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2019 DIGILAW 797 (KAR)

Prerana Sharma v. Mahesh Joshi

2019-04-02

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. Heard the arguments of petitioners' counsel and also the respondent's counsel. 2. The petitioners in this petition invoking section 482 of Cr.P.C. prayed this Court to quash the entire proceedings in C.C. No. 214/2016, pending on the file of Senior Civil Judge and JMFC, Hanagal and to pass such other suitable orders. 3. The factual matrix of the case is that, the respondent herein had filed a complaint before the Court below under section 200 of Cr.P.C. alleging that the 1st petitioner lodged a complaint to the Director General of Doordarshan on 23.1.2015 i.e. one year six months prior to the filing of the complaint. The Senior Civil Judge and Judicial Magistrate First Class, Hangal, Haveri district, issued summons to these petitioners on 5.11.2016. As on the date of complaint dated 6.6.2016, the respondent was stationed at New Delhi in the address CPWD Quarters, Asian Games Village, Siri Fort Road, New Delhi. The respondent being a Government servant suppressed the fact of his address and falsely claimed his address in the moufusial taluk headquarters at Hangal as mentioned in the cause title with the sole and ulterior motive to harass the petitioners by hoodwinking the judicial process. The entire process is a cumulativem, concocted, self glorified facts which were not authenticated by any certifying authorities. The other contention that, of late Hangal is an obscure taluka head quarters classified as a major backward area and expecting a person who had an accidental meeting on the roads of inspection bungalow narrate the factual matrix which were published in the nationally acclaimed newspaper 'the telegraph' as a matter of fact, the copies of telegraph are not even available at any South Indian Capitals. The very fact of filing the complaint in Hangal Court and issuance of process to the distant Delhi appears to be a grand design which needs to be probed. 4. The petitioners in the petition have contended that though a cause of action was created and injected to net the Court below, admitted the incident that happened in the head quarters of Doordarshan, New Delhi and facts were usurped to a cause of action of Hangal without any valid, tenable document of stationing of the respondent at Hangal. 4. The petitioners in the petition have contended that though a cause of action was created and injected to net the Court below, admitted the incident that happened in the head quarters of Doordarshan, New Delhi and facts were usurped to a cause of action of Hangal without any valid, tenable document of stationing of the respondent at Hangal. The other contention that the alleged offences against the petitioners has no relevance to the al legations made by the respondent and filed false case with a sole intention to hamper the reputation of the petitioners. The Court below also taken cognizance is a clear violation of territorial application of criminal law. The Court below would have transferred the complaint to the appropriate Court of law as the cause of action is contrary to sections 14 and 177 of Cr.P.C. The Section 177 of Cr.P.C. envisages that every of fence shall ordinarily be inquired into and tried by a Court within where local jurisdiction in which it was committed and further contend that there is no iota of evidence whatsoever and hence prayed this Court to quash the initiation of criminal proceedings. 5. The petitioners' counsel in support of his contention he also relied upon the judgment of the Apex Court between Abhijit Pawar vs. Hemant Madhukar Nimbalkar and Another, (2017) 3 SCC 528 . The Apex Court in this judgment referring to section 202 of Cr.P.C. with regard to the Amendment Act 25 of 2005, held with regard to the object is concerned, enquiry by Magistrate in cases where accused resides at a place beyond his jurisdiction held it is mandatory. Proper enquiry, what proper enquiry envisages is proper application of mind by examination of witnesses by Magistrate and also if it is not applied what could be the course. The Apex Court in the judgment held that on being satisfied that mandatory requirements under section 202 were not fulfilled by Magistrate before issuing process, can direct the Magistrate to take the matter afresh and pass appropriate orders in compliance with section 202 of Cr.P.C. 6. The Apex Court in the judgment held that on being satisfied that mandatory requirements under section 202 were not fulfilled by Magistrate before issuing process, can direct the Magistrate to take the matter afresh and pass appropriate orders in compliance with section 202 of Cr.P.C. 6. Per contra, the counsel appearing for the respondent in his arguments he vehemently contend that the Court below has applied its mind and recorded the sworn statement of witnesses and thereafter by considering the material on record proceeded to take cognizance against the petitioners and this Court cannot find fault with the procedure adopted by the Magistrate in taking cognizance. In support of his contention, he also relied upon the judgment, between Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and Others, (1976) AIR SC 1947 and in this judgment the Apex Court held that enquiry under section 202 and scope of issuance of process under section 204, consideration by Magistrate, order issuing process, when can be set aside in revision and further held that the scope of the enquiry under section 202 is extremely limited only to the ascertainment of the truth or falsehood of the al legations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether a prima- facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under section 202 the accused has got absolutely no locus-standi and is not entitled to be heard on the question whether process should be issued against him or not. 7. The counsel also in his arguments he relied upon the judgment, in Maneka Sanjay Gandhi and Another vs. Rani Jethmalani, (1979) AIR SC 468, regarding jurisdiction is concerned. In this judgment the Apex Court held, assurance of a fair trial is the first imperative of the dispensation of justice and central criterion for the Court to consider when motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the like mini grievances. In this judgment the Apex Court held, assurance of a fair trial is the first imperative of the dispensation of justice and central criterion for the Court to consider when motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or the like mini grievances. Something more substantial , more compelling, more imperiling, from the point of view of public justice and its attendant environment is necessitous, if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. Courts must test the petitioner's grounds on this touchstone bearing in mind, the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the Court may weigh the circumstances. 8. The counsel also relied upon the judgment of Delhi High Court in Frankfinn Aviation Services Pvt. Ltd. vs. Tara Kerkar and Others, decided on 16.8.2016 and brought to the notice of this Court that the principles laid down in the judgment that the impugned order merely notes two decisions of this Court in Frank Finn Management Consultants vs. Subhash Motwani and Another, (2008) 154 DLT 95 and M/s. Indian Potash Ltd. vs. Media Contents & Communications Services (India) Pvt. Ltd. and Another, (2009) 4 AD (Del) 28, and observed in this judgment that but erroneously brushes aside these two decisions of by critically observing that the ratio of these two decisions do not apply to the facts of the instant case. Having observed so it is held that, it has been clearly declared in Subhas Motwani (supra) and M/s. Indian Potash Ltd. (supra) that by putting defamatory material on internet, territorial jurisdiction does not remain confined to the place of actual defamation and in a case of defamation being telecasted, section 20 of CPC will have no application. Even illustration 'B' to section 19 of CPC makes it clear that the jurisdiction would be at both the places i.e. at the place where the actual defamation takes place and the place where such defamatory material is transmitted through website, telecast, etc. 9. Even illustration 'B' to section 19 of CPC makes it clear that the jurisdiction would be at both the places i.e. at the place where the actual defamation takes place and the place where such defamatory material is transmitted through website, telecast, etc. 9. By relying upon this judgment the counsel in support of his arguments he contends that the defamatory complaint is telecasted and transmitted in the internet and hence the contention of the petitioners counsel that this court has no jurisdiction cannot be accepted. 10. The counsel also relied upon the judgment of Gauhati High Court between Dilip Kr. Hazarika and Another vs. Nalin Buragohain, decided on 22.6.2001 and brought to the notice of this Court that the principles laid down in the judgment with regard to the territorial jurisdiction of the Court is concerned in case of publication and in this judgment in paragraph No. 5 it is observed that, being a weekly publication intended to be read by people, it is enough for the complainant to show that the publication was delivered within the limits of the territorial jurisdiction of the Court in order to invest that Court with jurisdiction. It need not be shown that the defamatory matter was seen or read by any particular person within the jurisdiction of that Court. Since the weekly is being printed and published for the purpose of reading by the people when it is shown that it was published it could be presumed that it was read. The Gauhati High Court also in paragraph No. 6 of this judgment observed that, considering the evidence of the present case I am in agreement with the decision of the Hon'ble Kerala High Court that where the of fending publication was delivered and was read by the complainant, the said Court would have territorial jurisdiction to try the case. 11. By relying upon this judgment also the counsel appearing for the respondent contend that the petitioner cannot raise a ground with regard to the territorial jurisdiction if it is published and circulated that too in the internet and telecasted the same and when such being the case, the petitioners cannot contend that the Court is not having jurisdiction. 12. 11. By relying upon this judgment also the counsel appearing for the respondent contend that the petitioner cannot raise a ground with regard to the territorial jurisdiction if it is published and circulated that too in the internet and telecasted the same and when such being the case, the petitioners cannot contend that the Court is not having jurisdiction. 12. Having heard the arguments of the petitioners' counsel and also the respondent's counsel, this Court has to examine whether this Court can exercise the powers under section 482 of Cr.P.C. to quash the proceedings as sought in the petition. 13. Now let this Court to see the contents of the complaint. The complaint is produced as Annexure-A and before considering the contents, this Court would like to make it clear that cognizance is taken only against these petitioners who have been arraigned as accused No. 1, 3 and 4 and cognizance is not taken against other accused persons. In respect of accused No. 1 is concerned, a specifical legation is made in paragraph No. 24 of the complaint that, the accused No. 1 in her comments dated 15.5.2015, made with reference to the statement of the complainant to the ICC, admitted that she had dated to speak against the complainant after gathering great courage with the support of her husband i.e. accused No. 2. The accused No. 1 has confirmed that accused No. 2 is part and parcel of the criminal conspiracy to defame the complainant. 14. In so far as accused No. 3 is concerned, in paragraph No. 21 of the complaint an allegation is made that accused No. 3 being a close colleague/batch mate of the accused No. 1 and in criminal conspiracy with other accused had falsely deposed as a witness before public servants i.e. the police and the Internal Complaints Committee against the complainant, stating that sexual harassment complaint was true and that he was a witness to it and he was present during the alleged concocted sexual harassment story. 15. 15. In so far as to accused No. 4 is concerned, in paragraph No. 23 of the complaint an allegation is made that, to malign the reputation of the complainant, the accused No. 4 who has no locus standi and who is working as helper at AIR super power transmitter, wrote an email dated 17.3.2015 enclosing a letter dated 16.3.2015 and forwarded to various authorities leveling false and baseless allegations on the complainant, clearly out of vengeance and wrote the said e-mail asking the authorities to take action against the complainant on the complaint of sexual harassment. 16. For having taken note of the contents of the complaint, specifically legations are made against these petitioners with regard to proceed against these petitioners. 17. Now let this Court to consider the grounds urged before this Court. The first ground urged before this Court is with regard to the petitioners who are the residents of Uttar Pradesh, Delhi and Bengaluru and complaint is filed at Hangal and hence the very contention of the petitioners that section 202 of Cr.P.C. is not complied. The main contention that, inquiry, in cases where accused resides at a place beyond its jurisdiction, is mandatory and it envisages proper application of mind by examination of witnesses by Magistrate. The counsel also brought to the notice of this Court that an amendment was made in 2005 which came into effect on 23.6.2006 and it is also important to note that while making amendment the words are used that any Magistrate, on receipt of a complaint of an of fence which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused and this Court do not find any material before this Court that an enquiry is held under section 202 of Cr.P.C. and the Apex Court also in the judgment referred supra in Abhijit Pawar's case held that, the enquiry is mandatory and object of making the enquiry has been stated and hence it is clear that no enquiry is held under section 202 of Cr.P.C. 18. Admittedly, there is no dispute with regard to the fact that the petitioners who are before this Court are the residents of outside the jurisdiction of the Court below and they are the residents of Uttar Pradesh, Delhi and Bengaluru and they are residing at a place beyond its jurisdiction and hence the very taking of cognizance against the petitioners without compliance of section 202 of Cr.P.C. is against the statute which has been amended and came into force on 23.6.2006. No doubt the counsel appearing for the respondent has relied upon the judgment of Nagawwa's case reported in 1976 (supra) and in that judgment the Apex Court has discussed with regard to the scope of section 202 of Cr.P.C. and during the delivery of said judgment the amendment was not brought into effect and only the scope has been explained in the judgment to consider and ascertain the truth or falsehood of the allegations made in the complaint. In view of the recent amendment, the Judgment of the Apex Court in Nagawwa's case (supra) reported in 1976 in Nagavva's case not comes to the aid of the respondent. 19. The other contention of the petitioners with regard to jurisdiction is concerned, the principles laid down in the judgments referred supra by the respondent are aptly applicable to the case on hand and it is held by the Apex Court in the judgment of Maneka Sanjay Gandhi (supra) has held that normally the complainant has the right to choose any Court and the accused cannot dictate where the case against him should be tried and further observed that the process of justice should not harass the parties and from that angle the Court may weigh the circumstances. 20. In the case on hand it has to be noted that the complainant has specifically stated that the people who are residing in his place have brought the said fact into notice of publication made in the internet and the complainant is also the native of the particular district and when the said fact brought to the notice of the complainant, this Court do not find any error committed by the complainant in filing the complaint within the territorial jurisdiction where it was published. The other judgments also which have been referred by the respondent's counsel would specifically observe that the Court has to take note of the fact into consideration that territorial jurisdiction does not remain confined to the place of actual defamation and in a case of defamation being telecasted, the Court has to take note of the fact into consideration and section 20 of CPC will have no application. Further it has to be noted that the fact that it has been telecasted and found the defamatory material on internet is not in dispute. Hence, the contention of the petitioners with regard to the jurisdiction is concerned, this Court do not find any error in invoking the jurisdiction at Hangal to proceed against the petitioners. 21. The other contention is that while taking cognizance the Court below passed an order that, as there is prima-facie material to proceed against accused Nos. 1, 3 and 4, acting under section 204 of Cr.P.C. cognizance of offence punishable under section 120(B) , 500 read with section 34 of IPC is taken and issued process against the petitioners. It has to be noted that a private complaint is filed before the Court and thereafter an enquiry is held under section 200 of Cr.P.C. and it is the contention of the petitioners' counsel that before recording the sworn statement of witnesses the Court below has to take cognizance and only after recording the evidence before framing of charge, only to consider whether the material on record is sufficient to proceed against the accused persons, to frame the charge and while issuing the process the Court below has mentioned that cognizance is taken. 22. On perusal of the order-sheet of the lower Court, on presentation of the complaint, recorded the sworn statement of the complainant and got marked Exs.C.1 to C.127 and another witness CW-2 is also examined and thereafter heard the counsel for the complainant on sworn statement of the complainant and posted the matter for orders and after considering the contents of the complaint and sworn statement, issued process. It has to be noted that when the complaint is filed before the Court, it is the duty cast upon the Magistrate to peruse the contents of the complaint and record the sworn statement considering the material on record including the contents of the complaint and the sworn statement, apply the judicial mind and then take cognizance and the same has been done. The only irregularity found is not conducted an enquiry as contemplated under Section 202 of Amendment Act, 2006. 23. For having taken note of the grounds urged in the petition and also non-compliance of mandatory provisions under Section 202 of Cr.P.C. the order impugned is liable to be set aside and the matter requires to be remanded to the lower Court as held by the Apex Court in Abhijit Pawar's case (supra) and this Court is being satisfied that mandatory provisions of Section 202 of Cr.P.C. have not been complied before issuing process, as the Magistrate has to hold an enquiry as contemplated under Section 202 of Cr.P.C. and hence, it is appropriate to direct the Magistrate to take up the matter afresh and pass appropriate orders in compliance with Section 202 of Cr.P.C. 24. In view of the discussions made above, this Court proceed to pass the following order.