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2021 DIGILAW 327 (HP)

Amar Singh v. S. R. Rana

2021-05-25

ANOOP CHITKARA

body2021
JUDGMENT Anoop Chitkara, J. - The petitioner, who is arraigned as an accused in the complaint filed by the respondent, before the Learned Chief Judicial Magistrate, Shimla, on the allegations of defamation, has come up before this Court seeking quashing of the order taking cognizance, issuance of summons and all subsequent proceedings. 2. On 3rd May 2014, the respondent filed a complaint in the Court of Chief Judicial Magistrate, Shimla, under Section 200, CrPC, for the commission of offences punishable under Section 499 and 501 IPC, with the following allegations: - (a) The complainant-respondent, Sh. S.R.Rana, was posted as Superintendent of Police, at the Police Headquarters, Shimla. He was initially appointed through Allied Services by Himachal Pradesh Public Service Commission and posted as Inspector in 1990. (b) The complainant alleged that the accused-petitioner, Sh. Amar Singh, retired as a Constable from SSB, and he is his immediate neighbor in his native place at Sarkaghat, District Mandi. (c) The accused made a complaint to Director General of Police, HP, against the present respondent, about filing a false income certificate while applying for a job. The copy of the complaint was annexed in the complaint as Annexure C-1. (d) On 31.7.2010, at the instance of the accused, a news item was published in Dainik Bhaskar newspaper with the caption "Police Adhikari Ke Virudh Vigilance Janch." A copy of the said newspaper report was attached as Annexure C-2. (e) After that, the accused wrote a letter to Hon'ble the Chief Justice of this Court, for taking action because the respondent had obtained the post of Inspector by furnishing false documents. A copy of the said letter dated 18.10.2010 was also attached as Annexure C-3. The complainant also annexed Annexure C-4, a note between the Registrar General of this Court and Director General of Police, vide which the letter, Annexure C-3, was forwarded to the Director-General of Police. (f) The complainant alleged that at the instance of the accused, a news item was published in Divya Himachal on 16.11.2010 with the caption "High Court Ne S.P. Ke Khilaf Bithai Janch," a copy of which was annexed as Annexure C-5. (g) The complainant further alleged that at the instance of the accused, on 16.6.2012, another news item was published in Punjab Kesari with the caption "Police Adhikari Ke Khilaf Maamla Daraj Karne Ki Appeal," a copy of which was annexed as Annexure C-6. (g) The complainant further alleged that at the instance of the accused, on 16.6.2012, another news item was published in Punjab Kesari with the caption "Police Adhikari Ke Khilaf Maamla Daraj Karne Ki Appeal," a copy of which was annexed as Annexure C-6. (h) After that at the instance of the accused, another news item was published in Himachal Dastak on 23.7.2012 with the caption "Jali Dasta vej Se Bana S.P." (i) Subsequently, on 5.10.2013, the complainant sent a legal notice to the accused. A copy of the said notice was annexed as Annexure C-7 in the complaint. Vide said notice; the complainant sought an unconditional apology from the accused by publishing the same in the newspaper or in the alternative, pay damages to a sum of Rs.30,00,000/- (Rs. Thirty lacs). It was further stated in the notice that failure to do so would lead to a suit for damages and criminal proceedings under Section 500, IPC for harming the reputation of the complainant. (j) The complainant stated that the accused got published all these news items to defame him and to cause damage to his integrity. The news items caused an immense loss of reputation to the complainant's image because of wide circulation of the newspapers. (k) In paragraph 10 of the complaint, the complainant has stated that none of the allegations made in the aforesaid complaints were found to be correct despite inquiries and verifications. In spite of that the accused kept on tarnishing his reputation. (l) Finally, the complainant prayed that the accused be prosecuted and punished under Sections 499 and 501, IPC. (m) Along with the complaint, the complainant enclosed the following list of witnesses: (i) Reader to S.P. (SIV) State Vigilance and Anti-Corruption Bureau, Shimla (ii) Dealing Assistant (Div. Branch) dealing with complaints of Gazetted officer in O/o DGP, H.P., Shimla (iii) Divya Himachal Press Correspondence (Ajay Kumar), Divya Himachal Mandi Himachal Pradesh. (m) Along with the complaint, the complainant enclosed the following list of witnesses: (i) Reader to S.P. (SIV) State Vigilance and Anti-Corruption Bureau, Shimla (ii) Dealing Assistant (Div. Branch) dealing with complaints of Gazetted officer in O/o DGP, H.P., Shimla (iii) Divya Himachal Press Correspondence (Ajay Kumar), Divya Himachal Mandi Himachal Pradesh. (n) Along with the complaint, the complainant also enclosed the following list of documents: (i) Complaint before the DGP and DGP of State Vigilance & Anti-Corruption Department attached as Annexure C-1 along with its typed copy as Annexure C-1/T (ii) News item dt-31/07/2010 published in the newspaper Dainik Bhaskar attached as Annexure C-2 (iii) Complaint to the Hon'ble Chief Justice of the Hon'ble High Court of H.P. at Shimla dt-18/10/2010 attached as Annexure C-3 (iv) Application by the Registrar-General-cum-Principal Secretary to HCJ High Court of H.P., Shimla forwarded to the Director General of Police H.P. attached as Annexure C-4 (v) Newspaper cutting dt-16/11/2010 attached as Annexure C-5 (vi) Copy of the Newspapers Articles dated 16-6-2012 and 23rd July, 2012 as Annexure C-6 (Colly) (vii) Copy of the legal notice dated 5-10-2013 as Annexure C-7. (o) Vide order dated 5.5.2014, learned CJM, Shimla ordered the registration of the complaint, and called for the complainant's presence for preliminary evidence. (p) To inquire into the matter, learned Chief Judicial Magistrate Shimla on 11.6.2014 recorded the complainant's statement on oath under Section 200, CrPC. However, at the time of recording of his statement, the complainant did not tender in evidence the enquiry reports, which had declared the allegations to be false, untrue, and baseless. (q) A perusal of the order sheet reveals that the learned Chief Judicial Magistrate, who had recorded the complainant's statement on 11.6.2014, was transferred. On 7.1.2015, the matter was posted before another Chief Judicial Magistrate, who vide detailed order dated 6.2.2015 took cognizance of the case. Vide order dated 6.2.2015, the learned Chief Judicial Magistrate referred to the allegations made in the complaint and the documents annexed thereto. Paragraph 3 of such order is extracted as follows: - "3. The perusal of the entire preliminary evidence so adduced by the complainant shows that there are sufficient grounds to proceed against the accused person under Section 500 of the Indian Penal Code, 1860. Paragraph 3 of such order is extracted as follows: - "3. The perusal of the entire preliminary evidence so adduced by the complainant shows that there are sufficient grounds to proceed against the accused person under Section 500 of the Indian Penal Code, 1860. Hence, let the accused be summoned for 28.4.2015." (r) Aggrieved by the order dated 6.2.2015, the accused filed a petition under Section 482, CrPC before this Court, which was registered as Cr.MMO No.275 of 2016. On 11.5.2018, this Court passed the following order (Annexure P-4): - "Mr. Arun Kumar, learned counsel, under instructions seeks permission to withdraw the present petition, reserving liberty to file afresh on the same and subsequent cause of action. Permission granted. Liberty reserved. In view of the above, present petition stands disposed of as withdrawn, with liberty as prayed for alongwith pending application(s), if any" (s) After that, the petitioner-accused has again come up before this Court under Section 482 CrPC, by filing the present petition seeking quashing of summoning order dated 6.2.2015 and proceedings incidental thereto. 3. Learned Counsel for the petitioner drew the attention of this Court to Annexure P-3, a copy of the Inquiry Report conducted by Additional Director General, State Vigilance and A.C. Bureau, H.P., Shimla. Learned Counsel stated that in this report, it was established that the allegations were substantiated to some extent. Referring to another inquiry conducted by Dy. S.P., Inquiry Officer, SV&ACB, SIU, Shimla (Annexure P-3), Ld. Counsel argued that the Inquiry Officer had concluded that the complainant was selected as Inspector on the basis of wrong Backward Class certificate. He further submitted that even if all allegations of the complaint and the documents annexed therein are accepted on its face value, still it can be said that the accused is entitled to the benefit of exceptions of S. 499 IPC. The next submission is that in the complaint the complainant-respondent stated that the allegations/complaints made by the accused were not found to be correct by the enquiry officers, and despite that the complainant-respondent did not attach even a single report. The burden was on the complainant to make out a prima facie case, which he failed to do. Thus, in the absence of material evidence, Ld. Judicial Magistrate could not have taken cognizance and proceeded with the trial. Thus, all proceedings are to be quashed. 4. On the contrary, Ld. The burden was on the complainant to make out a prima facie case, which he failed to do. Thus, in the absence of material evidence, Ld. Judicial Magistrate could not have taken cognizance and proceeded with the trial. Thus, all proceedings are to be quashed. 4. On the contrary, Ld. Counsel for the complainant-respondent contends that previously the accused had filed a similar petition, which was dismissed as withdrawn but still it operates as an estoppel. He further contends that the complaint prima facie discloses commission of alleged offences. Thus, the petition deserves dismissal at the outset. 5. Mr. Sanjeev Kuthiala, Ld. Sr. Advocate, assisted by Ms. Srishti Chauhan Ld. Amicus Curiae submitted that the previous petition was dismissed with liberty to file afresh on same and subsequent cause of action, as such it does not operate as an estoppel. Ld. Counsel referred to various judicial pronouncements of the scope of S. 202 CrPC. ANALYSIS AND REASONING: 6. In Rameshbhai Pandurao Hedau v. State of Gujarat, (2010) 4 SCC 185 , Hon'ble Supreme Court holds, "[24]. The law is well-settled that an investigation ordered by the Magistrate under Chapter XII is at the pre-cognizance stage and the inquiry and/or investigation ordered under Section 202 is at the post-cognizance stage..." 7. After the amendment to Section 202 of the CrPC, with effect from 23.6.2006 by Central Act No. 25 of 2005, it is mandatory on the part of the learned Magistrate to conduct an inquiry before the issuance of the process. 8. In Udai Shankar Awasthi v. State of Uttar Pradesh, (2013) 2 SCC 435 , Hon'ble Supreme Court holds, "[40]. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The Magistrate had issued summons without meeting the mandatory requirement of Section 202 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases." 9. In Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors., (2014) 14 SCC 638 , Hon'ble Supreme Court holds, "[11]. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process "in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not. [12]. The words "and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction" were inserted by Section 19 of Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23rd of June, 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows: "False complaints are filed against persons residing at far off places simply to harass them. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows: "False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. [14]. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows: "2. xxx xxxxxx (g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; xxx xxxxxx" 10. In Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 , Hon'ble Supreme Court holds, "[23]. The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows: "2. xxx xxxxxx (g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; xxx xxxxxx" 10. In Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 , Hon'ble Supreme Court holds, "[23]. Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. [24]. ...The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate." [25]. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate." [25]. For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed..." 11. In Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd. & Ors., (2019) 16 SCC 610 , Hon'ble Supreme Court holds, "[30]. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused." 12. The accused was residing at a place beyond the area in which the Magistrate was exercising his jurisdiction. Thus, Ld. Magistrate had to act in terms of S. 202 (1) CrPC. A perusal of the order dated 6.2.2015, passed by learned Chief Judicial Magistrate taking cognizance, does reveal that it referred to the contents of the complaint, contents of documents, and the statement of complainant recorded in Court, but such an enquiry appears to be an empty formality. 13. The issue before this Court is that whether the allegations made in the complaint, contents of documents attached therein and the complainant's statement reveal a prima facie case sufficient to proceed further and to pass summoning order or not. Furthermore, when the complainant, without any explanation, fails to attach the necessary documents in the complainant, which at the time of filing of the complaint were in his notice, would it be appropriate for the Magistrate, while inquiring into the complaint, to let the complainant fill up the lacunae and bring in evidence all such documents? 14. In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, (1960) AIR SC 1113, a three-member bench of Hon'ble Supreme Court holds, "[9]. 14. In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, (1960) AIR SC 1113, a three-member bench of Hon'ble Supreme Court holds, "[9]. The general scheme of the aforesaid sections is quite clear. Section 200 says, inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial..." 15. In Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, a four-judge bench of Hon'ble Supreme Court holds, "[7]. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation nor he has no right to take part in the proceedings no has the Magistrate any jurisdiction to permit him to do so. But since the very question for consideration being whether he should be called upon to face an accusation nor he has no right to take part in the proceedings no has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No, 1 that the very object of the provisions of Ch. XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of Section 202, Criminal Procedure Code is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused persons, but also with a view to bring to boor: a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accessed may have can only be enquired into at the trial. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accessed may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry... [8]. Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is 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 enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are: Paranand Brahmachari v. Emperor, (1930) AIR Patna 30; Radha Kishan Sao v. S. K. Misra, (1949) AIR Patna 36; RamkistoSahu v. State of Bihar, (1952) AIR Patna 125; Emperor v. J.A. Pinan, (1931) AIR Bombay 524 and Baidya Nath Singh v. Musppatt, 14 ILR(Cal) 141. In all these cases, it has been held that the object of the provisions of Section 202 is enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned -Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is no to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complaint and the statements made before him by persons examined at the instance of the complainant. xxx xxx xxx [13]. On the basis of these observations it was urged that this court has held that a Magistrate has the power to weigh the evidence adduced at the enquiry. As we read the decision it does not lay down an inflexible rule but seems to hold that while considering the evidence tendered at the enquiry it is open to the Magistrate to consider whether the accused could have acted in self-defence. Fortunately, no such question arises for consideration in this case but we may point out that since the object of an enquiry under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under Section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this..." 16. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this..." 16. In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , after referring to Chandra Deo Singh v. Prokash Chandra Bose, (1964) 1 SCR 639 = ( AIR 1963 SC 1430 ) and Vadilal Panchel v. Dattatraya Dulaji, (1961) 1 SCR 1 = ( AIR 1960 SC 1113 ), Hon'ble Supreme Court holds, "[2]. ...It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. [4]. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) 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 it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. [5]. Mr. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. [5]. Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." 17. In S.W. Palanitkar & Ors. v. State of Bihar & Anr., (2002) 1 SCC 241 , Hon'ble Supreme Court holds, "[15]. In case of a complaint under Section 200 Criminal Procedure Code or Indian Penal Code a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words "sufficient ground" used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction." 18. In Jagdish Ram v. State of Rajasthan & Anr., (2004) 4 SCC 432 , Hon'ble Supreme Court holds, "[10]. ... The words "sufficient ground" used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction." 18. In Jagdish Ram v. State of Rajasthan & Anr., (2004) 4 SCC 432 , Hon'ble Supreme Court holds, "[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 " 19. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Ors., (2008) 2 SCC 492 , Hon'ble Supreme Court holds, "[22]. Chapter XV (Sections 200-203) relates to "Complaints to Magistrates" and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused." 20. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi & Ors., (2009) 2 SCC 147 , Hon'ble Supreme Court holds, "[23]. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused." 20. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi & Ors., (2009) 2 SCC 147 , Hon'ble Supreme Court holds, "[23]. It is settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused." 21. In National Bank of Oman v. Barakara Abdul Aziz & Anr., (2013) 2 SCC 488 , the Supreme Court explained the scope of enquiry and held as under:- "[9]. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint: (i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) 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." 22. In Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors., (2014) 14 SCC 638 , Hon'ble Supreme Court holds, "[14] ...It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In Vijay Dhanuka & Ors. v. Najima Mamtaj & Ors., (2014) 14 SCC 638 , Hon'ble Supreme Court holds, "[14] ...It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code. [15]. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process." 23. In Sonu Gupta v. Deepak Gupta & Ors., (2015) 3 SCC 424 , Hon'ble Supreme Court holds, "[9]. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case..." 24. In Mehmood Ul Rehman v. Khazir Mohammad Tunda & Ors., (2015) 12 SCC 420 , Hon'ble Supreme Court holds, "[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. 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. [21]. Under Section 190(1)(b) of Cr.P.C., the Magistrate has the advantage of a police report and under Section 190(1)(c) of Cr.P.C., he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of Cr.P.C., he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of Cr.P.C. The complaint is simply to be rejected. [22]. The steps taken by the Magistrate under Section 190(1) (a) of Cr.P.C. followed by Section 204 of Cr.P.C. 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 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..." 25. In State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) AIR SC 2499, Hon'ble Supreme Court holds, "[21]. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C., 1973 is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., 1973 the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence..... ". For issuance of summons under Section 204 Cr.P.C., 1973 the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., 1973 detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C." 26. A survey of the judicial precedents mentioned above leads to the following inference about the nature and scope of inquiry that a Magistrate holds under S. 202 CrPC: A. OBJECT OF 202 CRPC: a). The object of Section 202 is to enable the Magistrate to form an opinion as to whether a process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 8). b). The object of an enquiry under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true and the Magistrate acting under Section 203 has to satisfy himself that there is sufficient ground for proceeding. To come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202 or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 13). B. NATURE OF ENQUIRY: No specific mode or manner of inquiry by the Magistrate is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined, whereas, under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. -(Vijay Dhanuka Etc v. NajimaMamtaj, (2014) 14 SCC 638 , Para 14). C. SCOPE OF ENQUIRY: a). In the inquiry envisaged under Section 202 of the Code, the witnesses are examined, whereas, under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. -(Vijay Dhanuka Etc v. NajimaMamtaj, (2014) 14 SCC 638 , Para 14). C. SCOPE OF ENQUIRY: a). The scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint about ascertaining whether there is evidence supporting the complaint to justify the issue of process and commencement of proceedings against the person concerned. -(Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, (1960) AIR SC 1113, Para 9) b). The Magistrate enquiring has to do this only regarding the intrinsic quality of the statements made before him at the enquiry, which would naturally mean the complaint itself, the statement on oath made by the complaint, and the statements made before him by persons examined at the instance of the complainant. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 8) c). The scope of the inquiry under Section 202 of the Code of Criminal Procedure is minimal - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint: (a) On the materials placed by the complainant before the Court; (b) For the limited purpose of finding out whether a prima facie case for the process has been made out, and (c) For deciding the question purely from the complainant's point of view without at all adverting to any defense that the accused may have. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 4). d). Under Section 202 CrPC, it is the duty and an obligation of the Magistrate to find out if there is any matter which calls for an investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint to determine whether a process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156. It is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156. It is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations 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 the issue of the 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. -(National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488 , Para 9). D. ROLE OF ACCUSED: a). The cognizance is taken of the offence and not the offender. -(Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 , Para 9) b). An accused person does not come into the picture at all till the process is issued. He is not precluded from the presence and may remain present either in person or through a counsel or agent to be informed of what is going on. However, he shall neither be called upon to face an accusation, nor has he any right to take part in the proceedings, or has the Magistrate any jurisdiction to permit him to do so. It would not be open to Magistrate to put any question to witnesses at the instance of the person named as accused, but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Permitting an accused person to intervene during the enquiry would frustrate its very object. That is why the legislature has made no specific provision allowing an accused person to take part in an enquiry. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 7) c). In proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question of whether the process should be issued against him or not. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 4). E. ENQUIRY IS NOT AKIN TO A TRIAL: a). In proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question of whether the process should be issued against him or not. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 4). E. ENQUIRY IS NOT AKIN TO A TRIAL: a). An inquiry under Section 202 is not to be likened to a trial that can only occur after a process is issued and that there can be only one trial. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued, and he is put on trial. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 8 & 9). b). The standard to be adopted for summoning the accused under Section 204 CrPC is not the same at the time of framing the charge. For issuance of summons under Section 204 CrPC, the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 CrPC, a detailed enquiry regarding the merits and demerits of the case is not required. -( State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) AIR SC 2499, Para 21). F. EVIDENCE TENDERED BY ACCUSED: Whatever defence the accused may have, can only be inquired into at the trial. An inquiry under Section 202 can in no sense be characterized as a trial for the simple reason that in law, there can be but one trial for an offence. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 7) G. DUTIES OF MAGISTRATE: It is the bounden duty of the Magistrate while enquiring to elicit all facts not merely to protect the interest of an absent accused person, but also intending to bring to book a person or persons against whom grave allegations are made. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 7) G. DUTIES OF MAGISTRATE: It is the bounden duty of the Magistrate while enquiring to elicit all facts not merely to protect the interest of an absent accused person, but also intending to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined based on the material placed before him by the complainant. The Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 7 & 8). H. SUFFICIENT GROUND FOR PROCEEDING AND NOT WHETHER THERE IS SUFFICIENT GROUND FOR CONVICTION: a). To determine whether any process is to be issued or not, the Magistrate has to be satisfied with 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 inquiry stage. -(Chandra Deo Singh v. Prakash Chandra Bose, (1963) AIR SC 1430, Para 8) b). It is not the province of the Magistrate to enter into a detailed discussion of the merit or demerits of the case, nor can the High Court go into this matter in its revisional jurisdiction, which is a very limited one. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 2). c). In deciding whether a process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. Still, there seems to be a thin line of demarcation between a probability of conviction of the accused and establishing a prima facie case against him. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 5). d). Still, there seems to be a thin line of demarcation between a probability of conviction of the accused and establishing a prima facie case against him. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 5). d). In the following cases, it may be safely held that an order of the Magistrate issuing process against the accused can be quashed or set aside:- (a) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever conclude that there is sufficient ground for proceeding against the accused; (c) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (d) Where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of a complaint by legally competent authority and the like. -(Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 , Para 5). e). In case of a complaint under Section 200 CrPC, a Magistrate has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided to find out whether there is or not sufficient ground for proceeding. The words "sufficient ground" used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. - (S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , Para 15). f). Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report, and under Section 190(1)(c) of CrPC., he has the information or knowledge of the commission of an offence. But under Section 190(1)(a) of CrPC., he has only a complaint before him. - (S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 , Para 15). f). Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report, and under Section 190(1)(c) of CrPC., he has the information or knowledge of the commission of an offence. But under Section 190(1)(a) of CrPC., he has only a complaint before him. The Code hence specifies, "a complaint of facts which constitute such offence." Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is to be rejected. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence. When considered along with the statements recorded, would prima facie make the accused answerable before the Court. -(Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 , Para 22 & 23). REASONING: 27. A perusal of the order taking cognizance dated 6.2.2015 passed by the learned Chief Judicial Magistrate, Shimla, reveals that although the Chief Judicial Magistrate, who had recorded the preliminary evidence stood transferred, and the present Chief Judicial Magistrate took cognizance based upon the complaint and the documents annexed to it, a bare reading of the order reflects that the learned Chief Judicial Magistrate did not refer to the statement of the complainant recorded on oath. A plain reading of such order further discloses that the learned Chief Judicial Magistrate found sufficient grounds to proceed against the accused person under Section 500, IPC. In contrast, the complaint itself reveals that the prosecution sought was for violation of Section 501, IPC and not Section 500, IPC. Photocopy of the complaint, which also contains signatures of the complainant, clearly states that summoning sought was for offences under Sections 499 and 501, IPC. The office report from the office of Ld. Chief Judicial Magistrate also shows that the complaint was filed to launch prosecution under Section 499, read with Section 501, IPC. A reading of the orders further reveals no application on record for rectifying the error, if any. Needless to say, that both these Sections deal with different aspects. Section 501, IPC is an offence against printing, whereas Section 500, IPC is regarding punishment for defamation. A reading of the orders further reveals no application on record for rectifying the error, if any. Needless to say, that both these Sections deal with different aspects. Section 501, IPC is an offence against printing, whereas Section 500, IPC is regarding punishment for defamation. Given above, on this ground alone, the petition has to be allowed and the proceedings have to be quashed. 28. However, this was not the case of the petitioner. The Court proceeds further to adjudicate this matter on the legal ground on which Ld. Counsel had addressed the arguments. APPLICATION OF MIND BEFORE TAKING COGNIZANCE: 29. In M/s Pepsi Foods Ltd & Anr. v. Special Judicial Magistrate & Ors., (1998) 5 SCC 749 , a three Judge Bench of Hon'ble Supreme Court holds, "[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 the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would 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 of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put 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." 30. In Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr., (2012) 5 SCC 424 , Hon'ble Supreme Court holds, "[11]. ...Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. 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. ...Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. 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 enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. [12]. A "summons" is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 Indian Penal Code. It is a ground for contempt of court. [13]. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. [14]. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith." 31. In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 , Hon'ble Supreme Court holds, "[22]. In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 , Hon'ble Supreme Court holds, "[22]. ...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.P.C. 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.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of Cr.P.C., by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment." 32. Because the accused was residing at a place beyond the area in which the Magistrate was exercising his jurisdiction, as such Ld. Magistrate had to act in terms of S. 202(1) CrPC. Although Ld. Magistrate did conduct an enquiry but it was meaningless. A perusal of the complaint and the documents annexed with it reveals that the complainant had attached only the complaints made by the accused-petitioner to various authorities. In paragraph 10 of the complaint, the complainant explicitly stated that in the inquiries and verifications, none of the allegations made in the aforesaid complaints were found to be correct, and despite that, the accused kept on tarnishing his reputation. In paragraph 10 of the complaint, the complainant explicitly stated that in the inquiries and verifications, none of the allegations made in the aforesaid complaints were found to be correct, and despite that, the accused kept on tarnishing his reputation. Eyebrows are raised on noticing the silence of the complainant by not placing the copies of the final outcome of such complaints. The burden was on the complainant to make out a prima facie case by producing the reports which had arrived at the findings that such allegations were false, baseless, or not worth taking action. He failed to do so. Ld. Magistrate did not enquire into this aspect and did not enquire into the reasons for withholding the enquiry reports vide which the allegations were dismissed. Ld. Magistrate proceeded by presuming the allegations made in the complaint on its face value, to be true and correct. Although, in the present petition, the petitioner-accused has annexed the inquiry reports, contending that the complainant-respondent was indicted in such reports to some extent. Still, it is legally impermissible to take recourse to such documents at this stage. The point is that Ld. Magistrate, without application of mind, took cognizance and issued a process against the petitioner. Thus, the complaint and its content fall short of statutory requirements and are contrary to the law, as discussed above. 33. In Punjab National Bank and Others v. Surendra Prasad Sinha, (1993) Supp1 SCC 499, Hon'ble Supreme Court holds, "[5]. It is also salutary to note that judicial process should not be an instrument of oppression or needles harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the 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 lest 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. 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. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case of harass them for vendetta." 34. In the cumulative effect of all the factors mentioned above, and in the peculiar facts and circumstances, it is one of the exceptional cases, where this Court should exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. A perusal of the complaint reveals that at the time of filing the complaint, the complainant was aware of the enquiry reports, and he explicitly mentioned that such enquiry reports were in his favour, and despite that he did not place such reports with the complaint, nor offered any explanation for not placing them with the complaint. Thus, in the facts and circumstances peculiar to this case, it would not be proper to remand the matter directing the Magistrate to enquire again, and in such enquiry direct the complainant to produce in evidence all such documents. The primary reason for not remanding the matter is that at the time of filing of the complaint, the complainant concealed such complaints and the contention of the accused is that those were withheld because the inquiry did not vindicate the respondent but indicted him to some extent. 35. Section 202 of the Code of Criminal Procedure, 1973, makes it obligatory for the Magistrates to think, enquire, and form a prima facie satisfaction before proceeding further to issue summons to the accused. 36. Before the Magistrates take cognizance of the offence and before they proceed further in the complaint by issuing summons to the accused, they are under a legal obligation under S. 202 CrPC to find out that whether the allegations made in the complaint and the contents of the documents, posts, images, etc., if attached with the complaint, make out a prima facie case or not. On this scrutiny, if such Magistrates believe that no case is made out, they can then dismiss the complaint at the initial stage itself. However, when they decide to proceed further, then they must hold an enquiry. On this scrutiny, if such Magistrates believe that no case is made out, they can then dismiss the complaint at the initial stage itself. However, when they decide to proceed further, then they must hold an enquiry. Only after considering the evidence gathered in the enquiry, along with the contents of the complaint and its annexures, if they find a prima facie case, they can proceed further and issue summons against those persons against whom they find prima facie evidence, otherwise not. Suppose the Magistrates themselves decide to hold an enquiry, in that case, while conducting such enquiry; the Magistrates should not convert themselves into Investigators for the reason that if they think that the enquiry would require an investigator's role, they can always direct the Police to conduct such an enquiry. 37. When the Magistrates themselves conduct an enquiry under S. 202 CrPC, then they must take a holistic view and must consider the following amongst various other aspects, e.g., when the allegations are based on defamation because of some complaint(s) filed by the accused against the complainant, then what was the outcome of such complaint(s), and whether the complainant had tendered all available evidence and facts to establish that the documents were not mocked, and nothing had been concealed, withheld, or omitted; and if found true, whether the accused is entitled to the benefit under any exceptions, including S. 499 IPC. 38. When the allegations are based on defamation due to some media report(s), then it has to be ascertained that the complainant has adduced sufficient evidence to establish that such media reports were based on false or fabricated or concocted stories and were in fact not true. Even if the media reports are found to be truthful, the Magistrates must apply their mind to discard the frivolous complaints, e.g., when the complainant had no locus standi. After inquiry, before proceeding to summon the accused, Magistrates must prima facie be satisfied that material tendered in the complaint is not fake or incomplete or is not intentionally withheld, and the accused alone, and none else was responsible for such publication or uploading on social or other media. After inquiry, before proceeding to summon the accused, Magistrates must prima facie be satisfied that material tendered in the complaint is not fake or incomplete or is not intentionally withheld, and the accused alone, and none else was responsible for such publication or uploading on social or other media. If the complaint clears these stages, and the imputations against the accused seem to be true, still the Magistrates must assess that whether such expression of opinion, belief or criticism, falls under any exceptions, including S. 499 IPC, given the contents of such publication(s)/ post(s). 39. When the allegations in the complaint can curtail or impact the freedom of speech and expression, the Magistrates must endeavour to protect such rights and not to hamper, curb or penalize these rights. Issuance of summons for criminal prosecution without application of mind may instil fear, altering the way a person views her right of free speech, and in turn, impinging the health of any democracy. Thus, the scrutiny of the complaint must be air-tight. 40. Magistrates have also to keep in mind the easy availability of multiple phone numbers, which enables creation of fake profiles in anyone's name. The exponential growth of digital technology has made it very easy to create fake profiles, fake speeches, fake sexual acts, fake posts, fake videos, fake social media and other accounts, fake announcements, and much more. The opportunity to intercept internet connections and then to use such links to commit all types of illegal activities, makes it possible to create fake profiles online and post anything on them, leaving no trace behind. In this hi-tech digital world with digital currency, cyber-criminals can be hired to accomplish hacking missions. Almost every computer and smartphone are vulnerable to hacking, and hackers can even penetrate the bedrooms through the device's mic and cameras. 41. Given the tremendous growth of Artificial Intelligence and emerging trends of toolkits, which catalogue past events to coordinate future actions, there is an enormous scope for synthesizing audios and voices, to produce doctored videos, superimposed images, all of which have the potential to wreak havoc. Algorithms, coupled with human crookedness may, in the context, put fake look original. 42. The world has gained much from the technology but has also lost from it. Algorithms, coupled with human crookedness may, in the context, put fake look original. 42. The world has gained much from the technology but has also lost from it. There may be rogue reporters or persons with ulterior motives, who use fake Ids or other counterfeit methods to publish or post a false narrative, indulging in unethical practices through fake accounts. To achieve their nefarious designs, they act in tandem, as a part of a campaign to malign, to exploit, to extort, to intimidate, etc. Given all this and phenomenal growth of web tools, availability of massive fakes on the dark web and its vast potential to be misused; Magistrates have to be extraordinarily cautious and always keep in mind that if the information technology is a vast source of information, it is even a bigger source of misinformation. 43. The Magistrates must sensitize and realize that when they summon accused, they do so without hearing them. Considering the easy access to the high-end technology, the Magistrates must understand its boons and banes; and exercise due diligence to filter out frivolous cases from genuine ones. They must draw a line and scrutinize the material by a meaningful human control, to rule out the use of machines in concocting the posts or documents made in someone else's name, without one's knowledge, role, participation, mensrea, or intent; and that the story is not a coverup and the claims not lurid. 44. Thus, when proceeding under Section 202, Cr.PC, before launching criminal prosecution, it is incumbent upon the Magistrates to think twice. They must arrive at a prima facie satisfaction that the prosecution for defamation, etc., is not based on fabricated, concocted, fictitious material. It is not an attempt to gag and throttle free speech, by placing undue constraints and restraints on persons or publications. Better to err on the side of free speech. 45. In the entirety of the facts of this case and judicial precedents, coupled with the allegations made in the complaint and the statement of the complainant, even if taken at their face value, does not make out any case against the accused because the complainant withheld the material documents. Presumption is that the news items were published in good faith. The complaint is lacking the essential ingredients of an offence. Presumption is that the news items were published in good faith. The complaint is lacking the essential ingredients of an offence. The facts, i.e., the contents of the complaint, the documents attached with it, and the complainant's statement, does not constitute any offence. Thus, the discretion exercised by the Magistrate in issuing process was capricious and arbitrary. 46. Given above, I am of the considered opinion that the continuation of these proceedings will amount to the abuse of the process of law. Consequently, this petition is allowed, and the order taking cognizance, order issuing summons, and all the consequential proceedings in the criminal complaint mentioned above are quashed. 47. The petition is allowed. Pending applications, if any, are closed.