Sonam Tangri vs State Of U.P. And Another
2022 Latest Caselaw 16729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 03.11.2022
 
Judgment delivered on 11.11.2022
 
Court No. 84
 

 
Case :- APPLICATION U/S 482 No. 38074 OF 2018
 

 
Applicant :- Sonam Tangri
 
Opposite Party :- State of U.P. and another
 
Counsel for Applicant :- Anil Kumar Bajpai
 
Counsel for Opposite Party :- G.A., Dharmendra Dhar Dubey, N/A
 

 
Hon'ble Saurabh Shyam Shamshery, J.

1. This is another offshoot of matrimonial dispute between the applicant and son of opposite party No.2 (complainant).

2. In the present case, the complainant who declared himself to be a retired Lieutenant Colonel filed a complaint that the applicant has committed an offence under Section 500 I.P.C. that he has mentioned certain defamatory contents in reply to his suit filed by opposite party No.2 and has raised certain defamatory statement in public. The learned trial Court after considering the statement recorded under Sections 200 and 202 Cr.P.C. issued summon by impugned order herein.

3. Sri Anil Kumar Bajpai, learned counsel for applicant has vehemently argued that from the impugned order which does not reflect that the learned trial Court has perused the reply filed by applicant in a civil suit to come to a prima facie conclusion that the contents therein are defamatory as well as there is no specific narration of words in the impugned order which alleges to be of defamatory in nature and he placed reliance on paragraph 38 of Lalankumar Singh v. State of Maharashtra, 2022 SCC OnLine SC 1383 which is mentioned hereinafter :-

"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, which reads thus:

"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.""

4. Per contra, Sri Paritosh Kumar Malviya, learned A.G.A.-I for the State, Sri Dharmendra Dhar Dubey and Sri Akhilesh Tiwari, learned counsel for opposite party No2 have vehemently opposed the above submissions, however, failed to point out the contents of reply filed by the applicant as well as alleged words used by the applicant which were prima facie defamatory in nature. The relevant part of impugned order is mentioned hereinafter :-

"सुना तथा प्रपत्रों का अवलोकन किया। परिवादिनी द्वारा अपने परिवाद पत्र के कथनों का समर्थन करे हुए बयान अन्तर्गत धारा 200 द०प्र०सं० में कथन किया है कि सोनम द्वारा मुझ पर छेडछाड व उत्पीडन का इल्जाम लगाया है। परिवादी द्वार अपने कथनों के समर्थन में वाद समर्थित सं०- 476/2016 ले० कर्नल आर०के० शर्मा बनाम सोनम टांगरी में विपक्षी द्वारा दाखिल प्रतिवाद पत्र परिवाद में संलग्न किया जिसके अवलोकन से स्पष्ट है कि विपक्षी द्वारा परिवादी पर उत्पीड़न करने का आरोप लगाया है। परिवादी के कथनों को साक्षी सं०-2 ने भी समर्थित किया है। अत: पत्रावली पर उपलब्ध परिवाद पत्र मय शपथ-पत्र व परिवादी के बयान धारा 200 द०प्र०सं० एवं साक्षीगण के बयान धारा 202 द०प्र०सं० एवं परिवादी की ओर से दाखिल प्रपत्रो आदि का गहन अध्ययन करने के उपरान्त मेरा निष्कर्ष है कि उक्त अभियुक्ता / विपक्षी सोनम टांगरी के विरूद्ध धारा 500 भा०द०सं० के दृष्ट्या मामला बनना प्रतीत होता है। तदनुसार विपक्षी सोनम टांगरी को धारा 500 भा० द०स० में तलब किए जाने योग्य है।"

5. From the above referred part of impugned order, though the Court concerned has perused the reply filed by the applicant, however, it does not reflect the contents thereof may be in brief as well as words used by applicant being defamatory are also not mentioned, therefore, even prima facie ingredients of Section 500 I.P.C. are not made out which may fall prima facie under the definition of defamatory as mentioned in Section 500 I.P.C.

6. Therefore, this Court is of the opinion that the above referred part of impugned order is bereft of the requisite opinion that there were sufficient ground to proceed against applicant as required by Lalankumar (supra).

7. Accordingly, impugned order dated 27/30.07.2018 passed by Judicial Magistrate, Ghaziabad in Complaint Case No. 53 of 2017 (R.K. Sharma vs. Sonam Tangri), pending before Judicial Magistrate, Ghaziabad, is set aside and the matter is remanded back to learned trial Court to pass fresh order under Section 203 or 204 Cr.P.C., as the case may be, expeditiously.

8. The application stands allowed.

Order Date :- November 11, 2022

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]