Bhaskar Rao Rokade vs The State Of Madhya Pradesh
2022 Latest Caselaw 16713 MP

                                                              1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 16 th OF DECEMBER, 2022
                                              WRIT PETITION No. 29079 of 2022

                           BETWEEN:-
                           BHASKAR RAO ROKADE S/O KESHAV RAO ROKADE,
                           AGED ABOUT 57 YEARS, OCCUPATION: SOCIAL
                           SERVICE DANISH KUNJ KOLAR ROAD (MADHYA
                           PRADESH)

                                                                                            .....PETITIONER
                           (BY SHRI AJAY PAL SINGH - ADVOCATE )

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 SECRETRY HOME VALLABH BHAWAN BHOPAL
                                 (M.P.) (MADHYA PRADESH)

                           2.    SUPERINTENDENT     OF    POLICE SHAHDOL
                                 DISTRICT SHAHDOL (MADHYA PRADESH)

                           3.    TOWN INSPECTOR POLICE STATION KOTWALI
                                 DISTRICT SHAHDOL (MADHYA PRADESH)

                           4.    BRIJPAL SINGH CHOUHAN S/O MAAN SINGH
                                 CHOUHAN,     AGED   ABOUT   55   YEARS,
                                 OCCUPATION: SECRETARY BHAGWATI MANAV
                                 KALYAN SANGATHAN R/O PANCHJYOTI SHAKTI
                                 TEERTH SIDDHASHRAM POST MAU TAHSIL
                                 BEOHARI    DISTRICT  SHAHDOL   (MADHYA
                                 PRADESH)

                                                                                         .....RESPONDENTS
                           (SHRI ROHIT JAIN - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

This petition under Article 226 of the Constitution of India is filed seeking Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 12/20/2022 10:57:19 AM

issuance of writ of certiorari quashing the complaint of respondent no. 4 and proceedings in Criminal Case No. 2389/2007 pending before the trial court.

It is apparent from the documents available on record that petitioner is approaching this court being aggrieved of order dated 16/12/2015 which he has cleverly omitted to mention in the relief clause.

Firstly, after seven years how petition is maintainable is the issue. The second issue is that admittedly, petitioner had filed M.Cr.C. No. 13440/2009 as is evident from Annexure P-3 wherein vide order dated 13/08/2013, the application was dismissed for want of prosecution.

Petitioner's counsel admits that this M.Cr.C. was filed seeking quashing

of the complaint.

Petitioner had a remedy of seeking restoration of said M.Cr.C. apparently filed under Section 482 of the Cr.P.C. but instead of seeking restoration of said M.Cr.C., petitioner has now approached this High Court saying that proceedings in the criminal case be quashed.

A perusal of the order dated 16/12/2015 reveals that the trial court has recorded a finding that accused Bhaskar Rao Rokade is absconding, therefore, on the order sheet a note be made with red ink that accused Bhaskar Rao Rokade is absconding and, therefore, record be not destroyed.

In view of said facts, the trial is not yet commenced qua Bhaskar Rao Rokade. Though, learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and others (2021) 2 SCC 427 and placing reliance on para 44 of the said judgment, he submits that once, an F.I.R. is registered, the accused persons can always approach the High Court under Section 482 of the Cr.P.C. or under Article 226 of the Constitution for quashing of the F.I.R. which is Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 12/20/2022 10:57:19 AM

based on the earlier pronouncement of Supreme Court in State of Telangana vs. Habib Abdullah Jeelani and others (2017)2 SCC 779 para 11 but fact of the matter is that there is no provision to draw two proceedings one after another i.e. one under Section 482 and thereafter under Article 226 as is the case in present.

Similarly, reliance is placed on the judgment of the Supreme Court in

Kapil Agarwal and others Vs. Sanjay Sharma and others decided on 1st March, 2021 in Criminal Appeal No. 142/2021 wherein in para 8, it is held as under:-

We are not expressing anything on merits whether, any case is made out against the appellants for the offences alleged in 156(3) Cr.P.C. application as the same is pending before the learned Magistrate and the learned Magistrate is to take call on the same. Therefore, when the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are of the opinion that the High Court ought to have exercised the powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure the ends of justice.

Reliance is also placed on the judgment of High Court of Kerala at

Ernakulam in Cr.M.C. No. 1481 of 2006 Mammen Mathew Vs M.N. Radhakrishnan and another wherein on internal page 12 of the judgment, learned counsel has read as under:-

It is stated that the first accused Mammen Mathew described as Editor of Malayala Manorama is responsible for selection of news Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 12/20/2022 10:57:19 AM

under the P.R.B. Act. If his responsibility is only in the matter of selection of news item, then he cannot be said to have committed the offence of defamation under Sec. 499 I.P.C. as per which making or publication of the imputation alone will constitute the offence. Selection of the news item cannot amount to making of the news which is already made and kept available for selection. Similarly, selection of the news cannot amount to publication of the news as well. In Annexure R1 (d) it is printed in unequivocal terms that the daily is printed and published by one Jacob Mathew who is not made an accused in the case.

Shri Rohit Jain, learned Government Advocate submits that petitioner has a remedy of filing a revision against the impugned order. Once, petitioner failed and his application under Section 482 was dismissed vide order Annexure P-3, then he had a remedy to seek restoration of said M.Cr.C. rather than filing this petition under Article 226.

None of the judgments of the Supreme Court either in Kapil Agarwal (supra) and Arnab Manoranjan Goswami (supra) provides for taking up remedies under Section 482 of the Cr.P.C. and under Article 226 of the Constitution one after another.

After hearing learned counsel for the parties and going through the record, the judgment of Kerala High Court is not applicable on its own facts inasmuch as the case was fixed before the learned J.M.F.C. for framing of charge. The accused/petitioner absconded, therefore facts of the case being not available in full, it cannot be said that what was the role of the petitioner as an Editor in Haribhoomi newspaper against whom defamation proceedings have Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 12/20/2022 10:57:19 AM

been drawn.

As far as judgment in Kapil Agarwal (supra) and Arnab Manoranjan Goswami (supra) are concerned, they do not provide for drawing parallel, simultaneous or sequential invocation of remedy under Section 482 Cr.P.C. or Article 226 of the Constitution and in view of the fact that petitioner has an alternative statutory remedy of filing a revision against the impugned order, petition is not maintainable and is dismissed.

It is made clear that in case, petitioner chooses to avail the remedy of filing a revision, then dismissal of this petition or any observation made hereinunder will not come in the way of the petitioner.

In above terms, the petition is dismissed.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 12/20/2022 10:57:19 AM