The power under Section 482 Cr.P.C. is to be exercised in exceptional cases to avoid miscarriage of justice or abuse of the process of the Court. Additionally, for an offence punishable under Section 500 IPC, neither an FIR could be lodged nor could the Magistrate order registration of the case under Section 156 (3) Cr.P.C.

1. Instant petition has been filed under Section 482 Cr.P.C. for quashing the Sadar P.S. Case No. 184(8) 2017.

2. Perusal of the records reveal that the respondents No. 4 and 5 lodged a report in Sadar Police Station, Meghalaya, Shillong on 02.08.2017 mentioning therein, that a group picture including respondents No. 4 and 5, in a Khasi attire was displayed on the State Bank of Indias advertisement hoarding as well as banners at certain parts of Shillong city, without their consent four years prior to the date of the report.

3. The police while noticing that the offence is non-cognizable has submitted the matter to the Judicial Magistrate, First Class, Shillong. The learned Magistrate invoking powers under Section 156 (3) Cr.P.C. vide order dated 04.08.2017 directed the Police Sadar to register the case as a result whereof, the case has been registered as P.S. Case No. 184 (8) of 2017 under Section 500 IPC, the investigation commenced.

4. The petitioner aggrieved by the said proceedings has invoked the powers of this Court under Section 482 Cr.P.C. projecting therein, that the order of the learned Magistrate and continuation of the proceedings thereon is an abuse of the process of the Court because same is not permissible in view of the clear bar contained under Section 199 of the Cr.P.C.

5. Learned AG with all fairness submitted that a similar issue had cropped up for consideration before the High Court of Gujarat and is also settled by the Honble Supreme Court in the judgment rendered in the case of Subramanian Swamy v. Union of India (UOI) & Ors.

6. In view of the clear position of law, for offence under Section 500 IPC, FIR could be lodged nor Magistrate was competent to issue a direction under Section 156 (3) Cr.P.C. From the judgment passed by the High Court of Gujarat in Criminal Misc. Application No. 5389 of 2005 decided on 09.01.2006 in the case Dr. Anil K. Khandelwal & 14 Ors. v. Shri Maksud Saiyed & Anr., para 8 is relevant to be quoted:

"8. So far alleged offence under Sections 499 and 500 of I.P.C., is concerned, Mr. Anandjiwala has submitted that it is the case of the complainant that the accused persons by making false declaration in the prospectus of the public issue which was floated and by filing proceedings of recovery of dues before the DRT has tarnished the image of the complainants company and the complainant himself as the Director of the company and thereby the accused persons have committed the offence of defamation. He has submitted that the important question is whether the police has got powers to investigate into the allegations which may constitute an offence of defamation as defined under Sections 499 and punishable under Section 500 of I.P.C. He has further submitted that no Court shall take cognizance of the offence of defamation except upon a complaint made by the person aggrieved. There is no dispute as regards this proposition of law. The important question is, can a private complaint for defamation punishable under Section 500 of I.P.C., be ordered to be investigated by the police under Section 156(3) of Criminal Procedure Code. He has further submitted that Section 199 of the Criminal Procedure Code makes it very clear that no Court shall take cognizance of an offence punishable under Chapter-XXI of the I.P.C., except upon a complaint made by some person aggrieved by the offence. He has, therefore, submitted that the question would be whether the Court can take cognizance of the offence of defamation on the charge sheet which the police may file at the end of investigation. He has submitted that the answer is obviously No. Therefore, even on this count the investigation is absolutely bad in law and not maintainable."

7. It shall also be advantageous to quote para 196 of the judgment rendered by the Honble Apex Court in the case of Subramanian Swamy v. Union of India (UOI) & Ors. passed in Writ Petition (Criminal) Nos. 184 of 2014, 8, 19, 56, 62, 63, 64, 67, 73, 77, 79, 82, 91, 96, 98, 1