A Magistrate must conduct an enquiry under Section 202 before issuing process in defamation cases to ascertain the truth of allegations.

Headnote:(A) Criminal Procedure Code, 1973 - Section 202 - Jurisdiction and issuance of process - The petitioner challenged the complaint alleging offences under Sections 406, 500, 501, 506, 326/511 and 109 RPC, claiming no offence was made out and that the complaint was filed to harass her. The trial Magistrate issued process without proper enquiry. (Paras 1, 4, 10)

(B) Defamation - The Supreme Court emphasized the necessity for a Magistrate to apply mind before issuing process in defamation cases, highlighting the need for a thorough examination of the material. (Paras 7, 9)

Facts of the case:
The petitioner, a resident of Maharashtra, was accused by her husband of defamation and other offences following marital discord. The complaint included social media posts as evidence.

Findings of Court:
The trial Magistrate acted mechanically without establishing prima facie offences and failed to conduct an enquiry as required.

Issues: The main issues were whether the trial Magistrate had jurisdiction and whether the complaint was maintainable given a previous dismissal of similar allegations.

Ratio Decidendi: The court ruled that the trial Magistrate must conduct an enquiry under Section 202 before issuing process, especially in cases of defamation, to ascertain the truth of allegations.

Result: Petition allowed; the impugned order set aside.

JUDGMENT :

1) The petitioner has challenged complaint filed by respondent against her alleging commission of offences under Section 406, 500, 501, 506, 326/511 and 109 RPC pending before the Court of Judicial Magistrate 1st Class (1st Additional Munsiff), Srinagar (hereinafter referred to as “the learned trial Magistrate”). Challenge has also been thrown to order dated 26.03.2019 passed by the learned trial Magistrate whereby the process has been issued against the petitioner.

2) It appears that the respondent has filed a complaint against the petitioner before the learned trial Magistrate alleging commission of offences under Section 406, 500, 501, 506, 326/511 and 109 RPC. In the complaint it is alleged that the petitioner is legally wedded wife of the respondent and that their marriage had taken place on 27th November, 2016. Out of this wedlock, a child was born in October, 2017. According to the respondent/complainant, after some time a marital discord arose between the parties and the petitioner left the company of the respondent/complainant and went to Pune to reside with her parents. It has been alleged in the complaint that the petitioner has been attacking the reputation of the respondent by posting defamatory remarks and false allegations through print and social media. It has been further averred in the complaint that respondent is a well- known businessman and a social activist operating in Kashmir Valley and that the petitioner is indulging in malicious campaign against him so as to defame and shame him. It has been alleged in the complaint that while respondent was undergoing Fellowship Programme in Asian Global Institute HKU, the petitioner lodged a frivolous complaint with the said Institute, as a result of which the respondent had to un-necessarily confront disciplinary proceedings in the Institute. The complainant has annexed with the complaint various social media posts and news clippings as well as copies of communications which, according to him, are defamatory and malicious in nature.

3) The learned trial Magistrate, after recording preliminary statement of the respondent, took cognizance of the complaint and vide impugned order dated 26.03.2019 issued process against the petitioner.

4) The petitioner has challenged the impugned complaint and the impugned order passed by the learned trial Magistrate on the grounds that from a perusal of the contents of the complaint no offence is made out against the petitioner. It has been further submitted that the petitioner resides in the State of Maharashtra, as such, the impugned complaint and the impugned order are without jurisdiction. It has also been contended that a similar complaint filed by the respondent against the petitioner has been dismissed by the learned Judicial Magistrate 1st Class (Forest Magistrate), Srinagar, in terms of order dated 16.05.2018, as such, second complaint making similar allegations is not maintainable. It has also been contended that the impugned complaint has been made by the respondent only with a view to harass the petitioner who is presently residing in the State of Maharashtra. It has also been contended that the impugned complaint has been made with a malicious intention to coerce the petitioner to concede the divorce petition filed by respondent against the petitioner which is stated to be pending before the Court of Additional District Judge, Srinagar.

5) I have heard learned counsel for the parties and perused the impugned complaint, impugned order and the trial court record.

6) From a perusal of the impugned complaint, it is clear that there is a matrimonial dispute going on between the parties and in this regard, they are litigating before the Court. The trial court record shows that the learned trial Magistrate at the time of issuing process against the petitioner has recorded only preliminary statement of the complainant. Although it is recorded in the impugned order dated 26.03.2019 that the statement of one more witness has

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