Improper cognizance under Section 500 IPC without aggrieved person's complaint constitutes a curable irregularity.

ORDER

Dated this the 3^rd day of March, 2025 Petitioner is the 10^th accused in Crime No.91 of 2018 registered at the Payyannur Police Station for the offence punishable under Section 500 of IPC and Section 120 (o) of the Kerala Police Act , now pending as C.C.No.2056 of 2020 on the files of the Judicial First Class Magistrate Court, Payyannur.

2. The crime is registered on the allegation that the accused persons had spread defamatory comments among public against the defacto complainant through social media networks like Whatsapp and Facebook, thereby lowering defacto complainant's reputation in society.

3. The petitioner is seeking to get the proceedings against him quashed, primarily on the premise that the learned Magistrate could not have taken cognizance of the offence under Section 500 of IPC , except on the complaint of the defacto complainant/3rd respondent herein, he being the person aggrieved.

4. Learned Counsel for the petitioner points out that a perusal of Annexure AV order would show that, in spite of the Magistrate being aware about the prohibition contained in Section 199 of Cr.P.C., cognizance of the offence was taken finding it to be a curable irregularity. It is the submission of the learned Counsel that by reason of the defamatory comments, petitioner’s reputation in the society has been lowered, in spite of rendering selfless service for the past many years.

5. Pertinently, in paragraph Nos.9 and 10 of the impugned Annexure AV order, learned Magistrate has noted that cognizance cannot be taken for the offence under Section 500 of IPC , except on a complaint filed by the aggrieved person. Even then the Magistrate proceeded to take cognizance by referring to Section 460 (b) of Cr.P.C. Being contextually relevant paragraph Nos.9 and 10 of Annexure AV are extracted here under;

“9. S.199 of Cr.P.C says that "No court shall take cognizance of an offence punishable under chapter XXI of the Indian Penal code except upon a complaint made by some person aggrieved by the offence." By going through several decision, I am also having the opinion that if there is specific provision envisaged in the Act the court cannot overleap the said provision and take cognizance.

10. It is definite that it is an irregularity committed on the part of the court while taking cognizance of the case. But the relevant point to be considered is whether taking cognizance under bar would vitiate the trial of the cases and whether it comes under the purview of section 460 or 461 of Cr.P.C. S. 460(b) specifically stated that "If a magistrate not empowered under law ordered under s. 155 of Cr.P.C, the police to investigate an offence shall not be set aside merely on the ground that he is not empowered to do so. The only parameter is to be looked into is whether it has done in good faith or not.”

6. Thus, by taking cognizance, in spite of being fully aware about the interdiction contained in Section 199 of the Code, the learned Magistrate seems to have ventured into an experimental exercise. The reference made to Sections 460 (b) and 155 of Cr.P.C. are also misplaced, since those provisions are to be applied when an irregularity is committed unwillingly and cannot be perceived as license to commit irregularity.

For the aforementioned reasons, the Crl.M.C is allowed. Annexure AIII final report in Crime No.91 of 2018 registered at the Payyannur Police Station, pending as C.C.No.2056 of 2020 on the files of the Judicial First Class Magistrate Court, Payyannur, as against the petitioner, is quashed.