The main legal point established in the judgment is the distinction between cognizable and non-cognizable offenses, the limitations on the power of the Magistrate to take cognizance, and the applicability of relevant provisions of the Code of Criminal Procedure in determining the legality of the proceedings.

A.I.S. Cheema, J.

1. Rule, returnable forthwith. With consent of the learned counsel for the parties, matter has been finally heard.

2. The Petitioner is accused in S.T.C. No.643 of 2008 pending before J.M.F.C., Sakri, Dist-Dhule, in defamation case filed by Respondent No.2 (hereafter referred as "Complainant").

3. The present Writ Petition has been filed seeking quashing of order dated 21st November 2008 in S.T.C. No.279 of 2008 passed under Section 156(3) of the Code of Criminal Procedure, 1973 ("Cr.P.C." in brief) and subsequent chargesheet filed by police converting the S.T.C. No.279 of 2008 into S.T.C. No.643 of 2008 and subsequent recording of plea.

4. A brief reference needs to be made to the manner in which the present proceedings have developed in the trial Court. The Complainant presented private complaint to the J.M.F.C., Sakri under Section 499, 500 of the Indian Penal Code, 1860 ("I.P.C." in brief) claiming that the Petitioner (hereafter referred as "Accused") had demanded Rs.50,000/- from him and on failure of the complainant to give the amount, the Accused published defamatory contents against the Complainant in his Weekly Newspaper Editions on 16th September 2008 and 26th September 2008. On receipt of the complaint, the J.M.F.C. passed orders as under:

"Send the matter for investigation u/s. 156(3) of Cr.P.C. and call the report of I.O. at the earliest."

Consequently the matter was sent to the police and subsequently police presented charge-sheet, which came to be registered as Summary Criminal Case No.643 of 2008. On the said charge-sheet, there is order dated 8th December 2008 to the effect that:

"Received Charge-sheet with accused alongwith police papers on 08/12/2008. Issue process U/sec.499, 500 I.P.C. against accused."

It appears that the Accused appeared and was granted bail. His plea was recorded under Section 500 of I.P.C. on 15th November 2010. Although the matter is old, the evidence has yet not been recorded.

5. The learned counsel for the Accused has submitted that Section 500 of I.P.C. is non-cognizable offence and Section 156(3) of Cr.P.C. could have been invoked only in a cognizable offence and thus the order dated 21st November 2008 passed below private complaint No.279 of 2008 was itself illegal and the subsequent charge-sheet presented, could not have been entertained and the whole proceeding is vitiated. The counsel referred to the case of Shatrughna Prasad Sinha vs. Rajbahu Surajmal Rathi, reported in 1996(6) S.C.C. 263, to submit that it was necessary for the J.M.F.C. that on receipt of the complaint, to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499 triable by the Magistrate. Thus, according to the counsel, there was no case made out for taking cognizance and the procedure adopted was illegal and the concerned orders passed by the J.M.F.C. need to be quashed and set aside. The counsel submitted that the matter needs to be relegated back to the J.M.F.C. to the stage of Section 200 of Cr.P.C.

6. Against this, the learned counsel for Respondent No.2 original complainant submitted that even if the J.M.F.C. committed some error in passing order under Section 156 (3) of Cr.P.C., the proceeding should not be set aside in view of Section 460 of Cr.P.C. The counsel further placed reliance on the case of Purushottam Jethanand vs. The State of Kutch, reported in A.I.R. 1954 S.C. 700, which was decided under similar provisions of the Criminal Procedure Code, 1898. Relying on the case, referred to above, the counsel submitted that if the J.M.F.C. acted in good faith and took cognizance, in absence of the prejudice the defect should be treated as cured. Learned counsel also relied on the case of Frank Dalton Larkins and etc. vs. State (Delhi Administration), reported in 1985 Cri. L.J. 377 and referred to Para 15 of the said Judgment and submitted that in the said matter it was observed that failure to examine complainant under Section 200