPC contemplates truth as a defence and to
operate as a valid defence in a criminal case for
defamation. Exceptions 1 and 2 to this Section postulate
rt
that if the imputation is true, it is not defamation,
because to impute anything which is true concerning
any person and for the public good, is not defamation to
the person against whom such imputation is made or
published. However, if the accused, who has published
or made the imputation, fails to prove the same to be
true, is not entitled to the benefit of first exception. The
identity of the complainant with the object defamed
needs to be proved on record. As a matter of fact, in a
case of prosecution for defamation, the complainant
must be proved to have been defamed. His identity is
also required to be established from the reading of the
written material. It is held so in M.P. Naarayana Pillai Vs.
M.P. Chacko, 1986 Cr. LJ 2002 and Raman Namboodri
Vs. Govindan, 1962 Kerala LT 538.
17 The above legal principles have simply been
discussed to
have
an
idea
as
to
under
what
circumstances an offence punishable under Section 500
IPC can be said to have been committed as in the
present proceedings this Court will not enter into the
merits of the case nor would like to comment thereon.
Point No.1
18
The order dated 11.3.2005 qua issuance of
process, which was under challenge in the Court of
rt
learned Sessions Judge, Una, reveals that learned Chief
Judicial Magistrate, Una, having gone through the
contents of the complaint, the preliminary evidence
produced by the complainant -petitioner and the law
cited at the bar, has concluded that there exist sufficient
grounds to proceed against the accused under Section
500 IPC and as such, process against him was ordered to
be issued. Learned Sessions Judge in the exercise of
revisional jurisdiction has quashed the order so passed by
learned Chief Judicial Magistrate, on the ground that
imputations
made
do
not
at
all
relate
to
the
complainant as he stood already retired from the office
of the Chairman of the Board on the day when the same
were made and rather the imputations are against the
Board,
hence
the
complainant
is
not
a
person
aggrieved. This takes me to adjudicate this point, which
pertains to the maintainability of the complainant at the
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instance of the petitioner and his locus-standi to file the
same.
19
In view of the given facts and circumstances,
I am not in agreement with the findings that the alleged
against
the
Board
and
imputations do not relate to the complainant and rather
that
the
complainant
is,
rt
therefore, not a person aggrieved for the reasons that
the imputations referred above are not in present form
but in the past and relate back to BJP regime, when Sh.
Prem Kumar Dhumal was the Chief Minister of the State,
whereas the complainant initially remained Member of
Subordinate
Services
Selection
Board
and
the
subsequently its Chairman. Not only this, cases against
him and other Members of the Board were also
registered with the State Vigilance and Anti-Corruption
Bureau. Therefore, it would lie ill to say that the alleged
imputation does not relate to the complainant. True it is
that he has not been named anywhere in the news item
and the same rather relates to corruption in the
Subordinate Services Selection Board and selling of jobs
to outsiders during the period when Shri Prem KUmar
Dhumal, was the Chief Minister of the State. However, it
is
prima-facie
established
at
this
stage
that
the
complainant initially being Member and subsequently
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Chairman of the Board during the period referred to in
the alleged news item, is a person aggrieved within the
meaning of Section 499 IPC., for the reasons that the
imputations made directly or indirectly prima-facie
reveal that he is the person intended to be defamed.
20
It is well settled at this stage that if the
rt
description and attendant circumstances suggest with
fair certainty the identity of the person intended to be
defamed, it is sufficient to infer the commission of
a
offence of defamation. In this behalf I take support from
judgment
of
Kerala
High
Court
in
Subair
Vs.
Sudhakarana, (1987) 2 Crimes 548 (Ker).
21
Selection
Not
Board
only
this
being
but
a
Subordinate
collection
of
Services
persons
is
absolutely identifiable and distinguishable from rest of
the community and as the corruption, as per the alleged
imputation, was prevalent in the Board, therefore, prima-
facie every employee of the Board, including the
complainant, can reasonably be believed to have been
defamed by such imputations, of course if false and as
such competent and has locus-standi to file the
complaint.
22
Learned counsel, representing the petitioner
in support of the contention that H.P. Staff Selection
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Board is a collection of persons and the complainant
being its Chairman at the relevant time, has locus standi
to file the complaint, has placed reliance on the
judgment of the Hon’ble Apex Court in G. Narasimhan
and others Vs. T.V. Chokkappa, AIR 1972 SC 2609:
“14.
rt
...................................................
............................................................
Section 499 of the Penal Code, which
defines
defamation,
whoever
by
words,
lays
either
down
that
spoken
or
intended to be read or by signs etc.
makes
or
publishes
any
imputation
concerning any person, intending to harm
or knowing or having reason to believe
that
the
imputation
will
harm
the
reputation of such person, is said to
defame that person. This part of the
section makes defamation in respect of
an individual an offence. But Explanation
(2) to the section lays down the rule that it
may amount to defamation to make an
imputation concerning a company or an
association or collection of persons as
such. A defamatory imputation against a
collection of persons thus falls within the
definition of defamation. The language of
the Explanation is wide, and therefore,
besides a company or an association, any
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collection of persons would be covered
by it. But such a collection of persons must
be an identifiable body so that it is
group
of
particular
distinguished
from
possible to say with definiteness that a
persons,
the
rest
of
as
the
community, was defamed. Therefore, in a
case where explanation (2) is resorted to,
rt
the identity of the company or the
association or the collection of persons
must be established so as to be relatable
to the defamatory words or imputations.
Where a writing inveighs against mankind
in a general, or against a particular order
of men, e.g., men of gown, it is no libel. It
must
descend
to
particulars
and
individuals to make it a libel. (1699) 3 Balk
224, cited in Ratanlal and Dhirajlal, Law of
Crimes (22nd ed.) 1317. In England also,
criminal proceedings would lie in the case
of libel against a class provided such a
class is not indefinite, e.g., men of science,
but a definit e one, such as, the clergy of
the diocese of Durham, the justices of the
peace for the county of Middlesex. (See
Kenny's Outlines of Criminal Law 19th ed.
235). If a well-defined class is defamed,
every person of that class can file a
complaint
even
if
the
defamatory
imputation in question does not mention
him by name.”
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The Apex Court has again held in Sahib Singh
23.
Mehra Vs. State of Uttar Pradesh, AIR 1965 SC 1451, as
“9.
follows:
The next question to determine is
whether it is essential for the purpose of an
offence under S. 500, I. P. C. that the
person defamed must be an individual
rt
and that the prosecuting staff at Aligarh or
of the State of Uttar Pradesh could not be
said to be a 'person' which could be
defamed. Section 499, I. P. C. defines
'defamation' and provides inter alia that
makes
whoever
imputation
or
publishes
concerning
any
any
person
intending to harm, or knowing or having
reason to believe that such imputation will
harm, the reputation of such person, is said,
except in cases covered by the exceptions
to the Section, to defame that person,
Explanation 2 provides that it may amount
to defamation to make an imputation
concerning a company or an association
or collection of persons as such. It is clear
therefore, that there could be defamation
of an individual person and also of a
collection
of
persons
as
such.
The
contention for the appellant then reduces
itself
to
the
prosecuting
question
staff
at
whether
Aligarh
can
the
be
considered to be such a collection of
persons as is contemplated by Explanation
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2. The language of Explanation 2 is general
and any collection of persons would be
covered by it. Of course, that collection of
persons must be it identifiable in the sense
that one could, with certainty say that this
group of particular people has been
defamed, as distinguished from the rest of
the community. The prosecuting staff of
or,
a
matter
of
fact,
the
rt
Aligarh
prosecuting staff in the State of Uttar
Pradesh, is certainly such an identifiable
group or collection of persons. There is
nothing indefinite about it. This group
consists of all members of the prosecuting
staff in the service of the Government of
Uttar Pradesh. Within this general group of
Public Prosecutors of U. P. there is again an
identifiable group of prosecuting staff,
consisting
of
Public
Prosecutors
and
Assistant Public Prosecutors, at Aligarh. This
group of persons would be covered by
Explanation 2 and could, therefore, be the
subject of defamation.
24.
Further, the Hon’ble Apex Court in John
Thomas Vs. Dr. K. Jagadeesan, (2001) 6 SCC 30, has held
as under:
11.
The
learned
contention
senior
focused
counsel
is
by the
that the
respondent, who filed the complaint, has
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no locus standi to complain because he is
only a Director of K. J. Hospital about which
the publication was made and that the
did
not
contain
any
libel
publication
against the complainant personally. It is not
disputed that the complainant is the
Director of K. J. Hospital. Explanation 2 in
S.499 of the I. P. C. reads thus:
rt
"Explanation 2. - It may amount to
defamation to make an imputation
concerning a Company or an association
or collection of persons as such."
12.
In view of the said Explanation, it
cannot be disputed that a publication
containing
defamatory
imputations
as
against a Company would (sic) escape
from
the
purview
of
the
offence
of
defamation. If the defamation pertains to
an association of persons or a body
corporate,
who
could
be
the
complainant? This can be answered by
reference to S.199 of the Code. The first
subsection of that section alone is relevant,
in this context. It reads thus :
"199. Prosecution for defamation. - (1) No
Court shall take cognizance of an offence
under Chapter XXI of the Indian Penal
Code (45 of 1860) except upon a
complaint
made
by
some
person
aggrieved by the offence."
13.
The collocation of the words "by
some persons aggrieved" definitely
indicates that the complainant need
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necessarily
himself.
the
defamed
Whether
the
person
be
not
complainant has reason to feel hurt
on account of the publication is a
matter to be determi ned by the
Court depending upon the facts of
case.
described
If
a
Company
each
as
engaging
is
itself
in
rt
nefarious activities its impact would
certainly fall on every Director of the
and
Company
hence
he
can
legitimately feel the pinch of it.
Similarly, if a firm is described in a
publication as carrying on offensive
trade, every working partner of the
firm can reasonably be expected to
feel aggrieved by it. If K. J. Hospital is
a private limited company, it is too
far-fetched to rule out any one of its
Directors,
feeling
aggrieved
on
account of pejoratives hurled at the
Company.
Hence
the
appellant
cannot justifiably contend that the
Director of the K. J. Hospital would
not fall within the wide purview of
"some
person
aggrieved"
as
envisaged in S.199(1) of the Code.
25.
of
Therefore, without lamenting much on merits
the
case
and
leaving
open
the
question
of
competency of the petitioner to maintain the complaint
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to be determined during the course of trial, the careful
prima-facie
demonstrates
that
the
hereinabove,
scrutiny of the record and also the law discussed
petitioner is a person aggrieved within the meaning of
the complaint.
Now if coming to second point, i.e. the
26.
rt
Point No.2
Section 499 IPC and as such has locus-standi to institute
application of Section 197 Cr. P.C. in this case, while as
per the claim of the petitioner the so called defamatory
imputation made by the respondent in a public meeting
was not part and parcel of his duties, on behalf of the
respondent it has been urged that being the Chief
Minister of the State of H.P., it was the duty of the
accused to apprise the general public about the
corruption in the Subordinate Staff Selection Board and
as such he cannot be prosecuted without obtaining
sanction from the competent authority. The Apex Court
has held in Rakesh Kumar Mishra Vs. State of Bihar and
others, (2006) 1 SCC 557 as under:
“10. Such being the nature of the provision
the question is how should the expression
"any
offence
alleged
to
have
been
committed by him while acting or purporting
to act in the discharge of his official duty", be
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understood? What does it mean? "Official"
the
dictionary,
means
to
according
pertaining to an office, and "official act" or
"official duty" means an act or duty done by
an officer in his official capacity. In B. Saha v.
M.S. Kochar (1979) 4 SCC 177: 1979 SCC (Cri)
939) it was held: (SCCpp. 184-85, para 17)
rt
"17. The words 'any offence alleged to
have been committed by him while
acting or purporting to act in the
discharge of his official duty' employed
in Section 197(1) of the Code, are
capable of a narrow as well as a wide
interpretation. If these words are
construed too narrowly, the section will
be rendered altogether sterile, for, 'it is
no part of an official duty to commit an
offence, and never can be'. In the
wider sense, these words will take under
their umbrella every act constituting an
offence, committed in the course of
the same transaction in which the
official duty is performed or purports to
be performed. The right approach to
the import of these words lies between
these two extremes. While on the one
hand, it is not every offence committed
by a public servant while engaged in
the performance of his official duty,
which is entitled to the protection of
Section 197(1), an act constituting an
offence, directly and reasonably
connected with his official duty will
require sanction for prosecution under
the said provision." (emphasis supplied)
11. Use of the expression "official duty"
implies that the act or omission must
have been done by the public servant
in the course of his service and that it
should have been in discharge of his
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duty. The section does not extend its
to
every
act
or
cover
protective
omission done by a public servant in
but
operation
restricts
its
scope
service
to
only
those
acts
of
or
omissions which are done by a public
Similar is the law laid down by the Apex Court
rt
27.
servant in discharge of official duty.
in State of H.P. Vs. M.P. Gupta, AIR 2004 SC 730.
In Bidhi Singh Vs. M.S. Mandyala and another,
28.
1993 Cri. Law Journal 499, our own High Court qua this
aspect of the matter has also held as under:
23.
We would like to borrow the words
from the opinion of Lord Simonds in H.H.B.
Gill v. King, AIR 1948 PC 128 : (49 Cri LJ
503) when he says (in paragraph 30) that:
"A public serv ant can only be said to
act or to purport to act in the
discharge of his official duty, if his
act is such as to lie within the scope
of his official duty. Thus, a Judge
neither acts nor purports to act as a
Judge in receiving a bribe, though
the judgment which he delivers may
be such an act : nor does a
Government medical officer act or
purports to act as a public servant in
picking the pocket of patient whom
he is examining, though the
examination itself may be such an
act. The test may well be whether
the public servant, if challenged,
can reasonably claim that, what he
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does
in
virtue
of
his
does, he
office...".
24. A Presiding Judge is expected to
maintain decorum in the proceedings
before him. He is expected also to act
with restraint. One would expect him to
language
be sober, unruffled and temperate in
even
when
faced
with
a
rt
situation where those appearing before
him may tend to lose their composure.
True it is that the Presiding Officer has to
be firm in maintaining decorum in the
Court and deal decisively with those who
present themselves in the Court-house
irrespective of the distinction that they
possess, yet, we reiterate, that the action
should be consistent with the dignity of
the high pedestal on which society places
him, while he is discharging his duty as a
Judge. In this scheme of things any
vituperative outburst on the part of the
Presiding Officer, howsoever grave the
provocation
to
him,
cannot
be
countenanced as an action sustainable
as one performed by him "while acting or
purporting to act in the discharge of his
official duty."
29.
In
AIR 1970 SC 1661,
Bhagwan
Prasad
Srivastabva Vs. N.P. Mishra, the Apex Court while holding
that emphasis to seek sanction for prosecution of a
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public servant should be an act attributed to such
servant and not his duty and that Section 197 neither
should be interpreted too widely nor too narrowly, has
further held as under :
The
principle
embodied
in
this
5.
Section seems to be well understood; the
difficulty normally lies in its application to
rt
the facts of a given case. The question
whether a particular act is done by a
public servant in the discharge of his
official duty is substantially one of fact to
be determined on the circumstances of
each case. In the present case the
alleged offence consists of the use of
defamatory and abusive words and of
getting the complainant forcibly turned
out of the operation theatre by the cook.
There is nothing on the record to show
that this was a part of the official duty of
the appellant as Civil Surgeon or that it
was
so
directly
connected
with
the
performance of his official duty that
without so acting he could not have
properly discharged it.
6.
As
suggested
by
this
Court
in
Prabhakar V. Sinari v. Shankar Anant
Verlekar, Criminal Appeal No. 152 of 1967,
D/- 29-11-1963 = (reported in AIR 1969 SC
686), it would be open to the appellant to
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place material on the record during the
course of the trial for showing what his
duty as Civil Surgeon was and also that
the impugned acts were inter-related with
his official duty so as to attract the
protection afforded by Section 197, Cr. P.
existing
C. We do not find any material on the
record
acts
were
done
that the
by the
rt
impugned
suggesting
appellant in the discharge of his official
duty or that they are directly connected
with it. This appeal accordingly must fail
30
and is dismissed.”
The Apex Court in Parkash Singh Badal and
another Vs. State of Punjab and others, (2007) SCC 1 has
again held as under:
“51. In Baijnath v. State of M.P. (1966 SCR 210)
the position was succinctly stated as follows:
"__..it is the quality of the Act that is
important and if it falls within the scope
and
range
of
his
official
duty
the
protection contemplated by Section 197
of the Code of Criminal Procedure will be
attracted."
31.
A coordinate Bench of this Court in Darshan
Kumar Vs. Sushil Kumar Malhotra and others, 1980 Cri. L. J
154, has also held as under:
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“13. Thus the crux of the matter is that
in order to determine whether in a
particular case a public servant is
entitled to the protection of Section
197, Cr. P. C. all that has to be
complained
is whether
of against
considered
the
the
act
public
servant which is alleged to constitute
rt
the offence, was committed by him
while discharging his official duty and
that
such
act
had
a
reasonable
connection wit h his official duty. It is not
32.
material whether in discharging such
official duty, the public servant acted
somewhat in excess of his limits.”
To the similar effect is the law laid down
again by the Apex Court in Pukhraj Vs. State of Rajasthan
and another, 1973 Cri. Law Journal 1795 and B.S. Sambhu
Vs. T.S. Krishnaswamy, (1983) 1 SCC 11.
33.
It has, therefore, to be ascertained during the
course of trial, if ultimately a charge under Section 500
IPC is made out against the accused, as to whether the
speech made by the accused in a public meeting can
be said to be an act done by him in the discharge of his
official duties or not.
The accused can seek the
protectiv e cover of Section 197 Cr. P.C. by putting
appearance in the trial Court and satisfying the said
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Court that he made the imputations in the discharge of
34.
his official duties.
Here this Court would like to explain the
meaning of word “official act” and “official duty” also.
Word “Official”, according to Black’s Dictionary, means
‘pertaining to an office’, and ‘official act’ or ‘official
rt
duty’, means an act or duty done by an officer in the
A public servant should
discharge of his official duty.
not indulge in criminal activities and to that extent
Section 197 Cr. P.C. has to be construed narrowly and in
a restricted manner, but once it is established that act or
was
done
by
the
public
servant
while
omission
discharging his duty, the scope of its being official duty
should be construed so as to advance the protection of
the section in favour of the public servant, otherwise the
entire purpose of affording protection to a public servant
without obtaining sanction shall stand frustrated.
35.
The intention behind the Section is to prevent
a public servant from being unnecessarily harassed,
however, at the same time it is no part of the official duty
of a public servant to abuse anyone by making
imputations publically, when the subject matter has not
been finally adjudicated upon by the Courts and is
subjudice,
for
the
reason
that
Article
21
of
the
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Constitution of India gives a right to every citizen to live
with dignity and even an accused has a right to live with
dignity. Unless the accusation against him is sustained or
upheld by the competent highest Court in hierarchy, he
cannot be condemned merely on account of the
commission of the alleged offence.
Learned Sessions Judge, however, has not
rt
36.
taken into consideration the above said settled legal
principles and rather held in a perfunctory manner that
for want of sanction under Section 197 Cr. P.C., learned
Magistrate could have not passed the order to proceed
further against the accused under Section 500 IPC for
the reason that at this stage only process has been
ordered to be issued against the accused and he is yet
to be tried. When the alleged imputation stands prima-
facie established to have been made by the accused in
a public meeting at Rohara in District Una, learned
Sessions Judge was not justified to embark upon the
admissibility of the preliminary evidence produced by
the complainant for the reasons that at the stage of
issuing process against the accused it is the commission
of the offence prima-facie to be seen and whether the
news item or the report is legally admissible or not and
the protection of Section 197 Cr. P.C. is available to the
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accused or n needs to be examined and established
ot
during the course of trial as the Apex Court held in B.P.
Srivastava’s case cited supra.
Point No.3
Learned counsel on both sides have hotly
37.
contested the scope of interference by the Court in
rt
exercise of revisional jurisdiction vested under Section
397 Cr. P.C. Before coming to the point so urged, it is
deemed appropriate to discuss as to what material is
required to be considered by a Magistrate at the time of
forming an opinion to proceed further and issue process
against the accused.
This point has been considered by a three
38.
Judge Bench of the Hon’ble Apex Court in Smt.
Nagawwa Vs. Veeranna Shivalingappa Konjalgi and
others, AIR 1976 SC 1947 and held as under:
“2...............
It is well settled by a long
catena of decisions of this Court that at the
stage of issuing process the Magistrate is
mainly concerned with the allegations made
in the complaint or the evidence led in
support of the same and he is only to be
prima
facie
satisfied
whether
there
are
sufficient grounds for proceedings against
the accused. It is not the province of the
Magistrate to enter into a detailed discussion
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of the merit or de-merits of the case nor can
the High Court go into this matter in its
revisional jurisdiction which is a very limited
5.
one.
It is true that in coming to a decision
as to whether a process should be issued
the Magistrate can take into consideration
inherent improbabilities appearing on the
rt
face of the complaint or in the evidence
led by the complainant in support of the
allegations but there appears to be a very
thin
line
of
demarcation
between
a
probability of conviction of the accused
and establishment of a prima facie case
against him. The Magistrate has been
given an undoubted discretion in the
matter and the discretion has to be
judicially exercised by him. Once the
Magistrate has exercised his discretion it is
not for the High Court, or even this Court,
to substitute its own discretion for that of
the Magistrate or to examine the case on
merits with a view to find out whether or
not the allegations in the complaint, if
proved, would ultimately end in conviction
of the accused. These considerations, in
our opinion, are totally foreign to the scope
and ambit ofan inquiry under Section 202
of the Code of Criminal Procedure which
culminate into an order under Section 204
of the Code. Thus it may be safely held
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that in the following cases an order of the
Magistrate issuing process against the
accused can be quashed or set aside:
(1) where the allegations made in
complaint or the statement of the
witnesses recorded in support of the
same taken at their face value make
out absolutely no case against the
rt
accused or the complaint does not
disclose the essential ingredients of
an offence which is alleged against
the accused;
(2) where the allegations made in the
complaint are patently absurd and
inherently improbable so that no
prudent person can ever reach a
conclusion that there is sufficient
ground for proceeding against the
accused;
(3) where the discretion exercised by
the Magistrate in issuing process is
capricious and arbitrary having been
based either on no evidence or on
materials which are wholly irrelevant
or inadmissible; and
(4) where the complaint suffers from
fundamental legal defects, such as,
want of sanction, or absence of a
complaint
by
legally
competent
authority and the like.”
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It is, therefore, held by the Apex Court in the
39.
judgment supra that at the stage of issuing process the
Magistrate is mainly concerned with the allegations
made in the complaint and is only required to be prima-
facie satisfied qua existence of sufficient grounds to
proceed further against the accused. At this stage
rt
neither the detailed discussion of merits or de-merits is
required by the Magistrate nor can the Court go into this
question in the exercise of revisional jurisdiction.
After
appreciating the entire law, the Apex Court, in the
judgment supra, has clearly pointed out the cases where
the process issued against an accused can be quashed
in the exercise of revisional jurisdiction.
40.
Now if coming to next limb of the arguments
addressed on both sides, the scope of Revisional
jurisdiction has been discussed by the Apex Court in
Munna Devi Vs. State of Rajasthan and another , AIR
2002 SC 107, which reads as follows:
“3.
We find substance in the submission
made on behalf of the appellant. The
revision power under the Code of Criminal
Procedure
routine
cannot
and
be
casual
exercised in
a
manner. While
exercising such powers, the High Court has
no authority to appreciate the evidence in
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the manner as the trial and the appellate
required
to
do.
Revisional
are
courts
powers could be exercised only when it is
shown that there is a legal bar against the
continuance of the criminal proceedings
or the framing of charge or the facts as
stated in the first information report even if
they are taken at the face value and
rt
accepted in their entirety do not constitute
the offence for which the accused has
41.
been charged.”
The Apex Court qua revisional jurisdiction of
the High Court has again held in S.M. Dutta Vs. State of
Gujrat and another, AIR 2001 SC 3253, as follows:
“9. We respectfully record our concurrence
therewith Criminal proceedings, in the
normal course of events ought not to be
scuttled at the initial stage, unless the same
amounts to an abuse of the process of law.
In the normal course of events thus,
quashing of a complaint should rather be
an exception and a rarity than an ordinary
rule. The genuineness of the averments in
the FIR cannot possibly be gone into and
the document shall have to be read as a
whole so as to decipher the intent of the
maker thereof. It is not a document which
requires decision with exactitude neither it
is
a
document
which
requires
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mathematical accuracy and nicety, but
the same should be able to communicate
or indicative of disclosure of an offence
broadly and in the event the said test
stands satisfied, the question relating to the
quashing of a complaint would not arise. It
is in this context however, one feature
ought to be noticed at this juncture that
rt
there cannot possibly be any guiding
factor as to which investigation ought to
be scuttled at the initial stages and
investigations which ought not to be so
scuttled. The First Information Report needs
to be considered and if the answer is found
on a perusal thereof which leads to
disclosure of an offence even broadly, law
Courts
are
barred
from
usurping
the
jurisdiction of the Police since two organs
of the State operate in two specific spheres
of, activities and one ought not to tread
over the other sphere”.
42.
The Apex Court in Sewak Ram Sobhani Vs.
R.K. Karanjia, Chief Editor, Weekly Blitz and others, (1981)
3 SCC 208, a complaint under Section 500 IPC, decided
only on perusal of the report submitted in an ex-parte
confidential inquiry conducted at the instance of the
accused, quashed the entire proceedings and held that
the interference by the High Court well before recording
of statement under Section 251 Cr. P.C. by the
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Magistrate, was perverse and hence, set aside. The
relevant portion of the judgment reads:
“6. The order recorded by the High Court
quashing the prosecution under Section
482 of the Code is wholly perverse and
has resulted in manifest miscarriage of
justice. The High Court has pre-judged the
rt
whole issue without a trial of the accused
persons. The matter was at the stage of
recording
the
plea
of
the
accused
persons under Section 251 of the Code.
The requirements of Section 251 are still to
be complied with. The learned Magistrate
had to ascertain whether the respondent
pleads guilty to the charge or demands to
be tried. The circumstances brought out
clearly show that the respondent was
prima
facie
guilty
of
defamation
punishable under Section 500 of the Code
unless he pleads one of the exceptions to
Section 499 of the Code.”
43.
The question that the court below has erred
in interfering with the order issuing process against the
accused in the exercise of revisional jurisdiction has,
therefore, to be considered in the light of the given facts
and circumstances of the case and also the law
discussed hereinabove.
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It is seen that the revisional power under the
44.
Code of Criminal Procedure cannot be exercised in a
routine and casual manner and rather only in a situation
when it is shown that there is a legal bar against the
continuance of the criminal proceedings or the framing
of charge or the facts as stated in the first information
rt
report, even if taken at the face value and accepted in
their entirety, do not constitute the offence for which the
accused has been charged or process issued against
him.
45.
This Court is satisfied about the legality and
validity of the order qua proceeding further in the case
and issuance of process against the accused passed by
learned trial Court. Therefore, in the light of the settled
legal position discussed supra, learned Sessions Judge
had no jurisdiction to interfere with it, that too in the
exercise of the revisional jurisdiction.
ADMISSIBILITY OF THE PRODUCTION OF AN
ISSUE OF NEWS PAPER IN PRELIMINARY
EVIDENCE
46.
It has been urged on behalf of the accused
that mere production of the copy of news paper is not
admissible in evidence. This point has been dealt with by
the High Court of Calcutta in Dalip Chakraborty and
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another Vs. Public Prosecutor and another, 1976 Cri. L.J
Section 81 of the Indian Evidence
“6.
1300, as under:
Act provides that a Court shall presume
genuineness
of
the
documents
the
mentioned in the section including a
newspaper and under Section 4 of the
rt
Act when a Court shall presume a fact, it
shall regard the fact as proved unless and
until it is disproved. Therefore, when the
prosecution produced a copy of the issue
of "Bangladesh" dated 26th October, 1973
and proved that the said copy was
available
for
sale,
Section
81
was
attracted and the learned Judge was fully
justified in admitting the said newspaper
into evidence. Once the newspaper was
admitted into evidence it was for the
petitioners
to
prove
that
the
said
newspaper was not the correct copy of
the issue of "Bangladesh" which was
published on the 26th October, 1973.
7.
The ratio of the decisions cited by
Mr. Mitra was that a statement of fact in a
newspaper was merely hearsay and the
presumption under Section 81 of the
Indian Evidence Act cannot be treated as
proof of the facts contained in the
newspaper.
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8.
In the instant case the point in issue
is not the truth or otherwise of the
statement of facts contained in the article
in pages 1 and 11 of the issue dated the
26th October 1973. The question that has
to
be
determined
is
whether
the
defamed
the
imputations contained in the said article
District
Magistrate
of
be
rt
Burdwan. If the imputations are shown to
prima
facie
defamatory,
the
petitioners are free to contend that any of
the exceptions to Section 499 of the
Indian Penal Code were attracted. Once
the
petitioners
plead
justification
the
burden would shift to them to prove that
47.
what was reported in the newspaper was
true or was published with good motives
and for justifiable ends- The first contention
of Mr. Mitra thus fails.”
The above principles came to be settled at
final stage of the case on the basis of the evidence
produced by the parties during the course of trial.
However, in the case in hand, the news paper has been
produced in preliminary evidence. The news item
whether defamatory in nature or published in the
newspaper, needs ev idence, which the parties have yet
to produce during the course of trial. At this stage, when
it is only an order proceeding further in the case and
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issuance of process against the accused has been
passed, the news paper alongwith other evidence
produced in preliminary was sufficient to form an opinion
to proceed further in the matter. Therefore, the point so
48.
raised is hardly of any help to the accused at this stage.
No doubt in B. Singh Vs. Union of India, AIR
rt
2004 SC 1923 also, the Hon’ble Apex Court has observed
that too much authenticity or credibility cannot be
attributed to any information or fact merely because it
found publication in a newspaper or journal or magazine
or any other form of communication, because the news
reports
per
se
do
not
constitute
legally
paper
acceptable evidence, however, such observations have
come at such a stage when the Apex Court decided
the case finally on merits. That stage in the case in hand
has not yet reached, because learned trial Court on the
basis of evidence produced in preliminary, has only
formed an opinion to proceed further against the
accused by issuance of process against him.
The
accused may press into service the law laid down in the
judgments supra, at an appropriate stage in the
proceedings against him.
49.
The judgment of the Apex Court in Quamarul
Islam Vs. S.K. Kanta, AIR 1994 SC 1733, relied upon on
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behalf of the accused is not at all attracted in the given
facts and circumstances of the case being a matter
under the Representation of the People Act and the
observation that a news item without any further proof
through witnesses is of no value, came on merits in the
judgment at final stage and not at a preliminary stage,
rt
like in the present one before this Court.
50.
The benefit of first Exception to Section 499
IPC is also not available at this stage to the accused for
reason
that
the
imputations
made
even
if
the
defamatory, however, are true and for the public good,
the onus to prove the same is on him. Merely because
the complainant has been convicted by learned Special
Judge, Hamirpur and his conviction and sentence
affirmed by this Court, is not sufficient to discharge the
onus. Such onus can only be said to have been
discharged by producing in evidence the record
pertaining to the criminal proceedings against the
accused, the judgment of conviction and sentence
passed against him by learned Special Judge, Hamirpur
and the judgment passed by this Court, during the
course
of
trial
had
he
been
charged
with
the
commission of alleged offence and tried. Admittedly,
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...45...
the judgment of conviction passed against the petitioner
51.
is under challenge in the Apex Court.
The findings of conviction and sentence so
recorded against the complainant, therefore, have not
yet attained finality. Unless and until the judgment attains
finality, it cannot be said that the imputations made
rt
against the petitioner are true, hence cannot be said to
be defamatory or that even prima-facie, no case is
made out against the accused. The protection of first
fourth
exceptions
below
Section
499
IPC
is,
and
therefore, also not available to the accused at this
stage.
The issuance of process against an offender
52.
no doubt set the machinery in motion against him and
he even has to face the proceedings so ordered to be
initiated. Therefore, the Court should issue process
against an offender with all care and circumspection
and due application of mind by maintaining balance
between the freedom and liberty of an individual and
the duty cast on it to enforce the rule of law. Therefore,
when the trial Court on the basis of the preliminary
evidence and other material on record had formed an
opinion to proceed further in this matter, learned Sessions
Judge should have not interfered with the impugned
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...46...
order that too in the exercise of limited revisional
53.
jurisdiction.
Learned Sessions Judge in the exercise of
limited jurisdiction vested in him under Section 397 Cr.
P.C. was, therefore, not justified in quashing the order so
passed by learned Magistrate while appreciating the
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given facts and circumstances and also the preliminary
evidence in a manner like at final stage of a case and
thereby scuttled down the proceedings initiated by the
complainant against the accused. Such an approach,
to my mind, is neither legally nor factually sustainable.
The order impugned in this petition, therefore, does not
stand the test of legal scrutiny and as such in all fairness
and in the ends of justice deserves to be quashed and
set aside.
54.
Consequently, this petition succeeds and the
same is accordingly allowed. The order impugned in this
petition is, therefore, quashed and set aside.
55.
The observations made hereinabove shall not
be construed to be a reflection on the merits of the case
and shall remain confined to the disposal of this petition
alone.
56.
The record be sent back to the Courts below.
It is left open to learned trial Magistrate to fix a date for
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...47...
further proceedings in this matter and issue notice to the
Since this matter pertains to the year 2004,
57.
parties for the date so fixed.
therefore, it is expected that the trial Court shall dispose
it of as expeditiously as possible.
(Dharam Chand Chaudhary)
Judge
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March 21, 2014
(ss)
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