Judgment:
Amitava Roy, J.
1. The maintainability of the criminal proceeding being CR Case No. 1715/2007, under Section 500/501, Part-II of the Indian Penal Code (hereinafter referred to as the 'Code'), pending in the Court of the learned Chief Judicial Magistrate, Nagaon and the tenability of the impugned order dated 29.06.2007, passed therein, is in assailment in the instant petition.
2. I have heard Mr. J.M. Choudhury, Senior Advocate assisted by Mr. B.M. Choudhury, Advocate for the petitioner and Mr. D. Saikia, Advocate for the opposite party.
3. The petition before this Court discloses that the opposite party has filed a complaint against the petitioner as well as the Executive Director and Chief Editor of the daily 'Asomiya Khabar', named therein together with Shri Mayur Talukdar, ., Guwahati, in the Court of the learned Chief Judicial Magistrate, Nagaon, alleging that they had committed an offence under the aforementioned Sections of law by publishing a news item titled as 'Congress has misled ULFA' in the issue dated 29.06.2007, of the said daily, containing the following statement made by the petitioner:
The AUDF has brought a serious allegation that behind ULFA's threat to Badaruddin Azmal to quit Assam within the time fixed, Forest Minister Rockybul Hussain has a hand.
4. The opposite party alleged in the complaint that because of the news item with the above statement made by the petitioner, his dignity and reputation has suffered in the estimation of the public. It has been asserted that after the said publication, the opposite party's acquaintances and well-wishers also confronted him therewith seeking clarifications to his great embarrassment. The opposite party averred that he is a Minister in the Assam Cabinet, presently in power and that the news item has thoroughly marred his otherwise clean image as a public figure. While denying any association with the ULFA, either in public or individual life, the opposite party has alleged that the publication has been engineered by the petitioner for his political gain by making false statements. The opposite party, however, mentioned that though, the complaint had been filed also against three other persons, no process need be issued against them.
The learned trial Court on receipt of the complaint, examined the opposite party-complainant and his two other witnesses Shri Pradip Hazarika and Shri Abhij it Saikia, on oath, under Section 200/202, of the Criminal Procedure Code (hereafter referred to as the 'Code') and, thereafter, by the impugned order dated 29.06.2007, issued process against the petitioner and one Shri Dadu Tai under Section 500/501 Part-II of the IPC. Thereby, summons were ordered to be issued to them, fixing 07.08.2007, for their appearance.
5. The petitioner while denying that he had involved the opposite party-complainant in person in course of the deliberations in the press conference as alleged, has impugned the initiation of the criminal proceeding, purported cognizance of the alleged offence and the impugned order issuing the process, as patently illegal resulting in abuse of the process of Court. The petitioner has asserted that the complaint is a yield of the misuse of the opposite part's authority as a Minister of the Government in power only to harass, malign and wreak personal and political vendetta against him under the cover of law. He has further impeached the impugned order to be violative of Section 190 of the Code and passed without any application of mind. According to him, Shri Dadu Tai, neither being named in the complaint nor alleged to be involved in the offence mentioned therein, no process could have been issued against him at this stage, and on that count as well, the impugned order is invalid in law. As the continuance of the criminal proceedings, would in the facts and circumstances of the case, an abuse of the process of law, the same ought to be quashed.
6. The opposite party in his affidavit, while pleading that the process had been issued by the learned Court below after examining the complainant and his two witnesses on oath under Section 200, of the Code and following a proper appreciation of the materials avail-able on record, the contentions bearing on maintainability of the impugned criminal proceedings of the order dated 29.06.2007, are misconceived. According to the opposite party, the statements made by him read with those of his witnesses on oath, adequately provided the ingredients of the offence of defamation under IPC and therefore, the proceeding and the order issuing the process, are valid in law. He further asserted that the news item per se furnished sufficient materials in support of the offence referred to in the com-plaint petition and therefore, on that count as well the issuance of the process, is unassailable. As the opposite party had reasons to believe that the news item had correctly reported the derogatory statements made by the petitioner in the press conference referred to therein, though, the Executive Editor, Chief Editor and the Printer of the Daily 'Asomiya Khabar', had been arrayed as accused in the complaint petition, he did not insist on the issuance of the process against them at the preliminary stages of the proceeding. According to him, under Section 319 of the Code, process against them, can be issued taken on, if the learned trial Court is satisfied about their complicity in the offence. The opposite party endorsed the issuance of process against Shri Dadu Tai, contending that it was permissible as the learned Court below was prima facie satisfied about his involvement in the offence. In any case, according to the opposite party, error if any, in issuing process to Shri Dadu Tai, did not vitiate the proceedings validly drawn up against the petitioner. The opposite party maintained that the correctness or otherwise of the assertion that the petitioner had made the defamatory statements against him in the press conference as referred to in the complaint petition, would be ascertained in course of the trial. He by a separate affidavit, has also placed on record the news item in original along with the English rendering thereof.
7. Mr. Choudhury, has argued that the uncontroverted averments in the complaint petition as well as the testimony of the complainant and his witnesses taken together, do not constitute the ingredients of the offence of defamation as comprehended in Section 499 of the IPC and, therefore, the initiation of the impugned criminal proceedings, being per se invalid, it is liable to be quashed. Referring to the extracted statements from the news item as set out in the complaint petition, the learned Senior counsel urged that the same at best could be attributed to the petitioner's party and not to him. Moreover, there being no direct evidence at this stage of the exact utterances of the petitioner as alleged having the potential of denigrating and defaming the opposite party, the learned Court below erred on a fundamental principle of law in issuing the process, he contended. Mr. Choudhury, pleaded that the necessary legal evidence in support of the imputations, having regard to the underlying objective of the exercise contemplated in Section 200 of the Code, ought to be obligatorily adduced at this stage and it is impermissible to allow continuance of the proceedings in the anticipation of better and clinching proof in future. The learned Senior counsel, was particularly critical on the issuance of the process against Shri Dadu Tai, no complicity of his in the offence having been alleged in the complaint or in the testimony of the complainant and his witnesses. Mr. Choudhury, has impeached the impugned order dated 29.06.2007, being in mechanical exercise of power besides illegal and non est in law. He assailed the impugned proceedings to be lacking in bona fide as well. He pressed into service the decision of the Apex Court in Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. : 1988CriLJ853 and of this Court in Sri S. Ch. Das and Sri A.L. Bhaduri v. State of Meghalaya and Ors. 1971 ALR 146.
8. Mr. Saikia, in reply has contended that the ingredients of the offence of defamation being gatherable from the complaint and the statements of the complainant and his wit-nesses, the cognizance thereof, taken by the learned Court below and the issuance of process, is valid. Referring to the news paper re-port appended to the opposite party's counter, the learned Counsel has urged that it is apparent therefrom that the petitioner had made the offending statements rendering him liable for the prosecution launched. According to him, the petitioner being the Vice President of the political party, AUDF, such a statement, even if made on its behalf, would in-criminate him as well. According to him, evidence to convincingly establish that the petitioner had spoken the words referred to in the news item can permissibly be adduced subsequently and that the materials on record are presently enough for the initiation of the proceedings and that therefore, any plea to the contrary is untenable. Mr. Saikia, while admitting that the news item in particular had not been proved and exhibited either by the complainant or his witnesses, has insisted that the averments made in the complaint were sufficient to generate the prima facie satisfaction for issuance of the process. Ac-cording to him, in terms of Section 319 of the code, cognizance of the offence against Shri Dadu Tai, was allowable. In the alternative, he argued that illegality, if any, in this regard, would not however, either absolve the petitioner of the offence or vitiate the proceedings. In view of the limited scope of interference by this Court with a criminal proceeding under Section 482 Cr.P.C., the petition in the attending factual premise, ought to be dismissed in limine, he urged. He dismissed the challenge as prematured, as well. Mr. Saikia, founded his submissions on the following decisions : Raghubans Dubey v. State of Bihar : 1967CriLJ1081 , Balraj Khanna and Ors. v. Moti Ram : 1971CriLJ1110 , Md. Moinul Islam v. State of Assam and Anr. (2003) 3 GLR 268, Rajesh Kumar Himatsingka v. Sachindra Sarmah 2004 (2) GLR 316, Ramjan Ali and Anr. v. State of Assam 2005 (3) GLR 26.
9. In reply Mr. Choudhury, has contended that the news item not having been proved in accordance with law, it cannot be accepted as apiece of admissible evidence. Further, the impugned order does not disclose that the contents of the news item had been taken note of and considered before issuing the process against the petitioner and his co-accused.
10. I have bestwood my anxious consideration to the rival submissions. The allegation against the petitioner, as cullable from the complaint, is that he by misusing his position got a news published in the issue dated 29.06.2007 of the daily Asomiya Khabar, containing a serious allegation by his party AUDF, that the opposite party in the capacity of the Forest Minister has a hand behind the ULFA's threat to Badaruddin Azmal to quit Assam within the time fixed. A plain reading of the extracted portion of the news item as set out in the complaint per se, does not demonstrate that the insinuation against the opposite party had been levelled by the petitioner himself. The complainant in his statement under Section 200 Cr.P.C. though referred to the said news item, omitted to prove and exhibit the same to bring it on record as a piece of evidence. He only testified that the news item, which alleged that he had a hand behind the statements made by ULFA, had maligned his political and social reputation and was intended to cause to damage his public image. He, however, clarified that he had no grievance against the Chief Editor, the Executive Editor and the Printer of the news paper, but instead that Shri Dadu Tai be construed to be an accused for making allegations against him in the news item.
11. The news item not having been proved in accordance with law, in my view, it cannot at this stage be acknowledged to be an admissible piece of evidence in support of the averments in the complaint. Noticeably, the impugned order dated 29.06.2007, does not refer thereto and does not demonstrate that the satisfaction of the learned trial court, is also founded thereon. Reliance on the news item, in the instant proceeding, therefore, is not permissible. In any view of the matter, the challenge to the initiation and maintainability of the impugned criminal proceeding, has to be tested on the occurrence of the materials available before the learned trial court at the relevant point of time.
12. The extracted statement contained in the news item as quoted in the complaint petition, on the face of it, does not proclaim that the petitioner in his individual capacity, had accused the opposite party to be the force behind the ULFA to extend threat to Badaruddin Azmal of AUDF, to quit Assam within a time limit. It is more than evident from the statements of the complainant and his witnesses examined under Section 200 Cr.P.C., that they were not present when the alleged words were spoken by the petitioner. Their testimony is wholly founded on the news item, which as alluded hereunder, has not been proved under law. In other words, there is no direct evidence till this stage of the proceeding to even prima facie evince that the petitioner either in his individual capacity or as the Vice President of AUDF, had charged the opposite party to be instrumental in getting a threat extended by the ULFA to Badaruddin Azmal to quit the State of Assam within the fixed time. The averments made in the complaint as well as the statements of the complainant and his witnesses therefore, to proclaim the ingredients of the offence of defamation as defined in Section 499 of the IPC, even if accepted on their face value.
13. This Court in Sri S. Ch. Das & Sri A.L. Bhaduri (supra), while entertaining a challenge to the maintainability of the criminal proceeding under Section 561-A of the Cr.P.C. (presently 482 Cr.P.C), had held that a trial cannot be allowed to proceed on contingent, hypothetical and anticipatory evidence. It held the view that to allow the trial to continue in such a premise, when manifestly there is no evidence before the Court, on the mere probability of the prosecution at some future date, would supplement its case by adducing further evidence, would constitute undue harassment of the accused and violate all principles of law.
14. The materials on record before the learned Court below and as cognizable in law, in my view, do not constitute any legal evidence to inculpate the petitioner with the offence alleged. On the measure of the above decision, the endeavour to defend the criminal proceeding on the plea of adduction of better evidence at its later stages, is not convincing. The purpose of the examination of the complainant and his witnesses under Section 200 Cr.P.C. being to derive an unreserved satisfaction about the justifiability to proceed with the prosecution, any unwarranted relaxation in this enjoinment, would be subversive thereof.
15. Shri Dadu Tai being not before this Court, assailing the process against him, it is not considered necessary to dilate on the legality and/or validity of the order touching this aspect. Suffice it to mention that neither the complaint petition discloses any role of his in the commission of the offence alleged nor the statements of complainant and his witnesses divulge the basis to implicate him therewith. Noticeably, the learned Court below readily responding to the request of the complainant; abstained from issuing process against Shri Sankar Laskar and Dr. Khiren Roy, the Executive Editor and Chief Editor, respectively of Asomiya Khabar as well as Shri Mayor Talukdar, . As the petitioner's impugnment against the criminal proceedings involved, has been answered even without reference to this segment of the impugned order, it is inessential to dwell on the scope and support of Section 319 of the Cr.P.C. for the present.
16. The Apex Court in Madhavrao Jiwajirao Scindia and Ors. (supra), referring to the circumscribed limit of interference with a prosecution at the initial stages under Section 482 of the Cr.P.C., held that the test to be applied by the Court, is as to whether the uncontroverted allegations as made prima facie establish the offence. It pronounced that if in the opinion of the Court, the chances of an ultimate conviction are bleak and that therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may quash the proceedings though, it may be at a preliminary stage.
The proposition that at the stage of inquiry under Section 202, Cr.P.C. the Magistrate has to see whether there is evidence in support of the allegations made in the complaint and not whether it is sufficient to warrant a conviction as laid down in Balraj Khanna and Ors. (supra), has to be construed in the background of the above observations in Madhavrao Jiwajirao Scindia and Ors. (supra).
Moreover, in Balraj Khanna and Ors. (supra), the proposition that the complaint cannot be thrown out on the mere ground that the actual words or the statements made, have not been stated in the complaint, is of no consequence in the facts of the present case, in absence of any factual foundation that the petitioner had in fact made any statement at all, having the potential of defaming the opposite party within the meaning of Section 499 IPC.
17. The decisions of this Court in Rajesh Kumar Himatsingka (supra) and Md. Moinul Islam (supra), on the scope and ambit of the power of interference under Section 482 for quashing a criminal proceeding, do not call for a detailed discussion, the principles relating thereto, being well settled and crystallized, in the meantime.
18. Having regard to the materials available before the learned Court below, as narrated in details hereinabove, I am of the view that the initiation of the impugned proceedings, issuance of the process against the petitioner and continuance of the prosecution, would amount to abuse of the process of Court exposing the petitioner to unnecessary harassment and prejudice. It would not be legally permissible in my ssview to make the petitioner suffer the agony of the proceedings on the anticipation of legal evidence forthcoming subsequently in support of the charge.
19. In the result, the petition succeeds. The impugned criminal proceeding being CR Case No. 1715/2007, pending in the Court of the learned Chief Judicial Magistrate, Nagaon, as well as the order dated 29.06.2007, so far it relates to the petitioner, hereby stands quashed. No costs.