Paragraph numbers below are the court’s original numbering, recovered from the source text.
27. Signifi cantly, the precedents which we have referred to at an earlier part of this judgment do not appear to have been cited by the parties M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] in Rajendra Kumar Sitaram Pande (supra) and Jawaharlal Darda (supra) and, thus, the Hon’ble Judges on the Bench did not have the benefi t of considering the same.
28. What Aroon Purie (supra) reveals is that the operative part of the Trial Magistrate’s order was extracted, wherein the decisions in Balraj Khanna (supra) and M.N. Damani (supra) were referred to; however, the case was decided without any express reference by the Court to such precedents.
29. We need not examine the facts in Aroon Purie (supra) in any great detail in view of the question of law that the Court formulated and the answer to it. The question, in paragraph 18, reads as follows: “We now turn to the question: whether the benefi t of any of the exceptions to Section 499 of the IPC can be availed of and on the strength of such exception, the proceedings can be quashed at the stage when an application moved under Section 482 of the Code is considered?” After quoting paragraphs 5 and 7 from the decisions in Jawaharlal Darda (supra) and Rajendra Kumar Sitaram Pande (supra), respectively, and conscious of the legal position, the Court cautiously proceeded to hold as follows: “21. It is thus clear that in a given case, if the facts so justify, the benefi t of an exception to Section 499 of the IPC has been extended and it is not taken to be a rigid principle that the benefi t of exception can only be aff orded at the stage of trial.” (underlining ours, for emphasis)
30. Jawaharlal Darda (supra) and Rajendra Kumar Sitaram Pande (supra), we reiterate, are decisions where the disputes arising before the Court were resolved without laying down any law capable of being treated as precedents within the meaning of Article 141 of the Constitution. However, the approach adopted seems to have persuaded the Court in Aroon Purie (supra) to proceed to make the observation, highlighted above, which has opened up an arena of debate as to whether, the benefi t of an Exception to section 499, IPC could be aff orded at the stage of trial only or whether, if the facts of a given case so justify, such benefi t can be extended and proceedings quashed at the stage a petition under section 482, Cr. PC is being dealt with.
31. At this stage, it would not be out of place to refer to and discuss a few other decisions of this Court which are considered relevant for the present adjudication. In all these decisions, the issue of legality of summoning orders was examined and resting on the discussion of the relevant laws vis-à-vis the facts of each case, the impugned order was either maintained/interdicted. While the fi rst two decisions are of ancient vintage, viz. Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar17 and Chandra Deo Singh v. Prokash Chandra Bose18, being decisions rendered by Benches of 3 (three) and 4 (four) Hon’ble Judges, respectively, the remaining three are decisions of not too distant an origin, viz. Jeff rey J. Diermeier v. State of West Bengal19, Manoj Kumar Tiwari v. Manish Sisodia20 and B.R.K. Aathithan v. Sun Group21 rendered by Benches of 2 (two) Hon’ble Judges of this Court.
32. Vadilal Panchal (supra) arose from the decision of the Bombay High Court reversing an order of the Presidency Magistrate under section 203, Cr. PC. In course of a public agitation, one Sitaram died because of a gunshot injury infl icted by the appellant. Upon a complaint being lodged before the Presidency Magistrate, he ordered an inquiry by the Superintendent of Police, CID. Materials collected in course of such inquiry suggested that the appellant, who was accused of murdering Sitaram, had exercised his right of self-defence. Considering the same and after extending due opportunity to the complainant, the Presidency Magistrate dismissed the complaint. The Bombay High Court set aside the order of dismissal and directed the Presidency Magistrate to issue process against the appellant and deal with the case in accordance with law, on the ground that though Sitaram’s death was indisputable, the accused would have to establish the necessary ingredients of the right of private defence as laid down in section 96 and onwards of the Indian Penal Code; that there was nothing in any of 17 (1961) 1 SCR 1 18 (1964) 1 SCR 639 19 (2010) 6 SCC 243 20 2022 SCC OnLine SC 1434 21 2022 SCC OnLine SC 1705 M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] the sections in Chapter XVI to show that such an exception can be held to be established from the mere report of the police; that there is nothing in sections 202 or 203 of the Cr. PC abrogating the rule as to the presumption laid down in section 105 of the Evidence Act and the mode of proof of exception laid down in imperative language in that section; and that it was not a proper case in which the Presidency Magistrate should have dismissed the complaint under section 203, there being no evidence before him as and by way of proof to establish the exception of the right of private defence pleaded by the accused. 32.1 The question that arose before this Court was, whether the High Court of Bombay was right in its view that when a Magistrate directs an enquiry under section 202 of the Cr. PC for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring offi cer supporting a plea of self-defence made by the person complained against, is it not open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring offi cer? Must the Magistrate, as a matter of law, issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial? 32.2 While setting aside the impugned judgment and restoring the order of the Magistrate, this Court held that the Bombay High Court was in error in holding in such case that as a matter of law, it was not open to the Presidency Magistrate to conclude that no off ence had been made out and there was no suffi cient ground for proceeding further on the complaint on the materials before him. 32.3 After discussing the scheme of sections 200, 202 and 203, Cr. PC, this is what this Court held: “10. Now, in the case before us it is not contended that the learned Presidency Magistrate failed to consider the materials which he had to consider, before passing his order under Section 203 CrPC. As a matter of fact the learned Magistrate fully, fairly and impartially considered these materials. What is contended on behalf of the respondent- complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self-defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of Section 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is suffi cient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the Inquiring Offi cer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is suffi cient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an enquiry under Section 202 and has applied his mind judicially to the materials before him, we think that if (sic, it) would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsifi ed by the evidence of other witnesses — all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions.” (underlining ours, for emphasis)
33. Profi table reference can next be made to the decision in Chandra Deo Singh (supra), where a Bench of 4 (four) Hon’ble Judges had the occasion to consider a challenge to a judgment of the High Court at Calcutta. There, this Court was presented with a circumstance where two complaints alleging murder of a darwan were lodged before the Sub-Divisional Magistrate. The fi rst complaint was lodged by a distant relative of the deceased accusing three persons of murder whereas the second complaint was lodged by the appellant accusing the respondent no.1 of murdering his uncle. By separate orders, the Sub-Divisional Magistrate directed a M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] Magistrate, First Class, to conduct judicial inquiry. Separate reports were submitted by the Magistrate, First Class. In his fi rst report, he opined that a prima facie case to proceed against the three accused persons had been made out whereas, in his second report, he opined that no prima facie case to proceed against the fi rst respondent had been made out. The Sub- Divisional Magistrate, perusing the second report, dismissed the complaint of the appellant against the respondent no.1 without assigning any reason. The Sub-Divisional Magistrate, however, issued summons against the three other accused. Thereafter, the appellant approached the Sessions Judge with a revision who, after hearing the respondent no.1, directed the Sub-Divisional Magistrate to make a further inquiry against him. Thence, the respondent no.1 preferred a revision application before the High Court challenging the direction of the Sessions Judge. The same was allowed by a Single Judge of the High Court and upon grant of certifi cate under Article 134(1)(c) of the Constitution, the matter was carried to this Court. It was held that upon a fi nding of a prima facie case, the Magistrate was bound to issue process despite the charged person having a defence. Further, it was held that the matter was to be decided by an appropriate forum at the appropriate stage, and issuance of process could not be refused. 33.1 We consider it appropriate to quote certain pertinent observations from such decision, hereinbelow: “7. ***, it seems to us clear from the entire scheme of Chapter XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. … No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to fi nd out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an off ence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specifi c provision permitting an accused person to take part in an enquiry. ***” (underlining ours, for emphasis) 33.2 Considering the decision in Vadilal Panchal (supra), what was said therein was explained in the following words: “13. *** we may point out that since the object of an enquiry under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under Section 203 has to satisfy himself that there is suffi cient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. ***” (underlining ours, for emphasis) M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] In the same paragraph, after referring to the decision in Ramgopal Ganpatrai Ruia v. State of Bombay22, the Court proceeded to rule that: “*** Thus, where there is a prima facie case, even though much can be said on both sides, a committing Magistrate is bound to commit an accused for trial. All the greater reason, therefore, that where there is prima facie evidence, even though an accused may have a defence like that in the present case that the off ence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Incidentally, we may point out that the off ence with which Respondent 1 has been charged with is one triable by jury. The High Court, by dealing with the evidence in the way in which it has done, has in eff ect sanctioned the usurpation by the Magistrate of the functions of a jury which the Magistrate was wholly incompetent to do.” (underlining ours, for emphasis)
34. It is true that neither Vadilal Panchal (supra) nor Chandra Deo Singh (supra) arose out of proceedings for defamation but in both cases defence of the accused was considered in varying circumstances. As noted above, in Vadilal Panchal (supra) the order of the Presidency Magistrate dismissing the complaint on the ground that the accused had exercised his right of self-defence was restored upon setting aside of the order of the High Court of Bombay; whereas, in Chandra Deo Singh (supra), the order of the Sub-Divisional Magistrate directing further inquiry was restored upon setting aside the order of the High Court at Calcutta. The decision in Vadilal Panchal (supra) was not overruled by the larger Bench in Chandra Deo Singh (supra). Such decisions, in our opinion, assume relevance because the guidance provided thereby carries great weight.
35. In Jeff rey J. Diermeier (supra), this Court was called upon to consider whether the High Court at Calcutta was right in refusing to quash a private complaint under section 500 read with section 34, IPC. It was held that it is for the accused to demonstrate, by leading evidence during trial, that the purportedly defamatory statement came under an exception 22 1958 SCR 618 enumerated in section 499, IPC. The appellants therein had issued a public notice against the respondent no. 2, which the respondent no. 2 alleged to be defamatory in nature. The appellants pleaded that the aforesaid notice was published in public interest, and thus it was covered under the Tenth Exception to section 499, IPC. This Court held that it was trite law that the burden of proof for the accused could not be proof beyond reasonable doubt, yet the accused still had to show a preponderance of probability that his statement would be covered under an exception to section 499, IPC. A mere averment by the accused stating that his statement was in public good was not suffi cient to accept his defence and he must justify the same by leading evidence during trial. Considering the complaint as a whole as well as for the aforesaid reasons, this Court held that the impugned order did not warrant interference.
36. In Manoj Kumar Tiwari (supra), an order refusing to quash a summoning order was considered by this Court. Therein, the Additional Chief Metropolitan Magistrate had issued a summons to one of the accused under section 500, IPC without going into the contents of the alleged defamatory statement. The High Court of Delhi, on the other hand, while examining the statements, upheld the summons by simply relying on section 499 of the IPC. This Court held that this was an erroneous approach because the Magistrate ought to have applied his mind to the complaint and determined whether the statement was prima facie defamatory, before issuing summons to the accused. This Court further held that a complaint could not be sustained on statements which were, on the face of it, non-defamatory. Also, it was held that it is a fundamental rule of criminal jurisprudence that if the allegations contained in a complaint do not constitute the off ence complained of, then the accused should not be made to undergo the ordeal of a trial.
37. B.R.K. Aathithan (supra) is the decision of most recent origin. Therein, the factual conspectus was such that certain reportage concerning the appellant was telecast on a television channel of the respondents, and the same was contended as defamatory. This Court emphasised the need for application of judicial mind by the Judicial Magistrate, while noting the consideration of the Fourth Exception to Section 499, IPC at the stage of issuance of process. This Court observed there as follows: M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] “16. This essentially involved application of judicial mind to reach a defi nite conclusion as to whether or not the accused be summoned. In the instant case, the learned Judicial Magistrate having found that the allegations made by the appellant were in the teeth of fourth exception to Section 499 IPC, he declined to issue process to the respondents. Such dismissal cannot be said to be without application of judicial mind. The application of judicial mind and arriving at an erroneous conclusion are two distinct things. The Court even after due application of mind may reach to an erroneous conclusion and such an order is always justiciable before a superior Court. Even if the said Order is set aside, it does not mean that the trial court did not apply its mind.”
38. We note that in a diff erent context, this Court in National Bank of Oman v. Barakara Abdul Aziz23 summed up the duty of a Magistrate as follows: “8. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to fi nd out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to fi nd out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is diff erent from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is suffi cient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of fi nding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.” (underlining ours, for emphasis) 23 (2013) 2 SCC 488
39. Undoubtedly, the decisions of this Court proceed on two lines. While there are several decisions where this Court has consistently laid down the law in one particular line that it is for the Magistrate to consider the Exceptions to section 499, IPC for extension of benefi t thereof at the trial when a defence is pleaded by the party seeking to avail the same and upon the burden of proof being discharged by him and that such Magistrate while deciding the question purely from the point of view of the complainant may not advert to the possible defence of the accused at the time of exercising power under section 202, the other line of decisions seem to proceed on the premise that there is no bar in considering the Exceptions if the accused, even without appearing before the Magistrate in response to the summoning order, lays a challenge thereto under section 482, Cr. PC and satisfi es the relevant High Court, by referring to the complaint itself and the statements of the complainant and his witness, that the facts alleged (even if deemed to be true) do not constitute an off ence and hence, there was no suffi cient ground for proceeding. In fact, Aroon Purie (supra) has observed that there is no rigid principle that the Exceptions can only be considered at the pre-trial stage; in other words, at the stage of consideration of a petition for quashing, it can be so extended in a given case, and the Court would be empowered to quash the proceedings if extension of such benefi t is justifi ed on facts.
40. What applies to Judges of the High Courts faced with decisions of this Court where a cleavage of opinion is discernible, and particularly when the High Courts are technically bound by both decisions, equally applies to Hon’ble Judges of this Court. It would be inappropriate for a Bench, comprised of 2 (two) Judges of this Court, to hold which line of decisions lays down the correct law. In such a scenario, when there are decisions of this Court not expressing views in sync with each other, the fi rst course to be adopted is to ascertain which is the decision that has been rendered by a larger Bench. Obviously, inter se decisions of this Court, a decision of a Constitution Bench would be binding on Benches of lesser strength. None of the decisions that we have considered is rendered by a Constitution Bench. However, a sole judgment rendered by a Bench of 4 (four) Hon’ble Judges and 3 (three) decisions rendered by Benches comprised of 3 (three) Hon’ble Judges are there, which call for deference. Ordinarily, the decision of a larger Bench has to be preferred unless of M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] course a Bench of lesser strength doubts an earlier view, formulates the point for answer and refers the matter for further consideration by a larger Bench in accordance with law. If, however, the decisions taking divergent views are rendered by Benches of co-equal strength, the next course to be adopted is to attempt to reconcile the views that appear to be divergent and to explain those contrary decisions by assuming, to the extent possible, that they applied to diff erent facts. The other course available is to look at whether the previous decision has been noticed, considered and explained in the subsequent decision; if not, the earlier decision continues to remain binding whereas if the answer is in the affi rmative, the subsequent decision becomes the binding decision. We add a caveat that if the subsequent Bench, instead of deciding the matter before it fi nally upon consideration of the decision of the earlier Bench, formulates the point of diff erence and makes a reference for a decision by a larger Bench, it is the former decision that continues to govern the fi eld so long the larger Bench does not decide the reference.
41. There is also authority for the proposition that while deciding cases on facts, more so in criminal cases, the courts should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case. We may usefully refer to the decision in Kalyan Chandra Sarkar v. Rajesh Ranjan24 in this context.
42. Bearing the above principles in mind, we have perused the decisions, apparently striking discordant notes, with utmost care. It is observed that the conclusions reached in each of the decisions are based on the particular facts in each case and that the questions arising for decision on this appeal can be answered by harmonising the law as declared upon drawing guidance therefrom.
43. To the extent relevant, section 2(n) of the Cr. PC defi nes “off ence” as any act or omission made punishable by any law for the time being in force. Section 200 ordains what a Magistrate, inter alia, is required to do on receipt of a complaint. In taking cognizance of an off ence on a complaint, he is required to (i) examine upon oath the complainant and 24 (2005) 2 SCC 42 the witness present, if any; (ii) reduce in writing the substance of such examination; (iii) get the signature of the complainant and the witness, if any, on such writing; and (iv) sign the same too. Section 202 is a provision that enables the Magistrate to postpone the issue of process against the accused and, if he thinks fi t, either (a) inquire into the case himself or (b) direct an investigation to be made by (i) a police offi cer or (ii) by such other person he thinks fi t. The statute permits the Magistrate to take such steps to facilitate a decision whether there is suffi cient ground for proceeding against the accused by ascertaining the truth or falsity of the allegations made in the complaint. Section 203 authorizes the Magistrate, after considering the statements on oath of the complainant and the witness, if any, under section 200 or the result of the inquiry or the investigation under section 202, to dismiss a complaint, with brief reasons, should in his judgment there be no ‘suffi cient ground for proceeding’. On the other hand, section 204 under Chapter XVI of the Cr. PC titled ‘Commencement of Proceedings before Magistrates’ envisages that the Magistrate taking cognizance shall take steps for the issue of necessary process if in his opinion there is ‘suffi cient ground for proceeding’. It is therefore abundantly clear, from the aforesaid general scheme, that the accused does not enter the arena of adjudication made by the Magistrate prior to issuance of process.
44. Thus, when a Magistrate taking cognisance of an off ence proceeds under section 200 based on a prima facie satisfaction that a criminal off ence is made out, he is required to satisfy himself by looking into the allegations levelled in the complaint, the statements made by the complainant in support of the complaint, the documentary evidence in support of the allegations, if any, produced by him as well as statements of any witness the complainant may choose to produce to stand by the allegations in the complaint. Although we are not concerned with section 202 here, if an inquiry or an investigation is conducted thereunder, it goes without saying that the reports should also be looked into by the Magistrate before issuing process under section 204. However, there can be no gainsaying that at the stage the Magistrate decides to pass an order summoning the accused, examination of the nature referred to above ought not to be intended for forming an opinion as to whether the materials are suffi cient for a ‘conviction’; instead, he is required to form an opinion whether the M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] materials are suffi cient for ‘proceeding’ as the title of the relevant chapter would indicate. Since the accused does not enter the arena at that stage, question of the accused raising a defence to thwart issuance of process does not arise. Nonetheless, the fact that the accused is not before the Magistrate does not mean that the Magistrate need not apply his judicial mind. Nothing in the applicable law prevents the Magistrate from applying his judicial mind to other provisions of law and to ascertain whether, prima facie, an “off ence”, as defi ned in section 2(n) of the Cr. PC is made out. Without such opinion being formed, question of “proceeding” as in section 204 does not arise. What the law imposes on the Magistrate as a requirement is that he is bound to consider only such of the materials that are brought before him in terms of sections 200 and 202 as well as any applicable provision of a statute, and what is imposed as a restriction by law on him is that he is precluded from considering any material not brought on the record in a manner permitted by the legal process. As a logical corollary to the above proposition, what follows is that the Magistrate while deciding whether to issue process is entitled to form a view looking into the materials before him. If, however, such materials themselves disclose a complete defence under any of the Exceptions, nothing prevents the Magistrate upon application of judicial mind to accord the benefi t of such Exception to prevent a frivolous complaint from triggering an unnecessary trial. Since initiation of prosecution is a serious matter, we are minded to say that it would be the duty of the Magistrate to prevent false and frivolous complaints eating up precious judicial time. If the complaint warrants dismissal, the Magistrate is statutorily mandated to record his brief reasons. On the contrary, if from such materials a prima facie satisfaction is reached upon application of judicial mind of an “off ence” having been committed and there being suffi cient ground for proceeding, the Magistrate is under no other fetter from issuing process. Upon a prima facie case being made out and even though much can be said on both sides, the Magistrate would have no option but to commit an accused for trial, as held in Chandra Deo Singh (supra). The requirement of recording reasons at the stage of issuing process is not the statutory mandate; therefore, the Magistrate is not required to record reasons for issuing process. This is also the law declared by this Court in Jagdish Ram v. State of Rajasthan25. Since it is not the statutory mandate that reasons should be recorded in support of formation of opinion that there is suffi cient ground for proceeding whereas dismissal of a complaint has to be backed by brief reasons, the degree of satisfaction invariably must vary in both situations. While in the former it is a prima facie satisfaction based on probability of complicity, the latter would require a higher degree of satisfaction in that the Magistrate has to express his fi nal and conclusive view of the complaint warranting dismissal because of absence of suffi cient ground for proceeding.
45. 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 ‘suffi cient ground for proceeding’ exists as distinguished from ‘suffi cient 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 section 499, IPC is attracted, there is no bar either. After all, what is ‘excepted’ cannot amount to defamation on the very terms of the provision. We do realize that more often than not, it would be diffi cult to form an opinion that an Exception is attracted at that juncture because neither a complaint for defamation (which is not a regular phenomenon in the criminal courts) is likely to be drafted with contents, nor are statements likely to be made on oath and evidence adduced, giving an escape route to the accused at the threshold. However, we hasten to reiterate that 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 section 499, IPC, the Magistrate, upon due application of 25 (2004) 4 SCC 432 M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.] judicial mind, would be justifi ed 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.
46. Adverting to the aspect of exercise of jurisdiction by the High Courts under section 482, Cr. PC, in a case where the off ence 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. We may not be understood to undermine the High Courts’ powers saved by section 482, Cr. PC; 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. However, the tests laid down for quashing an F.I.R. or criminal proceedings arising from a police report by the High Courts in exercise of jurisdiction under section 482, Cr. PC not being substantially diff erent from the tests laid down for quashing of a process issued under section 204 read with section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no off ence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible, if the justice of a given case does not overwhelmingly so demand.
47. Based on our understanding of the law and the reasoning that we have adopted, issue of process under section 204 read with section 200, Cr. PC does not ipso facto stand vitiated for non-consideration of the Exceptions to section 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 off ence of defamation and that consequently, the proceedings need to be closed.
48. The above discussion answers the questions of law formulated by us.
49. Moving on to answer question (a), what we fi nd in the present case is that the Trial Court did not take recourse to section 202, Cr. PC and hence obtaining reports of inquiry or investigation, as the case may be, did not arise. Though not under any statutory requirement, the Trial Court has given brief reasons in its order showing application of mind. At the stage, when the Trial Court made the summoning order, two aspects were required to be satisfi ed: (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 off ence 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 25th March, 2010 issuing summons to the accused, it does not appear to us that the fi nding of a prima facie case having been made out at that stage is so outrageously illogical or in defi ance of legal principles and acceptable standards that it would merit interference by this Court. If at all the benefi t of the Fourth Exception or any other pleaded exception is to be availed of, the appellant would be free to appear before the Trial Court and raise whatever defence is available to it in law, not necessarily confi ned to the Fourth Exception, for due consideration thereof by the Trial Court.
50. On facts of this case, we are satisfi ed that the Trial Court was not unjustifi ed in issuing summons to the accused based on the materials before it.
51. We also hold that the omission of the learned Judge in dealing with the other points raised in the petition by the appellant does not aff ord any ground for us to interfere, having noticed that by a detailed judgment delivered on the same day on the petition of Aggarwal, the learned Judge had applied his mind and spurned a similar challenge. However, it is observed that the learned Judge would have been well advised to add a sentence in the order impugned that no separate reason was being assigned to dispose of the other points raised by the appellant in view of the reasons already assigned for disposal of Aggarwal’s petition laying challenge to the summoning order.
52. Question (a), thus, stands answered against the appellant. M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
53. Having regard to what we have held above, questions (b) and (c) need not detain us for long. We could have left them unanswered but since some argument was advanced touching the same, we propose to briefl y deal therewith.
54. Answer to question (b) 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. At this stage it would not be inappropriate to consider the other line of argument advanced by Mr. Taneja that those documents/materials on which the appellant seeks to rely have not been admitted or accepted by the complainant and are yet to be proved; hence, the same cannot be looked into while considering a prayer for quashing. The ratio of the decision in Supriya Jain (supra) fi nds support from an earlier decision of this Court in Chand Dhawan (Smt.) v. Jawaharlal26, where it was held that the High Court of Punjab and Haryana was not justifi ed in quashing the complaint and the criminal proceedings on the ground of abuse of the process of court by relying on additional material produced by the accused, which was not admitted in evidence or accepted by the complainant.
55. The Power of Attorney is yet not proved by the appellant according to law and, therefore, could not have been considered by the learned Judge and cannot be considered by this Court as well. Even if proved, its eff ect and import necessarily have to be considered by the Trial Court in the light of the guiding factors for applicability of an Exception as indicated in the concurring judgment authored by Hon’ble O. Chinnappa Reddy, J. in Sewakram Sobhani (supra).
56. 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. 26 (1992) 3 SCC 317
57. Turning to question (c), 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. This, in our opinion, is not the right stage to opine one way or the other and, therefore, we leave it open for being decided by the Trial Court in accordance with law. CONCLUSION
58. Having answered all the questions, what is left for us is to dismiss the appeal which we hereby order. The appeal is dismissed, with the result that the interim order shall stand vacated forthwith. There shall, however, be no order for costs.
59. Except to the extent decided by this judgment, all other points are left open to be urged by the appellant before the Trial Court for a decision by it.
60. Since the proceedings have been unduly delayed, the Trial Court is encouraged to expedite the same. Headnotes prepared by: Appeal dismissed. Ankit Gyan M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]