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2001 DIGILAW 431 (MAD)

K. Jagadeesan v. John Thomas

2001-04-03

MALAI SUBRAMANIAN

body2001
ORDER: The revision petitioner is the complainant in C.C.No.5357 of 1991 which was taken on file by the IV Metropolitan Magistrate, Saidapet, Chennai. He gave a complaint against the accused respondent for an offence under Sec.500, I.P.C. for defamation. The accused respondent filed a petition before the trial Court in Crl.M.P.No.693-A/94, for discharge from the case and the learned IV Metropolitan Magistrate, Chennai accepted his plea and discharged him from the case. Hence, this revision. 2. The learned counsel appearing for the revision petitioner submits that the revision petitioner filed a complaint before the V Metropolitan Magistrate and the same was taken on file in C.C.No.5357 of 1991 and while the same was pending, a quash petition was filed by the accused in Crl.O.P.No.2189 of 1993, and the same was dismissed on 30.11.1993. In the meantime P.Ws.1 and 2 were examined in chief, but their evidence remained unchallenged and they were not cross examined. While so, the respondent accused filed an application in Crl.M.P.No.1620 of 1994, before the Chief Metropolitan Magistrate for transferring the case from the file of the V Metropolitan Magistrate and his request was accepted and the case was transferred to IV Metropolitan Magistrate by the Chief Metropolitan Magistrate thereafter. According to the learned counsel appearing for the revision petitioner, the accused has filed Cri.M.P.No.693-A of 1994, for discharge before the IV Metropolitan Magistrate and the same was ordered. The learned counsel appearing for the revision petitioner submits that the order passed by the learned Magistrate is not proper since he has not considered that the complainant is the Director of K.J. Hospital. 3. The petition before the trial Court for discharge was filed by the accused respondent on the ground that the publication was made in his paper containing certain details regarding K.J. Hospital and the complainant has not been shown to be personally aggrieved and therefore, the complaint is not maintainable. Yet another ground alleged was that there was no resolution of the Board of Directors of K.J. Hospital authorising the complainant to file the complaint for defamation. The counter of the revision petitioner is that he is the Director of K.J. Hospital and therefore his reputation is affected. 4. The complaint was filed on a news item appearing in the Madras Time on Thursday, March 21, 1991. The counter of the revision petitioner is that he is the Director of K.J. Hospital and therefore his reputation is affected. 4. The complaint was filed on a news item appearing in the Madras Time on Thursday, March 21, 1991. The news item reads that the Director of K.J. Hospital, Dr.D. Jagadeesan and Dr.Venkataraman, who were involved in renal transplant case which caused death of both the donor and the recipient, have been arrested by the police. In the body of the news item, the following portion is said to be defamatory: "It is stated that the hospital used to stealthily deprive of its patients of one of their kidneys when they were admitted for minor operations. Women who were admitted for caesarian operation had one of their kidneys removed without their knowledge. More than 120 women have so far been affected by this trading in kidneys. It is reported that the kidneys were later exported to Malaysia. The hospital engaged brokers to lure the needy poor to part with one of their kidneys for a hefty sum. The nefarious activity has been going on for many months now". According to the learned IV Metropolitan Magistrate the above said passage appearing in the news item is not defamatory and the same was not aimed at defaming the complainant. In this case, the complaint has been filed by the revision petitioner in his capacity as Director of K.J. Hospital. The cause title of the complaint reads as follows: Dr.K. Jagadeesan Director, K.J. Hospital, 927, Poonamallee High Road, Madras - 600 084. The learned Magistrate lost sight of this description in the cause title and chose to hold that there was no defamatory remark against Dr.K. Jagadeesan. It is also unfortunate that when the evidence of P.Ws.1 and 2 were recorded, the accused was discharged from the case without considering the evidence adduced by P.Ws.1 and 2. 5. The offence under Sec.500, I.P.C. attracts only summons procedure as enshrined from Secs.251 to 259, Crl.P.C. There is no provision for discharge of the accused except the provision found under Sec.258, Crl.P.C. where the Court can stop the proceedings in summons case instituted otherwise than upon complaint. Admittedly, this case has been taken on file only on complaint and not on police report. Therefore, the power found in Sec.258 cannot be exercised in this case by the trial Court. 6. Admittedly, this case has been taken on file only on complaint and not on police report. Therefore, the power found in Sec.258 cannot be exercised in this case by the trial Court. 6. The learned counsel appearing for the accused/ respondent submits that the accused is entitled to get a discharge under Sec.204, Crl.P.C. and in support of his contention, he also relies on a ruling of the Supreme Court, reported in (1992)57 E.L.T. 370 . The relevant passage of the ruling is extracted below: "If one reads carefully the provisions relating to trial of summons-cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Sec.204 of the Code of Criminal Procedure indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. It is open to the accused to plead before the Magistrate that the process against him ought not have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. In the instant case, for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with." 7. There are several stages in a criminal trial when a private complaint is filed. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with." 7. There are several stages in a criminal trial when a private complaint is filed. The Court which records the sworn statement of complainant as well as the statement of witnesses as produced by the complainant, after considering those statements, has to decide whether the complaint has to be taken cognizance of or to be dismissed under Sec.203, Crl.P.C. Once the complaint is not dismissed under Sec.203, Crl.P.C., the next seep is to act under Sec.204, Crl.P.C. to issue process to the accused concerned to effect their appearance before the Court. Once the trial has started and the witnesses have been examined, Sec.203 cannot be applied for dismissing the complaint, because the stage has passed and the Magistrate has taken cognizance of the offence. Likewise, under Sec.204, if the Magistrate is of the opinion that there is sufficient ground to proceed with, he may issue process for the attendance of the accuse d. Sub-sec.(4) to Sec.204, Crl.P.C. says that no process shall be issued until the fees are paid by the complainant, if by any law, process fees has to be paid by him. In case, process was not taken, again under Sec.204(4), the Magistrate has got every power to dismiss the complaint for want of taking process for the attendance of the accused. While interpreting this Section heir Lordships have said in the abovesaid ruling that though the case is a summons case and though there was no specific provision for dropping the proceedings in a summons case, the accused can appear and inform the Court that there is no allegation in the complaint involving the accused in the commission of the crime and it is open to the accused to plead before the Magistrate that the process against him ought not to have issued. If the Magistrate is satisfied, he may drop the proceedings on reconsideration of the complaint that there is no offence for which the accused could be tried. If such an application has not been filed by the accused, after he enters appearance in response to summons, the same cannot be filed by him after the Court started recording evidence. 8. If the Magistrate is satisfied, he may drop the proceedings on reconsideration of the complaint that there is no offence for which the accused could be tried. If such an application has not been filed by the accused, after he enters appearance in response to summons, the same cannot be filed by him after the Court started recording evidence. 8. On the facts of the abovesaid ruling, the concerned Magistrate directed that the complaint so far as it relates to the Chief Editor could not be proceeded with. Therefore, the complainant took the matter to the High Court and the High Court held that after taking cognizance of the offence and issuing the process, the Magistrate has no jurisdiction to drop the proceedings against the accused and he is bound to proceed under Chapter XX of Crl.P.C., when the accused enters appearance. This fine ing of the High Court did not find favour with the Supreme Court and the Supreme Court has held that the power to drop the proceedings against the accused cannot be denied to the Magistrate and according to the Supreme Court Sec.204 of the Code indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence after issue of summons to the accused and when the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code, but, according to the Supreme Court, the need to try the accused arises when there are allegations in the complaint that the accused has committed the crime and if there is no allegation in the complaint involving the accused in the commission of crime, it is denied that the Magistrate has no jurisdiction to proceed against the accused. In that context only, the Supreme Court has said that though there is no specific provision for the Magistrate to drop the proceedings or rescind the process, the Magistrate can refuse to proceed with the case on reconsideration, if there is no allegation in the complaint involving the accused in the commission of the crime. The Supreme Court did not say that an application under Sec.204 is maintainable even after the evidence of prosecution was recorded. That is why, even at the beginning itself, I dealt with about the stage, at which the petition has been filed. The Supreme Court did not say that an application under Sec.204 is maintainable even after the evidence of prosecution was recorded. That is why, even at the beginning itself, I dealt with about the stage, at which the petition has been filed. Suppose, if such an application is filed before the Court, immediately after entering appearance before commencement of the trial as envisaged in Chapter XX, Crl.P.C. the petition is maintainable. But now, the stage has passed and the evidence of two witnesses on the side of prosecution was recorded and at this stage in the absence of any provision for discharge of the accused the Magistrate ought not to have discharged the accused and he should have allowed the trial to flow in accordance with the established procedure. The Parliament in its wisdom has provided for the discharge of the accused in a case triable under warrant procedure, but did not do so in cases triable under summons procedure. This distinction has to be kept in mind by the trial Courts. The wisdom of the Parliament cannot be questioned by the trial Courts and the petition for discharge cannot be encouraged in summons cases after the evidence of prosecution has been recorded. 9. In view of the above discussion, the order passed by the learned Magistrate is set aside. The revision is allowed and the matter is remitted back to the trial Court for fresh disposal in accordance with law.