The Court observed that under Section 195 (1) (b) CrPC, the Magistrate is debarred from taking cognizance of the offence under Section 211 RPC in the absence of a complaint in writing of the Magistrate himself, in that, the offence must have been committed within “in, or in relation to, any proceedings in any court”.
The Court further observed that criminal proceedings ought not to be scuttled in the initial stage and quashment of a complaint/FIR should be an exception and a rarity than an ordinary rule.
The respondent had filed a complaint against the petitioner under Sections 211 & 500 RPC in the Court of learned Municipal Mobile Judicial Magistrate 1st Class, Jammu. The said Court after taking cognizance in the complaint had issued notice to the petitioner.
Being aggrieved, the petitioner challenged the impugned complaint and the order of cognizance by way of filing the instant petition under Section 561-A J&K CrPC.
-The respondent had filed a complaint under Sections 211 and 500 RPC in the trial Court, Jammu against the petitioner wherein he alleged that the petitioner has been filing complaints and petitions against large number of people under the garb of Public Interest Litigation, projecting himself to be a public-spirited person and that the accused- petitioner apparently acting on behalf of somebody who has been exposed by the truthful reporting of the newspaper filed a complaint with the Crime Branch, leveling wreckless and baseless allegations against the complainant, his brother and the newspaper.
-It was alleged in the complaint by the respondent herein that his image got tarnished in the eyes of general public because of filing of complaint by the petitioner-herein before the Crime Branch and the same brought disrepute to the newspaper, as also its management.
-That every statement made by the accused-petitioner herein in the complaint filed before the Crime Branch is defamatory, intended to malign and denigrate the complainant-respondent herein and to lower down him in the esteem of general public.
-The complainant-respondent herein, had thus, prayed for initiation of proceedings against the accused-petitioner herein for having committed under Sections 211 and 500 RPC.
-The trial Court after taking cognizance in the complaint had issued notice against the petitioner. The petitioner herein had challenged the impugned complaint as well as order of cognizance passed by the trial Court .
Grounds taken by the Petitioner for the quashment:
>That respondent-herein filed a false and frivolous complaint against the petitioner-herein before the trial court and the contents of the said complaint, the statement of the complainant-respondent herein and his witnesses nowhere fulfil the essentials of Sections 500 and 211 RPC.
>That the complaint made by the petitioner herein against the respondent was not made before the general public but before lawful authorities within the ambit of law and not beyond that and that the trial court without considering and appreciating the facts of the complaint and without recording the statement of even single independent witness, had taken the cognizance wrongly and issued process against the petitioner herein vide impugned order dated 01.11.2016.
>That the offence under Section 211 is non-cognizable and an aggrieved cannot directly file a complaint under Section 211 of the RPC, as only the Court, in which the criminal proceedings are instituted is competent to file the same.
> that the petitioner-herein as a responsible and law abiding citizen approached lawful authorities to investigate the matter regarding encroachment of land by the respondent-herein as per the news items published in one of the leading newspapers i.e. “State Times” dated 03.01.2012.
> That the petitioner-herein neither published his complaint in any of the newspapers nor made any defamatory remarks against the respondent-herein, but approached the appropriate lawful authorities within the ambit of law to investigate into the matter of public importance on the basis of news item published in the newspaper “State Times” and that no action has been taken by the respondent-herein against the newspaper, wherein the news item was published.
>The impugned complaint has been filed by the respondent-herein against the petitioner-herein with a motive to pressurize the petitioner to keep silence on the issue and that even threats were given by the respondent-herein to the petitioner-herein to desist from the issue or else to face serious consequences.
>That, though, the complaint dated 15.03.2016 was made by the petitioner-herein, against two persons and only one of them felt defamed and the other one did not choose to file any complaint like the respondent-herein, but instead had chosen to become witness in the impugned complaint which is not permissible under law.
Observations of the Court:
With regard to the contentions raised by the petitioner i.e., cognizance of the offence under Section 211 RPC could not have been taken by the trial court in view of Section 195 (1) (b) Cr.P.C and that the allegations leveled in the impugned complaint do not constitute the offence of defamation as the case falls within Eighth Exception appended to Section 499 RPC, the Court after referring to Section 211 of RPC read with Section 195 (1) (b) Cr.P.C as also Section 499 RPC read with Eighth Exception observed that:
14. ….As appears from above, offences under Section 211 RPC fall under two categories, the first is a complaint to a Magistrate and the second is a report of a cognizance offence to a police officer. The essential ingredients of an offence under Section 211 RPC is to institute or cause to be instituted any criminal proceedings against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed any offence, knowing that there is no just or lawful ground for such proceedings.
Under Section 195 (1) (b) (supra), the Magistrate is debarred from taking cognizance of the offence under Section 211 RPC in the absence of a complaint in writing of the Magistrate himself, in that, the offence must have been committed within “in, or in relation to, any proceedings in any court”.
In view of the aforesaid plain reading of Section 195 (1) (b) (supra), the contention of the counsel for the petitioner that the cognizance of Section 211 RPC could not have been taken by the trial court is patently illogical, misconceived and misplaced, as such, not sustainable in law, the bench of Justice Javed Iqbal Wani observed.
15. … A plain reading of Section 499 RPC (supra) reveals that an imputation made against another person which is intended by him to harm such other person or he knows or believes to be injurious to such reputation, constitute an offence of defamation. The defamation may be made in one or more ways satisfied in the section itself either by spoken words, written words, by signs or by visible representations. What is necessary is that imputation must be made or published and must be made known to other person or persons, however, even if, the imputations made satisfies all the ingredients of Section 499 RPC, yet it may not constitute the offence if it falls within one or more exceptions appended to Section 499 RPC.
The Court noted:
16. The case set up by the petitioner in the instant petition as noticed above precisely is that, he made a complaint to the Crime Branch on 15.03.2016 for investigating into the matter regarding encroachment of land and fake details of circulation as responsible and law abiding citizen before a lawful authority as per the news item published on 03.01.2012, in one of the leading newspapers i.e. “State Times”. However, the record tends to show that the petitioner-herein, addressed a letter to the Senior Superintendent of Police, Crime Branch, Jammu, on his letter head dated 18.05.2016, with the following subject:
“Registration of an FIR under PC Act and relevant sections of RPC against Rohmetras’ viz one deceased S.D. Rohmetra, Kamal Rohmetra and Neeraj Rohmetra for encroachment of land both at their Gandhi Nagar residence and Excelsior House Jammu as also for fake details of inflated circulated of their paper amounting to cheating, fraud and financial impropriety for years together.”
In fact, the letter with the subject supra has formed basis for filing of the impugned complaint by the respondent-herein, against the petitioner-herein, and not the news item published in the newspaper “State Times”, the Bench observed.
With regard to the application of Eight Exception of Section 499 RPC, the Court observed:
17. It is noteworthy that the application of Eighth Exception appended to Section 499 RPC involves a point of fact which cannot be expected to be visualized by a trial court at the threshold stage of taking cognizance of offence or issuing process against the accused. In other words, in case the complaint, statement of complainant and all the witnesses examined by the complainant at the time of filing of the complaint discloses that the imputation concerning the complainant will harm the reputations of the complainant, the Magistrate would be justified in taking the cognizance and issuing process against the accused. It is only thereafter, as the matter proceeds that the accused may establish that the imputation was made in good faith. The burden on the accused is not of the kind placed on the complainant to prove his case but only to be proved by preponderance of probabilities. Whether the imputations are made in good faith cannot be determined even by this Court when called upon while exercising inherent jurisdiction, in that, the said question is factual in nature and character and it is only the trial court that can return a finding on that issue after the parties would bring evidence on record. In short, the question whether the matter falls within Eighth Exception to Section 499 RPC is not a threshold question.
Thus, the case set up by the petitioner that Eighth Exception of Section 499 RPC (supra) is attracted in his case in view of above, analysis, at this stage, pales into insignificance and, as such, as well is not sustainable in law.
Whether, having regard to the facts and circumstances of the case, the impugned complaint and proceedings undertaken thereof by the trial court are liable to be quashed in exercise of inherent power enshrined under Section 482 of Cr.P.C:
The Court after referring to the judgment in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and ors., reported in 2021 SCC Online SC 315 observed:
18. …..The law is no more res-intgra that the criminal proceedings ought not to be scuttled in the initial stage and quashment of a complaint/FIR should be an exception and a rarity than an ordinary rule. The power of quashment has to be exercised sparingly with circumspection in the rarest of the rare cases and the inherent power of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice and though the inherent power is very wide but conferment of the same requires the Court to be cautious and casts an onerous and more diligent duty on the Court.
In this backdrop, the Court dismissed the petition along-with all connected applications.