2023INSC880 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1959 OF 2012

M/S IVECO MAGIRUS

BRANDSCHUTZTECHNIK GMBH … APPELLANT

VERSUS

NIRMAL KISHORE BHARTIYA & ANR. … RESPONDENTS

J U D G M E N T

DIPANKAR DATTA, J.

THE APPEAL

1. This appeal, by special leave, is at the instance of a German

company (“the appellant”, hereafter). It assails a short five-line

order of a learned Judge of the High Court of Delhi (“learned

Judge”, hereafter) dated 10

th

December 2010. By such order, the

learned Judge dismissed a petition

1

under section 482 of the Code

1

CRL. M.C. 2845/2010

2

of Criminal Procedure, 1973 (“Cr. PC”, hereafter) presented by the

appellant as not maintainable relying on the decision of this Court

in Iridium India Telecom Ltd. v. Motorola Incorporated &

Ors.

2

and a Bench decision of the High Court of Delhi in Morgan

Tetronics Ltd. v. State & Anr.

3

.

CHALLENGE BEFORE THE HIGH COURT OF DELHI

2. Appellant had approached the High Court of Delhi taking exception

to an order dated 25

th

March 2010 passed by the Additional Chief

Metropolitan Magistrate (SE), New Delhi (“Trial Court”, hereafter)

on a complaint

4

lodged under section 200, Cr. PC by the

respondent (“complainant”, hereafter). The Trial Court upon

considering the complaint returned a prima facie finding in the said

order that Mr. M.C. Aggarwal (accused no.1), the appellant

(accused no. 2) and its District Manager (Asia), Mr. Lorenzo

Boninsegna (accused no.3) were “jointly and severally responsible

for writing, sending, publishing the above said letters containing

malicious and defamatory statements and imputation against the

complainant” and consequently summoned the three accused for

offences under sections 500/107/34, Indian Penal Code (“IPC”,

hereafter).

2

(2011) 1 SCC 74

3

LPA-668/2010 dt. 17

th

September 2010

4

CC No.465/1/09

3

FACTS

3. The undisputed and relevant facts leading to the summoning order

impugned before the learned Judge is noticed hereunder:

i. Global Tender No. EQ/Global/2007-09/01 was floated by the

Airports Authority of India (“AAI”, hereafter) for supply of 40

(forty) Airfield Crash Fire Tenders at various airports across

the country. The appellant, a Germany-based manufacturer

of fire safety equipment, executed a Power of Attorney in

favour of Mr. M.C. Aggarwal, the respondent no. 2

(“Aggarwal”, hereafter), who happened to be the Managing

Director of Brijbasi Hi-Tech Udyog Ltd. Aggarwal was

appointed to be the local representative of the appellant in

India and he was empowered, inter alia, to file suits and take

all steps which were deemed expedient in furtherance of the

tender process.

ii. The company of the complainant, Bhartiya Vehicles &

Engineering Pvt. Ltd, was the Indian associate of one

Rosenbauer International AG (“Rosenbauer”, hereafter),

another bidder in the aforementioned tender process.

iii. On 21

st

July 2008, AAI rejected the bid of the appellant and

eventually awarded it to Rosenbauer. In the aftermath of the

rejection, on various occasions in 2008, Aggarwal issued

four letters in the nature of complaints to different

authorities including the Minister of Civil Aviation,

4

Government of India, the Chairman of AAI, the Chief

Vigilance Officer, AAI, and the Central Vigilance

Commissioner, Government of India, inter alia, complaining

of favouritism and irregularities in the tender process. These

letters allege that the complainant, through illegal and

wrongful methods, persuaded AAI to award the tender to

Rosenbauer. Enumeration of the contents of such letters is

avoided, lest the same prejudices the rights of the parties.

iv. Dissatisfied with the inaction of the aforementioned

authorities to look into the letters of complaint, Aggarwal, in

his capacity as the local authorised representative of the

appellant, invoked the writ jurisdiction of the High Court on

or about 12

th

August 2008 by presenting a writ petition

5

against the Union of India and AAI. It is pertinent to note

that Bhartiya Vehicles & Engineering Pvt. Ltd., and

Rosenbauer were also made parties to the proceedings. The

writ petition was finally dismissed on 13

th

February 2009

vide a detailed order, which was not challenged thereafter.

v. On 30

th

April 2009, the complainant addressed a legal notice

to the appellant and Aggarwal inter alia alleging that the

contents of the aforementioned four letters of complaint

given to the concerned authorities were defamatory.

Pertinently, on 20

th

May 2009, the appellant responded to

5

WP (C) No.6155/2008

5

the legal notice inter alia stating that it had not authorised

Aggarwal to write any such letter, and that the appellant was

also not involved in their preparation.

vi. It was in this context that the complainant lodged the

complaint before the Trial Court alleging criminal defamation

as well as its abetment under sections 107, 499, and 500

read with section 34 of the IPC against the accused.

vii. The Trial Court, after perusing the complaint and examining

the witnesses in support thereof, ordered the accused to be

summoned as it was of the opinion that a prima facie case

was made out against them.

viii. The challenge by the appellant to the summoning order was

spurned by the High Court vide the impugned order.

CONTENTIONS OF THE APPELLANT

4. On behalf of the appellant, learned counsel Ms. Viswanathan

argued that the High Court committed grave miscarriage of justice

in dismissing the petition by a cryptic order. She contended that

several important questions of law were raised in the petition by

the appellant. Although the objection as to whether a company is

capable of being prosecuted on the ground that it is incapable of

possessing necessary mens rea stood answered by the decisions

relied on by the learned Judge, yet, according to her, the learned

Judge should have considered the other objections raised by the

6

appellant. Not having so considered, it was urged that the

impugned order is indefensible.

5. Ms. Viswanathan, in support of the appeal, raised the following

specific contentions:

i. The impugned order of the learned Judge omitted to

consider that the complaint did not disclose any oral or

written words, spoken or written by the appellant, or sign or

visible representation made by it; and, in the absence of

disclosure of any imputation made by the appellant, the key

ingredient of the offence of defamation did not exist. The

impugned order of the learned Judge failed to appreciate

that issuance of a Power of Attorney cannot by law constitute

an ingredient of an offence under section 499, IPC since

agents, under section 188 of the Indian Contract Act, 1872,

are authorised to do only lawful acts; and, as a corollary,

execution of such power of attorney did not amount to

authorisation or consent given to Aggarwal to commit any

alleged act of defamation.

ii. The learned Judge erred in not considering that a writ

petition instituted on behalf of the appellant cannot

constitute an ingredient of an offence under section 499,

IPC, since documents filed in civil cases are protected by an

7

“absolute privilege” and are also covered under the Fourth

Exception to section 499, IPC.

iii. There has been a gross failure of justice in that the learned

Judge ought to have corrected the manifest error committed

by the Trial Court in issuing process against the accused

without the Trial Court considering whether any of the

exceptions to section 499, IPC was applicable on facts and

in the circumstances of the present case.

iv. The impugned order of the learned Judge fails to explain why

the decision of this Court in Rajendra Kumar Sitaram

Pande v. Uttam

6

was not followed, whereby law has been

settled that issuance of process by a Magistrate without

applying the exceptions to section 499, IPC is unreasonable,

excessive and palpably wrong resulting in failure of justice.

v. The decision in Aroon Purie v. State of NCT of Delhi

7

was

also cited for the proposition that there is no rigid principle

that the benefit of exception can only be afforded at the

stage of trial.

6. Resting on the aforesaid contentions, Ms. Viswanathan prayed that

the proceedings emanating from the complaint be quashed.

6

(1999) 3 SCC 134

7

2022 (15) SCALE 541

8

CONTENTIONS OF THE FIRST RESPONDENT

7. Mr. Taneja, learned counsel representing the complainant invited

our attention to various documents forming part of his counter

affidavit to the special leave petition. According to him, the

appellant withheld relevant materials from this Court and obtained

an ex parte interim order on 29

th

April 2011 as a sequel whereto

the entire proceedings before the Trial Court have been brought to

a grinding halt.

8. Our notice was first invited to the fact that Aggarwal had

independently challenged the summoning order before the High

Court of Delhi by presenting a petition

8

under section 482, Cr. PC.

By a detailed order dated 10

th

December 2010, the same learned

Judge (who dismissed the petition of the appellant) noted that

Aggarwal was taking defence under exceptions to section 499 IPC

and that “the Court cannot take the defence of the petitioner into

account to quash the summoning order or to quash the complaint”.

Based on such finding, the learned Judge rejected the challenge.

9. Mr. Taneja contended that the learned Judge on 10

th

December

2010 had considered the petitions of Aggarwal and the appellant,

one after the other; and, although it is true that the learned Judge

while dismissing the petition of the appellant dealt with the point

8

CRL. M.C. 3350/2010

9

that a company could be proceeded against i n view of Iridium

India Telecom Ltd. (supra) and Morgan Tetronics Ltd. (supra)

and did not assign separate reasons for spurning the appellant’s

challenge to the impugned order on the other grounds raised

therein, the appellant was duly represented by its learned

advocate when Aggarwal’s petition was considered and in his

presence, the order of dismissal was dictated. What Mr. Taneja

hinted at was that the learned Judge having passed a reasoned

order rejecting Aggarwal’s challenge to the summoning order, the

learned Judge may not have considered it necessary to repeat the

reasons twice over while dismissing the petition of the appellant.

10. Next, our attention was drawn by Mr. Taneja to the letters of

complaint issued by Aggarwal before the various public

authorities. It was contended that while acting on behalf of the

appellant and also under its instructions, Aggarwal had made

reckless and frivolous allegations against the complainant

amounting to defamation and, in the process, lowered his

reputation and fame in t he eyes of the public. He further

contended that the appellant cannot feign ignorance of the letters

of complaint issued by Aggarwal. Referring to the writ petition of

the appellant presented before the High Court of Delhi, he pointed

out that the self-same letters of complaint issued by Aggarwal

were made part of such petition while challenging the appellant’s

10

disqualification in course of the tender process; and, if indeed,

such letters were issued without knowledge and consent of the

appellant, it defies logic as to why they were made part of the writ

petition in the first place where the appellant was arrayed as the

writ petitioner.

11. Relying on the decision of this Court in Supriya Jain v. State of

Haryana

9

, it was argued by Mr. Taneja that it is not open to the

Courts to quash a complaint based on additional material placed

by the accused which is not part of the record of proceedings

before the court below. According to him, the Power of Attorney is

not a piece of evidence that has been admitted or accepted by the

complainant and, thus, it requires proof by the appellant. Since

the same is yet not proved by the appellant according to law,

therefore, the same cannot be considered at this stage by this

Court. Also, it is for the appellant to respond to the summons and

to raise whatever defence is available to it by appearing before the

Trial Court.

12. Reliance was also placed on several decisions by Mr. Taneja, some

of which we propose to refer to a little later, to buttress his

contention that the petition of the appellant was rightly dismissed

and that the appeal deserves dismissal with costs.

9

(2023) SCC OnLine SC 765

11

THE QUESTIONS

13. Having heard learned counsel appearing for the appellant and the

complainant and on consideration of the materials on record, we

are of the view that the following questions of law emerge for an

answer:

i. Whether, while considering a private complaint alleging

defamation, the Magistrate before summoning the accused

ought to confine himself to the allegations forming part of

the petition only or he may, applying his judicial mind to the

exceptions to section 499, IPC, dismiss the complaint

holding that the facts alleged do not make out a case of

defamation?

AND

ii. Whether and, if at all, to what extent, is it open to the High

Courts to exercise inherent power saved by section 482, Cr.

PC to quash proceedings for defamation by setting aside the

summoning order upon extending the benefit of any of the

Exceptions to section 499, IPC?

14. After answering the aforesaid questions, we wish to answer the

following questions emerging from the facts and circumstances of

the appeal:

12

a. Whether the appellant has made out any case for

interference with the judicial orders of the Magistrate and

the learned Judge under challenge?

b. Whether a company can be prosecuted for defamation when

the alleged defamatory statements are made not by it (the

company) but by its authorised agent?

c. Depending on the answers to the above, whether the

benefit of the Fourth Exception to section 499, IPC, as

claimed, should be accorded to the appellant?

ANALYSIS

15. A survey of the decisions of this Court which were cited and those

mentioned in the cited decisions as well as some other decisions,

which we had the occasion to read and consider while preparing

this judgment, would provide guidance and pave the way for us to

decide the fate of this appeal.

16. We would first consider the decisions cited by the parties and those

decisions, though not cited by them, are traceable in such

decisions, by maintaining the sequence of their origin.

17. In Balraj Khanna & Ors. v. Mot i Ram

10

, the respondent lodged

a complaint against the first appellant and 6 (six) others under

section 500, IPC, alleging that they had levelled allegations

10

(1971) 3 SCC 399

13

against him which were defamatory in character . On 2 (two)

grounds, the Magistrate dismissed the complaint. The respondent

unsuccessfully applied for revision of the order of dismissal before

the Additional Sessions Judge, whereafter he approached the High

Court of Delhi with success. The High Court, while setting aside

the orders impugned, directed further inquiry. After considering

various foreign decisions as well as decisions of the High Courts of

Orissa, Nagpur, Allahabad and Mysore that were cited, this Court

in paragraph 29 held as follows:

“29. Before concluding the discussion, it is to be stated that

the trial Magistrate has given an additional reason for

dismissing the complaint. That reason is that the resolution

passed by the Standing Committee on December 11, 1964

and the discussion preceding it by the members of the

Standing Committee including the appellants, is covered by

the Exceptions to Section 499 IPC. Unfortunately, the High

Court also has touched upon this aspect and made certain

observations. In our opinion, the question of the application

of the Exceptions to Section 499 IPC, does not arise at this

stage. Rejection of the complaint by the Magistrate on the

second ground mentioned above cannot be sustained. It was

also unnecessary for the High Court to have considered this

aspect and differed from the trial Magistrate. It is needless

to state that the question of applicability of the Exceptions to

Section 499 IPC, as well as all other defences that may be

available to the appellants will have to be gone into during

the trial of the complaint.”

(underlining ours, for emphasis)

18. The next decision is Sewakram Sobhani v. R.K. Karanjia

11

,

rendered by a Bench of 3 (three) Hon’ble Judges. The appeal was

directed against an order passed by the Madhya Pradesh High

11

(1981) 3 SCC 208

14

Court in exercise of jurisdiction under section 397, Cr. PC,

alternatively under section 482 thereof. The respondent was the

Chief Editor, Blitz. An article was published therein which was per

se defamatory. Prosecution for an offence under section 500, IPC

which was launched stood quashed by the impugned order on the

ground that the case “clearly falls within the ambit of Exception 9

of Section 499 of the Indian Penal Code, 1860”. The appeal was

allowed by the majority and the order under challenge quashed.

This is what the Court, speaking through Hon’ble A.P. Sen, J., said:

“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 prejudged the 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 o r

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.

***

It is for the respondent to plead that he was protected under

Ninth Exception to Section 499 of the Penal Code. The

burden, such as it is, to prove that his case would come within

that exception is on him. ***

7. We are completely at a loss to understand the reasons

which impelled the High Court to quash the proceedings.

***”

Hon’ble O. Chinnappa Reddy, J., in a concurring judgment, made

an illuminating discussion which would also be relevant for

answering one of the questions formulated by us touching upon

15

the facts of this appeal. We quote the concluding paragraph of His

Lordship’s judgment, reading thus:

“18. Several questions arise for consideration if the Ninth

Exception is to be applied to the facts of the present case.

Was the article published after exercising due care and

attention? Did the author of the article satisfy himself that

there were reasonable grounds to believe that the

imputations made by him were true? Did he act with

reasonable care and a sense of responsibility and propriety?

Was the article based entirely on the report of the Deputy

Secretary or was there any other material before the author?

What steps did the author take to satisfy himself about the

authenticity of the report and its contents? Were t he

imputations made rashly without any attempt at verification?

Was the imputation the result of any personal ill will or malice

which the author bore towards the complainant? Was it the

result of any ill will or malice which the author bore towards

the political group to which the complainant belonged? Was

the article merely intended to malign and scandalise the

complainant or the party to which he belonged? Was the

article intended to expose the rottenness of a jail

administration which permitted free sex ual approaches

between male and female detenus? Was the article intended

to expose the despicable character of persons who were

passing off as saintly leaders? Was the article merely

intended to provide salacious reading material for readers

who had a peculiar taste for scandals? These and several

other questions may arise for consideration, depending on

the stand taken by the accused at the trial and how the

complainant proposes to demolish the defence. Surely the

stage for deciding these questions has not arrived yet.

Answers to these questions at this stage, even before the

plea of the accused is recorded can only be a priori

conclusions. ‘Good faith’ and ‘public good’ are, as we said,

questions of fact and matters for evidence. So, the trial must

go on.”

(underlining ours, for emphasis)

19. The decision of another Bench of 3 (three) Hon’ble Judges in

Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathu

12

12

(1996) 6 SCC 263

16

outlined the contours for exercise of jurisdiction to quash a

complaint for defamation. Paragraph 13 being relevant is set out

below:

“13. As regards the allegations made against the appellant in

the complaint filed in the Court of Judicial Magistrate, Ist

Class, at Nasik, on a reading of the complaint we do not think

that we will be justified at this stage to quash that complaint.

It is not the province of this Court to appreciate at this stage

the evidence or scope of and meaning of the statement.

Certain allegations came to be made but whether these

allegations do constitute defamation of the Marwari

community as a business class and whether the appellant had

intention to cite as an instance of general feeling among the

community and whether the conte xt in which the said

statement came to be made, as is sought to be argued by

the learned Senior Counsel for the appellant, are all matters

to be considered by the learned Magistrate at a later stage.

At this stage, we cannot embark upon weighing the evidence

and come to any conclusion to hold, whether or not the

allegations made in the complaint constitute an offence

punishable under Section 500. It is the settled legal position

that a court has to read the complaint as a whole and find

out whether allegations disclosed constitute an offence under

Section 499 triable by the Magistrate. The Magistrate prima

facie came to the conclusion that the allegations might come

within the definition of ‘defamation’ under Section 499 IPC

and could be taken cognizance of. But these are the facts to

be established at the trial. The case set up by the appellant

are either defences open to be taken or other steps of

framing a charge at the trial at whatever stage known to law.

Prima facie we think that at this stage it is not a case

warranting quashing of the complaint filed in the Court of

Judicial Magistrate, Ist Class at Nasik. To that extent, the

High Court was right in refusing to quash the complaint under

Section 500 IPC.”

(underlining ours, for emphasis)

20. Then followed M.N. Damani v. S.K. Sinha

13

where this Court,

after applying the law laid down in Sewakram Sobhani (supra)

13

(2001) 5 SCC 156

17

and Shatrughna Prasad Sinha (supra), set aside the order of

the Karnataka High Court and restored the order of the Magistrate

issuing summons to the accused for offence under section 500,

IPC.

21. In M.A. Rumugam v. Kittu Alias Krishnamoorthy

14

, the

respondent filed a private complaint against the appellant for

commission of the offence of defamation under section 500, IPC.

Taking cognizance of the said complaint, the Magistrate issued

summons to the appellant. Aggrieved thereby, he filed a petition

before the High Court of Judicature at Madras praying to call for

the records pertaining to the complaint petition filed by the

respondent and to quash the same. Before the High Court, a

contention was raised that the backdrop of events and the manner

in which the complaint petition had to be filed by the appellant

would clearly establish that the action on his part was not in good

faith. The said contention was negatived by the High Court. This

Court had the occasion to consider the applicability of the

provisions of section 482, Cr. PC for quashing of a complaint

petition filed by the respondent against the appellant under

section 500, IPC. While dismissing the appeal, the Court went on

to apply the well-settled principle of law that those who plead

14

(2009) 1 SCC 101

18

exception must prove it and, therefore, the burden of proof that

his action was bona fide would, thus, be on the appellant alone.

22. In Subramanian Swamy v. Union of India

15

, this Court

considered the issue from a different angle. We can do no better

than reproduce the contention and how the same was

unhesitatingly repelled in the following words:

“209. We will be failing in our duty if we do not take note of

the submission of Mr. Bhambhani, learned Senior Counsel. It

is submitted by the learned Senior Counsel that Exceptions

to Section 499 are required to be considered at the time of

summoning of the accused but as the same is not conceived

in the provision, it is unconstitutional. It is settled position of

law that those who plead Exception must prove it. It has been

laid down in M.A. Rumugam that for the purpose of bringing

any case within the purview of the Eighth and the Ninth

Exceptions appended to Section 499 IPC, it would be

necessary for the person who pleads the Exception to prove

it. He has to prove good faith for the purpose of protection of

the interests of the person making it or any other person or

for the public good. The said proposition would definitely

apply to any Exception who wants to have the benefit of the

same. Therefore, the argument that if the said Exception

should be taken into consideration at the time of issuing

summons it would be contrary to established criminal

jurisprudence and, therefore, the stand that it cannot be

taken into consideration makes the provision unreasonable,

is absolutely an unsustainable one and in a way, a mercurial

one. And we unhesitatingly repel the same.”

(underlining ours, for emphasis)

23. Now, we take up for consideration the first decision cited by Ms.

Viswanathan, i.e., Rajendra Kumar Sitaram Pande (supra). The

15

(2016) 7 SCC 221

19

facts, the relevant issue and the finding – all are captured in

paragraph 7, which we reproduce hereunder:

“The next question that arises for consideration is whether

reading the complaint and the report of the Treasury Officer

which was obtained pursuant to the Order of the Magistrate

under sub-section (1) of Section 201, can it be said that a

prima facie case exists for trial or Exception 8 to Section 499

clearly applies and consequently in such a case, calling upon

the accused to face trial would be a travesty of justice. The

gravamen of the allegations in the complaint petition is that

the accused persons made a complaint to the Treasury

Officer, Amravati, containing false imputations to the effect

that the complainant had come to the office in a drun ken

state and abused the Treasury Officer, Additional Treasury

Officer and the Collector and circulated in the office using

filthy language and such imputations had been made with the

intention to cause damage to the reputation and services of

the complainant. In order to decide the correctness of this

averment, the Magistrate instead of issuing process had

called upon the Treasury Officer to hold an enquiry and

submit a report and the said Treasury Officer did submit a

report to the Magistrate. The question for consideration is

whether the allegations in the complaint read with the report

of the Magistrate make out the offence under Section 500 or

not. Section 499 of the Penal Code, 1860 defines the offence

of defamation and Section 500 provides the punishm ent for

such offence. Exception 8 to Section 499 clearly indicates

that it is not a defamation to prefer in good faith an

accusation against any person to any of those who have

lawful authority over that person with regard to the subject-

matter of accusation. The report of the Treasury Officer

clearly indicates that pursuant to the report made by the

accused persons against the complainant, a departmental

enquiry had been initiated and the complainant was found to

be guilty. Under such circumstances the fact that the accused

persons had made a report to the superior officer of the

complainant alleging that he had abused the Treasury Officer

in a drunken state which is the gravamen of the present

complaint and nothing more, would be covered by Exception

8 to Section 499 of the Penal Code, 1860. By perusing the

allegations made in the complaint petition, we are also

satisfied that no case of defamation has been made out. In

this view of the matter, requiring the accused persons to face

trial or even to approach the Magistrate afresh for

reconsideration of the question of issuance of process would

20

not be in the interest of justice. On the other hand, in our

considered opinion, this is a fit case for quashing the order of

issuance of process and the proceedings itself. We, therefore,

set aside the impugned order of the High Court and confirm

the order of the learned Sessions Judge and quash the

criminal proceeding itself. This appeal is allowed.”

(underlining ours, for emphasis)

24. The aforesaid determination makes it clear that on perusal of the

allegations levelled in the petition of complaint, the Court was

satisfied that no case of defamation had been made out therein

and this precisely seems to be the reason why the Court felt that

it would not be in the interest of justice to require the accused

persons to face trial or even to approach the Magistrate afresh for

reconsideration of the question of issuance of process. We do not

read any law having been laid down by this Court in Rajendra

Kumar Sitaram Pande (supra) that wherever a challenge to a

summoning order passed on a complaint for defamation is laid

before the High Courts in a petition under section 482, Cr. PC or

such challenge travels to this Court, an endeavour must

necessarily be made whether any of the exceptions is attracted so

that the proceedings may be closed without subjecting the

accused to long drawn proceedings. At best, we read the decision

as one where, in the given facts and circumstances, the Court felt

that requiring the appellants to undergo a trial would be a travesty

of justice; hence, the decision must be held to be confined to the

facts of the case.

21

25. Now, it is time to consider the other decision relied on by Ms.

Viswanathan, i.e., Aroon Purie (supra). In such decision, the

decision in Jawaharlal Darda v. Manoharrao Ganpatrao

Kapsikar

16

was considered. Before we look into Aroon Purie

(supra), we propose to ascertain whether Jawaharlal Darda

(supra) lays down a law having the force of a binding precedent.

26. The decision in Jawaharlal Darda (supra) reveals that the

respondent 1 had filed a complaint on 2

nd

February, 1987 in the

court of the relevant Magistrate alleging that by publishing a news

item in its newspaper ‘Daily Lokmat’, on 4

th

February, 1984, the

appellant being the then Chief Editor of that daily and 4 (four)

others associated with the newspaper in one capacity or the other,

had committed offences punishable under sections 499, 500, 501

and 502 read with section, 34 IPC. Process was issued against all

the accused by the Magistrate. Upon a challenge being laid to such

order, the relevant Sessions Court quashed it being of the opinion

that by publishing that news item, none of the accused had

committed any offence. That order was challenged by the

complainant by filing a petition in the High Court under section

482, Cr. PC. The High Court was of the opinion that the Sessions

Court misinterpreted the publication. It was also of the view that

16

(1998) 4 SCC 112

22

when the Magistrate had found prima facie case against the

accused and thought it fit to issue process, it was not proper for

the Sessions Court to set aside that order by exercising revisional

power. This Court restored the order of the Sessions Court holding

as follows:

“4. As we have stated earlier, the news item was published

on 4-2-1984. The complaint in that behalf was filed by the

complainant on 2-2-1987. The news item merely disclosed

what happened during the debate which took place in the

Assembly on 13-12-1983. It stated that when a question

regarding misappropriation of government funds meant for

Majalgaon and Jaikwadi was put to the Minister concerned,

he had replied that a preliminary enquiry was made by the

Government and it disclosed that some misappropriation had

taken place. When questioned further about the names of

persons involved, he had stated the names of five persons,

including that of the complainant. The said proceedings came

to be published by the accused in its Daily on 4 -2-1984.

Because the name of the complainant was mentioned as one

of the persons involved and likely to be suspended he filed a

complaint before the learned CJM alleging that as a result of

publication of the said report he had been defamed.

5. It is quite apparent that what the accused had published

in its newspaper was an accurate and true report of the

proceedings of the Assembly. Involvement of the respondent

was disclosed by the preliminary enquiry made by the

Government. If the accused bona fide believing the version

of the Minister to be true published the report in good faith it

cannot be said that they intended to harm the reputation of

the complainant. It was a report in respect of public conduct

of public servants who were entrusted wi th public funds

intended to be used for public good. Thus the facts and

circumstances of the case disclose that the news items were

published for public good. All these aspects have been

overlooked by the High Court.”

(underlining ours, for emphasis)

It is clear from the above reasoning that this Court went on to

reverse the order of the High Court and restore that of the

23

Sessions Court on the grounds that the accused published the

report in good faith and bona fide believing the version of the

Minister to be true, that it cannot be said that they intended to

harm the reputation of the complainant, and that the news item

was published for public good. Therefore, relief was given to the

accused having regard to the facts obtaining therein and without

there being any discussion on the point that we are seized of. This

decision too appears to have been rendered by this Court

considering the special facts and circumstances.

27. Significantly, the precedents which we have referred to at an

earlier part of this judgment do not appear to have been cited by

the parties in Rajendra Kumar Sitaram Pande (supra) and

Jawaharlal Darda (supra) and, thus, the Hon’ble Judges on the

Bench did not have the benefit of considering the same.

28. What Aroon Purie (supra) reveals is that the operative part of the

Trial Magistrate’s order was extracted, wherein the decisions in

Balraj Khanna (supra) and M.N. Damani (supra) were referred

to; however, the case was decided without any express reference

by the Court to such precedents.

29. We need not examine the facts in Aroon Purie (supra) in any

great detail in view of the question of law that the Court

24

formulated and the answer to it. The question, in paragraph 18,

reads as follows:

“We now turn to the question: whether the benefit of any of

the exceptions to Section 499 of the IPC can be availed of

and on the strength of such exception, the proceedings can

be quashed at the stage when an application moved under

Section 482 of the Code is considered?”

After quoting paragraphs 5 and 7 from the decisions in

Jawaharlal Darda (supra) and Rajendra Kumar Sitaram

Pande (supra), respectively, and conscious of the legal position,

the Court cautiously proceeded to hold as follows:

“21. It is thus clear that in a given case, if the facts so justify,

the benefit of an exception to Section 499 of the IPC has been

extended and it is not taken to be a rigid principle that the

benefit of exception can only be afforded at the stage of trial.”

(underlining ours, for emphasis)

30. Jawaharlal Darda (supra) and Rajendra Kumar Sitaram

Pande (supra), we reiterate, are decisions where the disputes

arising before the Court were resolved without laying down any

law capable of being treated as precedents within the meaning of

Article 141 of the Constitution. However, the approach adopted

seems to have persuaded the Court in Aroon Purie (supra) to

proceed to make the observation, highlighted above, which has

opened up an arena of debate as to whether, the benefit of an

Exception to section 499, IPC could be afforded at the stage of

trial only or whether, if the facts of a given case so justify, such

25

benefit can be extended and proceedings quashed at the stage a

petition under section 482, Cr. PC is being dealt with.

31. At this stage, it would not be out of place to refer to and discuss a

few other decisions of this Court which are considered relevant for

the present adjudication. In all these decisions, the issue of

legality of summoning orders was examined and resting on the

discussion of the relevant laws vis-à-vis the facts of each case, the

impugned order was either maintained/interdicted. While the first

two decisions are of ancient vintage, viz. Vadilal Panchal v.

Dattatraya Dulaji Ghadigaonkar

17

and Chandra Deo Singh v.

Prokash Chandra Bose

18

, being decisions rendered by Benches

of 3 (three) and 4 (four) Hon’ble Judges, respectively, the

remaining three are decisions of not too distant an origin, viz.

Jeffrey J. Diermeier v. State of West Bengal

19

, Manoj Kumar

Tiwari v. Manish Sisodia

20

and B.R.K. Aathithan v. Sun

Group

21

rendered by Benches of 2 (two) Hon’ble Judges of this

Court.

32. Vadilal Panchal (supra) arose from the decision of the Bombay

High Court reversing an order of the Presidency Magistrate under

17

(1961) 1 SCR 1

18

(1964) 1 SCR 639

19

(2010) 6 SCC 243

20

2022 SCC OnLine SC 1434

21

2022 SCC OnLine SC 1705

26

section 203, Cr. PC. In course of a public agitation, one Sitaram

died because of a gunshot injury inflicted by the appellant. Upon

a complaint being lodged before the Presidency Magistrate, he

ordered an inquiry by the Superintendent of Police, CID. Materials

collected in course of such inquiry suggested that the appellant,

who was accused of murdering Sitaram, had exercised his right of

self-defence. Considering the same and after extending due

opportunity to the complainant , the Presidency Magistrate

dismissed the complaint. The Bombay High Court set aside the

order of dismissal and directed the Presidency Magistrate to issue

process against the appellant and deal with the case in accordance

with law, on the ground that though Sitaram’s death was

indisputable, the accused would have to establish the necessary

ingredients of the right of private defence as laid down in section

96 and onwards of the Indian Penal Code; that there was nothing

in any of the sections in Chapter XVI to show that such an

exception can be held to be established from the mere report of

the police; that there is nothing in sections 202 or 203 of the Cr.

PC abrogating the rule as to the presumption laid down in section

105 of the Evidence Act and the mode of proof of exception laid

down in imperative language in that section; and that it was not a

proper case in which the Presidency Magistrate should have

dismissed the complaint under section 203 , there being no

27

evidence before him as and by way of proof to establish the

exception of the right of private defence pleaded by the accused.

32.1 The question that arose before this Court was, whether the High

Court of Bombay was right in its view that when a Magistrate

directs an enquiry under section 202 of the Cr. PC for ascertaining

the truth or falsehood of a complaint and receives a report from

the enquiring officer supporting a plea of self-defence made by the

person complained against, is it not open to him to hold that the

plea is correct on the basis of the report and the statements of

witnesses recorded by the enquiring officer? Must the Magistrate,

as a matter of law, issue process in such a case and leave the

person complained against to establish his plea of self-defence at

the trial?

32.2 While setting aside the impugned judgment and restoring the

order of the Magistrate, this Court held that the Bombay High

Court was in error in holding in such case that as a matter of law,

it was not open to the Presidency Magistrate to conclude that no

offence had been made out and there was no sufficient ground for

proceeding further on the complaint on the materials before him.

32.3 After discussing the scheme of sections 200, 202 and 203, Cr. PC,

this is what this Court held:

“10. Now, in the case before us it is not contended that the

learned Presidency Magistrate failed to consider the materials

28

which he had to consider, before passing his order under

Section 203 CrPC. As a matter of fact the learned Magistrate

fully, fairly and impartially considered these materials. What

is contended on behalf of the respondent-complainant is that

as a matter of law it was not open to the learned Magistrate

to accept the plea of right of self-defence at a stage when all

that he had to determine was whether a process should issue

or not against the appellant. We are unable to accept this

contention as correct. It is manifestly clear from the

provisions of Section 203 that the judgment which the

Magistrate has to form must be based on the statements of

the complainant and his witnesses and the result of the

investigation or inquiry. The section itself makes that clear,

and it is not necessary to refer to authorities in support

thereof. But the judgment which the Magistrate has to form

is whether or not there is sufficient ground for proceeding.

This does not mean that the Magistrate is bound to accept

the result of the inquiry or investigation or that he must

accept any plea that is set up on behalf of the person

complained against. The Magistrate must apply his judicial

mind to the materials on which he has to form his judgment.

In arriving at his judgment he is not fettered in any way

except by judicial considerations; he is not bound to accept

what the Inquiring Officer says, nor is he precluded from

accepting a plea based on an exception, provided always

there are satisfactory and reliable materials on which he can

base his judgment as to whether there is sufficient ground

for proceeding on the complaint or not. If the Magistrate has

not misdirected himself as to the scope of an enquiry under

Section 202 and has applied his mind judicially to the

materials before him, we think that if (sic, it) would be

erroneous in law to hold that a plea based on an exception

can never be accepted by him in arriving at his judgment.

What bearing such a plea has on the case of the complainant

and his witnesses, to what extent they are falsified by the

evidence of other witnesses — all these are questions which

must be answered with reference to the facts of each case.

No universal rule can be laid in respect of such questions.”

(underlining ours, for emphasis)

33. Profitable reference can next be made to the decision in Chandra

Deo Singh (supra), where a Bench of 4 (four) Hon’ble Judges had

the occasion to consider a challenge to a judgment of the High

29

Court at Calcutta. There, this Court was presented with a

circumstance where two complaints alleging murder of a darwan

were lodged before the Sub-Divisional Magistrate. The first

complaint was lodged by a distant relative of the deceased

accusing three persons of murder whereas the second complaint

was lodged by the appellant accusing the respondent no.1 of

murdering his uncle. By separate orders, the Sub -Divisional

Magistrate directed a Magistrate, First Class, to conduct judicial

inquiry. Separate reports were submitted by the Magistrate, First

Class. In his first report, he opined that a prima facie case to

proceed against the three accused persons had been made out

whereas, in his second report, he opined that no prima facie case

to proceed against the first respondent had been made out. The

Sub-Divisional Magistrate, perusing the second report, dismissed

the complaint of the appellant against the respondent no.1 without

assigning any reason. The Sub -Divisional Magistrate, however,

issued summons against the three other accused. Thereafter, the

appellant approached the Sessions Judge with a revision who,

after hearing the respondent no.1, directed the Sub-Divisional

Magistrate to make a further inquiry against him. Thence, the

respondent no.1 preferred a revision application before the High

Court challenging the direction of the Sessions Judge. The same

was allowed by a Single Judge of the High Court and upon grant

of certificate under Article 134(1)(c) of the Constitution, the

30

matter was carried to this Court. It was held that upon a finding

of a prima facie case, the Magistrate was bound to issue process

despite the charged person having a defence. Further, it was held

that the matter was to be decided by an appropriate forum at the

appropriate stage, and issuance of process could not be refused.

33.1 We consider it appropriate to quote certain pertinent observations

from such decision, hereinbelow:

“7. ***, it seems to us clear from the entire scheme of

Chapter XVI of the Code of Criminal Procedure that an

accused person does not come into the picture at all till

process is issued. This does not mean that he is precluded

from being present when an enquiry is held by a Magistrate.

He may remain present either in person or through a counsel

or agent with a view to be informed of what is going on. But

since the very question for consideration being whether he

should be called upon to face an accusation, he has no right

to take part in the proceedings nor has the Magistrate any

jurisdiction to permit him to do so. It would follow from this,

therefore, that it would not be open to the Magistrate to put

any question to witnesses at the instance of the person

named as accused but against whom process has not been

issued; nor can he examine any witnesses at the instance of

such a person. Of course, the Magistrate himself is free to

put such questions to the witnesses produced before him by

the complainant as he may think proper in the interests of

justice. But beyond that, he cannot go. … No doubt, one of

the objects behind the provisions of Section 202 CrPC is to

enable the Magistrate to scrutinise carefully the allegations

made in the complaint with a view to prevent a person named

therein as accused from being called upon to face an

obviously frivolous complaint. But there is also another object

behind this provision and it is to find out what material there

is to support the allegations made in the complaint. It is the

bounden duty of the Magistrate while making an enquiry to

elicit all facts not merely with a view to protect the interests

of an absent accused person, but also with a view to bring to

book a person or persons against whom grave allegations are

made. Whether the complaint is frivolous or not has, at that

stage, necessarily to be determined on the basis of the

31

material placed before him by the complainant. Whatever

defence the accused may have can only be enquired into at

the trial. An enquiry under Section 202 can in no sense be

characterised as a trial for the simple reason that in law there

can be but one trial for an offence. Permitting an accused

person to intervene during the enquiry would frustrate its

very object and that is why the legislature has made no

specific provision permitting an accused person to take part

in an enquiry. ***”

(underlining ours, for emphasis)

33.2 Considering the decision in Vadilal Panchal (supra), what was

said therein was explained in the following words:

“13. *** we may point out that since the object of an enquiry

under Section 202 is to ascertain whether the allegations

made in the complaint are intrinsically true, the Magistrate

acting under Section 203 has to satisfy himself that there is

sufficient ground for proceeding. In order to come to this

conclusion, he is entitled to consider the evidence taken by

him or recorded in an enquir y under Section 202, or

statements made in an investigation under that section, as

the case may be. He is not entitled to rely upon any material

besides this. ***”

(underlining ours, for emphasis)

In the same paragraph, after referring to the decision in

Ramgopal Ganpatrai Ruia v. State of Bombay

22

, the Court

proceeded to rule that:

“*** Thus, where there is a prima facie case, even though

much can be said on both sides, a committing Magistrate is

bound to commit an accused for trial. All the greater reason,

therefore, that where there is prima facie evidence, even

though an accused may have a defence like that in the present

case that the offence is committed by some other person or

persons, the matter has to be left to be decided by the

appropriate forum at the appropriate stage and issue of

process cannot be refused. Incidentally, we may point out that

the offence with which Respondent 1 has been charged with is

22

1958 SCR 618

32

one triable by jury. The High Court, by dealing with the

evidence in the way in which it has done, has in effect

sanctioned the usurpation by the Magistrate of the functions

of a jury which the Magistrate was wholly incompetent to do.”

(underlining ours, for emphasis)

34. It is true that neither Vadilal Panchal (supra) nor Chandra Deo

Singh (supra) arose out of proceedings for defamation but in both

cases defence of the accused was considered in varying

circumstances. As noted above, in Vadilal Panchal (supra) the

order of the Presidency Magistrate dismissing the complaint on the

ground that the accused had exercised his right of self-defence

was restored upon setting aside of the order of the High Court of

Bombay; whereas, in Chandra Deo Singh (supra), the order of

the Sub-Divisional Magistrate directing further inquiry was

restored upon setting aside the order of the High Court at Calcutta.

The decision in Vadilal Panchal (supra) was not overruled by the

larger Bench in Chandra Deo Singh (supra). Such decisions, in

our opinion, assume relevance because the guidance provided

thereby carries great weight.

35. In Jeffrey J. Diermeier (supra), this Court was called upon to

consider whether the High Court at Calcutta was right in refusing

to quash a private complaint under section 500 read with section

34, IPC. It was held that it is for the accused to demonstrate, by

leading evidence during trial, that the purportedly defamatory

33

statement came under an exception enumerated in section 499,

IPC. The appellants therein had issued a public notice against the

respondent no. 2, which the respondent no. 2 alleged to be

defamatory in nature. The appellants pleaded that the aforesaid

notice was published in public interest, and thus it was covered

under the Tenth Exception to section 499, IPC. This Court held that

it was trite law that the burden of proof for the accused could not

be proof beyond reasonable doubt, yet the accused still had to

show a preponderance of probability that his statement would be

covered under an exception to section 499, IPC. A mere averment

by the accused stating that his statement was in public good was

not sufficient to accept his defence and he must justify the same

by leading evidence during trial. Considering the complaint as a

whole as well as for the aforesaid reasons, this Court held that the

impugned order did not warrant interference.

36. In Manoj Kumar Tiwari (supra), an order refusing to quash a

summoning order was considered by this Court. Therein, the

Additional Chief Metropolitan Magistrate had issued a summons to

one of the accused under section 500, IPC without going into the

contents of the alleged defamatory statement. The High Court of

Delhi, on the other hand, while examining the statements, upheld

the summons by simply relying on section 499 of the IPC. This

Court held that this was an erroneous approach because the

34

Magistrate ought to have applied his mind to the complaint and

determined whether the statement was prima facie defamatory,

before issuing summons to the accused. This Court further held

that a complaint could not be sustained on statements which were,

on the face of it, non-defamatory. Also, it was held that it is a

fundamental rule of criminal jurisprudence that if the allegations

contained in a complaint do not constitute the offence complained

of, then the accused should not be made to undergo the ordeal of

a trial.

37. B.R.K. Aathithan (supra) is the decision of most recent origin.

Therein, the factual conspectus was such that certain reportage

concerning the appellant was telecast on a television channel of

the respondents, and the same was contended as defamatory. This

Court emphasised the need for application of judicial mind by the

Judicial Magistrate, while noting the consideration of the Fourth

Exception to Section 499, IPC at the stage of issuance of process.

This Court observed there as follows:

“16. This essentially involved application of judicial mind to

reach a definite conclusion as to whether or not the accused

be summoned. In the instant case, the learned Judicial

Magistrate having found that the allegations made by the

appellant were in the teeth of fourth exception to Section 499

IPC, he declined to issue process to the respondents. Such

dismissal cannot be said to be without application of judicial

mind. The application of judicial mind and arriving at an

erroneous conclusion are two distinct things. The Court even

after due application of mind may reach to an erroneou s

conclusion and such an order is always justiciable before a

35

superior Court. Even if the said Order is set aside, it does not

mean that the trial court did not apply its mind.”

38. We note that in a different context, this Court in National Bank

of Oman v. Barakara Abdul Aziz

23

summed up the duty of a

Magistrate as follows:

“8. The duty of a Magistrate receiving a complaint is set out in

Section 202 CrPC and there is an obligation on the Magistrate

to find out if there is any matter which calls for investigation

by a criminal court. The scope of enquiry under this section is

restricted only to find out the truth or otherwise of the

allegations made in the complaint in order to determine

whether process has to be issued or not. Investigation under

Section 202 CrPC is different from the investigation

contemplated in Section 156 as it is only for holding the

Magistrate to decide whether or not there is sufficient ground

for him to proceed further. The scope of enquiry under Section

202 CrPC is, therefore, limited to the ascertainment of truth

or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the

court;

(ii) for the limited purpose of finding out whether a prima facie

case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of

the complainant without at all adverting to any defence that

the accused may have.”

(underlining ours, for emphasis)

39. Undoubtedly, the decisions of this Court proceed on two lines.

While there are several decisions where this Court has consistently

laid down the law in one particular line that it is for the Magistrate

to consider the Exceptions to section 499, IPC for extension of

benefit thereof at the trial when a defence is pleaded by the party

seeking to avail the same and upon the burden of proof being

23

(2013) 2 SCC 488

36

discharged by him and that such Magistrate while deciding the

question purely from the point of view of the complainant may not

advert to the possible defence of the accused at the time of

exercising power under section 202, the other line of decisions

seem to proceed on the premise that there is no bar in considering

the Exceptions if the accused, even without appearing before the

Magistrate in response to the summoning order, lays a challenge

thereto under section 482, Cr. PC and satisfies the relevant High

Court, by referring to the complaint itself and the statements of

the complainant and his witness, that the facts alleged (even if

deemed to be true) do not constitute an offence and hence, there

was no sufficient ground for proceeding. In fact, Aroon Purie

(supra) has observed that there is no rigid principle that the

Exceptions can only be considered at the pre-trial stage; in other

words, at the stage of consideration of a petition for quashing, it

can be so extended in a given case, and the Court would be

empowered to quash the proceedings if extension of such benefit

is justified on facts.

40. What applies to Judges of the High Courts faced with decisions of

this Court where a cleavage of opinion is discernible, and

particularly when the High Courts are technically bound by both

decisions, equally applies to Hon’ble Judges of this Court. It would

be inappropriate for a Bench, comprised of 2 (two) Judges of this

37

Court, to hold which line of decisions lays down the correct law. In

such a scenario, when there are decisions of this Court not

expressing views in sync with each other, the first course to be

adopted is to ascertain which is the decision that has been

rendered by a larger Bench. Obviously, inter se decisions of this

Court, a decision of a Constitution Bench would be binding on

Benches of lesser strength. None of the decisions that we have

considered is rendered by a Constitution Bench. However, a sole

judgment rendered by a Bench of 4 (four) Hon’ble Judges and 3

(three) decisions rendered by Benches comprised of 3 (three)

Hon’ble Judges are there, which call for deference. Ordinarily, the

decision of a larger Bench has to be preferred unless of course a

Bench of lesser strength doubts an earlier view, formulates the

point for answer and refers the matter for further consideration by

a larger Bench in accordance with law. If, however, the decisions

taking divergent views are rendered by Benches of co -equal

strength, the next course to be adopted is to attempt to reconcile

the views that appear to be divergent and to explain those

contrary decisions by assuming, to the extent possible, that they

applied to different facts. The other course available is to look at

whether the previous decision has been noticed, considered and

explained in the subsequent decision; if not, the earlier decision

continues to remain binding whereas if the answer is in the

affirmative, the subsequent decision becomes the binding

38

decision. We add a caveat that if the subsequent Bench, instead

of deciding the matter before it finally upon consideration of the

decision of the earlier Bench, formulates the point of difference

and makes a reference for a decision by a larger Bench, it is the

former decision that continues to govern the field so long the

larger Bench does not decide the reference.

41. There is also authority for the proposition that while deciding cases

on facts, more so in criminal cases, the courts should bear in mind

that each case must rest on its own facts and the similarity of facts

in one case cannot be used to bear in mind the conclusion of fact

in another case. We may usefully refer to the decision in Kalyan

Chandra Sarkar v. Rajesh Ranjan

24

in this context.

42. Bearing the above principles in mind, we have perused the

decisions, apparently striking discordant notes, with utmost care.

It is observed that the conclusions reached in each of the decisions

are based on the particular facts in each case and that the

questions arising for decision on this appeal can be answered by

harmonising the law as declared upon drawing guidance

therefrom.

24

(2005) 2 SCC 42

39

43. To the extent relevant, section 2(n) of the Cr. PC defines “offence”

as any act or omission made punishable by any law for the time

being in force. Section 200 ordains what a Magistrate, inter alia,

is required to do on receipt of a complaint. In taking cognizance

of an offence on a complaint, he is required to (i) examine upon

oath the complainant and the witness present, if any; (ii) reduce

in writing the substance of such examination; (iii) get the

signature of the complainant and the witness , if any, on such

writing; and (iv) sign the same too. Section 202 is a provision that

enables the Magistrate to postpone the issue of process against

the accused and, if he thinks fit, either (a) inquire into the case

himself or (b) direct an investigation to be made by (i) a police

officer or (ii) by such other person he thinks fit. The statute

permits the Magistrate to take such steps to facilitate a decision

whether there is sufficient ground for proceeding against the

accused by ascertaining the truth or falsity of the allegations made

in the complaint. Section 203 authorizes the Magistrate, after

considering the statements on oath of the complainant and the

witness, if any, under section 200 or the result of the inquiry or

the investigation under section 202, to dismiss a complaint, with

brief reasons, should in his judgment there be no ‘sufficient ground

for proceeding’. On the other hand, section 204 under Chapter XVI

of the Cr. PC titled ‘Commencement of Proceedings before

Magistrates’ envisages that the Magistrate taking cognizance shall

40

take steps for the issue of necessary process if in his opinion there

is ‘sufficient ground for proceeding’. It is therefore abundantly

clear, from the aforesaid general scheme, that the accused does

not enter the arena of adjudication made by the Magistrate prior

to issuance of process.

44. Thus, when a Magistrate taking cognisance of an offence proceeds

under section 200 based on a prima facie satisfaction that a

criminal offence is made out, he is required to satisfy himself by

looking into the allegations levelled in the complaint, the

statements made by the complainant in support of the complaint,

the documentary evidence in support of the allegations, if any,

produced by him as well as statements of any witness the

complainant may choose to produce to stand by the allegations in

the complaint. Although we are not concerned with section 202

here, if an inquiry or an investigation is conducted thereunder, it

goes without saying that the reports should also be looked into by

the Magistrate before issuing process under section 204. However,

there can be no gainsaying that a t the stage the Magistrate

decides to pass an order summoning the accused, examination of

the nature referred to above ought not to be intended for forming

an opinion as to whether the materials are sufficient for a

‘conviction’; instead, he is required to form an opinion whether the

materials are sufficient for ‘proceeding’ as the title of the relevant

41

chapter would indicate. Since the accused does not enter the arena

at that stage, question of the accused raising a defence to thwart

issuance of process does not arise. Nonetheless, the fact that the

accused is not before the Magistrate does not mean that the

Magistrate need not apply his judicial mind. Nothing in the

applicable law prevents the Magistrate from applying his judicial

mind to other provisions of law and to ascertain whether, prima

facie, an “offence”, as defined in section 2(n) of the Cr. PC is made

out. Without such opinion being formed, question of “proceeding”

as in section 204 does not arise. What the law imposes on the

Magistrate as a requirement is that he is bound to consider only

such of the materials that are brought before him in terms of

sections 200 and 202 as well as any applicable provision of a

statute, and what is imposed as a restriction by law on him is that

he is precluded from considering any material not brought on the

record in a manner permitted by the legal process. As a logical

corollary to the above proposition, what follows is that the

Magistrate while deciding whether to issue process is entitled to

form a view looking into the materials before him. If, however,

such materials themselves disclose a complete defence under any

of the Exceptions, nothing prevents the Magistrate upon

application of judicial mind to accord the benefit of such Exception

to prevent a frivolous complaint from triggering an unnecessary

trial. Since initiation of prosecution is a serious matter, we are

42

minded to say that it would be the duty of the Magistrate to

prevent false and frivolous complaints eating up precious judicial

time. If the complaint warrants dismissal, the Magistrate is

statutorily mandated to record his brief reasons. On the contrary,

if from such materials a prima facie satisfaction is reached upon

application of judicial mind of an “offence” having been committed

and there being sufficient ground for proceeding, the Magistrate is

under no other fetter from issuing process. Upon a prima facie

case being made out and even though much can be said on both

sides, the Magistrate would have no option but to commit an

accused for trial, as held in Chandra Deo Singh (supra). The

requirement of recording reasons at the stage of issuing process

is not the statutory mandate; therefore, the Magistrate is not

required to record reasons for issuing process. This is also the law

declared by this Court in Jagdish Ram v. State of Rajasthan

25

.

Since it is not the statutory mandate that reasons should be

recorded in support of formation of opinion that there is sufficient

ground for proceeding whereas dismissal of a complaint has to be

backed by brief reasons, the degree of satisfaction invariably must

vary in both situations. While in the former it is a prima facie

satisfaction based on probability of complicity, the latter would

require a higher degree of satisfaction in that the Magistrate has

to express his final and conclusive view of the complaint

25

(2004) 4 SCC 432

43

warranting dismissal because of absence of sufficient ground for

proceeding.

45. In the context of a complaint of defamation, at the stage the

Magistrate proceeds to issue process, he has to form his opinion

based on the allegations in the complaint and other material

(obtained through the process referred to in section 200/section

202) as to whether ‘sufficient ground for proceeding’ exists as

distinguished from ‘sufficient ground for conviction’, which has to

be left for determination at the trial and not at the stage when

process is issued. Although there is nothing in the law which in

express terms mandates the Magistrate to consider whether any

of the Exceptions to section 499, IPC is attracted, there is no bar

either. After all, what is ‘excepted’ cannot amount to defamation

on the very terms of the provision. We do realize that more often

than not, it would be difficult to form an opinion that an Exception

is attracted at that juncture because neither a complaint for

defamation (which is not a regular phenomenon in the criminal

courts) is likely to be drafted with contents, nor are statements

likely to be made on oath and evidence adduced, giving an escape

route to the accused at the threshold. However, we hasten to

reiterate that it is not the law that the Magistrate is in any manner

precluded from considering if at all any of the Exceptions is

attracted in a given case; the Magistrate is under no fetter from

44

so considering, more so because being someone who is legally

trained, it is expected that while issuing process he would have a

clear idea of what constitutes defamation. If, in the unlikely event,

the contents of the complaint and the supporting statements on

oath as well as reports of investigation/inquiry reveal a complete

defence under any of the Exceptions to section 499, IPC, the

Magistrate, upon due application of judicial mind, would be

justified to dismiss the complaint on such ground and it would not

amount to an act in excess of jurisdiction if such dismissal has the

support of reasons.

46. Adverting to the aspect of exercise of jurisdiction by the High

Courts under section 482, Cr. PC, in a case where the offence of

defamation is claimed by the accused to have not been committed

based on any of the Exceptions and a prayer for quashing is made,

law seems to be well settled that the High Courts can go no further

and enlarge the scope of inquiry if the accused seeks to rely on

materials which were not there before the Magistrate . This is

based on the simple proposition that what the Magistrate could not

do, the High Courts may not do. We may not be understood to

undermine the High Courts’ powers saved by section 482, Cr. PC;

such powers are always available to be exercised ex debito

justitiae, i.e., to do real and substantial justice for administration

of which alone the High Courts exist. However, the tests laid down

45

for quashing an F.I.R. or criminal proceedings arising from a police

report by the High Courts in exercise of jurisdiction under section

482, Cr. PC not being substantially different from the tests laid

down for quashing of a process issued under section 204 read with

section 200, the High Courts on recording due satisfaction are

empowered to interfere if on a reading of the complaint, the

substance of statements on oath of the complainant and the

witness, if any, and documentary evidence as produced, no

offence is made out and that proceedings, if allowed to continue,

would amount to an abuse of the legal process. This too, would be

impermissible, if the justice of a given case do es not

overwhelmingly so demand.

47. Based on our understanding of the law and the reasoning that we

have adopted, issue of process under section 204 read with section

200, Cr. PC does not ipso facto stand vitiated for non-consideration

of the Exceptions to section 499, IPC unless, of course, before the

High Court it is convincingly demonstrated that even on the basis

of the complaint and the materials that the Magistrate had before

him and without there being anything more, the facts alleged do

not prima facie make out the offence of defamati on and that

consequently, the proceedings need to be closed.

48. The above discussion answers the questions of law formulated by

us.

46

49. Moving on to answer question (a), what we find i n the present

case is that the Trial Court did not take recourse to section 202,

Cr. PC and hence obtaining reports of inquiry or investigation, as

the case may be, did not arise. Though not under any statutory

requirement, the Trial Court has given brief reasons in its order

showing application of mind. At the stage, when the Trial Court

made the summoning order , two aspects were required to be

satisfied: (1) whether the uncontroverted allegations as made in

the petition of complaint read with the examination of the

complainant, prima facie, tend to suggest an offence having been

committed, and (2) whether it is expedient and in the interest of

justice to proceed. Keeping in view the allegations made in the

petition of complaint and the evidence placed before the Trial

Court by the complainant and on a plain reading of its order dated

25

th

March, 2010 issuing summons to the accused, it does not

appear to us that the finding of a prima facie case having been

made out at that stage is so outrageously illogical or in defiance

of legal principles and acceptable standards that it would merit

interference by this Court. If at all the benefit of the Fourth

Exception or any other pleaded exception is to be availed of, the

appellant would be free to appear before the Trial Court and raise

whatever defence is available to it in law, not necessarily confined

47

to the Fourth Exception, for due consideration thereof by the Trial

Court.

50. On facts of this case, we are satisfied that the Trial Court was not

unjustified in issuing summons to the accuse d based on the

materials before it.

51. We also hold that the omission of the learned Judge in dealing with

the other points raised in the petition by the appellant does not

afford any ground for us to interfere, having noticed that by a

detailed judgment delivered on the same day on the petitio n of

Aggarwal, the learned Judge had applied his mind and spurned a

similar challenge. However, it is observed that the learned Judge

would have been well advised to add a sentence in the order

impugned that no separate reason was being assigned to dispose

of the other points raised by the appellant in view of the reasons

already assigned for disposal of Aggarwal’s petition laying

challenge to the summoning order.

52. Question (a), thus, stands answered against the appellant.

53. Having regard to what we have held above, questions (b) and (c)

need not detain us for long. We could have left them unanswered

but since some argument was advanced touching the same, we

propose to briefly deal therewith.

48

54. Answer to question (b) must necessarily depend on the facts of

each case, meaning thereby the quality of evidence that is led in

course of the trial and the weight to be attached to it. At this stage

it would not be inappropriate to consider the other line of

argument advanced by Mr. Taneja that those documents/materials

on which the appellant seeks to rely have not been admitted or

accepted by the complainant and are yet to be proved; hence, the

same cannot be looked into while considering a prayer for

quashing. The ratio of the decision in Supriya Jain (supra) finds

support from an earlier decision of this Court in Chand Dhawan

(Smt.) v. Jawaharlal

26

, where it was held that the High Court of

Punjab and Haryana was not justified in quashing the complaint

and the criminal proceedings on the ground of abuse of the

process of court by relying on additional material produced by the

accused, which was not admitted in evidence or accepted by the

complainant.

55. The Power of Attorney is yet not proved by the appellant according

to law and, therefore, could not have been considered by the

learned Judge and cannot be considered by this Court as well.

Even if proved, its effect and import necessarily have to be

considered by the Trial Court in the light of the guiding factors for

26

(1992) 3 SCC 317

49

applicability of an Exception as indicated in the concurring

judgment authored by Hon’ble O. Chin nappa Reddy, J. in

Sewakram Sobhani (supra).

56. However, if from evidence led it is established that the authorised

agent had issued defamatory statements with the consent of the

principal or that the principal, without giving consent, had due

knowledge of such defamatory statements, yet, did not

caution/reprimand the agent for doing so or had not disowned the

statements so made, there is no reason why a prosecution for

defamation should be nipped in the bud on the specious ground

that an authorised agent is supposed to act lawfully and not

unlawfully.

57. Turning to question (c), it is for the appellant to demonstrate

before the Trial Court that the Fourth Exception is attracted, or

plead any other defence, and discharge its burden of proof in

respect thereof during the course of the trial. This, in our opinion,

is not the right stage to opine one way or the other and, therefore,

we leave it open for being decided by the Trial Court in accordance

with law.

CONCLUSION

58. Having answered all the questions, what is left for us is to dismiss

the appeal which we hereby order. The appeal is dismissed, with

50

the result that the interim order shall stand vacated forthwith.

There shall, however, be no order for costs.

59. Except to the extent decided by this judgment, all other points are

left open to be urged by the appellant before the Trial Court for a

decision by it.

60. Since the proceedings have been unduly delayed, the Trial Court

is encouraged to expedite the same.

………………………………………J .

(BELA M. TRIVEDI)

………………………………………J .

(DIPANKAR DATTA)

NEW DELHI;

5

TH

OCTOBER, 2023