NEUTRAL CITATION
R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3491 of 2022
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE PHULCHHAB DAILY NEWS PAPER THROUGH ITS EDITOR KAUSHIK
VRAJLALBHAI MEHTA
Versus
STATE OF GUJARAT
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Appearance:
MR KRUNAL L SHAHI(6519) for the Applicant(s) No. 1
MR PV PATADIYA(5924) for the Respondent(s) No. 2
MS AV PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 23/08/2023
ORAL JUDGMENT
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NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined
1. The present petition is filed by the petitioner for quashing and setting aside the impugned order dated 06.03.2021 passed by the learned Judicial Magistrate, First Class, Jodia in Criminal Inquiry No.14 of 2019 (Old Criminal Inquiry No.1 of 2004), which came to be culminated into Criminal Case No.108 of 2021.
2. Brief facts giving rise to the present petition are as under:- 2.1 It is alleged by the complainant in the complaint that he was working as security guard and tenant of Jain Boarding situated at Village: Dhrol, District: Jamnagar for more than 20 years and he was residing along with his family and looking after the land. That since the price of the land of the Jain Boarding increased, the owners of the Jain Boarding connivance with other accused persons were threatening respondent no.2 to take forcible possession of the premises. It is also alleged that the accused persons were fully aware that the complainant belongs to the schedule caste and, therefore, the accused have willfully and deliberately published some news articles against him and his son in the daily newspaper "Phulchhab", "Jansatta - Loksatta" and Sandeshi edition on 03.10.1999, 06.10.1999 and 07.10.1999 Page 2 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined wherein it was published that the complainant and his son being schedule caste members were misusing and violating laws by threatening innocent persons to implicate falsely in various cases.
2.2 It is also alleged that the complainant had never misused nor violated any laws and due to publication of the news articles, reputation of his family were damaged. That after due deliberation and consultation on 30.01.2004 (i.e. after a delay of 4 years 3 months and 24 days), respondent no.2 had filed a private complaint against the accused persons. In the said complaint, respondent no.2 had shown the Phulchhab daily newspaper and other employees of the said newspapers as witnesses. That respondent no.2 had filed private complainant dated 30.01.2004 before the learned Judicial Magistrate, First Class, Dhrol and the learned Judicial Magistrate, First Class has ordered to investigate under Section 156(3) of the Criminal Procedure Code, 1973 (hereinafter be referred to as "the Code.") and to file the report on 03.03.2004 and pursuant to the same, Criminal Inquiry No.1 of 2004 was registered. It is alleged that after the investigation was over, the police had submitted "C" Page 3 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023
NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined Summary Report before the concerned Magistrate Court on 30.07.2004 stating that the complaint was filed after a period of limitation. On the basis of the report, the Magistrate Court rejected the complaint being Criminal Inquiry No.1 of 2004 vide order dated 05.03.2005.
2.3 It is further alleged that respondent No.2 - original complainant filed Criminal Revision Application No.45 of 2005 before the Sessions Court at Jamnagar whereby the Sessions Court quashed the order dated 05.03.2005 passed by the Magistrate Court and directed to conduct the inquiry by Deputy Superintendent of Police or equivalent Police Officer and to file inquiry report. Thereafter, the inquiry was conducted by the Deputy Superintendent of Police and submitted report dated 21.04.2018 to the Court of learned Judicial Magistrate, First Class, Dhrol. In the said report, since the complainant had not produced any evidence in support of his allegation much less any evidence to the effect that his reputation was defamed or diminished by publication of such news articles, the Deputy Superintendent of Police filed "C" Summary Report dated 21.04.2013 at Exhibit 13. It is also alleged that on 19.10.2020, Page 4 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined the complainant filed an application at Exhibit 32 before the learned Judicial Magistrate, First Class, Dhrol inter alia praying not to accept the report at Exhibit 13. That on filing of such application, the Court below passed further order below Exhibit 13 and Exhibit 32 in Criminal Inquiry Case No.14 of 2019 (old Inquiry Case No.1 of 2004) and observed that "C" Summary report filed by the Deputy Superintendent of Police was not accepted being incomplete, incomprehensive and inexhaustive and directed the Superintendent of Police to investigate the case further by the officer having the rank of Deputy Superintendent of Police and the Superintendent of Police must directly supervise the investigation and should file report within 15 days. 2.4 It is alleged that in pursuance of the said order, Deputy Superintendent of Police submitted further report at Exhibit 40 dated 03.01.2021 wherein the police has reiterated its stand as taken in the earlier reports. Despite of such report at Exhibit 40, the learned Judicial Magistrate First Class passed an order dated 06.03.2021 below Exhibit 40 whereby the Court has ordered to take cognizance of offences punishable under Sections 499, 500, 501, 502, 109, 114 etc of the Indian Penal Code and rejected the Page 5 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined "C" Summons filed by the Investigating Officer and issued summons against eight persons and registered the criminal complaint as Criminal Case No.108 of 2021. It is alleged that on receipt of summons, the petitioner appeared before the concerned Court.
2.5 Feeling aggrieved and dissatisfied with the impugned order dated 06.03.2021 passed by the learned Judicial Magistrate, First Class, Jodia, the petitioner has preferred the present petition.
3. Heard Mr.Krunal Shahi, learned advocate for the petitioner, Ms.A. V. Patel, learned Additional Public Prosecutor for the respondent - State of Gujarat and Mr.P. V. Patadiya, learned advocate for the respondent - complainant. The respondent - complainant has filed the affidavit-in-reply.
4. Mr.Shahi, learned advocate for the petitioner has submitted that the petitioner has not committed the alleged offence and the complaint is filed with an ulterior and oblique motive and with mala fide intention and continuing the proceedings against the accused is nothing but an abuse of process of law. He has submitted that the petitioner is an editor of the Phulchhab daily Page 6 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined newspaper and he became an editor in January 2013 and when the alleged articles were published in Phulchhab newspaper on 06.10.1999 at that relevant point of time, the editor was Shri Dineshbhai Kantilal Raja who passed away on 26.12.2014. He has submitted that the alleged articles were published on 06.10.1999 whereas the complaint came to be filed by the complainant on 30.01.2004 i.e. after a lapse of 4 years 3 months and the complainant has not given any satisfactory reason for the huge delay in filing the complaint. He has submitted that when any private complaint is filed under Section 200 of the Code, the concerned Magistrate has empowered under Section 202 of the Code to inquire into the case and to direct the police to investigate and take cognizance. He has submitted that there is absence of basic and primary elements defamation and hence no case is made out against the accused for the alleged offence. He has referred to and relied upon the decisions of this Court in the case of Sudhir Agrawal Publisher of Divya Bhaskar Vs. State of Gujarat reported in Laws (GJH) 2018 (4) 80, Ajaysinh Dalpatsinh Umat Vs. Patel Rajubhai Dashratbhai reported in 2019 (1) GLH 227 and State of Orissa and Page 7 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined another Vs. Sarojkumar Sakoo reported in (2005) 13 SCC
540. He has submitted that as per the decision of this Court in the case of Suresh Chhotalal Vs. State of Gujarat reported in 2001 (2) GLR 1029, a person cannot be compelled to go for the trial if there is no evidence against such person and in the present case there is no iota of evidence much less legally admissible against the petitioner. He has submitted that in number of cases the Hon'ble Supreme Court has held that where the allegations constitute an offence but there is no legal evidence adduced, it is not proper to send the accused for trial. He has submitted that the learned Magistrate ought to have examined the nature of allegations made in the complaint and the oral as well as documentary evidence. He has submitted that this Court has considered similarly situated issue in the case of Sandesh Limited through Nishit A. Parmar Vs. State of Gujarat rendered in Special Criminal Application No.2710 of 2022 and allied matters decided on 13.04.2023. He has urged to quash and set aside the impugned order passed by the learned Magistrate.
5. Ms.Patel, learned Additional Public Prosecutor for the Page 8 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined respondent - State of Gujarat has supported the impugned order passed by the concerned Court below and submitted that no interference is required to be called for. Learned Additional Public Prosecutor has submitted that as the petitioner was not named in the FIR and only the summons issued by the learned Magistrate and, therefore, the present petitioner has no right to file the petition. Learned Additional Public Prosecutor has submitted that the petition being meritless deserves to be dismissed.
6. Mr.Patadiya, learned advocate for the respondent - original complainant has objected the present petition and submitted that as the petitioner was not named in the FIR and he was not authorized person at the relevant point of time when the complaint was filed and, therefore, the present petitioner has no right to challenge the impugned order for issuance of process by way of present petition. He has submitted that this petition is filed by the petitioner in an individual capacity challenged the impugned order of issuance of summons dated 06.03.2001 passed below Exhibit 40 by the learned Magistrate. He has submitted that the trial Court has, after perusing the Page 9 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined documentary evidence, issued summons against eight persons including the present petitioner and from perusal of the impugned order, the name of the present petitioner has not figured at all. He has submitted that the question as to whether the offences punishable under Sections 499, 500, 501, 502, 109, 114 of the IPC are made out or not, cannot be decided in the present petitions as it is a pure question of fact which is required to be adjudicated by the Trial Court. Mr.Patadiya, learned advocate has referred the decision of this Court in the case of Satish Menon Vs. State of Gujarat reported in 2017 (4) GLR 3385 more particularly paragraph no.9. He has submitted that the complainant has filed the complaint for the offence under Section 500 of the IPC for defamation with regard to publication of news in daily newspapers i.e. "Loksatta - Jansatta" on 03.10.1999, "Phul Chhab" on 06.10.1999 and "Sandesh" on 07.10.1999. He has submitted that so far as the delay in filing the complaint is concerned, the explanation / exception has been given in Section 473 of the Cr.P.C. and the Court can condone delay in the interest of justice in case of necessary so arise. He has submitted that the concerned Court has elaborately Page 10 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined discussed in the order about the delay and, therefore, it cannot be said that there is delay on the part of the complainant. He has referred Section 156(3) of the Code and submitted that this section gives exclusive powers to the learned Magistrate to make an order of investigation. He has submitted that once any complaint is made before the Magistrate, the Magistrate can pass an order under Section 156(3) of the Code to produce police report. He has submitted that by following the procedure as envisaged under the provisions of the Code, the learned Magistrate has not committed any error by which the entire proceedings could be quashed and set aside and accused be acquitted without any trial. He has referred Section 199(6) of the Code and submitted that there would be no any bar in taking cognizance by the learned Magistrate on the complaint filed by the complainant. He has submitted that the petition being meritless deserves to be dismissed.
7. It is settled law that for considering the application under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the Page 11 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
8. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the Page 12 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
9. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.
10. It reveals from the record that at the time of issuance of the summons and when the alleged articles were published in Phulchhab newspaper in the year 1999, the petitioner was not an editor and at that relevant point of time, the editor was Shri Dineshbhai Kantilal Raja and the petitioner was an editor of the Phulchhab Daily newspaper in the year 2020. As the petitioner received the summons issued by the Court, he has challenged the same on the ground that the private complaint filed by the complainant is at belated stage and more particularly under Section 467 of the Code the summons and the cognizance which took by the Court is illegal and unjust and the summons issued is beyond the period of limitation of Section 467 of the Code. This Page 13 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined Court has also decided the similarly situated issue in the case of Sandesh Limited through Nishit A. Parmar Vs. State of Gujarat rendered in Special Criminal Application No.2710 of 2022 and allied matters decided on 13.04.2023 which is not challenged by either of the parties before the higher forum.
11. Considering the submissions made by the learned advocate for the applicant, it clearly reveals that the learned Magistrate has no right to issue process under Section 156(3) of the Cr.P.C. Learned advocate for the respondent has drawn attention of this Court by making statement to the fact that earlier at the first instance, the Investigating Officer has filed "C" Summary Report, which came to be accepted by the concerned Magistrate and the same was challenged by the complainant by filing Criminal Revision Application. The concerned Sessions Court has allowed the Criminal Revision Application and as the order is remained in forced the applicant has not challenged the same and, thereafter, the proceedings is continued. As against that learned advocate for the applicant has submitted that though after passing of the order by the Sessions Court in favour of the respondent, again Deputy Superintendent of Police has filed Page 14 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023 NEUTRAL CITATION R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023 undefined summary report before the concerned Magistrate Court, which was not considered by the Magistrate, but the main contention raised by the applicant before this Court is with regard to maintainability of the proceedings as stipulated under the above referred provisions of law. As per Section 468 of the Code, the Magistrate is not authorized or empowered to take cognizance of an offence beyond the limitation period and the concerned Magistrate exceeded its jurisdiction while ordering to take cognizance of the alleged offence beyond limitation period and also ordering to register the criminal complaint and to issue summons to the applicant and other persons. Considering the provisions of Section 499 of the IPC, it appears that the present case is squarely covered under exception of the said section. The Court below has committed an error while passing the impugned order and, therefore, the interference is required to be called for.
12. Now, on perusal of the aforesaid legal preposition and the materials placed on record and considering the peculiar facts of the case, this Court is of the considered opinion that the present petition deserve consideration.
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13. For the foregoing reasons, these petitions succeed. The impugned order dated 06.03.2021 passed by the learned Judicial Magistrate, First Class, Jodiya Criminal Inquiry No.14 of 2019 (Old Criminal Inquiry No.1 of 2004) which was culminated into Criminal Case No.108 of 2021 and the summons dated 25.10.2021 issued by the by the learned Judicial Magistrate, First Class, Jodiya are hereby quashed and set aside. Rule made absolute accordingly. Direct service is permitted.
Sd/-
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 16 of 16 Downloaded on : Sun Sep 17 02:12:32 IST 2023