Research › Search › Judgment

Meghalaya High Court · body

2019 DIGILAW 19 (MEG)

State Bank of India v. State of Meghalaya

2019-02-13

MOHAMMAD YAQOOB MIR

body2019
JUDGMENT : 1. Instant petition has been filed under Section 482 Cr.P.C. for quashing the Sadar P.S. Case No. 184(8) 2017. 2. Perusal of the records reveal that the respondents No. 4 and 5 lodged a report in Sadar Police Station, Meghalaya, Shillong on 02.08.2017 mentioning therein, that a group picture including respondents No. 4 and 5, in a Khasi attire was displayed on the State Bank of Indias advertisement hoarding as well as banners at certain parts of Shillong city, without their consent four years prior to the date of the report. 3. The police while noticing that the offence is non-cognizable has submitted the matter to the Judicial Magistrate, First Class, Shillong. The learned Magistrate invoking powers under Section 156 (3) Cr.P.C. vide order dated 04.08.2017 directed the Police Sadar to register the case as a result whereof, the case has been registered as P.S. Case No. 184 (8) of 2017 under Section 500 IPC, the investigation commenced. 4. The petitioner aggrieved by the said proceedings has invoked the powers of this Court under Section 482 Cr.P.C. projecting therein, that the order of the learned Magistrate and continuation of the proceedings thereon is an abuse of the process of the Court because same is not permissible in view of the clear bar contained under Section 199 of the Cr.P.C. 5. Learned AG with all fairness submitted that a similar issue had cropped up for consideration before the High Court of Gujarat and is also settled by the Honble Supreme Court in the judgment rendered in the case of Subramanian Swamy v. Union of India (UOI) & Ors. 6. In view of the clear position of law, for offence under Section 500 IPC, FIR could be lodged nor Magistrate was competent to issue a direction under Section 156 (3) Cr.P.C. From the judgment passed by the High Court of Gujarat in Criminal Misc. Application No. 5389 of 2005 decided on 09.01.2006 in the case Dr. Anil K. Khandelwal & 14 Ors. v. Shri Maksud Saiyed & Anr., para 8 is relevant to be quoted: "8. So far alleged offence under Sections 499 and 500 of I.P.C., is concerned, Mr. Application No. 5389 of 2005 decided on 09.01.2006 in the case Dr. Anil K. Khandelwal & 14 Ors. v. Shri Maksud Saiyed & Anr., para 8 is relevant to be quoted: "8. So far alleged offence under Sections 499 and 500 of I.P.C., is concerned, Mr. Anandjiwala has submitted that it is the case of the complainant that the accused persons by making false declaration in the prospectus of the public issue which was floated and by filing proceedings of recovery of dues before the DRT has tarnished the image of the complainants company and the complainant himself as the Director of the company and thereby the accused persons have committed the offence of defamation. He has submitted that the important question is whether the police has got powers to investigate into the allegations which may constitute an offence of defamation as defined under Sections 499 and punishable under Section 500 of I.P.C. He has further submitted that no Court shall take cognizance of the offence of defamation except upon a complaint made by the person aggrieved. There is no dispute as regards this proposition of law. The important question is, can a private complaint for defamation punishable under Section 500 of I.P.C., be ordered to be investigated by the police under Section 156(3) of Criminal Procedure Code. He has further submitted that Section 199 of the Criminal Procedure Code makes it very clear that no Court shall take cognizance of an offence punishable under Chapter-XXI of the I.P.C., except upon a complaint made by some person aggrieved by the offence. He has, therefore, submitted that the question would be whether the Court can take cognizance of the offence of defamation on the charge sheet which the police may file at the end of investigation. He has submitted that the answer is obviously No. Therefore, even on this count the investigation is absolutely bad in law and not maintainable." 7. It shall also be advantageous to quote para 196 of the judgment rendered by the Honble Apex Court in the case of Subramanian Swamy v. Union of India (UOI) & Ors. passed in Writ Petition (Criminal) Nos. 184 of 2014, 8, 19, 56, 62, 63, 64, 67, 73, 77, 79, 82, 91, 96, 98, 106, 110, 116, 117, 118, 119, 120, 121 of 2015 and Transfer Petition (Criminal) Nos. passed in Writ Petition (Criminal) Nos. 184 of 2014, 8, 19, 56, 62, 63, 64, 67, 73, 77, 79, 82, 91, 96, 98, 106, 110, 116, 117, 118, 119, 120, 121 of 2015 and Transfer Petition (Criminal) Nos. 102- 105 and 94-101 of 2015 (Under Article 32 of the Constitution of India), 196. Another aspect requires to be addressed pertains to issue of summons. Section 199 Code of Criminal Procedure envisages filing of a complaint in court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) Code of Criminal Procedure. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent and Anr. (1972) 1 SCC 450 , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank and Ors. v. Surendra Prasad Sinha 1993 Supp. (1) SCC 499 it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process less it would be an instrument in the hands of the private complaint as Vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course." (Emphasis added) 8. In Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course." (Emphasis added) 8. It is clear that for offence punishable under Section 500 IPC neither FIR could be lodged for registration nor Magistrate could order registration of the case by invoking power under Section 156 (3) Cr.P.C. The aggrieved party may resort to other modes as may be prescribed in the Code of Criminal Procedure. 9. It is trite and settled that the power under Section 482 Cr.P.C. is to be exercised with circumspection and in exceptional cases so as to avoid miscarriage of justice or abuse of the process of the Court. To allow investigation of the case and then filing of the charge sheet shall be useless because same is not permissible nor proceedings can be continued in any manner in view of the position of the law settled referred to above. The case being fit for exercise of power under Section 482 Cr.P.C. the proceedings initiated i.e., the order dated 04.08.2017 passed by the learned Magistrate, First Class, Shillong as well as Registration of the case No. 184 (8) of 2017 shall stand quashed. Petition accordingly allowed. 10. Copy of the order be sent to the SHO Police Station concerned for information.