IMPORTANT POINTS
Quashing Petition – Just because there is no order of issuance of process, it does not mean that petition is filed at pre-mature stage.

JUDGMENT (ORAL)

Heard learned Advocate Dewani for the Petitioners-the Accused persons and learned Advocate for Respondent No.1-Complainant.

2. It is a matter of record that up til now no process is issued for an offence punishable under Section 500, 506 read with Section 34 of the Indian Penal Code against these Petitioners. Though the Respondent No.1 has requested the Court of 11th Additional Chief Metropolitan Magistrate, Kurla to issue process for those sections against the Petitioners, however, he has failed. The learned Magistrate as per the order dated 15th April 2023 has dismissed the complaint by taking recourse to the provisions of Section 203 of Cr.P.C. The material findings are as follows:—

“However, to my mind, complainant has failed to made out prima facie case to issue process against accused persons for the aforesaid offences. It is for the reason that whatever defamatory statements alleged to have been made by proposed accused No.1 against the complainant are made by the accused No.1 i.e. wife of the present complainant in matrimonial proceedings like divorce and other proceedings. Admittedly, impotency is one of the ground of the divorce. There is nothing on record to show that at any any point of time the accused persons have given criminal intimidation to the complainant.”

3. This order was taken an exception by the Complainant by way of Criminal Revision Application. There also the Complainant has failed to satisfy the revisional Court about issuance of a process. However, the Complainant was successful in convincing the revisional Court to remand the matter to the trial Magistrate for further enquiry. Said order is passed by the Court of Additional Sessions Judge, Greater Mumbai on 3rd April 2024. The Direction No.3 reads thus:

“The learned Metropolitan Magistrate is directed to conduct the inquiry under section 202 of Cr.P.C. and then decide afresh the point of issuance of process against respondents No.2 to 4 i.e. accused No.1 to 3 in the complaint case.”

4. There is a challenge to this order at the instance of the Petitioners. The contention is even no case for remand is made out before the revisional Court and order of dismissal is proper. Mr. Dewani made following submissions:-

(i) the sole ground for remand is the Complainant was not given an opportunity to examine the witnesses and enquiry was not conducted. (Para No.13).

(ii) He invited my attention to the memo of the revision application on Page-117 and more specifically Para No.16 on Page-189. The Complainant averred “after recording verification statement of the Applicant and after hearing his Advocate, the impugned order came to be passed.”

(iii) His contention is nowhere in the memo of revision, the grievance is raised about denial of an opportunity to examine the witnesses prior to issuance of process. In that eventuality, the learned Revisional Court was wrong in remanding the matter.

(iv) Additionally, he made submission that the revisional Court failed to record a finding about the findings by the trial Court that “the impotency is one of the ground of the divorce and there is nothing on record to show about criminal intimidation.” He submitted that in fact the averments made before the lawful authority i.e. police and in judicial proceeding making imputation does not amount to defamation and the case is covered by the exception to Section 499 of the IPC.

(v) On the point of raising the ground of exception, at every stage, he relied upon the observations in case of following judgments:—

(i) Aroon Purie v/s. State of NCT of Delhi and others, 2022 SCC OnLine SC 1491.

(ii) Iveco Magirus Branschutztechnik GMBH v/s. Nirmal Kishore Bhartiya and anr., (2024) 2 Supreme Court Cases 86.

5. By way of reply, the learned Advocate for the Complainant made following submissions:

(a) This petition cannot be entertained at this stage because there is no order of issuance of process.

(b) The Complainant needs to be given an opportunity