Judgment:
Rajendra Saxena, J.
1. This petition has been filed under Section 482 Cr.P.C. against the order dated 28.8.1991 passed by the learned Chief Judicial Magistrate, Sirohi in Cr. case No. 106/91, whereby he took cognizance of the offence punishable under Section 500 I.P.C. against the petitioners on a private complaint filed by respondent Sohan Lal Patni.
2. Succinctly stated the relevant facts are that on 21.8.1991, respondent Sohan Lal filed a Criminal complaint before the learned Chief Judicial Magistrate against the petitioners on the basis of a new item titled published on 31st July, 1991 in, the Jodhpur Edition of Rajasthan Patrika. Petitioners No. 1 & 2 Prashant Kothari and Milap Chandra Kothari are Manager and Editor of Rajasthan Patrika, Jodhpur and Rajasthan Patrika, Jaipur respectively, while petitioner No. 3 Bhagwan Sahai Trivedi is the Editor of Rajasthan Patrika, Jodhpur. Petitioner No. 5 Mahavir Jain is the Correspondent, Rajasthan Patrika. Petitioner No. 4 has not been named and has been addressed as (owner), Rajasthan Patrika, Jodhpur. It will be worth-while to quote the impugned news item in extenso:
;qorh ds lkFk dfFkr ;kSukpkj ds ekeys es ,l-ih- ls iwNrkN dh &
fljksgh 30 tqykbZ ,l LFkkuh; 'kfDruxj dkWyksuh es xr fnuks nsj jkr rd ;qorh ds lkFk dfFkr ;kSukpkj ds ekeys es iqfyl v/kh{kd gseUr iqjksfgr us dkyst izk/;kid Mk- lksgu yky ikBuh ls iwNrkN dj tkap 'kq: dh gS A
iqfyl v/kh{kd dks crk;k x;k fd ,d ;qorh us nsj jkr ;g dgrs gq, fd ^^esjh gkyr [kjkc gks x;h gS^^ 'kkafr uxj es ,d edku ds njokts ij nLrd nsdj 'kj.k ekaxh bl ij edku ekfyd Hkjr dqekj us iqfyl dks Qksu ij ;g lwpuk nh A vk/ks ?k.Vs ckn ,d gsM dkaLVscy lknh onhZ es ogka igaqpk vkSj ;qorh dks mldh ifjfpr efgyk dh dkaLVslk dkj es Fkkus ys vk;k A ikVuh vius LdwVj ij Fkkus igqWpsA
Fkkus tkus ds iwoZ os dkj dks iqfyl v/kh{kd ds ?kj dh rjQ ys x,] fdUrq iqfyldehZ ds euk djus ij dkj Fkkus ys tkbZ xbZ A Fkkus es o`Rr fujh{kj dks txkdj ;g ;qorh iqfyl ds lqiqnZ dj nh x;h A fQj gsM dkaLVscy lkbZfdy ls ?kVuk Lfky ij Hkh x;kA
bl lkjh ?kVuk dh dksbZ jiV jkstukeps es ntZ ugh gS A Fkkuk izHkkjh lTtuflag dks iwNus ij mUgksus ;g crk;k fd ikVuh ;qorh dks lkSi dj x;s gh Fks fd fljksgh xSl lfoZl ds ekfyd Jh ujir flag Fkkus igqaps A mUgksus bl ;qorh dks viuk fj'rsnkj crk;k] ftl ij mls NksM+ fn;k x;k A
vk'p;Z ;g gS fd iqfyl us nsj jkr 'kkafruxj es 'kj.k ekxus dh bl ;qorh ls otg ugh iwNh] tcfd dkj es lokj viuh ifjfpr efgyk dks ml ;qorh us crk;k fd ^^ mUgksus rks esjh gkyr [kjkc dj nh] ftl ij fdlh rjg Hkkxdj eS lM+d ij vkbZ A^^
dkj tks/kiqj dh Fkh rFkk MkbZoj ekyh Fkk A ujir flag ds fljksgh es ugh gksus ds dkj.k muls ?kVuk ds ckjs es ugh iwNk tk ldk A iqfyl v/kh{kd us crk;k fd Fkkuk izHkkjh us mUgs bl ?kVuk dh tkudkjh ugh nh A
3. The respondent Sohal Lal in his complaint alleged that the aforesaid news item was sent by the Sirohi Correspondent of Rajasthan Patrika without making any inquiry and that the same was published malafidely with a view to defame him. He further alleged that he is a Lecturer in Government College, Sirohi and that after publication of the said news item, his moral and intellectual character and his personal reputation were lowered in his colleagues as also in the members of the society. It was further alleged that the said news item was misleading and by that his prestige was lowered down.
4. The trial Magistrate recorded the statement of respondent Sohan Lal under Section 200 Cr.P.C. and examined Mohd. Yaqub Khan and Bhim Raj Jain under Section 202 Cr.P.C. and by his impugned order took cognizance against the petitioners for the offence under Section 500 I.P.C.
5. Mr. M.L. Kala, the learned Counsel for the petitioners have vehemently contended that from the contents of the criminal complaint and the evidence recorded by the Magistrate even the basic ingredients for defamation are not make out, that the impugned news item was published in good faith and that contents thereof were correct, which have neither been denied by the respondent in his complaint nor in his statement. He has submitted that the learned Magistrate without applying his mind properly has taken cognizance in a routine manner with the result that the petitioners are being harassed unnecessarily and as such the impugned order, which tantamounts to abuse of the process of the court should be quashed.
6. On the other hand Mr. Salil Trivedi, the learned Counsel for the respondent Sohan Lal has asserted that from the title and first paragraph of the impugned news item, prima facie it appears that Shri Sohan Lal was connected with the sex scandal, while on the other hand he had rescued the girl from the clutches of culprits and gone to the police station for reporting the matter. According to him, the learned Magistrate after recording the evidence was satisfied that prima facie offence under Section 500 I.P.C. was made out. He has thus rightly taken cognizance against the petitioners, who were responsible for publishing the said news item. He has submitted that the satisfaction of the learned Magistrate should not be interfered with under the inherent powers of this Court. For this he has placed reliance on the following cases:
(1) Smt. Pragati K. Shah and Ors. v. State of Rajasthan 1990(2) W.L.N. 56
(2) Harish Meena and Anr. v. The State of Raj. and Anr. 1991(1) W.L.N.-160
(3) Bishambar Lal v. The State of Raj. and Anr. 1991(1) W.L.N.-191.
7. I have given my most anxious and careful consideration to the rival contentions and perused the relevant record.
8. It is true that at the stage of taking cognizance and issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same. If he is prima facie satisfied that sufficient grounds exist for proceeding against the accused, then he is well within his competence to take cognizance of such offence against the accused person. But while taking cognizance of the offence oa Magistrate should also take into consideration the inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. More-over the discretion has to be judicially exercised by the Magistrate. Once the Magistrate has exercised his jurisdiction fairly, properly and judiciously, then it is not for the High Court to substitute its own discretion for that of the Magistrate or to de nova...examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused, because these considerations are totally foreign to the scope and ambit of an inquiry under Section 202 Cr.P.C. However, if the contents of the complaint per se do not disclose the essential ingredients of an offence, which is imputed against the accused or where the facts incorporated in the complaint or in the statements of witnesses recorded under Section 200 and 202 Cr.P.C. on their face value do not make out any case against the accused or where allegations detailed in the complaint are patently absured or inherently improbable, so that no prudent person can even reach a conclusion that there exist sufficient grounds for proceedings against the accused, or where the Magistrate has exercised his discretion in issuing the process improperly arbitrarily and capriciously and has considered wholly irrelevant factors or inadmissible evidence or where the complaint suffers from fundamental legal defects, such as bar of limitation, want of prosecution sanction or absence of the complaint by a legally competent persons then certainly the High Court can exercise its inherent powers under Section 482 Cr.P.C. for setting aside or quashing such orders passed by the Magistrate. For this I place reliance on the law laid down by the Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. : 1976CriLJ1533 .
9. In Smt. Pragati K. Shah's case (cited supra), it has been held that the High Court can not exercise its inherent powers unless there is illegality or Magistrate has acted without jurisdiction in taking cognizance of an offence against an accused person.
10. In Harish Meena's case (cited supra), it has been observed that if a Magistrate after going through the statements recorded under Sections 200 & 202 Cr.P.C. is satisfied that a prima facie case is made out then it is not necessary for him to draw a detailed order for taking cognizance.
11. In Bishambar Lal's case (cited supra), it has been observed that if an accused against whom cognizance has been taken has a valid defence for him, then he can agitate that point before the trial court, which should decide such objection, if so raised at the appropriate stage. It has also been laid down that inherent powers under Section 482 Cr.P.C. can not be lightly used in quashing proceedings, when a prima facie case has been made out against the accused.
12. I respectfully agree with the aforementioned propositions of law. But in the case in hand, a bare reading of the impugned news item reveals that it has no where been mentioned therein that Professor Dr. S.L. Patni (respondent No. 1) was involved, entangled or wanted in the reported sex scandal. In the title of the impugned news item, the name of respondent does not find mention. In the first paragraph of the impugned news item, it was simply mentioned that the Superintendent of Police after inquiring from Dr. Sohan Lal Patni had started investigation in the said sex scandal. In para No. 2 of the impugned news item, it was reported that one Bharat Kumar, at whose house that lady had come to take shelter in the night, had informed the S.P. on phone about her woeful tale and that half an hour thereafter one Head Constable in civil dress had come to Bharat Kumar's house and took that lady in a Contessa Car belonging to some other woman to the police station. It was further mentioned that Mr. Patni had also gone to the police Station on his Scooter. It was further reported in the news item that the said lady was entrusted to the C.I. of the Police Station and that thereafter the Head Constable had gone to the place of alleged incident. In the fourth paragraph of the impugned news item, it was mentioned that no report about the said incident was scribed in the daily diary of the Police Station. It was also mentioned that the S.H.O. had informed that soon after Mr. Patni had entrusted that lady to the Police, one Narpat Singh, proprietor of Sirohi Gas Service had come to the Police Station and disclosed that the said lady was his relative and as such she was released. Thus, even a bare reading of the impugned news item does not reflect that the respondent Dr. Sohan Lal was in any way involved in the reported sex scandal as a culprit. On the other hand, it was clearly reported that Dr. Patni had come to the Police Station on his Scooter and that as per S.H.O.'s version he had entrusted the rescued lady to the Police. Therefore, by no stretch of imagination it can be inferred that either the title or the impugned news item was misleading or based on incorrect facts or was published with a view to malign or defame the respondent.
13. To constitute the offence of defamation punishable under Section 500 I.P.C., the basic ingredients are:
(i) making or publishing any imputation concerning any person;
(ii) such imputation must have been made by words either spoken or intended to be read; or by visible representation; and
(iii) such imputation must have been made with the intention of harming, or with knowledge or having reason to believe that it will harm the reputation of the person concerning whom it is made.
14. In the instant case either in the facts incorporate in the complaint or the evidence recorded under Sections 200 & 202 Cr. P.C, there is not a fringe of evidence to prima facie show that the impugned news item was either published maliciously with a view to undermine the reputation or lower down the moral or intellectual character of respondent Sohan Lal amongst his colleagues or in the society or that the contents of the impugned news item were incorrect or false. It is curious to note that neither in the complaint nor in his statement, respondent Sohan Lal has denied/refuted the fact that the S.P. had inquired from him about the alleged incident. He has also not denied the fact that he had not gone to the police station and entrusted the said lady to the S.H.O. There is not an iota of evidence to suggest that the petitioners had any ill will or malafide against the respondent. Moreover, the impugned news item is not per se defamatory. Thus, from the evidence recorded by the learned Magistrate absolutely no offence Under Section 500 I.P.C. against the petitioners even prima facie was made out. The criminal complaint also did not disclose the essential ingredients of the offence punishable under Section 500 I.P.C. In such circumstances, it is abundantly apparent that the Magistrate has exercised his discretion arbitrarily and in almost capricious manner in taking cognizance against the petitioners for the offence under Section 500 I.P.C. He also did not care to see that petitioner No. 4 was not even named in the complaint. Hence to my mind, the Magistrate has rather mechanically taken the cognizance against the petitioners without any legal evidence, and therefore, the impugned order tantamounts to abuse of the process of the court and that to secure the ends of justice, it is necessary to quash the same.
15. Hence, for.the reasons mentioned above, I allow this petition, set aside the impugned order dated 28.8.91 passed by the learned Chief Judicial Magistrate, Sirohi and direct that the proceedings initiated against them petitioners be dropped.