Jammu & Kashmir High Court
Arun Trishalage 50 Years vs S/O Chuni Lal R/O on 22 May, 2023
Sr. No.6 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRM(M) No. 567/2021 CriM No. 922/2022 CriM No.1794/2021 Reserved on :26-04-2023 Pronounced on: 22-05-2023 Arun Trishalage 50 years, in Petitioner(s) S/O Avtar Krishan Trisal, R/o W. No. 16 Shiv Nagar, Kathua. Through:- Sh. Jagpaul Singh, Advocate. V/s 1, Adeep Kumar Gupta, ee Respondent
S/O Chuni Lal R/O, W. No. 16 Upper Shiv Nagar, Kalibari Kathua;
2. Prem Lal, at < © eee on... Proforma Respondent S/o Mansa Ram, ee NS R/O Village Chhan: Lal Din, Tehsil Marheen District Kathua Through:- Sh. S. S. Ahmed, Advocate.
CORAM: HON'BLE 'MR. JUSTICE MOHAN LAL, JUDGE J UDGMENT . Petitioner by invoking the inherent jurisdiction of this court under the provision of section 482 of the Code of Criminal Procedure (hereinafter referred as the 'Code') has sought the quashment of Criminal Complaint titled "Dr. Adeep Kumar Gupta V/s Arun Trishal and Anr" for commission of offences punishable u/ss 500/504/506/34 IPC pending disposal before the Court of Ld. Chief Judicial Magistrate (CIM) Kathua and the order dated 11-08-2021 issued by the said court vide which cognizance has been taken u/s 500/34 IPC and the process issued against the petitioner and proforma respondent No.2 on the following grounds:-
(i) that the petitioner is an Editor in Chief of "Alert India News House Private Limited" which is a company registered under Companies Act 2013 with it's registered office at W. No. 6 Near Chinar Lane Shiva Nagar Kathua with the objects to carry on the business of WEB NEWS CHANNEL, News Agency, e-newspaper, e-journal, magazine and to start a media school for broadcasting, telecasting, relaying, transmitting, distributing or running any video, audio, voice or other programmes or software, (both proprietary and third party) over television, radio, internet, 2 CRM(M) No. 3567/2021 telecom or any other media and also the business of cable services encompassing distribution, relaying, transmission of signal including but not limited to TV, voice over internet protocol, video on demand or any other services through cable within and outside India by means of any system, therefore, petitioner being the editor-in-chief of the said "Alert India News House Private Limited" is duty bound to run any video, audio, voice or other programmes or software (both proprietary and third party) over television, radio, internet, telecom or any other media;
(ii)that a complaint is alleged to have been made on 14.05.2021 by respondent No.2 (Ex-MLA Hiranagar) by speaking to accused No.1 on his portal "Alert India News House Private Limited" and the said conversation went viral on the social media, in the complaint respondent No.1 has said that he is the proprietor of M/S Gupta Hospital & Research Centre Kalibari Kathua and the same was declared as dedicated covid care facility (category-I]) for minimum of 50% of its capacity to be used for Covid mitigation efforts, respondent No. 2 pom on nthe 1 news S poral of petitioner and in his during: diitbréak of C C OVID- 19 Pandemic, 'heréin' 'one Deepak Rai S/O Tarsem Lal R/O Chhan Lal Din Tehsil Marheen District Kathua died during the night of intervening 13" & 14" of May 2021 due to the non-availability of proper medical facilities, respondent No.2 is ~ the real uncle of aforesai F who lost his life due to lake of the > defamatory and "igsibasible: words viz; "A.K. Gupta 'ka \ dhandha hai parts nikaalna aur bechna" but if the said video clip 'is Viewed, no such words. as are s allesed to be defamatory v were ever
(iv) that it is alleged in the complaint that respondent No.1 by running the said news item has defamed the petitioner and his hospital, whereas, it is the bounded duty of the petitioner being the editor-in-
chief to gather the information and publish the same through electronic media, the criminal complaint pending before the court of CJM Kathua and the order dated 11-08-2021 passed by CIM Kathua vide which cognizance has been taken against the petitioner and proforma respondent No.2 u/ss 500/34 IPC and the process issued against them, is glaring example of the abuse of the process of the court, as the said complaint has been filed by respondent No.1 to cause undue inconvenience and harassment to the petitioner out of spite and ill will;
(v) that bare perusal of the impugned order dated 11-08-2021 makes it abundantly clear that the same has been issued by the trial court of CJM Kathua_ in casual and mechanical manner without proper application of mind, as the trial court while passing the order has miserably failed to record its prima-facie satisfaction qua_the
2. Respondent No.1, per-contra, by.
3 CRM(M) No. 3567/2021petitioner and respondent No.2? as to the commission of offence u/s 500 IPC r/w 34 IPC:
(vi) that a bare perusal of the Criminal Complaint transpires that petitioner did not make any imputation against the respondent No.1 intending to harm his reputation, petitioner did not use any defamatory words against the respondent No.1, petitioner being the editor-in-chief of the "Alert India News House Private Limited" was only discharging his professional duties, respondent No.2 spoke to the petitioner on his portal ventilating his grievances against the lack of proper medical facilities in A.K. Gupta Hospital Kathua due to which nephew of the respondent No.2 lost his life, prima-facie there is no defamatory words used by respondent no.2, even the ingredients of section 500 IPC remain unfulfilled, the allegations made in the complaint are so absurd and mherently improbable on the basis of which no prudent person can even draw a conclusion that there is sufficient ground for proceeding against the petitioner;
(vii) that the mode and manner in which the impugned criminal proceedings are initiated, method of encing 5 the petitioner Which i iS 'undoubtedly an n attack on the "freedom of press" which is often referred to as the "fourth pillar" of democracy,: and. freedom: of the press is vital for the functioning of any democratic country like India, such 'criminal complaints against the repo: Tet iming his professional duty is ~ abuse of process of law. es ing the objections to the petition, has cord sought the dismissal of the petition and confirmation/affirmation of impug ned order dated 11-08- 2021 rendered by the trial Court of Ld, CIM Anr" u/ss 500/504/506/34 nee the arate order is speaking one which has been passed by the trial court after going through the contents of criminal complaint, preliminary statement of complaint (respondent No.1) and statements of his two (2) witnesses namely S. Mohinder Singh & Jang Bahadur recorded on oath, alongwith documents and also the pen drive containing defamatory video clip dated 14-05-2021. It is contended, that the trial court after being prima-facie satisfied has issued process against the petitioner and proforma respondent No.2 u/s 500/34 IPC which does not warrant any interference from this court, petitioner who claims to be a journalist has lost sight of norms of journalistic conduct (edition 2020) framed by the press Council of India for regulating the working and conduct of the journalists, petitioner _aired_a news item on 14-05-2021 in his news portal containing defamatory video leveling unfounded allegations against 4 CRM(M) No. 3567/2021 respondent No.1 who is running a private Hospital at Kalibari Kathua for the last 26 years, petitioner before airing the offending/defamatory video was required to adhere to pre-publication verification and was also under_an obligation to adhere to the guidelines on reporting of COVID-19 and all this was not done intentionally/deliberately by the petitioner to tarnish the image of respondent No.1 and his hospital. It is moreso contended, that the defamatory video spread like wild fire not only in District Kathua but throughout the UT of J&K and other parts of the country, proforma respondent No.2 used openly the defamatory words against respondent No.1 like "...yeh sab fraud hai, yeh lootane ka hospital hai, ek raat ka 40 ya 45 hazaar humse liya gya, subah jawaab de diya, yeh loot nehi to aur kya hai, jitney bhi private hospital hain inko milibhagat se chal rha_ hai, operation theaters, respondent no.d is tunning a racket of selling kidneys/organs trafficking, petitioner being: a Joumalist was under an respondent No'sng intentionally/ malafidely 'did not as and completely one sided version was shared with the public which damaged the reputation of the respondent No.1 beyond repair, after the airing of defamatory video dated 14-05-2021 respondent No.1 even served a legal notice dated 25-06-2021 upon the petitioner as well as proforma respondent No. 2 requiring them to compensate him to the tune of Rs. 1 corer each, but after receipt of the said legal notice petitioner did not deem it proper to seek clarification of respondent No.1 nor did he verify the contents/allegations contained in the video from subjective experts, this unprofessional approach/conduct of petitioner is "yellow journalism" on his part which has tarnished the image of respondent No.1 as the petitioner has thorn to winds the journalistic ethics and without verifying and ascertaining the facts, aired the defamatory news in his news portal, as proforma respondent No.2 leveled 5 CRM(M) No. 3567/2021 serious, unfounded, baseless, frivolous and defamatory allegations in his interview recorded on the news portal of petitioner which was aired on 14.05.2021, the defamatory news item has caused irresponsible loss to the respondent No.1, the conduct of petitioner is unbecoming of member of fourth pillar of democracy. It is contended, that for the purpose of preserving the Freedom of Press, Parliament has enacted Press Council Act 1978 for maintaining and improving the Standards of Newspapers and News Agencies in India, the Press Council of India has updated and revised the addition of norms of Journalistic Conduct 2020 under the caption "Caution Against Defamatory Writings" which clearly provide that the newspapers should not publish anything which is manifestly defamatory or libelous against any individual/organization unless after due care and verification and after obtaining the version of by the Govt and its functionaries so long as he does not incite 'people to violence against the Govt 4 sstablishment by law or 'itheintention of cr eating public disorder, in the case in hand the aforesaid news item was aired on 14-
05-2021 on news portal of petitioner's Web News Channel, so far as it does not incite the people to indulge in violence against the Govt., the airing of the said news item by the petitioner on his News Portal is no offence. It is argued, that the application of mind by the Presiding Officer of the Court to the relevant issue must be sufficiently indicated in the order, in the case in hand, the perusal of impugned order dated 11-08-2021 passed by Ld. CJM Kathua taking cognizance of offence u/s 500/34 IPC against petitioner and respondent No.2 depicts that the trial Court has not even framed an opinion as to whether the allegations in the complaint would constitute an offence, which indicates that there are no satisfactory grounds for issuance of process against petitioner and respondent No.2, Ld. CJM Kathua has not applied his mind to the facts of the case and the law governing the issue, there must be 6 CRM(M) No. 3567/2021 sufficient indication in the order passed by the trial Court that he is satisfied that the allegations in the complaint constitute the offence, the contents of complaint and the statements of the complainant and his 2 witnesses recorded on oath u/s 200 Cr.pe do not constitute any offence against petitioner and respondent No.2, therefore, the complaint as well as the impugned order require it's outright rejection and dismissal. To support his arguments, Ld. Counsel has relied upon the rulings reported in, @) 2021 Legal Eagle (SC) 292 [Vinod Dua Versus Union of India & Ors.], (ii) (2015) 12 Supreme Court Cases 420 [MEHMOOD UL REHMAN--Appellant Versus KHAZIR MOHAMMAD TUNDA AND OTHERS--Respondents] with Criminal Appeal No. 1348 of 2010 [SAFARAZ PATHAN AND ANOTHER--Appellant Versus KHAZIR MOHAMMAD TUNDA AND OTHERS--Respondents| & :
FOODS LTD. AND ANOTHER Appellant Versus SPE LAL JUDICIAL MAGISTRATE AND OTHERS-- zResporidents]. | . Sh. S. 5. "Ahmed Ld. Counsel for re .
ident No.l, per-contra, by reiterating the contentions raised in the aver nts of the objections, has sought the dismissal of the petition and con irmation/affirmation of the filing of complaint and the impugned order dated 11.08.2021 by strenuously articulating arguments, that by 'the allegations made by complainant 'Kathua (respondent No. l) in his complaint before the court of ide Cc i coupled with. the statements of his 2 witnesses recorded ¢ on, n oath, the trial of law that a court has to read the complaint of defamation as whole and find out whether allegations disclosed constitute an offence u/s 499 IPC, the trial Court in the case in hand by verifying the contents of complaint and perusal of statements of complainant and his two witnesses as well as the pen drive, has prima-facie come to the conclusion that the allegations against petitioner and respondent No.2 come within the definition of defamation u/s 499 IPC, and has accordingly taken cognizance of the matter. It is moreso argued, that it is open for petitioner and respondent No.2 to raise all the available contentions in their defense before the trial court to test the correctness of the contents of defamatory article, at the stage of taking cognizance only application of mind of the Magistrate is a relevant factor, although no formal or speaking or reasoned orders are required at the stage of taking cognizance 7 CRM(M) No. 3567/2021 u/s 204 Cr.pc. To support his arguments, Ld. Counsel for respondent No.1 has relied upon the judgments reported in, (i) 2018 Supreme (Guj) 493 [ROHINI SINGH, D/O LATE MR. M.B. SINGH & ORS--APPLICANTS VERSUS STATE OF GUJARAT & ORS--RESPONDENTS], (id Petition(s) for Special Leave to Appeal (Crl.) no(s) 1836/2018 (arising out of impugned final judgment and order dated 08-01-2018 in SCRLA No. 8885/2017 passed by the High Court of Gujarat at Ahmadabad) [ROHINI SINGH & ORS. --PETITIONER(S) VERSUS THE STATE OF GUJARAT & ORS. -RESPONDENT(S) & (iii) CRMC No.224/2013, CRMC No. 494/2014 {Mohinder Verma and others--Appellant(s)/Petitioner(s) Versus Ch. Lal Singh--Respondent(s)].
. Heard Sh. Jagpaul Singh Ld. Counsel appearing for petitioner & Sh. S.S. ratios of the apments relied by La. Counsel for the parties 'aiid, have also gone through the relevant law on 1 he subje 'matter meticulously.
. The core question which arises for. determination before this court 18, "whether Ld, CJM Kathua vide hi order dated 11-08-2021 while taking cognizance of offence ws 500/34 IPC against petitioner _ and respondent No, 2, has indicated his satisfaction regarding the ground for proceedin: against accused (petitioner atid respondent No. 2)" 2 . The genesis of 'the Petition. in hand i is that ¢ a C ruminal A cing 1S alleged to Judicial Magistrate (CIM) Kathua on 27-07-2021 bearing filing No. 1631/2021 titled "Dr. Adeep Kumar Gupta Versus Sh. Arun Trishal & Ors"
for commission of offences u/ss 500/504/506 r/w 34 IPC for the allegations, "that complamant Dr. Adeep Kumar Gupta is running a very prestigious Multi Specialty Hospital at Kathua as proprietor thereof under the name and style of "M/S Gupta Hospital & Research Centre Kalibari Kathua" which is catering to the ailing community of Kathua, Udhampur, Samba and adjoining residents of District Pathankot (Punjab) providing quality health care at modest rate; that on 12-05-2021 one Deepak Raj S/O Sh. Tarseem Lal R/O Chhan Lal Din Tehsil Marheen District Kathua was admitted_as patient in a serious condition being Covid-19 patient in the aforesaid Hospital but he expired in GMC Hospital Kathua and subsequently, on 14-05-2021 8 CRM(M) No. 3567/2021 respondent No.2 spoke to the petitioner_on his portal Alert India News defamatory words accusing the complainant (respondent No.1) of charging hefty amount of Rs. 40-45 thousands and running a racket of selling kidneys/organs trafficking'. The Ld. Trial Court of CJM Kathua on the complaint of respondent No.1 found prima-facie case against accused persons (petitioner & respondent No.2) and therefore issued process against them for commission of offence of defamation u/s 500/34 IPC.
. Chapter XV Cr.PC deals with "COMPLAINTS TO MAGISTRATE". U/s 200 Cr.PC, the Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced into writing and shall be signed by the complainant and the witnesses, and also > PY the proceding to issue process to ti petitioner & respondent No. 6.2).
This question has arisen in the background of impugned order passed by Ld. CIM <athua dated 11-08- 2021 on a 'complaint filed by first respondent herein u/s 500, of IPC, Operative portion of the impugned order dat d 11-08- 2021 passed by.the court of Ld. CJM Kathua in paras - 3,4 5&6, for the sake of clarity read as under:
3. The preliminary statement of complainant and his two witnesses namely S. Mohinder Singh and Young Bahadur stand recorded.
4. Perused the complaint alongwith document annexed with the complaint and also the preliminary statement of witnesses, it transpires from annexure B, that the consent undertaking that Deepak Raj who was admitted in the hospital of complainant on 12.05.2021 was stayed in the Hospital from pm on 12.05.2021 till 13.05.2021 as a Covid- 19 patient. Annexure- CC" prima facie depicts Rs.10,000/- was charged as medical expenses by the complainant Hospital and a receipt to that account is annexed as annexure "CC-1".
5. The pen-derive containing Video clips dated 14.05.2021, the prima facie depicts that the accused no.2 made a statement online News Portal of accused no.1 wherein the allegation is made on the complainant Hospital of Charging Rs.40-45 thousands for medical facilities provided to said Deepak Raj. There are also other allegation in this Video recording lack of medical facility and infrastructure which 9 CRM(M) No. 3567/2021 was displayed on the News Portal of accused no.1l. The witnesses of complainant have also supported the contention of the complainant is raised in the complaint. The Publication in a news Portal of accused no.1 and other material on record. The Prima facie support the contention of complainant that by way of publication in the News Portal of accused no. | and accused no. 2 has made a wrong statement of concerned hospital, the complainant which has undertaking to harm his reputation in the eyes of public and lowered down the prestige/name of the Hospital.
6. As such there is material on record to proceed against accused under section 500/34 IPC. Concerned clerk to issue notice to accused persons through In charge P/S Kathua for compliance. Put up file for further proceeding on 09.09.2021".
Announced Chief Judicial Magistrate 11.08.2021 Kathua
9. According to Ld. Counsel for petitioner the complaint filed by first nctionaries, petitioner being a journalist is entitled the protection, hence, the petitioner is not Hable | to be called by the trial court to defend the criminal proceedings against him In 2021 Legal Eagle (SC) 292, [Vinod Dua Versus Union of. India & rs. | relied by. Ld. Counsel for petitioner, Hon'ble Suprem 'Court while quashing FIR No.5 dated. 06-05-2020 registered with police station Kunarsain District Shimla (Him. Pradesh) against the petitioner a journalist by profession and observing that a Journalist is entitled to protection so long his criticism/comment against the Govt. and it's functionaries does not incite violence in paras 43,44,45& 67 of the judgment held as under:-
43. The Principles culled out in paragraph 33 hereinabove from the decision of Court in Kedar Nath Singh show that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the [PC3 must step in.
In our view, the statements by the petitioner as mentioned hereinabove, if read in the light of the principles emanating from the decision in Kedar Nath Singh2 and agaist the backdrop of the 10 CRM(M) No. 5367/2021 circumstances when they were made, can at best be termed as expression of disapprobation of actions of the Government and its functionaries so that prevailing situation could be addressed quickly and efficiently. They were certainly not made with the intent to incite people or showed tendency to create disorder or disturbance of public peace by resort to violence. The petitioner was within the permissible limits laid down in the decision of this Writ Petition (Criminal) No.154 of 2020 Vinod Dua vs. Union of India & Ors.
Court in Kedar Nath Singh. It may be that certain factual details in the 3rd statement regarding the date when the ban came into effect were not completely correct. However, considering the drift of the entire talk show and all the statements put together it cannot be said that the petitioner crossed the limits set out in the decision of this Court in Kedar Nath Singh.
44, We are, therefore, of the firm view that the prosecution of the petitioner for the offences punishable under Sections 124A and 505 (1) (b) of the IPC3 would be unjust. Those offences, going by the allegations in the FIR and other attending circumstances, are not made out at all and | any proseoution in respect thereof would be by the person aggrieved. Without in our view, there is nothing Court rt only upon a comp going into such technica ities, defamatory in the statements made by the petitioner. :
_ Farther, the statements of 'the. petitioner would be covered by the .$econd and third exceptions to Section 499 of the [PC3.dn some of the cases Writ Petition. a Aina No. 134 of 2020. Vinod | Du and S, eho .
ev Sy: Another 63, relying on exceptions to Section 499 of the "1PC3, the criminal proceeding initiated against the accused were quashed. Thus, the instant proceedings, in so far as Section 501 IPC3 is concerned, also deserve to be quashed.
67. As per the guidelines issued by this Court, the public servant can be arrested after approval by the appointing authority and that of a non-public servant after the approval of SSP. The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case of approval has not been granted, this exercise has not been undertaken. When the offence is registered under the 1989 Act, the law should take its course no additional fetters are Writ Petition (Criminal) No.154 of 2020 Vinod Dua vs. Union of India & Ors. called for on arrest whether in case of a public servant or non-
public servant. Even otherwise, as we have not approved the approval of arrest by appointing authority/SSP, the direction to record reasons and scrutiny by the Magistrate consequently stands nullified.
Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that mere criticism upon the measures taken by the Govt. does not constitute 11 CRM(M) No. 5367/2021 an offence. In the case law (Supra) petitioner was charged for commission of offences of sedition and spreading rumor u/ss 124A/505 IPC with intention of creating public disorder or disturbance of law and order in his show namely the Vinod Dua Show on YouTube dated 30 March 2020 telecasted only for 5 minutes & 9 seconds video by stating unfounded and bizarre allegations against the Prime Minister Narinder Modi to the effect that he has used death and terror attacks to garner votes. Hon'ble Supreme Court quashed FIR No. 53 dated 06-05-2020 registered against petitioner Vinod Dua for the reasons that the expression made by the petitioner against the actions of Govt. were not made with intention to incite people to resort to violence. Ratio of the jadgment (Supra) is distinguishable and inapplicable to the facts of the case in hand. In the case in hand, the allegations agains! private respondent No.1 'who | is a "renowned Doctor running a Private Hospital. at Kalibari Kathua. oo oo .
In (2015) _12 Supreme : pur Ca es 420 [MEHMOOD _ UL REHMAN-- Appellant Versus _| AZI MOHAMMAD TUNDA AND OTHERS--Respondents] with Criminal Appeal No. 1348) of 2010 [SAFARAZ PATHAN AND ANOTHER -- ~Appellant Versus. KHAZIR accused in complaint case in terms of section 204,190 (1)(a), 200, 202 Cr.pe and observing that the Magistrate had not applied its mind for issuing process to the accused in head note A & in paras 4,9,16,17,18,20,22,23 of the judgment held as under:-
A. Criminal Procedure code, 1973--Ss. 204,190(1) (a), 200,202 and 482--lIssuance of process to accused in complaint case--Prerequisites for--Duties on the part of Magistrate concerned while passing said order--
Application of mind to relevant issues must be sufficiently indicated in order though no formal or speaking or reasoned orders are required at the stage of Ss. 190/204 Cr.pe--tIn absence of such indication, order issuing process liable to be quashed under S. 482.
4, In the instant case, we are called upon to decide the scope of the 'opinion of Magistrate' on sufficient ground for proceeding to issue process to the accused. The 12 CRM(M) No. 5367/2021 question has arisen in the background of an order passed by the Judicial Magistrate First Class, Srinagar on 03.04.2007 on a complaint filed by the first respondent herein under Section 500 of Ranbir Penal Code, 1932 [Section 500 the Indian Penal Code (45 of 1860)]. The operative portion of the order reads as follows:
"Perused the complaint, and the statements recorded. In the first instance of proceedings, let bail warrant to the tune of Rs.15,000/- be issued against the alleged accused persons, with direction to accused persons to cause their appearance before this court on 22.4.07, to answer the material questions."
9, In Pepsi Foods Limited v. Special Judicial Magistrate and othersl, this Court has held that exercise under Section 204 of Cr.PC of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It was also held that the order of the Magistrate summoning the accused must reflect that he has applied his ore to. the: facts: of the case and the law governing the J ust ref lect that he has applied his mind to the facts. of the case and the law applicable thereto. He has to examine the nature of allegations made i in the complaint | and the evidence both oral and documentary in support thereof and would that be sufficient for the € complainant to succee di in n bringing questions to the ® complainant and his witnesses | to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
16. In Jagdish Ram v. State of Rajasthan and another10, the law was restated holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction. To quote: (SCC p. 436, para 10) "10. ... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the 13 CRM(M) No. 5367/2021 process to the accused, the Magistrate is not required to record reasons."
17. In Chief Enforcement Officer v. Videocon International Limited and others, this Court held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. To quote:
(SCC p. 499, paras 19-20) "19, The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action, of .anyekind..dt.occurs as soon as a Magistrate plies his mung to the _Puspecigd commission of an "crithinal proceedings. Taking of cognize ice is thus a sine quar non oF t Condition precedent for r holding a valid circumstis application can be laid down as to when a Magistrate can be said to have taken cognizance."
18. In U.P. Pollution Control Board v. Dr. Bhu Kumar Modi and another 12, at paragraph-23,. the p has been sca as isliows: ne Pp. 154).
: and he is only to be prima meer whether there are sufficient grounds for proceeding against the accused."
20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a Serious matter.
22. The steps taken by the Magistrate under Section 19001) (a) of Cr.PC followed by Section 204 of Cr.PC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the 14 CRM(M) No. 5367/2021 person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima-facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of Cr.PC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of Cr. PC. if ADYscd answerable before the OR eens. against the under Sections ;
Section 482 criminal court. To be. called to ; appear before criminal court as an | fooubed | iS serious matter "affecting one' 's contention Hae ABEREATIOn of of mind has to be » inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 Cr.PC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of Cr.PC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.
In_ 1998) 5 Supreme Court cases 749 [PEPSI] FOODS LTD. AND ANOTHER-- Appellant Versus SPECIAL JUDICIAL MAGISTRATE AND OTHERS--Respondents] further relied by Ld. Counsel for petitioner, 15 CRM(M) No. 5367/2021 Hon'ble Supreme Court while setting aside the order of High Court of Judicature at Allahabad & quashing the complaint filed against the petitioner u/s 7/16 of Prevention of Food Alteration Act, in para 28 of the judgment held as under:-
28. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. He has examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording the preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence es f pa questions to the charges 40-50 thousand per petitioner being a journalist was under an obligation to adhere the norms of journalistic conduct however petitioner did not verify the content/allegations contained in the video and aired the aforesaid defamatory news, the trial court has considered the entire material and was satisfied about the prima- facie commission of offence by petitioner and respondent No.2, therefore, no illegality has been committed by the trial court while taking cognizance of the complaint filed by respondent No.1 and issuing process against petitioner and respondent No.2.
In 2018 Supreme (Guj) 493 [ROHINIT SINGH, D/O LATE MR. M.B. SINGH & ORS--APPLICANTS VERSUS STATE OF GUJARAT & ORS--RESPONDENTS] relied by Ld. Counsel for respondent No.1, High Court of Gujarat while dismissing the writ petition filed by applicants 16 CRM(M) No. 5367/2021 regarding taking of the cognizance by the court of Ld. Addl. Chief Metropolitan State Gheekanta Ahmadabad vide order dated 24-10-2017 in complaint dated 09.10.2017 filed by Jay Amitbhai Shah, in paras 65, 66 held as under:-
65. Para 13 of the judgment in Shatrughana Prasad Sinha's case (1996 AIR SCW 4030: 1997 Cri.LJ 212) (Supra) reads:-
"13. As regards the allegations made against the appellant in the complaint filed in the Court of Judicial Magistrate, Ist Class, at Nasik, on a reading of the complaint we do not think that will be justified at this stage to quash that complaint. It is not the province of this Court to appreciate at this stage the evidence or scope of and meaning of the statement. Certain allegations came to be made but whether these allegations do constitute defamation of the Marwari community as a business class and whether the appellant had intention to cite as an instance of general feeling among the community and whether the context in which the said statement came to be made, as is sought t to > be argued d by the learned Senior Counsel for the appellant.
Magistrate "a later stage. At' this stage, Weecannot embark upon weighing the ev idence and come:to any. 'eonclus to hold, whether or not the: allegations, made in the complaint constitute.an offence ~ punishable under section 500. This: the settled legal posit on that a court has to read- the co as a whole and find out whether allegations disclosed co offence under Section 499 triable by the Magistrate. 'Th Magi ate prima facie came to the conclusion that the allegations might come within the definition of defamation under Section 499IPC and could be taken cognizance of. But these are. the facts to be established at the tri arranting quashing ¢ 'of the 'complaint filed:in the 'Court of Judicial Magistrate, vr Class at t Nasik. To that, extent, the High Court "was [ Section 500 IPC
66. Let me make myself very clear that any observations, touching the merits of the case are purely for the purpose of deciding the question whether the complaint and the order of the process should be quashed at this stage and none of the observations made by this Court on the merits if any be construed as an expression and the final opinion in the main matter.
In Petition(s) for Special Leave to Appeal (Crl.) no(s) 1836/2018 (arising out of impugned final judgment and order dated 08-01-2018 in SCRLA No. 8885/2017 passed by the High Court of Gujarat at Ahmadabad) [ROHINI SINGH & ORS. --PETITIONER(S) VERSUS THE STATE OF GUJARAT & ORS. --RESPONDENT(S)| relied by Ld. Counsel for respondent No.1, Hon'ble Supreme Court dismissed the Special Leave Petition filed by petitioners Rohini Singh and others against the State of Gujarat and others against impugned final judgment and order dated 08-01- 2016 passed by the High Court of Gujarat (aforesaid) on the ground, that all 7 CRM(M) No. 5367/2021 the permissible defenses are open to be taken by the petitioners before the trial court and short notice of even 10 to 15 hours for threatening the complainant to answer the questionnaire failing which its defamatory material would be made public should not be given.
Ratio of the judgment (Supra) relied by Ld. Counsel for respondent No.1 makes it manifestly clear, that when a Magistrate prima facie comes to the conclusion that the allegations in the complaint within the definition of defamation under Section 499 IPC are made out, he could take cognizance of the matter, and at the stage of writ Jurisdiction under Article 226 of the Constitution of India, the complaint of which the Magistrate has taken cognizance should not be quashed.
In CRMC No.224/2013, CRMC No. 494/2014 [Mohinder Verma and relied by L Ld. Counse Clore respondent No. lla Coordinate Bench of this Court quashed Criminal proceedings of the complaint alongwith order dated 19-07- 2013 in a case titled Ch. Lal Singh VIS Raj. Daluja filed by the respondent before, 'the court of CJM Kathua for. commis sion of offences u/ss 501/502 RPC on the grounds, that mn term: ception to Section 499 RPC it is not defamation to publish substantially true report of proceeding of court of justice as s the Fespondent in his Lge Excelsior i owspepe in its edition dated proceedings of court of justice within 4" exception to section 499 IPC dealing with criminal defamation. 41.1 have perused the impugned order dated 11-08-2021 passed by Ld. Trial Court of Chief Judicial Magistrate (CJM) Kathua taking cognizance of the complaint filed by respondent No.t for commission of offence u/s 500/34 IPC against petitioner and respondent No.2 in case titled Dr. Adeep Kumar Gupta vs. Arun Trishal & Ors. for issuance of process for securing attendance of petitioner and respondent No.2. I am of the considered opinion, that the trial court after perusal of the complaint, statements of the complainant and his two witnesses namely, S. Mohinder Singh and Jang Bahadur recorded on oath, coupled with the pen-drive verified containing video clips dated 14-05-2021, has applied it's mind, satisfied itself that the allegations in the complaint constitute an offence indicating sufficient ground 18 CRM(M) No. 5367/2021 for taking cognizance of the offence of defamation u/s 500/34 IPC against petitioner and respondent No.2. Therefore, the Trial Court of Ld. CIM Kathua vide its impugned order dated 11-08-2021 has rightly proceeded against the accused persons (petitioner & respondent No2) in terms of Section 204(1) Cr.PC. I do not find any legal justification to interfere with the reasoned order passed by the trial court which does not suffer from any illegality, perversity or patient error. The arguments canvassed by Ld. Counsel for petitioner seeking quashment of aforementioned criminal complaint alongwith impugned order dated 11-08-2021, being legally unsustainable, are repelled, rejected and discarded. The petition is, therefore, disallowed, rejected and out rightly dismissed.
12. Disposed off accordingly alongwith all connected CMPs.
Srinagar ae (Mohan Lal) 22.05.2023 mm Judge Issaq "Whether the order is speaking? 'Yes/No Whether the order is reportable? Yes/No