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Showing contexts for: SUBRAMANIAN SWAMY in Divya vs State Of Karnataka on 25 May, 2022Matching Fragments
11. Section 211 of the IPC is also added along with Sections 499 and 500 of the IPC. Even if it is a crime punishable under Sections 499 and 500 of the IPC which are offences that are non-cognizable, the Magistrate will not get jurisdiction to refer the matter for investigation under Section 156(3) of the Cr.P.C. as Section 211 of the IPC even otherwise is an offshoot of Sections 499 and 500 of the IPC. The Apex Court in the case of SUBRAMANIAN SWAMY v. UNION OF INDIA1 has held as follows:
In this case we are not really concerned much with the applicability of sub-sections (3), (4) and (5) of Section 199, as nobody has a case that the alleged defamation has been made as against anyone of the public dignitaries mentioned therein, more particularly in sub-section (2) thereof. Sub-section (1) of Section 199 of the Cr.P.C. clearly and categorically mandates that no court shall take cognizance of an offence punishable under chapter XXI of the IPC., except upon a complaint made by some person aggrieved by the offence. In this case, we are also not much concerned with the applicability of the proviso to sub- section (1) of Section 199 as nobody has got a case that the complainant concerned is below the age of 19 or comes within any of the categories mentioned in that proviso. Chapter XXI of the IPC is captioned with the heading "OF DEFAMATION" and the said Chapter XXI contains Sections 499, 500, 501 and 502 of the IPC. In the instant case it is beyond any dispute that the offence alleged is as per Section 499 (criminal defamation), which is punishable as per Section 500 (punishment for defamation) of the IPC and hence it is beyond the pale of any controversy that the sole offence alleged in the instant case comes under Chapter XXI of the IPC and therefore there cannot be any dispute about the applicability of sub-section (1) of Section 199 of the IPC which deals with the offences mentioned in Chapter XXI of the IPC. The legislature has specifically mandated as per Section 199(1) of the Cr.P.C. that no court shall take cognizance of an offence punishable under Chapter XXI of the IPC except upon a complaint made by some person aggrieved by the said offence. Therefore, the only manner on the basis of which, cognizance could be taken by the competent criminal court in respect of an offence alleged as per Section 500 of the IPC comes under Chapter XXI of the IPC is that the aggrieved complainant who has locus standi has to file a private criminal complaint as envisaged in Section 190(1)(a)of the Cr.P.C. and thereafter it is for the criminal trial Court concerned to take appropriate decision in the matter of taking cognizance and then to proceed thereafter in accordance with law. If on the other hand, the learned Magistrate before whom the petition/complaint is filed, does not treat it as a complaint under Sections 190 and 200 of the Cr.P.C. and then decides to direct the Police to register crime and then to investigate the offence as per Section 500 of the IPC in purported exercise of the powers conferred under Section 155(2) of the Cr.P.C., then the Police will have to register the crime and after conducting such investigation, if it is found that there is substance in the allegations, it is for the Police to file appropriate final report/charge sheet in the case in terms of Section 173 of the Cr.P.C. Thereafter, the criminal trial court will be barred from taking congnizance in respect of an offence as per Section 500 of the IPC by following the latter course for the simple reason that the legislature permitted the sand court to take cognizance in respect of an offence under Chapter XXI of the IPC only on the basis of a complaint made by the person aggrieved of the said offence and not on the basis of a final report/charge sheet or Police report given by the Police authority concerned. Since the very taking of the cognizance in such a case is barred by virtue of the specific mandatory provision contained in Section 199(1) of the Cr.P.C. it is only to be held that the learned Magistrate has no jurisdiction under Section 155(2) to direct the Police to register a crime and conduct investigation in respect of a petition involving allegation in relation to Section 500 of the IPC. There could be cases, where the petition/complaint given by the complainant concerned would be making allegations, not only in respect of offence as per Section 500 of the IPC which is a non cognizable offence but in respect of certain other cognizable offences as well. The Apex Court has held in the case of Subramanian Swamy v. UOI & Ors. [MANU/SC/0621/2016: (2016) 7 SCC 221] has held, more particularly in paragraph 207 thereof that in such situation, the learned Magistrate cannot even exercise the powers under Section 156(3) of the Cr.P.C. so as to direct the Police to register a crime as far as the investigation of an offence as per Section 500 of the IPC. Para 207 of the judgment of the Apex Court in Subramanian Swamy v. UOI & Ors. [MANU/SC/0621/2016: (2016) 7 SCC 221], P.350-351 reads as follows:
5. Therefore, the Apex Court has clearly held that even in cases where the petitions/complaints made by the complainant before the learned Magistrate are in respect of allegations involving, not only offence under Section 500 of the IPC which is a non-cognizable offence, but also includes other cognizable offences, the learned Magistrate cannot exercise the powers under Section 156(3) of the Cr.P.C. so as to direct the Police to register a crime and then to investigate into the offence as per Section 500 of the IPC in view of the specific bar contained in Section 199 of the Cr.P.C. So the embargo under Section 199 of the Cr.P.C. would also bar the jurisdiction of the learned Magistrate under Section 156(3) of the Cr.P.C. to order the Police to register a crime and to investigate offence as per Section 500 of the IPC in a case where the allegations are, not only in respect of offences as per Section 500 of the IPC, which is a non- cognizable offence, but also in respect of other offences which are cognizable offences, etc. it automatically flows therefrom that where the allegations are solely in respect of the offence as perSection 500 of the IPC which is under Chapter XXI of the IPC, then the jurisdiction under Section 155 (2) of the Cr.P.C. is not available to the learned Magistrate to direct the Police to register a crime and investigate the offence as per Section 500 of the IPC in view of the specific bar contained in Section 199 of the Cr.P.C. Thus, in view of the abovesaid legal position settled by the Apex Court in para 207 of the Subramanian Swamy's case supra, the embargo under Section 199 of the Cr.P.C. would also bar the learned Magistrate from taking resort to the provisions contained in Section 156(3) of the Cr.P.C. to direct the Police to register a crime and to investigate the offence as per Section 500 of the IPC in a case where the allegations involve, not only in respect of offence as per Section 500 of the IPC but also other offences which are cognizable offences. Needless to say, in respect of such offences, which are cognizable offences, for which there is no other statutory prohibition, the learned Magistrate can certainly exercise the power so as to direct the Police to register and to investigate into such aforementioned offences. Hence, it automatically flows therefrom that where the allegations of a complainant like the 3rd respondent which involves solely the offence as per Section 500 of the IPC which is under Chapter XXI of the IPC, then the statutory bar under Section 199 (1) of the Cr.P.C. would also prohibit the learned Magistrate from taking resort to the provisions contained in Section 155(2) of the Cr.P.C. so as to direct the Police to register a crime and to investigate the offence as per Section 500 of the IPC. This crucial aspect of the matter is all the more amplified by the legislature in engrafting the provision contained in the sub-section (6) of Section 199 of the Cr.P.C., wherein it is stipulated that nothing in Section 199 shall affect the right of the person against whom is offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint. Therefore, by the specific provision in Section 199(6) of the Cr.P.C. the legislature has made it clear that for offences under Chapter XXI of the IPC, the only remedy of the complainant, who is aggrieved of the said offences, is to file a private criminal complaint as understood in Sections 190 and 200 of the IPC and then for the competent criminal court concerned to take appropriate decision in the matter of taking cognizance and then to proceed with the matter in accordance with law.