Gujarat High Court
Jayantiben Keshav Furgo vs State Of Gujarat on 9 August, 2021
Bench: B.N. Karia
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2429 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 2430 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
==========================================================
JAYANTIBEN KESHAV FURGO
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR MEHULSHARAD SHAH(773) for the Respondent(s) No. 2
MR. H.K. PATEL, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 09/08/2021
COMMON ORAL JUDGMENT
1. Rule. Learned advocate Mr. Mehulsharad Shah waives service
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
of notice of rule for and on behalf of respondent No.2 and learned
APP waives service of notice of rule for the respondent - State.
2. As identical issue is involved in both these petitions, on a
joint request made by learned advocates for the respective parties
as well as learned APP, these petitions are disposed of by passing a
common order.
3. Short facts emerged from the petitions arise as under. For the
sake of convenience, Special Criminal Application No.2429/2014 is
treated as lead matter.
3.1 "The respondent No.2, filed a complaint against the
petitioners before the learned Chief Judicial Magistrate, Porbandar
under Section 500 of the IPC. Learned Chief Judicial Magistrate
Porbandar, after recording verification and statement of the
witnesses, issued process against the petitioner/accused for the
offence punishable under Section 500 of the IPC. Initially, the
petitioners preferred Criminal Misc. Application No.1384/2012
with Criminal Misc. Application No.1385/2012 before this Court.
But, on 08.02.2012, under the instruction of the petitioners,
learned advocate appearing for the petitioners seek permission to
withdraw both these applications with a liberty to take action in
accordance with law before the competent Court with regard to the
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
subject matter and therefore, permission was granted with
clarification that Court has not entered into the merits of the case
and the subject matter of the complaint will be decided by the
learned Magistrate in accordance with law. The petitioner
challenged the order of the learned Chief Judicial Magistrate,
Porbandar issuing process against him in connection with the
complaint filed by the respondent No.2 i.e. Criminal Case
No.1605/2011 by preferring Criminal Revision Application
No.8/2012 before the learned Sessions Judge at Porbandar.
4. After hearing the parties, the learned Additional Sessions
Judge, Porbandar by his order dismissed the revision application on
13.05.2014. Hence this petition is submitted under Article 226 of
Constitution of India as well as under Section 482 of Code of
Criminal Procedure, 1973. Petitioner has sought following relief in
the present petition.
"7(A) YOUR LORDSHIPS be pleased to call for the records and
proceedings of both the Courts below and further be pleased to
quash and set aside the impugned orders dated 13.5.2014
passed by Ld. Additional Sessions Judge, Porbandar in
Criminal Revision Application No.8/2012 and the order of
issuance of process passed against the petitioner by the Ld.
Chief Judicial Magistrate, Porbandar u/s. 204 of Cr.P.C. In
Criminal Case No.3605/2011, in the interest of justice;
IN THE ALTERNATIVE
(AA) YOUR LORDSHIPS be pleased to quash the impugned
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
complaint being Criminal Case No.3605/2011 filed in the
Court of Ld. CJM, Porbandar for the offences punishable u/s.
500 of IPC and all further proceedings in pursuance thereto, in
the interest of justice;
(B) YOUR LORDSHIPS be pleased to stay the further
proceedings of complaint being Criminal Case No.3605/2011
filed in the Court of Ld. CJM, Porbandar for the offences
punishable u/s. 500 of IPC, pending the admission, hearing
and final disposal of this petition, in the interest of justice;
(C) YOUR LORDSHIPS be pleased to stay the
implementation, operation and execution of impugned orders
dated 13.05.2014 passed by Ld. Additional Sessions Judge,
Porbandar in Criminal Revision Application No.8/2012 and
the order of issuance of process passed against the petitioner by
the Ld. Chief Judicial Magistrate, Porbandar u/s. 204 of
Cr.P.C. in Criminal Case No.3605/2011, pending the
admission, hearing and final disposal of this petition, in the
interest of justice;
(D) YOUR LORDSHIPS be pleased to grant such other and
further reliefs, as may be deemed fit by this Hon'ble Court, in
the interest of justice;
5. Heard learned advocate Mr. Virat G. Popat for the petitioner,
learned advocate Mr. Dev Patel appearing for learned advocate Mr.
Mehul S. Shah for the respondent No.2 and learned APP Mr. H. K.
Patel for the respondent No.1.
6. It is submitted by learned advocate for the petitioner that
Regular Civil Suit No.8/2010 was filed by the petitioner for
declaration and permanent injunction before the learned Civil
Judge (JD) and certain reliefs were sought against the respondent
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
No.2 as well as earlier partner Shri Navinchandra Gandhi. It is
further submitted that in the suit filed by the petitioner, it was
pleaded that respondent No.2 herein is an infamous man having no
good reputation and such allegations were made and because of
that, reputation of the complainant was tarnished and therefore
offence of defamation was taken place. It was alleged that the said
pleadings has been published in the newspapers which has caused
defamation. He has further submitted that wife of the respondent
No.2 had also filed a criminal complaint before the learned C.J.M.,
Porbandar under the same set of allegations in which she failed up
to the Sessions Court, Visavadar. That initially, said complaint was
registered as Criminal Inquiry Case No.8/2010 and subsequently, it
was registered as Criminal Case No.3605/2011. It is submitted that
in the complaint filed by the wife of the respondent No.2, it was
alleged that husband of the complainant was joined as defendant in
the suit proceedings and allegations were levelled against him and
because of that, defamation has taken place. That the said
complaint filed by the wife was rejected by the learned Magistrate
and revision application filed against the same was also rejected by
the Sessions Court. That the present complaint filed by the
respondent No.2, is based on the same set of allegations which
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
amounts to serious abuse and misuse of process of law. It is further
submitted that for the purpose of changing the jurisdiction of the
Court, successive prosecution has been lodged by the respondent
No.2. That he has suppressed the filing of the earlier complaint
filed by his wife and its rejection up to the Sessions Court. It is
further submitted that issuance of summons / process is obtained
by fraud by the respondent No.2. That no offence is made out by
the present petitioner as averred in the complaint. It is further
submitted Explanation 4 of Section 499 and Exception No.8 of
Section 499 makes it clear that in the present case, no offence has
taken place. It is further submitted that the defamation as alleged
in the complaint is based on publication of the news Article of filing
of suit before the Civil Court at Diu by the petitioner. That
petitioner cannot be held liable for a news which may be published
by the media in any manner and therefore also no defamation at all
is made out by the respondent No.2. It is further submitted that
learned Magistrate has committed grave error in issuing process
against the petitioner. That in the suit filed by the petitioner, it is
nowhere alleged that respondent No.2 herein belongs to a
particular community and because of that he is "head strong". That
pleadings in the Court proceedings would never amount to an
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
imputation intending to harm or knowing or having reason to
believe that such imputation may harm the reputation of such
person in any manner. That as per explanation 4 of Section 499 of
IPC, alleged imputation cannot harm the reputation of respondent
No.2. That present complaint has been filed with a mala fide
intention to harass the petitioner and her family members. That
publication of the averments made in the Civil Suit filed by the
petitioner in the newspaper was not at all at the behest of the
petitioner. It is further submitted that the publishers i.e. editor in
the newspaper company have not been joined as an accused in the
impugned complaint. That no cognizance can be taken by the
learned Magistrate in summoning the petitioner. That no prima
facie case is made out against the petitioner. In support of his
arguments, learned advocate for the petitioners has relied upon the
following judgments:
(1) Rajendra Kumar Sitaram Pande & Ors. v.
Uttam & Another reported in AIR 1999 SC
(2) Pandey Surendranath Sinha and Ors. v.
Bageshwari Pd. Reported in AIR 1961 Pat
(3) Atul Kumar Pandey v. Kumar Avinash.
(4) YogeshBabulal Shah v. K. S. Bhasin
reported in 2005 3 GLH 553
(5) Anil Khadkiwala v. State (Government of
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
NCT of Delhi) and Ors. Reported in AIR 2019
SC 3583
(6) Vinod Kumar, IAS v. Union of India and Ors.
Writ Petition(s) (Criminal) No. (s) 255/2021
(7) Superintendent and Remembrancer of Legal
Affairs, West Bengal v. Mohan Singh and
Ors. reported in SCC 1975 (3) 706
(8) Navinchandra Vishnuprasad Shah v. State of
Gujarat and Anr. Reported in 2013 (2) GLH
(9) Nagawwa v. Veeranna Shivalingappa
Konjalgi reported in 1976(3) SCC 736
(10) Adalat Prasad v. Rooplal Jindal and Ors.
Reported in (2005) 1 GLR 546
(11) G. Sagar Suri and Anr. v. State of U.P. and
Ors. Reported in 2000(2) SCC 636
(12) S.W. Palanitkar and Ors. v. State of Bihar
And Anr. Reported in 2001(4) Suppl. SCR
(13) Anil Mahajan v. Bhor Industries Ltd. & Anr.
(2205) 10 SCC 228
(14) S.K. Alagh vs State of U.P. & Ors. (2008) 5
SCC 662
(15) T. T. Antony v. State of Kerala and Others
(2001) 6 Supreme Court Cases 181
6. Per contra learned advocate appearing for the respondent
No.2 has supported the order passed by the Learned JMFC as well
as the revisional Court arguing that the petition itself is not
maintainable before this Court. It is submitted that the petition is in
the nature of second revision as the order passed by the learned
Magistrate was challenged before the Sessions Court by preferring
Criminal Revision Application No.8/2012 under Section 397 of the
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
Code of Criminal Procedure and therefore, present petition
challenging the order passed by the Sessions Court in the Revision
Application is in the nature of second revision which would not be
maintainable. It is further submitted that after recording
verification and considering the evidence on record, learned chief
Judicial Magistrate, Porbandar has passed the order to register the
complaint and inquiry under Section 202 of Criminal Procedure
Code dated 03.01.2011. It is further submitted that considering the
evidence produced by the complainant, learned Magistrate was
pleased to issue summons to the accused persons vide order dated
07.10.2011 under Section 204 of Cr.P.C. for the offence punishable
under Section 500 of IPC. That issuing summons against the
petitioner was challenged by the petitioner by way of filing
Criminal Revision Application No.8/2012 before the Sessions
Court, Porbandar which was to dismissed on 13.05.2004. It is
further submitted that at present when only summons is issued by
the Magistrate and matter is still required to be considered on
merits, at the initial stage, this Court may not interfere with the
order passed by the learned Magistrate and confirmed by the
learned Additional Sessions Judge. It is further submitted that
alternative prayer made by the petitioner to quash the impugned
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
complaint under Section 482 of the Cr.P.C., petitioner had already
filed a petition to quash the criminal complaint but same was
withdrawn with a liberty to file an appropriate application before
the learned Magistrate and therefore, once this Court has examined
the contents of the complaint and when it was not inclined to
interfere with the complaint, petitioners sought permission to file
an appropriate application before the learned Magistrate. That
learned Additional Sessions Judge also confirmed the order passed
by the Magistrate and Revision Application preferred by the
petitioner was dismissed. That this Court under Article 227 of the
Constitution of India may not invoke the powers of
superintendence in the nature of second revision.
7. It is further submitted that the complaint was filed by the
respondent No.2 in the capacity of owners of Kohinoor Hotel
situated at Diu alleging defamation to him on the basis of the news
published in "Jay Hind" and "Junagadh Samachar" daily
newspapers making defamatory statements in the Regular Civil Suit
No.7/2010. That cogent and convincing reasons have been
assigned by the learned Additional Sessions Judge while dismissing
the revision application preferred by the petitioner. That no error is
committed by the learned Additional Sessions Judge or by the
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
learned Chief Judicial Magistrate in issuing summons against the
petitioner in Criminal Case No.3606/2011. Hence it was requested
by learned advocate appearing for the respondent No.2, to dismiss
the petition. In support of his arguments, learned advocate for the
respondent No.2 has relied upon the following judgments:
(1) Jagir Singh Vs. Ranbir Singh & Another
(1979) 1 SCC 560
(2) Yes Bank Ltd. Through Mr. Hemal Desai Vs.
State of Gujarat 2012 (0) GLHELhc 228996
(3) Gambhirsinh R. Dekare Vs. Falgunbhai
Chimanbhai Patel & Another (2013) 3 SCC
(4) Fiona Shrikhande Vs. State of Maharashtra
& Another (2013) 14 SCC 44
(5) Rajathi Vs. C. Ganesan (1999) 6 SCC 326
8. Learned APP appearing for the respondent No.2 has
supported the arguments advanced by the learned advocate for the
respondent No.2. He tried to distinguish the contents of the two
complaints filed by the wife of the respondent No.2 and respondent
himself. Learned APP referring these two different complaints,
argued that reputation of the wife was independently damaged as
per the contents of her complaint before the learned Judicial
Magistrate First Class at Visavadar in Inquiry Case No.8/2010. He
has also referred the prayer made in the complaint damaging her
reputation as well as the entire community. That averments made
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
in the Civil Suit are published in a daily newspaper "Jay Hind" on
27.11.2012. That dismissal of the complaint filed by the wife of the
respondent No.2 would not be any hurdle in lodging the complaint
by the respondent No.2 independently as his reputation was
damaged as per the fresh complaint. It is further submitted that at
the stage of complaint, Magistrate is merely concerned with the
allegations made out in the complaint and has to see only prima
facie satisfaction whether there are sufficient grounds to proceed
against the accused and it is not the province of the Magistrate to
inquire into a detailed discussion on the merits or demerits of the
case. It is further submitted by the learned APP that scope of
inquiry under Section 202 is very limited in the sense that
Magistrate at this stage, is expected to examine prima facie the
truth or falsehood of the allegations made in the complaint. It is
further submitted by learned APP that Magistrate is not expected to
embark upon a discussion on the merits or demerits of the case and
once the Magistrate has exercised its discretion in forming an
opinion that there is ground for proceedings, it is not proper for the
High Courts to substitute its own discretion for that of the
Magistrate. It is further submitted that Magistrate has to decide the
question purely from the point of view of the complaints, without
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
at all adverting to any defence that the accused may have. Under
the circumstances, it is requested by learned APP to dismiss both
the petitions and confirm the order passed by the revisional Court
as well as learned judicial Magistrate.
10. Having heard learned advocates for the respective parties as
well as learned APP for the respondentState, it appears that
present petitioner i.e. Smt. Jayantiben Keshav Furgo filed a Regular
Civil Suit No.8 of 2010 for declaration and permanent injunction in
the court of learned Civil Judge (Junior Division), Diu. In the said
suit, certain relief was sought against the respondent No.2 as well
as earlier partner Shri Navinchandra Gandhi as stated therein. In
the suit filed by the petitioner/ plaintiff before the Civil Court at
Diu, it was stated that "defendant No.2/respondent No.2 herein is
an infamous man having no good reputation in the business society
of Diu. He is known for his quarrelsome nature and for his high
handedness. Numerous civil as criminal cases are filed against him
and by him and he has created fear psychic among the business
community of Diu". The above said civil suit was filed by the
present petitioner against Shri. Navinchandra Jagmohandas
Gandhi, respondent No.2 Shri Devshi @ Goganbhai Gangabhai
Khunti and respondent No.3 Kishoriben N. Fugro. The respondent
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
No.2 filed two different complaints against the present petitioner
being a partner of M/S. Kalpana Distillery as well as No.1 Vishvas
Narayan Fugro and No.2 Yatin Keshav Fugro under Section 500 of
the I.P.C., which was registered as Criminal Inquiry Case No.3 of
2011 and Criminal Inquiry Case No.4 of 2011 before the learned
Chief Judicial Magistrate, Porbandar. The present petitioner has
filed Special Criminal Application No.2429 of 2014 while Shri
Vishvas Narayan Fugro and Shri. Yatin Keshav Fugro have filed
separate Special Criminal Application No.2430 of 2014 under
Article 226 of the Constitution of India as well as under Section
482 of Cr.P.C., 1973 with a request to quash the impugned
complaint being Criminal Case No.3605/2011 as well as Criminal
Case No.3606/2011 filed in the court of learned Chief Judicial
Magistrate, Porbandar for the offence punishable under Section
500 of I.P.C and all further proceedings in pursuance thereto, in the
interest of justice.
11. It appears that on filing Regular Civil Suit No.8 of 2010 by
the present petitioner against the respondent No.2 before the court
of learned Civil Judge (Junior Division), Diu, initially wife of the
respondent No.2 namely Maliben filed one complaint being Inquiry
Case No.8/2010 before the learned JMFC, Visavadar under Section
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
500 of I.P.C. In the said complaint filed by the wife of the
respondent No.2, it was alleged that "in the above civil suit No.8 of
2010 filed by the petitioner before the Civil Court of Diu, pleadings
were made that respondent No.2 herein is an infamous man
having no good reputation and because of that, reputation of the
complainant and her husband was tarnished, and therefore, offence
of defamation was taken place. It was also alleged in the complaint
that said pleadings were published in the newspapers, which has
again caused defamation". Initially in the complaint, filed by the
wife of the respondent No.2, learned Magistrate carried out the
inquiry and verified all the aspects and vide order dated
20.12.2010, learned Magistrate, was pleased to reject the
complaint being Inquiry Case No.8 of 2010 on (Annexure "D").
Wife of the respondent No.2 who was the complainant in Inquiry
Case No.8 of 2010, being dissatisfied with the impugned order
dated 20.12.2010 approached the Sessions Court, Junagadh by
filing Criminal Revision Application No.142 of 2010. After hearing
both the parties, learned Additional Sessions Judge, Junagadh vide
order dated 16.09.2011 was pleased to reject the said Revision
Application (Annexure "E"). Thereafter, respondent no.2 decided
to change the title of the very litigation having failed before the
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
competent court filed second complaint against the present
petitioner in his own name before the learned CJM, Porbandar.
Same set of allegations, which were made by the wife of the
respondent No.2 in her previous complaint, which was registered as
Inquiry Case No.8 of 2010. Initially, said complaint filed by the
respondent No.2 was registered as Criminal Inquiry Case No.3 of
2011. Thereafter, learned Magistrate was pleased to register the
complaint as Criminal Case No.3605 of 2011 as well as second
complaint as Criminal Case No.3606 of 2011 against the petitioner
in Special Criminal Application No.2430 of 2014. The petitioner
namely Smt. Jayantiben Keshav Furgo approached this Court by
way of Misc. Criminal Application No.1385 of 2012 for quashing of
the above complaint. At the relevant point of time, the petitioner
sought permission to withdraw the quashing petition on
08.02.2012 with a liberty to approach the competent court in
accordance with law as stated therein (Annexure "F"). Thereafter
petitioner namely Smt. Jayantiben Keshav Furgo filed Criminal
Revision Application No.8 of 2012 before the District & Sessions
Judge, Porbandar under Section 397 of the Cr.P.C. for setting aside
the order of issuance of process in complaint being Criminal Case
No.3605 of 2011 filed before the learned CJM, Porbandar for the
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
offence punishable under Section 500 of I.P.C. Written arguments
were submitted by the present petitioner in support of her case in
Criminal Revision Application No.8/2012 vide Exh.10. The learned
Additional Sessions Judge, Porbandar by impugned order dated
13.05.2014 dismissed the Criminal Revision Application No.8/2012
and confirmed the order passed by the Ld. Chief Judicial
Magistrate, Porbandar. It is undisputed fact that initially wife of the
respondent no.2 had filed criminal complaint before the court of
learned Judicial Magistrate First Class at Visavadar wherein it was
specifically stated that her husband was joined as a defendant in
the suit proceedings pending before the Civil Court, Diu and certain
allegations were levelled against him and because of that,
defamation was taken place. It was further alleged that in the
newspaper, proceedings of the Civil Court i.e. pleadings taken by
the petitioner in the suit were published, and therefore, defamation
was taken place. The said complaint preferred by the wife of the
respondent No.2 for the same offence was rejected by the learned
Magistrate and Criminal Revision Application No.142 of 2010 filed
by her was also rejected by the learned Sessions Court. The
impugned complaint filed by the respondent no.2 later on is
completely based on the said set of allegations. However, learned
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
Magistrate, Visavadar has dismissed the complaint filed by the wife
of the respondent no.2 in accordance with the provisions of Section
203 of the Criminal Procedure Code and revisional court has also
rejected the same and said proceedings have attained finality. Issue
earlier decided by one competent court can not be rehesitated
before any court of law except the higher forum. It also appears
from two different complaints filed by the wife of the respondent
No.2 as well as by the respondent No.2, pleadings are also
conveniently changed for the purpose of changing the jurisdiction
of the court and successive prosecution has been lodged by the
respondent No.2. It appears from the impugned complaint filed by
the respondent no.2 that he has suppressed the fact of filing earlier
complaint preferred by his wife and rejected by the learned
Sessions Court. Further if we refer the "defamation" as defined
under Section 499 of I.P.C., no offence can be said to have taken
place even prima facie. Explanation No.4 of Section 499 makes it
clear that in the present case, no offence has taken place. It appears
that apprehension of the respondent No.2 in his complaint that the
pleadings made in the suit by the present petitioner would cause
his defamation is based on publication of the news article of filing
of the suit before the Civil Court at Diu by the petitioner. According
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
to this Court, petitioner can not be held liable for any news which
are published by the media in any manner. However, it appears
that learned Magistrate has issued the process against the
petitioner and has committed gross error of jurisdiction. There is no
pleadings in the civil suit preferred by the present petitioner that
respondent No.2 herein belongs to a particular community and
because of that he is head strong. It is nowhere alleged in the plaint
that respondent no.2 herein is from Porbandar, and therefore, he is
head strong. However, according to opinion of this Court, taking
any pleadings in the court proceedings would not amount to an
imputation intending to harm or knowing or having reason to
believe that such imputation will harm reputation of such person in
any manner. The Impugned imputation would neither directly or
indirectly, in estimation of others, lowers the moral or intellectual
character of the complainant in respect of his caste or his calling or
lowers the credit of respondent No.2 or would cause it to be
believed that the body of the respondent No.2 is in a loathsome
state or in a state generally considered as disgraceful.
12. Prima facie, it appears from the documents produced on
record and submissions made by learned advocates for the
respective parties as well as learned APP for the respondentState
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
that present complaint has been filed with a mala fide intention
and harass the petitioner and her family members. Prosecution
initiated by the respondent No.2/complainant is initiated only on
the basis of publication of news item in the newspaper. It can be
said that said publication can not at the behest of the present
petitioner. Further it appears that the publishers i.e. the editors and
the newspaper company are not joined as accused in the impugned
complaint. Prima facie, it appears that prosecution is initiated out
of personal grudge and sort out some other dispute by way of using
all illegal tactics. The criminal complaint against the present
petitioner is severe abuse of the process of law as no prima facie
case is made out against the present petitioner. Further it appears
that the impugned order passed by the courts below are illegal and
bad in law.
13. In the case of T.T. Antony vs. State of Kerala and others
reported in (2001) 6 SCC 181, the Hon'ble Supreme Court has
observed as under:
19. The scheme of the Cr.P.C. is that an officer in
charge of a Police Station has to commence investigation as
provided in Section 156 or 157 of Cr.P.C. on the basis of
entry of the First Information Report, on coming to know of
the commission of a cognizable offence. On completion of
investigation and on the basis of evidence collected he has to
form opinion under Section 169 or 170 of Cr.P.C., as the case
may be, and forward his report to the concerned Magistrate
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
under Section 173(2) of Cr.P.C. However, even after filing
such a report if he comes into possession of further
information or material, he need not register a fresh FIR, he is
empowered to make further investigation, normally with the
leave of the court, and where during further investigation he
collects further evidence, oral or documentary, he is obliged to
forward the same with one or more further reports; this is the
import of subsection (8) of Section 173 Cr.P.C.
20. From the above discussion it follows that under the
scheme of the provisions of Sections 154, 155, 156,157, 162,
169, 170 and 173 of Cr.P.C. only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 Cr.P.C. Thus
there can be no second F.I.R. and consequently there can be
no fresh investigation on receipt of every subsequent
information in respect of the same cognizable offence or the
same occurrence or incident giving rise to one or more
cognizable offences. On receipt of information about a
cognizable offence or an incident giving rise to a cognizable
offence or offences and on entering the F.I.R. in the station
house diary, the officer in charge of a Police Station has to
investigate not merely the cognizable offence reported in the
FIR but also other connected offences found to have been
committed in the course of the same transaction or the same
occurrence and file one or more reports as provided in Section
173 of the Cr.P.C.
14. In the case of Adalat Prasad v. Rooplal Jindal and ors.
reported in (2005) 1 GLR Page 546 it is held that "in absence of
specific powers, the learned Magistrate is not empowered to recall
or resent the process."
15. In the case of G. Sagar Suri and Anr. V. State of U.P. and
others reported in (2000) 2 SCC 636, it is held that issuance of
process is a serious matter and criminal court has to exercise great
deal and caution before issuing the process.
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
16. In the case of S.W. Palantikar and ors. v. State of Bihar
and another reported in 2001 (4) Supply SCR 397, proceedings
were initiated after referring the case of Smt. Nagawwa v.
Veeranna Shivalingappa Konjalgi & ors. reported in 1976 (3)
SCC 736.
17. Insofar as the question of maintainability of the petitions on
the ground of the petitioners having earlier resorted to be similar
proceedings is concerned, it cannot be disputed. At the relevant
point of time, in Misc. Criminal Application No.1385 of 2012,
petitioner was permitted to withdraw the quashing petition vide
order dated 08.02.2012 with a liberty to approach the competent
court in accordance with law as he had not availed the remedy as
provided under the criminal procedure code. Thereafter he had
approached the learned Sessions Court by preferring Criminal
Revision Application, which was dismissed by the court. After
taking into consideration the orders passed by the court below and
sessions court and the documents along with it, the petitioners
have moved this Court under Section 482 of Cr.P.C. independently
than the previous proceedings. It is therefore held that this
proceeding is maintainable.
18. At this stage, it will be useful to refer the observation made
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
by the Hon'ble Apex Court in case of S.W. Palanitkar and Ors vs.
State of Bihar and Anr. reported in 2001 (4) Supply SCR 397 ,
which is as under:
"In case of a complaint under Section 200 Cr.P.C. or IPC a
Magistrate can take cognizance of the offence made out and
then has to examine the complainant and his witnesses; if any,
to ascertain whether a prima facie case is made out against the
accused to issue process so that the issue of process is prevented
on a complaint which is either false or vexatious or intended
only to harass. Such examination is provided in order to find
out whether there is or not sufficient ground for proceeding. The
words 'sufficient ground', used under Section 203 have to be
construed to mean the satisfaction that a prima facie case is
made out against the accused and not sufficient ground for the
purpose of conviction."
19. In the instant case, it is admitted position that wife of the
respondent No.2 had initially filed a complaint before the
competent Criminal Court, which was dismissed by the learned
JMFC. Order of learned JMFC was challenged by the wife of the
respondent No.2 before the Sessions Court in criminal revision
application, which was also dismissed by the sessions Court. The
respondent No.2 by changing the jurisdiction of the court filed
separate complaint against the present petitioners who have
approached before this Court in two different petitions on same set
of facts. Filing of earlier complaint by his wife before the learned
JMFC, dismissal of the complaint and order passed by the Sessions
Court were suppressed in the impugned complaint. Exception 4, 8
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
and 9 read with explanation 4 of Section 499 of I.P.C., no offence
of defamation has taken place as alleged in the complaint. The
allegation in the complaint is that the petitioner filed a civil suit
wherein certain averments are published by some newspaper which
has caused the defamation to the respondent No.2. The complaint
filed by the respondent No.2 would be barred by Section 300 (1) of
the Criminal Procedure Code being successive prosecution as for
the very set of allegations, earlier complaint filed by the wife of the
respondent No.2 was dismissed up to sessions Court.
20. The present petitioner is engaged in her business in local
area of Diu as well as her family members. One Shri. Navinchandra
Jagmohandas Gandhi was one of the partner alongwith petitioner,
he retired as a partner from the partnership firm namely Kalpana
Distillery with effect from 30.09.2010. Shri. Navinchandra
Jagmohandas Gandhi executed one power of attorney in favour of
the respondent No.2 herein to act on his behalf in the partnership
affairs as per his claim. Under these circumstances, there appears
some dispute amongst the partners.
21. In view of the above discussion, it appears that dispute raised
by the respondent No.2 of damaging his prestige or offence
committed under Section 500 of I.P.C. cannot be said to be
R/SCR.A/2429/2014 JUDGMENT DATED: 09/08/2021
attracting any of the penal provisions referred to hereinabove, and
therefore, the prosecution could not have been proceeded with the
offence as aforesaid.
22. Therefore both these petitions succeed. The impugned
complaint i.e. Criminal Case No. 3605 of 2011 and Criminal Case
No.3606 of 2011 filed in the court of learned Chief Judicial
Magistrate, Porbandar for the offence punishable under section 500
of I.P.C. and consequential further proceedings stand quashed and
set aside. Rule is made absolute to the aforesaid extent.
(B.N. KARIA, J)
SUYASH/MAYA CHAUHAN
