Issue for consideration:

(i) Whether, while considering a private complaint alleging

defamation, the Magistrate before summoning the accused

ought to confine himself to the allegations forming part of

the petition only or he may, applying his judicial mind to the

exceptions to s.499, IPC, dismiss the complaint holding that

the facts alleged do not make out a case of defamation?

(ii) Whether and, if at all, to what extent, is it open to the High

Courts to exercise inherent power saved by s.482, Cr. PC

to quash proceedings for defamation by setting aside the

summoning order upon extending the benefit of any of the

Exceptions to s.499, IPC?

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]