Code of Criminal Procedure, 1973 – Issue Process – Complaint of Defamation – Application of judicial mind by the Magistrate Code of Criminal Procedure, 1973 – Issue Process – Complaint of Defamation – Application of judicial mind by the Magistrate:

Held: In the context of a complaint of defamation, at the stage the Magistrate proceeds to issue process, he has to form his opinion based on the allegations in the complaint and other material (obtained through the process referred to in section 200/section 202) as to whether ‘sufficient ground for proceeding’ exists as distinguished from ‘sufficient ground for conviction’, which has to be left for determination at the trial and not at the stage when process is issued – Although there is nothing in the law which in express terms mandates the Magistrate to consider whether any of the Exceptions to s. 499, IPC is attracted, there is no bar either – It is not the law that the Magistrate is in any manner precluded from considering if at all any of the Exceptions is attracted in a given case; the Magistrate is under no fetter from so considering, more so because being someone who is legally trained, it is expected that while issuing process he would have a clear idea of what constitutes defamation – If, in the unlikely event, the contents of the complaint and the supporting statements on oath as well as reports of investigation/inquiry reveal a complete defence under any of the Exceptions to s. 499, IPC, the Magistrate, upon due application of judicial mind, would be justified to dismiss the complaint on such ground and it would not amount to an act in excess of jurisdiction if such dismissal has the support of reasons. [Para 45]

Code of Criminal Procedure, 1973 – s. 482 – Power of the High Court to quash proceedings for defamation by setting aside the summoning order upon extending the benefit of any of the Exceptions to s.499, IPC:

Held: The exercise of jurisdiction by the High Courts u/s. 482, Cr.P.C., in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate – This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do – It may not be understood to undermine the High Courts’ powers saved by s.482, Cr.P.C.; such powers are always available to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone the High Courts exist – The issue of process u/s. 204 r/w. s.200, Cr.P.C. does not ipso facto stand vitiated for non-consideration of the Exceptions to s.499, IPC unless, of course, before the High Court it is convincingly demonstrated that even on the basis of the complaint and the materials that the Magistrate had before him and without there being anything more, the facts alleged do not prima facie make out the offence of defamation and that consequently, the proceedings need to be closed. [Paras 46 and 47]

Penal Code, 1860 – s. 499 – Exceptions to s.499 – Trial Court upon considering the complaint u/s. 200 Cr.P.C. returned a prima facie finding in order dated 25.03.2010 that accused no.1, the appellant (accused no.2) and its district manager were responsible for writing, sending, publishing letters containing malicious and defamatory statements and consequently summoned the three accused persons u/ss. 500/107/34, IPC – Propriety:

Held: At the stage, when the Trial Court made the summoning order, two aspects were required to be satisfied: (1) whether the uncontroverted allegations as made in the petition of complaint read with the examination of the complainant, prima facie, tend to suggest an offence having been committed, and (2) whether it is expedient and in the interest of justice to proceed – Keeping in view the allegations made in the petition of complaint and the evidence placed before the Trial Court by the complainant and on a plain reading of its order dated 25.03.2010 issuing summons to the accused, it does not appear that the finding of a prima facie case having been made out at that stage is so outrageously illogical or in defiance of legal principles and acceptable standards that it would merit interference by this Court – Appellant would be free to appear before the Trial Court and raise whatever defence is available to it in law, not necessarily confined to the Fourth Exception, for due consideration thereof by the Trial Court – Therefore, the Trial Court was not unjustified in issuing summons to the accused based on the materials before it. [Paras 49, 50]

Penal Code, 1860 – s.499 – Exceptions to s.499 – Whether a company can be prosecuted for defamation when the alleged defamatory statements are made not by it (the company) but by its authorised agent:

Held: It must necessarily depend on the facts of each case, meaning thereby the quality of evidence that is led in course of the trial and the weight to be attached to it – In the instant case, the Power of Attorney is yet not proved by the appellant-company according to law and, therefore, could not have been considered by the Judge and cannot be considered by this Court as well – Even if proved, its effect and import necessarily have to be considered by the Trial Court – However, if from evidence led it is established that the authorised agent had issued defamatory statements with the consent of the principal or that the principal, without giving consent, had due knowledge of such defamatory statements, yet, did not caution/reprimand the agent for doing so or had not disowned the statements so made, there is no reason why a prosecution for defamation should be nipped in the bud on the specious ground that an authorised agent is supposed to act lawfully and not unlawfully – As far as the benefit of the fourth exception is concerned, it is for the appellant to demonstrate before the Trial Court that the Fourth Exception is attracted, or plead any other defence, and discharge its burden of proof in respect thereof during the course of the trial. [Paras 54, 55, 56, 57]