Sayeedull Hassan Quadri vs Shri. Bashiruddin And Anr
2021 Latest Caselaw 3534 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH                         R
    DATED THIS THE 27TH DAY OF OCTOBER 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE H.P.SANDESH

       CRIMINAL PETITION No.201359/2019

BETWEEN

SAYEEDULL HASSAN QUADRI
S/O SHAH ISMAIL QUADRI
AGED ABOUT 63 YEARS
OCC: EDITOR OF ADABI AKKAS URDU DAILY NEWS PAPER
R/O: QUADRIPURA BIDAR-585401
TQ & DIST: BIDAR-585401.                ...PETITIONER

       (By Sri. MOHD.VIKHARUDDIN, ADVOCATE)

AND

1 . SHRI. BASHIRUDDIN
    S/O MOHD YOUSUFUDDIN
    AGED 62 YEARS
    OCC: POLITICIAN/PRESIDENT OF DIST CONGRESS
    R/O: H.No.5-1-202, QAZIPURA MADARASA
    MAHMOOD GAWAR FORT ROAD, BIDAR
    DIST: BIDAR-585401.

2 . THE STATE OF KARNATAKA
    BY ITS NEW TOWN PS
    REP. BY ADDL. PUBLIC PROSECUTOR
    HIGH COURT OF KARNATAKA BENCH KALABURAGI
    KALABURAGI-585104.                ...RESPONDENTS

      (By Sri. GURURAJ V. HASILKAR, HCGP FOR R2
                     R1 - SERVED)
                                  2


   THIS CRL.P IS FILED U/S.482 OF CR.P.C. BY THE ADVOCATE
FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AGAINST THE PETITIONER HEREIN IN PCR
01/2014 NOW C.C.113/2015 FOR THE OFFENCES UNDER
SECTIONS 500, 501 OF IPC, NOW PENDING ON THE FILE OF II
ADDL. SENIOR CIVIL JUDGE AND JMFC AT BIDAR.

     THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:

                              ORDER

This petition is filed under Section 482 of Cr.P.C.,

praying this Court to quash the entire proceedings initiated

against the petitioner in PCR No.1/2014, which is now

numbered as C.C.No.113/2015 for the offences punishable

under Sections 500 and 501 of IPC, which is pending on

the file of II Additional Senior Civil Judge & JMFC., at

Bidar.

2. The factual matrix of the case is that

respondent No.1 herein has filed PCR No.1/2014 and when

the complaint is filed under Section 200 of Cr.P.C.,

invoking the offences punishable under Sections 500 and

501 of IPC contending that an article was published in the

paper belongs to the petitioner herein, which defame the

name of the complainant. The trial Court proceeded to

pass an order referring the matter under Section 156(3) of

Cr.P.C. The police after receiving the order registered an

FIR, investigated the matter and filed the charge sheet and

thereafter the trial Court took the cognizance.

3. The petitioner herein has filed an application

before the trial Court under Section 203 of Cr.P.C., the

same was dismissed by the learned trial Judge on the

ground that already the matter was referred and the

investigation was conducted and filed the charge sheet and

the Court cannot review its own order. Hence, the present

petition is filed.

4. Learned counsel appearing for the petitioner

would vehemently contend that when the complaint was

filed under Section 200 of Cr.P.C., invoking the offences

under Sections 500 and 501 of IPC ought not to have

proceeded to refer the matter under Section 156(3) of

Cr.P.C. The police after registering the case investigated

the matter and filed the charge sheet.

5. The learned counsel in support of his

contentions relied upon the judgment of the Apex Court in

the case of Subramanian Swamy v. Union of India

reported in 2016(7) SCC 221, and brought to the notice

of this Court paragraph No.196 of the Judgment, wherein,

the Apex Court held that another aspect requires to be

addressed pertains to issue of summons. Section 199 of

Cr.P.C., envisages filing of a complaint in Court. In case of

criminal defamation neither any FIR can be filed nor can

any direction be issued under Section 156(3) of Cr.P.C.

The offence has its own gravity and hence, the

responsibility of the Magistrate is more. In a way, it is

immense at the time of issue of process. Issue of process,

as has been held in Rajindra Nath Mahato v. T.Ganguly,

Dy. Superintendent and another190, it is a matter of

judicial determination and before issuing a process, the

Magistrate has to examine the complainant. In Punjab

National Bank and others v. Surendra Prasad Sinha 191 it

has been held that judicial process should not be an

instrument of oppression or needless harassment. The

Court, though in a different context, has observed that

there lies responsibility and duty on the Magistrate to find

whether the concerned accused should be legally

responsible for the offence charged for. Only on satisfying

that the law casts liability or creates offence against the

juristic person or the persons impleaded then only process

would be issued. At that stage the Court would be

circumspect and judicious in exercising discretion and

should take all the relevant facts and circumstances into

consideration before issuing process lest it would be an

instrument in the hands of the private complaint as

vendetta to harass the persons needlessly. Vindication of

majesty of justice and maintenance of law and order in the

society are the prime objects of criminal justice but it

would not be the means to wreak personal vengeance.

The learned Counsel referring to the principles laid down in

the judgment would contend that the trial Court

fundamentally committed an error in referring the matter

under Section 156(3) of Cr.P.C., and the very reference

and also continuing of the proceedings and taking the

cognizance is bad in law.

6. Per contra, the learned High Court Government

Pleader appearing for respondent No.2-State would submit

that when the matter was referred under Section 156(3) of

Cr.P.C., the Investigating Officer registered the case and

investigated the matter and found the material. Hence,

filed the charge sheet. The trial Court also took the

cognizance based on the material available on record, now

the petitioner cannot contend that the learned Magistrate

has committed an error.

7. The first respondent - complainant, who has

been served in this proceeding also not represented before

the Court in spite of proper service.

8. Having heard the learned counsel appearing

for the petitioner and the learned High Court Government

Pleader appearing for respondent No.2-State and also on

perusal of the material on record, it is not in dispute that

the complainant has filed a complaint under Section 200 of

Cr.P.C. invoking the offences punishable under Sections

500 and 501 of IPC. The main allegation in the complaint

is that an article published by the petitioner herein is

defamatory in nature and the same tarnished the image of

the complainant. When the private complaint is filed, two

options are available to the Magistrate after receiving the

complaint. Firstly, the Magistrate has to look into the

contents of the complaint and apply his judicious mind

whether it is a case for referring the matter under Section

156(3) of Cr.P.C., to the Investigating Officer for the

investigation. The other option to the Magistrate by taking

the cognizance proceed with the case and to record the

sworn statement and after recording the sworn statement

if the complaint averments and the sworn statements

disclose committing of an offence, then issue the process

under Section 204 of Cr.P.C. In the case on hand, when

the private complaint is filed under Section 200 of Cr.P.C.,

and when the complainant was present and looking into

the contents of the complaint, the learned Magistrate

ought to have applied its judicious mind and considering

the material ought to have proceeded to take the

cognizance and thereafter proceeded to record the sworn

statement when the offences are invoked for defamation

whether the ingredients of Section 499 of IPC complied

and whether it is a fit case to proceed for the offences

under Sections 500 and 501 of IPC. But in the case on

hand, the trial Court has committed an error in referring

the matter under Section 156(3) of Cr.P.C. I have already

pointed out that no need to pass any detailed order while

referring the matter under Section 156(3) of Cr.P.C. but

ought to have taken note of Section 199 of Cr.P.C, and

applied his judicious mind. In the case on hand, private

complaint is filed for the offences under Sections 500 and

501 of IPC and ought to have proceeded to look into the

contents of the complaint and whether material found in

the complaint suggest to take cognizance or not would

have decided instead of referred the matter under Section

156 of Cr.P.C.

9. The Apex Court in Subramanian Swamy's

case referred (supra), in paragraph No.196, categorically

held that another aspect requires to be addressed pertains

to issue of summons. The Apex Court held that Section

199 of Cr.P.C., envisages filing of a complaint in Court. It

is also held that in case of criminal defamation neither any

FIR can be filed nor can any direction be issued under

Section 156(3) of Cr.P.C. The offence has its own gravity

and hence, the responsibility of the Magistrate is more.

The Apex Court also while dealing with the issuance of the

process is also concerned taken note of the judgment in

the case of Rajindra Nath Mahato v. T.Ganguly, Dy.

Superintendent and another, wherein, held that it is a

matter of judicial determination and before issuing a

process, the Magistrate has to examine the complainant.

Also referring to the judgment in the case of Punjab

National Bank and others v. Surendra Prasad Sinha, held

that judicial process should not be an instrument of

oppression or needless harassment. In the case on hand,

the learned Magistrate instead of taking cognizance and

proceeded to examining the complainant before the trial

Court, committed an error in referring the matter under

Section 156(3) of Cr.P.C., and ought not to have referred

the matter under Section 156(3) of Cr.P.C., when the

private complaint is filed invoking the offences under

Sections 500 and 501 of IPC. The very initiation of

proceedings and continuation of the criminal proceedings

against the petitioner itself vitiates. The learned counsel

also brought to the notice of this Court based on the

charge sheet, the trial Court took the cognizance and no

doubt when an application is filed under Section 203 of

Cr.P.C., before the trial Court, the same was dismissed by

the Magistrate on the ground that the predecessor already

referred the matter under Section 156(3) of Cr.P.C., and

he cannot sit and review the order passed by the

predecessor and he cannot review his own order. When

such an observation is made, the petitioner has

approached this Court and this Court has to exercise the

powers under Section 482 of Cr.P.C. When the very

process of continuation of the proceedings amounts to

abuse of process, which leads to miscarriage of justice.

Under such circumstances, the Court can exercise the

powers under Section 482 of Cr.P.C. and if the proceedings

are not quashed it amounts to mis-carriage of justice.

Hence, there is a force in the contention of the learned

counsel for the petitioner that the very continuation of

proceedings is nothing but an abuse of process, which

leads to mis-carriage of justice.

10. Apart from that also, on perusal of the article

which has been published, which is produced along with

this petition as annexure 'B' and the translated copy of

annexure 'B' is nothing but an article with regard to loosing

of a candidate in the election and rightly pointed out that

there is no any derogatory statement, which defame the

complainant and on merits also, I do not find any material

to proceed against the petitioner herein and the allegation

must disclose the ingredients of Section 499 of IPC., in

order to proceed against the petitioner for the offences

punishable under Sections 500 and 501 of IPC.

11. Having considered the material on record, it is

a fit case to exercise the powers under Section 482 of

Cr.P.C., and to quash the proceedings initiated against the

petitioner herein.

12. In view of the discussions made above, I pass

the following:

ORDER

(i) The petition is allowed.

(ii) The proceedings initiated against the petitioner herein in PCR No.1/2014, which is now numbered as C.C.No.113/2015 for the offences punishable under Sections 500 and 501 of IPC, which is pending on the file of II Additional Senior Civil Judge & JMFC., at Bidar, is hereby quashed.

Sd/-

JUDGE

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