The Phulchhab Daily News Paper ... vs State Of Gujarat
2023 Latest Caselaw 6172 Guj

                                                                                NEUTRAL CITATION




    R/SCR.A/3491/2022                           JUDGMENT DATED: 23/08/2023

                                                                                 undefined




             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

================================================================

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 ?

================================================================
THE PHULCHHAB DAILY NEWS PAPER THROUGH ITS EDITOR KAUSHIK
                    VRAJLALBHAI MEHTA
                           Versus
                     STATE OF GUJARAT
================================================================
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
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                            Date : 23/08/2023

                           ORAL JUDGMENT

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

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"

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,

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

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

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

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

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

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

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

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

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

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

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.

NEUTRAL CITATION

R/SCR.A/3491/2022 JUDGMENT DATED: 23/08/2023

undefined

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