Himachal Pradesh High Court
Date Of Decision: 27.09.2024 vs Gian Chand Dhiman & Anr on 27 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
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IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No.186 of 2019
Date of Decision: 27.09.2024
_______________________________________________________________
Rajesh Kumar .........Petitioner
Versus
Gian Chand Dhiman & Anr. .......Respondents
Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Varun Chandel & Ms. Deepmala
Sharma, Advocates.
For the Respondents: Mr. Naresh K.Sharma, Advocate, for
respondent No. 1.
Mr. Bhupender Singh Ahuja, Advocate,
for respondent No.2.
_____________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Section 482 Cr.P.C., prayer has been made on behalf of petitioner for quashing of private complaint bearing No.111-2/16/13, CNR No. 14/2014 having been filed by the respondent No. 1, registered under Sections 500 and 34 of the Indian Penal Code, titled as Gian Chand Dhiman Vs. Suram Singh & Anr. as well as summoning order dated 21.07.2017 issued by learned JMFC Court No. II, Ghumarwin, thereby calling upon petitioner- accused named in the complaint to come present before learned Court below on 11.09.2017.
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Whether the reporters of the local papers may be allowed to see the judgment?
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2. For having bird's eye view, facts relevant for adjudication of the case at hand are that respondent No. 1 instituted private complaint under Sections 500, 120-B & 34 of Indian Penal Code (Annexure P-2), against petitioner, who at relevant time was working as Chief Parliamentary Secretary, State of Himachal Pradesh and respondent No. 2, Suram Singh, alleging therein that respondent No. 2 met petitioner on 30.12.2012 and alleged that he intentionally invited Mr. Khayali Ram Sharma, Retd. Senior Manager, SBI, for annual function of school and during the function, Mr Khayali opposed the policy of the Government as well as party in power. He alleged that petitioner believing the version put-forth by respondent No. 2 to be correct, sent DO note to Hon'ble Chief Minister, Himachal Pradesh, praying therein to take appropriate action against the respondent No. 1/complainant. He alleged that on account of complaint made by the petitioner, he was put under suspension and also got defamed among the general pubic, especially community of teachers. He alleged that after being suspended, inquiry was conducted, but Inquiry Officer on the basis of evidence adduced on record by the respective parties exonerated him, but yet he on account of his being suspended pursuant to DO Note issued by the petitioner on the baseless and false allegation levelled by respondent No. 2, suffered humiliation and as such, both petitioner and respondent No. 2 deserve to be 3 2024:HHC:9597-DB convicted under Sections 500, 120-B and 34 of Indian Penal Code. Learned Judicial Magistrate First Class, Court No. 2, Ghumarwin, District Bilaspur, H.P. after having taken note of averments contained in the complaint as well as criminal evidence adduced on record, vide order dated 21.07.2017 proceeded to issue process against petitioner and respondent No. 2 for their having allegedly committed offences punishable under Sections 500 and 34 Indian Penal Code, but dropped charge under Section 120-B of Indian Penal Code alleged by the complainant in complaint. However, before aforesaid proceedings could be taken to its logical end, petitioner approached this Court in the instant proceedings filed under Section 482 Cr.P.C. Vide order dated 10.04.2019, this Court, while issuing notice to the respondents, stayed the further proceedings pending adjudication before the learned trial Court, as a result thereof, matter has not cropped up further till date.
3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Varun Chandel, learned counsel representing the petitioner, is that no case much less under Section 500 of IPC is made out against the petitioner because at no point of time he levelled false allegations, if any, against the respondent No. 1, as a result thereof, respondent No. 1 was humiliated. Mr. Varun Chandel, learned counsel for the petitioner, while making this Court 4 2024:HHC:9597-DB peruse averments contained in the complainant vis-a-vis DO Note issued by the petitioner, vehemently argued that a deputation met under the Chairmanship of respondent No. 2, who was Ex-Pradhan of the Gram Panchayat concerned and during his constituency tour, he made a complaint against respondent No. 1-Gian Chand that during school annual function, he invited Mr. Khayali Ram Sharma, President of Vishav Hindu Parishad, District Bilaspur, H.P., for presiding over the annual function of the school and during the function, he had criticized the decision of the petitioner with regard to upgradation of the school directly to +2 standard. Mr. Chandel, submitted that since vide complaint, as detailed hereinabove, respondent No. 2 specifically alleged that petitioner in his speech targetted the Government and tried to tarnish image of the party leaders and attacked party ideology, no illegality can be said to have been committed by the petitioner, while bringing the matter to the notice of the then Hon'ble Chief Minister, who thereafter having examined the matter constituted inquiry, whereby respondent No. 1 was subsequently exonerated. While making this Court peruse Sections 499 and 500 of Indian Penal Code, Mr. Varun Chandel, learned counsel for the petitioner, vehemently argued that person, whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person 5 2024:HHC:9597-DB intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person can be said to have defamed that person, however, in the instant case, not even a single word has been spoken by the respondent No. 2 to harm the reputation of the respondent No.1, rather he after having received information with regard to respondent No. 1 having violated conduct rules, brought the mater to the notice of Hon'ble Chief Minister, who subsequently in his wisdom got the inquiry constituted. Mr. Chandel, while making this Court peruse order dated 21.07.2017 also submitted that summoning order passed by the JMFC, Court No. II, Ghumarwin, District Bilaspur, H.P., is not tenable in the eye of law for the reason that there is no reflection of application of mind, rather bare perusal of same clearly reveals that Court concerned, in mechanical manner, without taking note of contents of complaint as well as material adduced on record proceeded to issue notice, which is not permissible under law. In support of aforesaid submissions, Mr. Chandel, invited attention of this Court to the judgment passed by Hon'ble Apex Court in case titled as Vikas Chandra Vs. State of Uttar Pradesh, Criminal Appeal No. of 2024 (Arising out of SLP (Crl.) No. 1196 of 2018) decided on 22.02.2024, wherein Hon'ble Apex Court while taking note of its earlier judgments held that words "sufficient ground for proceedings" appearing under Section 204 Cr.P.C., are of 6 2024:HHC:9597-DB immense importance, which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set-aside if no reason is given therein, while coming to the conclusion that there is a prima-facie case against the accused, though the order need not contain detailed reasons.
4. To the contrary, Mr. Naresh K.Sharma, learned counsel representing the respondent No. 1, supported the impugned summoning order dated 21.07.2017. While making this court peruse contents of complaint vis-a-vis DO note issued by the petitioner, Mr. Naresh K.Sharma, learned counsel representing respondent No. 1, vehemently argued that very action of issuing DO note by the petitioner pursuant to complaint made by the respondent No. 2, containing therein, serious allegation of mis-conduct falls in the category of defamation, if it is so, no illegality can be otherwise said to have been committed by the learned Court below, while issuing process against the petitioner. He submitted that since petitioner, who at relevant time, was Chief Parliamentary Secretary, without verifying the correctness of the allegation contained in complaint filed by respondent No. 2, proceeded to write DO note to the Hon'ble Chief Minister and thereafter, 7 2024:HHC:9597-DB respondent No. 1 was suspended, great embrassment was caused to the respondent No. 1 and as such, he rightly filed complaint under Section 200 Cr.P.C., praying therein to convict the petitioner and respondent No. 2 under Section 500 IPC, which provides punishment for defamation.
5. While referring to summoning order dated 21.07.2017 passed by learned trial Court, Mr. Naresh K.Sharma, learned counsel representing respondent No. 1, attempted to argue that bare perusal of afore order clearly reveals that learned Judge, before passing summoning order not only went through the averments contained in the complaint, but also perused preliminary evidence adduced on record by the complainant in support of his complaint and as such, no illegality can be said to have been committed by the learned trial Court by issuing process against the petitioner.
6. I have heard learned counsel of the parties and gone through the record carefully.
7. Before ascertaining the genuineness and correctness of the submissions and counter submissions having been made by the learned counsel for the parties vis-à-vis prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.
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8. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka v. L. Muniswamy and others, 1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
9. Subsequently, in case titled State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.
10. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier 9 2024:HHC:9597-DB judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 10 2024:HHC:9597-DB 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the 11 2024:HHC:9597-DB allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is 12 2024:HHC:9597-DB such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal -
proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
11. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
12. The Hon'ble Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Department of Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC. The 13 2024:HHC:9597-DB relevant paras of the judgment are as under:
16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P. and Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
13. The Hon'ble Apex Court in case titled Pramod Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608, has elaborated the scope of exercise of power under Section 482 14 2024:HHC:9597-DB Cr.PC, the relevant para whereof reads as under:-
"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified 15 2024:HHC:9597-DB by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan Lal6 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335 "102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of 16 2024:HHC:9597-DB the Code except under an order of a Magistrate within the purview of Section 155(2).
..........
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCC OnLine SC3100 ("Dhruvaram Sonar"):
"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
14. Aforesaid law, clearly stipulates that Court can exercise power under S.482 of the Code of Criminal Procedure, to quash criminal proceedings, in cases, where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie 17 2024:HHC:9597-DB constitute any offence or make out a case against the accused.
15. Now being guided by the aforesaid proposition of law laid down by the Hon'ble Apex Court, this Court would make an endeavor to examine and consider the prayer made in the instant petition vis-à-vis factual matrix of the case.
16. It is not in dispute that complaint came to be made by the petitioner, while he was Chief Parliamentary Secretary and elected member of legislative assembly of Ghumarwin constituency. It is also not in dispute that respondent No. 2 led a deputation and filed a complaint with regard to mis-conduct of respondent No. 1, who allegedly invited person person namely Mr. Khayali Ram Sharma from Vishav Hindu Parishad for presiding over the annual function of the school and during the said function Mr. Khayali criticized the policy of the Government and party in power. If the DO note issued by the petitioner after his having received representation from respondent No. 2 is perused in its entirety, this court is persuaded to agree with Mr. Varun Chandel, learned counsel for the petitioner, that petitioner did not level any allegations against respondent No. 1, rather he simply apprised Hon'ble Chief Minister with regard to deputation, which met him during constituency tour. In afore DO note, he simply apprised Hon'ble Chief Minister that as per the deputation, respondent No. 1, who at relevant time was Principal of the school concerned, invited 18 2024:HHC:9597-DB Mr. Khayali Ram Sharma (President of Vishav Hindu Parishad) for presiding over the school annual function and during the said function Mr. Khayali Ram Sharma criticized the decision of the Government with regard to upgradation of school directly to +2 standard and in his speech targetted Government and tried to tarnish image of party leaders and also attacked party ideology. It is not in dispute that Hon'ble Chief Minister after having taken note of aforesaid DO note, constituted inquiry to verify the correctness of allegation levelled by deputation led by respondent No. 2, but Inquiry Officer, taking note of the material adduced on record before him, exonerated respondent No. 1. However, question which needs to be determined in the instant proceedings is that "whether mere writing of DO note, thereby requesting Hon'ble Chief Minister to take note of allegation levelled by deputation led by respondent No. 2 can be said to be defamation, if any, by the petitioner or respondent No. 2?"
17. To explore the answer of afore question, it would be apt to take note of Sections 499 and 500 of IPC, which read as under:
"499. Defamation.--
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame 19 2024:HHC:9597-DB that person.
500. Punishment for defamation.--
Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."
18. As per aforesaid provision of law, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person.
19. In the case at hand, save and except writing DO note to Hon'ble Chief Minister, as detailed hereinabove, no words spoken or written ever came to be expressed by the petitioner suggestive of the fact that attempt, if any, was ever made by him to defame respondent No. 1.
20. Though material adduced on record reveals that pursuant to DO note issued by the petitioner, disciplinary proceedings were initiated against the respondent No. 1, but such action, if any, pursuant to DO note issued by the petitioner cannot amount to defamation as defined under Section 500 of Indian Penal Code. In the case at hand, petitioner herein, being member of Legislative Assembly of the Assembly concerned, only took note of representation given by the deputation led by respondent No. 2 and thereafter, forwarded the same to Hon'ble 20 2024:HHC:9597-DB Chief Minister for necessary action, who after having examined the matter constituted an inquiry. Allegation, which ultimately led to initiation of disciplinary proceedings, were never levelled by the petitioner, rather same were levelled by respondent No. 2 and as such, no case much less under Section 500 of Indian Penal Code can be said to be made out against the petitioner. Moreover, it is not in dispute that at relevant time petitioner was a public representative, who otherwise in the event of his having received information with regard to any illegal activity, was under obligation to inform higher authorities so that action, if any, could be taken against the culprits. Act of writing DO note to Hon'ble Chief Minister, thereby requesting him to take appropriate action upon the representation filed by respondent No. 2, by no stretch of imagination, can be said to be act of defamation, if any, committed by the petitioner, rather he was merely discharging his duty being public representative of the area concerned. Moreover, there is no material worth credence suggestive of the fact that petitioner had any kind of intention and knowledge to cause harm to the reputation of the respondent No. 1, rather he after having received complaint from the deputation led by respondent No. 2 forwarded the same to Hon'ble Chief Minister for necessary action. Mere writing a communication to Hon'ble Chief Minister, thereby informing factum of the some unlawful act done by some official cannot be 21 2024:HHC:9597-DB said to be an act of defamation, especially when, such communication is issued by public representative of the area. Similarly, this Court finds that learned trial Court before taking cognizance of the private complaint filed by respondent No. 1, failed to take note of Section 197 Cr.P.C., which specifically provides for prior sanction to prosecute the public servant. Since at relevant time petitioner was working as Chief Parliamentary Secretary, no complaint against him could have been otherwise entertained without there being prior prosecution sanction required under Section 197 Cr.P.C.
21. Once DO note in question was written by the petitioner in discharge of his public duty, complainant ought to have taken prior sanction from the competent authority under Section 197 Cr.P.C. Needless to say that to launch prosecution against the public servant, prior sanction, as envisaged under Section 197 Cr.P.C is mandatory. At this stage, it may be apt to take note of Section 197 Cr.P.C. which reads as under:
"197. Prosecution of Judges and public servants.
(1)When any person who is or was a Judge or Magistrate or a public servant not removable from his officer save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the 22 2024:HHC:9597-DB affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State of the State Government :
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] [Added by Act 43 of 1991, Section 2 (w.e.f. 2-5-1991).] [Explanation. - For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB,] [Inserted by Criminal Law (Amendment) Act, 2013 ] or section 509 of the Indian Penal Code.] [Inserted by Act 63 of 1980, Section 3 (w.e.f. 23.9.1980).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members(of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.
[(3-A) Notwithstanding anything contained in sub- 23
2024:HHC:9597-DB section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] [Added by Act 43 of 1991, Section 2 (w.e.f. 2-5- 1991).] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
22. In the case at hand, it is not in dispute that petitioner at relevant time was discharging his duty as Chief Parliamentary Secretary and he being an appointee of Government, falls within the definition of 'public servant' as defined under Section 21 of Indian Penal Code. Section 197 24 2024:HHC:9597-DB Cr.P.C. clearly provides that no Court shall take cognizance of offence, if any, committed by public servant, without there being previous sanction, if the act alleged to have committed by him was done in discharge of public duty. Reliance in this regard is placed upon judgment passed by this Court in case titled as Joginder Singh Chauhan Vs. Ghanshyam Mishra, Cr.MMO No.799 of 2023, decided on 05.07.2024, whereby this Court having taken note of various judgments passed by Hon'ble Apex Court, thereby elaborating Section 197 Cr.P.C. held as under:
"19. Hon'ble Apex Court in case titled Chandan Kumar Basu Vs. State of Bihar, (2014) 13 SCC 70, while interpreting Section 197 Cr.P.C., elucidating requirements to be fulfilled for applicability of the protection under Section 197 Cr.P.C observed as under:
"8. A reading of the provisions of Section 197(1) of the Code reveals that there are three mandatory requirements under Section 197(1) of the Code. namely:
(a) that the accused is a public servant;
(b) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be;
(c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties."
20. As per aforesaid judgment, three conditions are required for taking shelter under Section 197(i) of Cr.P.C i.e.
(i) that the accused is a public servant; (ii) that the public 25 2024:HHC:9597-DB servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be and (iii) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties.
21. In the instant case, all the illegal opinions/advices, which is the alleged offence, were issued by the petitioner-accused in the capacity of Additional Commissioner (Law). No doubt, initial appointment of the petitioner-accused was in HP Agro Industrial Packaging India Ltd., but, as has been taken note hereinabove, he subsequently stood absorbed in the Municipal Corporation, Shimla, H.P. pursuant to notification issued by the Department of Urban Development, Government of HP.
22. After issuance of notification dated 13.01.2006, petitioner-accused had become an employee and officer of Municipal Corporation, Shimla, for all intent and purposes. XII(b) condition of Section 21 of IPC clearly talks about an employee of a corporation established by or under a Central, Provincial or State Act. Since, it is not in dispute that Municipal Corporation is creation of a statute i.e. Himachal Pradesh Municipal Corporation Act and petitioner-accused was employee of such corporation, he can be easily held to be public servant in terms of provision contained under Section 21 of IPC.
23. Though, learned counsel for the complainant attempted to carve out a case that not in all situations public servant as defined under Section 21 IPC can claim parity with the public servant as defined under Section 197 Cr.P.C., but such plea of him cannot be accepted for the reason that for the purpose of Section 197 Cr.P.C., public servant has not been defined separately, rather for that purpose, reliance is to be placed upon Section 21 of IPC, where public servant has been specifically defined.
24. Though, in support of aforesaid submission, learned counsel for the complainant placed heavy reliance 26 2024:HHC:9597-DB upon judgment passed by Hon'ble Apex Court in Mohd. Hadi Raja supra, but if the aforesaid judgment is read in its entirety, it nowhere held that officers of a local authority, a corporation established by or under Central, Provincial or State Act are not the public servant, but held that protection under Section 197 Cr.P.C is not available to public servant automatically on account of his being included in definition of public servant as envisaged under Section 21 of IPC, rather to take shelter of Section 197 Cr.P.C., he/she is required to fulfill other conditions as defined under Section 197 Cr.P.C, which specifically talks about discharge of public duty.
25. Aforesaid judgment passed by Hon'ble Apex Court in Mohd. Hadi Raja supra subsequently came to be discussed by Hon'ble Apex Court in judgment passed in Bharat Sanchar Nigam Ltd. & Ors. supra, wherein Hon'ble Apex Court has reiterated that employees of public sector corporation are not entitled to protection under Section 197 Cr.P.C. as public servant. While discussing judgment in Mohd. Hadi Raja supra, Hon'ble Apex Court in afore case held that court was considering the need for sanction to prosecute the officer of public sector undertaking or government companies falling with the definition of 'State' under Article 12 of the Constitution and who were removable from the office save by sanction of Government. While taking note of judgment passed by Hon'ble Court in N.K.Sharma Vs. Abhimanyu, (2005) 13 SCC 213, wherein Hon'ble Apex Court having taken note of fact that salary of the appellant in that case was not paid by the Government and at that relevant time he was not in the service of the State, held that the prosecution against an officer of a government company or a public undertaking would not require any sanction under Section 197 Cr.P.C.
26. In the afore judgment, Hon'ble Apex Court also took note of its earlier judgment passed in Chandan Kumar Basu supra, wherein three principles came to be culled out for bringing into operation Section 197 Cr.P.C. 27
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27. In nutshell, employee seeking protection under Section 197 Cr.P.C is required to prove that he is a public servant and he can only be removed from the post by or with the sanction either of the Central or State Government and the act(s) giving rise to the alleged offence was committed by him/her in the actual or purported discharge of official duties.
28. Though, learned counsel for the complainant placed heavy reliance upon judgment in Bharat Sanchar Nigam Ltd. supra, but having perused judgment in its entirety, this court finds no application of the same in the instant case for the reason that in case before Hon'ble Apex Court, though officers seeking protection under Section 197 Cr.P.C., were originally employee of Indian Telecom services, but at the time of alleged offence, they stood absorbed with Bharat Sanchar Nigam Ltd., a company and had become its employees for all intent and purposes. Apart from above, in that case there was nothing to suggest that salary of the petitioner-accused in those cases, who at that relevant time working in Bharat Sanchar Nigam Ltd. was being paid by government, rather that was being paid by the company. In the case at hand, there is no dispute that legal advices/opinions rendered, which were allegedly not in the interest of the complainant, were rendered by the petitioner- accused in the capacity of Additional Commissioner (Law) in Municipal Corporation, meaning thereby, complainant is aggrieved of action of the petitioner-accused in rendering legal advice/opinion, which as per him was not rendered in discharge of public duty.
23. In the aforesaid judgment, this Court has categorically held that very object of sanction, if any, under Section 197 Cr.P.C. for prosecution is to protect a public servant discharging official duty and functions, from undue harassment by initiation of frivolous criminal proceedings. No 28 2024:HHC:9597-DB doubt, Section 197 Cr.P.C. does not extend its protective cover over every act or omission caused by a public servant while in service, rather, it is restricted only to those act or omission which are done by the public servant in the discharge of official duties. In the case at hand, no case much less under Section 500 IPC is made out against the petitioner nor requisite sanction, as envisaged under Section 197 Cr.P.C. ever came to be taken by the respondent No. 1/complainant before initiating complaint under Section 500 IPC and as such, Court below has fallen in grave error while taking cognizance, without there being sanction under Section 197 Cr.P.C.,which is wholly impermissible in law.
24. There is another aspect of the matter that bare perusal of summoning order issued by the learned trial Court clearly suggests that there is no application of mind. Learned trial Court in most mechanical manner, while taking note of allegation in complaint, proceeded to issue process against the petitioner, which is not permissible under law. No doubt, Magistrate is jurisdictionally competent to take cognizance and issue summons, but while issuing process Magistrate is expected to apply his mind to the facts of the case and the law. He is also expected to examine the nature of allegations made in the complaint and the oral document annexed in support thereof. Before issuing summons he is to satisfy himself that 29 2024:HHC:9597-DB oral document adduced on record would be sufficient for the complainant to successfully bring charge against the accused. Magistrate cannot be a silent spectator at the time of recording of preliminary evidence before summoning the accused, rather he has to carefully scrutinize the evidence brought on record and he may even put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations and then examine if the offence is prima-facie committed by all or any of the accused. Most importantly application of mind should reflect in order, mere writing in order that I have perused the material adduced on record may not be sufficient, rather it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. In this regard reliance is placed upon the latest judgment passed Hon'ble Apex Court in case titled as Vikas Chandra (supra), wherein Hon'ble Apex Court, while taking note of its earlier judgments held as under:
"14. In the aforesaid circumstances, the next question to be considered is whether a summons issued by a Magistrate can be interfered with in exercise of the power under Section 482, Cr.PC. In the decisions in Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr.6 and M/s Pepsi Foods Ltd.'s case (supra) this Court held that a petition filed under Section 482, 30 2024:HHC:9597-DB Cr.PC, for quashing an order summoning the accused is maintainable. There cannot be any doubt that once it is held that sine qua non for exercise of the power to issue summons is the subjective satisfaction "on the ground for proceeding further" while exercising the power to consider the legality of a summons issued by a Magistrate, certainly it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. In this context, we think it appropriate to state that one should understand that 'taking cognizance', empowered under Section 190, Cr.PC, and 'issuing process', empowered under Section 204, Cr.PC, are different and distinct. (See the decision in Sunil Bharti Mittal v. C.B.I.7).
15. In Sunil Bharti Mittal's case (supra), this Court interpreted the expression "sufficient grounds for proceeding" and held that there should be sufficiency of materials against the accused concerned before proceeding under Section 204, Cr.PC. It was held thus:-
"53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
16. In the decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.8, this Court held that the settled position for 31 2024:HHC:9597-DB summoning of an accused is that the Court has to see the prima facie evidence. This Court went on to hold that the 'prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The inquiry under Section 202, Cr.PC, is limited only to ascertain whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not.
17. In an earlier decision in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.9, this Court laid down certain conditions where under a complaint can be quashed invoking the power under Section 482, Cr.PC, thus: -
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
18. Having understood the scope of interference with issuance of summons in exercise of power under Section 482, 32 2024:HHC:9597-DB Cr.PC, we will move on to consider the question whether the impugned order justifies such interference or in other words, whether impugned order invites interference? We have briefly narrated the case revealed from the complaint and also taken note of the fact(s) that the High Court under the impugned judgment arrived at the finding that no material is available, suggesting instigation by the respondent No.2 in the suicide note and nothing indicative of occurrence of an incidence and utterance of words as mentioned by the complainant, were vividly stated or even alluded, therein. In view of the fact that summons was issued to the respondent No.2 to stand the trial for the offence under Section 306, IPC it is only apt to analyse the said Section to find out the ingredients to attract the same and also whether the complaint and the evidence collected during the inquiry and also during the investigation which resulted in the filing of the closure report prima facie discloses sufficient ground for proceeding and to issue summons to the respondent No.2 to face the trial for the offence under Section 306, IPC.
25. Since on all the counts, as has been discussed in detail, complaint having been filed by the respondent No. 1 is bound to fail, this Court finds the case at hand to be a fit case for exercising power under Section 482 Cr.P.C. to quash the complaint as well as consequential proceedings to prevent the abuse of process of law. If the prayer made on behalf of the petitioner to quash the complaint is not accepted, he would be unnecessarily put to the ordeal of protracted trial, which is otherwise bound to fail.
26. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, private 33 2024:HHC:9597-DB complaint No.111-2/16/13, CNR No. 14/2014 registered under Sections 500 and 34 of the Indian Penal Code, titled as Gian Chand Dhiman Vs. Suram Singh & Anr, pending adjudication in the Court of learned JMFC Court No. II, Ghumarwin, Himachal Pradesh, as well as consequent proceedings, if any, are ordered to be quashed and set aside. Accused is acquitted of the charges, if any, framed against him.
The present petition is allowed and disposed of in the aforesaid terms. Pending application(s), if any, also stands disposed of September 27, 2024 (Sandeep Sharma), (Sunil) Judge