The main legal point established in the judgment is the requirement for sufficient pleading of malice in a complaint for defamation against a legal practitioner, and the necessity for proper judicial reasoning in the issuance of process.

JUDGMENT :

G.A. SANAP, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties.

3. In this application, filed under Section 482 of the Code of Criminal Procedure, the applicant, who is arrayed as an accused No. 2 in the complaint, has challenged the order dated 04.02.2017 passed by the learned Judicial Magistrate, First Class, (Court No. 4), Hinganghat, whereby the learned Magistrate was pleased to issue the process against the two accused including the applicant being accused No. 2 for the offence punishable under Section 500 of the I.P.C.

4. The facts are as follows:

The non-applicant is the original complainant (hereinafter referred to as a complainant). The accused No. 2 will be referred to as the applicant. The applicant is the practicing advocate. The accused No. 1 and complainant are related to each other. Accused No. 1 is residing in London. The applicant is residing at Nagpur. It is the case of the complainant that the applicant on behalf of his client/accused No. 1 issued a notice and published the same in a daily newspaper Dainik Bhasker dated 10.10.2015. It was stated in the notice that the power of attorney given to the complainant by the accused No. 1 was revoked. The complainant under the guise of the said power of attorney was intending to dispose of the properties of the accused No. 1. The public at large was called upon by this notice not to deal with the property of the accused No. 1 on the basis of the revoked power of attorney given to the complainant. According to the complainant, this newspaper has wide circulation in District Wardha, Yavatmal, Nagpur and other districts of Vidarbha region of State of Maharashtra. It is stated that the said notice was false and frivolous. There was no substance in the said notice. Similarly there was no cause for publication of such notice. The facts stated in the published notice were totally incorrect to the knowledge of the accused No. 1 and the applicant. The complainant on publication of the said notice issued a notice dated 03.12.2015 to the accused No. 1 and to the applicant. The accused No. 1 and the applicant by the said notice were called upon to disclose the material available with them to issue such notice. The said notice was not replied by the accused No. 1 as well as by the applicant.

5. It is stated by the complainant that the accused No. 1 on 23.08.2007 had executed power of attorney in his favour for the specific purposes set out in clause Nos.1 and 2 of the power of attorney. The complainant renunciated the said power of attorney on 22.08.2012. The accused No. 1 thereafter filed Special Civil Suit No. 44/2015 against the complainant and others in the Court of Civil Judge, Senior Division, Wardha. The issue with regard to the power of attorney and its renunciation are the subject matter of controversy in the said suit. It is stated that the accused No. 1 and the applicant were aware of the contents of the power of attorney, the renunciation of power of attorney and correspondence in the form of notices ensued between the parties.

6. It is stated that the notice published in newspaper was per se false. It is stated that from the date of publication of said notice persons in the locality, acquaintances, friends and others from Gujrati community have been avoiding the complainant. The publication of the said notice has harmed the reputation of complainant in the estimation of his relatives and the society. According to the complainant, therefore, the offence of defamation defined under Section 499 punishable under Section 500 of the Indian Penal Code (hereinafter referred to as “the I.P.C.”) has been committed by the accused No. 1 and the applicant. The complainant therefore filed complaint in the Court of Judicial Magistrate First Class, Hinganghat District Wardha.

7. The learned Magistrate recorded the verification statement of the complainant on oath and passed the impugned order of issuance of pr