Single Bench of the High Court of J&K&L comprising of Justice Rajnesh Oswal has observed that, as per the mandate of Section 190 of the Code of Criminal Procedure, a Magistrate upon receiving a complaint takes the congnizance of the offence and not of the offenders and if from the averments made in the complaint, the learned Magistrate comes to the conclusion that besides accused named in the complaint, there is/are other accused(s) as well, then the Magistrate is well within the jurisdiction to issue the process and summon them for facing the trial.
The respondent Nos. 1 and 2/complainants had filed an application before the Court of learned City Judge Jammu for impleading the petitioner as an accused in a defamation case for publishing a slanderous/defamatory write up in the columns of the daily news paper Daily Aftab, Srinagar.
In the said application, it was urged that the petitioner is the necessary party to be arrayed as accused in view of the fact that the defamatory write-up has been published in the columns of the Daily Aftab and the petitioner is the printer and publisher of the same. However, the learned City judge Jammu dismissed the said application.
Being aggrieved, the complainants/ respondent Nos. 1and 2 assailed the said order by filing Revision and the Court of learned 1st Additional Sessions Judge, Jammu set aside the said order passed by the learned City Judge, Jammu and directed the learned Magistrate to implead the petitioner as an accused and proceed ahead in accordance with law. The petitioner has challenged the said impugned order passed by the 1st Additional Sessions Judge before this Court by filing the instant petition.
Submissions of the Petitioner:
-That no such power of impleadment of the accused is vested in the courts below and there is absolutely no enabling provision available to that effect in the criminal procedure code, as such, order impugned is not sustainable.
-That neither in the complaint nor in the statements of the witnesses recorded under section 200 Cr.P.C., any allegation has been levelled against the petitioner and as such, the petitioner could not have been arrayed as an accused.
Observations of the Court:
Whether impleadment of accused can be sought in a criminal case?
To answer the first contention of the petitioner, the Court observed that;
“7…as per the mandate of section 190 of the Code of Criminal Procedure, the Magistrate takes the cognizance of an offence upon receiving the complaint of facts, which constitute such offence, upon the Police report of such facts, upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. So far as instant case is concerned, the learned Magistrate has taken the cognizance after the complaint was filed by the respondents Nos. 1 and 2 and the cognizance has been taken of the offence and not of the offenders. If from the averments made in the complaint, the learned Magistrate comes to the conclusion that besides accused named in the complaint, there is/are other accused(s) as well, then the Magistrate is well within the jurisdiction to issue the process and summon them for facing the trial.
The Court also referred to the Judgment of the Apex Court in Raghubans Dubey Vs. State of Bihar reported in 1967 Cr.L.J 1081 wherein the Court while dealing with the scope of section 190 Cr.P.C has held that the cognizance taken by a Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out, who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police, some other persons were also involved, it is his duty to proceed against those persons. Summoning of additional accused is a part of the proceeding initiated while taking cognizance of an offence.
The Court also placed reliance upon the judgment in M/S SWIL Ltd. Vs. State of Delhi & Anr., reported in 2001(6) SCC 670 wherein the Apex Court has held that there is no bar under section 190 Cr.P.C. that once the process is issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is some material on record but his name is not included as accused in the chargesheet. Thus, this Court is of the considered that there is no force in the contention raised by the petitioner, as such, the same is rejected. Apex Court has held that there is no bar under section 190 Cr.P.C. that once the process is issued against some accused, on the next date the Magistrate cannot issue process to some other person against whom there is some material on record but his name is not included as accused in the chargesheet. Thus, this Court is of the considered that there is no force in the contention raised by the petitioner, as such, the same is rejected.
With regard to the other contention of the petitioner that there were no allegations against the petitioner either in the complaint or in the statements of the witnesses of the complainant, that could result in impleadment of the petitioner as an accused
The Court after perusing the complaint filed by the respondent no. 1 and 2 / Complainants as well as the statements of the witnesses recorded in support of the complaint observed that it has not been able to find any allegation regarding complicity of the petitioner in the commission of alleged offence.
The Court further observed;
“12….The ratio of the judgment of the Apex Court in M/s. SWIL Ltd. Vs. State of Delhi & Anr., is that the Magistrate can issue process to some other person against whom there is some material on record. Thus, there must be material on record against the person and then only the process can be issued against him. There is no doubt that Managing Editor, Resident Editor, Chief Editor and even the owner/publisher can be prosecuted but that there must be sufficient material on record to put them to trial. In the complaint filed by the respondent Nos. 1 and 2 there is specific averment against Editor only that he has also contributed glaringly in defaming the complainants. This is the only allegation so far as any official of the daily news paper is concerned. Further, from the perusal of the write-up, it is evident that the same cannot be considered as a news item but write-up by the person, who has specifically mentioned his name in the said write-up.”
The Court ultimately set aside the impugned order and observed that the trial Court has failed to consider this vital aspect of the case as to whether there was any material on record for arraying the petitioner as an accused or not and without considering the same has passed the order impugned.