Point of law : Defamation - In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) of Cr.P.C.

ORDER :

This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the entire proceedings initiated against the petitioner in PCR No.1/2014, which is now numbered as C.C.No.113/2015 for the offences punishable under Sections 500 and 501 of IPC, which is pending on the file of II Additional Senior Civil Judge & JMFC., at Bidar.

2. The factual matrix of the case is that respondent No.1 herein has filed PCR No.1/2014 and when the complaint is filed under Section 200 of Cr.P.C., invoking the offences punishable under Sections 500 and 501 of IPC contending that an article was published in the paper belongs to the petitioner herein, which defame the name of the complainant. The trial Court proceeded to pass an order referring the matter under Section 156(3) of Cr.P.C. The police after receiving the order registered an FIR, investigated the matter and filed the charge sheet and thereafter the trial Court took the cognizance.

3. The petitioner herein has filed an application before the trial Court under Section 203 of Cr.P.C., the same was dismissed by the learned trial Judge on the ground that already the matter was referred and the investigation was conducted and filed the charge sheet and the Court cannot review its own order. Hence, the present petition is filed.

4. Learned counsel appearing for the petitioner would vehemently contend that when the complaint was filed under Section 200 of Cr.P.C., invoking the offences under Sections 500 and 501 of IPC ought not to have proceeded to refer the matter under Section 156(3) of Cr.P.C. The police after registering the case investigated the matter and filed the charge sheet.

5. The learned counsel in support of his contentions relied upon the judgment of the Apex Court in the case of Subramanian Swamy v. Union of India reported in 2016(7) SCC 221, and brought to the notice of this Court paragraph No.196 of the Judgment, wherein, the Apex Court held that another aspect requires to be addressed pertains to issue of summons. Section 199 of Cr.P.C., envisages filing of a complaint in Court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) of Cr.P.C. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T.Ganguly, Dy. Superintendent and another190, it is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank and others v. Surendra Prasad Sinha 191 it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistrate to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process 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. The learned Counsel referring to the principles laid down in the judgment would contend that the trial Court fundamentally committed an error in referring the matter under Section 156(3) of Cr.P.C., and the very reference and also continuing of the proceedings and taking the cognizance is bad in law.

6. Per contra, the learned High Court Government Pleader appearing for respondent No.2-State would submit th