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Judgment
By the present Petition, under Article 226 of the Constitution of India and Section 482 of Code of Criminal Procedure, 1973, (now Section 528 of BNSS) the Petitioners, seek to quash and set aside the Impugned Order dated 11th April 2017 passed by the Additional Chief Metropolitan Magistrate, 22nd Court, Andheri in CC No. 1617/SS/2015, whereby the process was issued against the accused for offences punishable under Section 499 and 500 of the Indian Penal Code (for short ‘IPC’) and the Order dated 24th November 2015, whereby the amendment was allowed, permitting to add the Petitioners as accused in the complaint. By Order dated 16th July 2018, this Court was pleased to grant ad-interim relief in terms of prayer clause (e).
Heard, Mr. Bhavesh Parmar, learned Advocate for the Petitioner, Mrs. Sangita Phad, A.P.P for Respondent No.1-State and Mr. Vishal Deshmukh for Respondent No.2.
The facts as alleged in the complaint are as under :-
3.1) That, the Original Complainant/Respondent No.2 is working with the Mumbai Police Force. On 24th August 2013, when Respondent No.2 was on patrolling duty, he noticed, his brother-in-law Mr. Ambresh Kashinath Bhusane, standing near the Sainath Nagar Bus stop, MIDC. That, when Respondent No.2 went to him, Mr. Ambresh Kashinath Bhusane being annoyed with Respondent No.2, was interacting with him in a loud voice. After some time, one lady Ms. Yamini Vishwas Shinde, suddenly came there. Ambresh Kashinath Bhusane and the said lady assaulted and abused Respondent No.2. The Respondent No.2 filed FIR No. 598 of 2013 dated 24th October 2013 under Section 353, 323, 504, 506 read with 34 of the IPC.
3.2) According to Respondent No.2, the said actions were set up and pre-planned incident, which was recorded by the accused with an ulterior motive and was eventually telecast on TV through the TV 9 Channel on two or three occasions on 14th December 2013 and 15th December 2013. That, the telecast was a prejudiced and biased news given to the public at large.
3.3) Respondent No.2 received information from his colleague Mr. Shyamrao Subrao Dubal, about the telecast of the incident. The telecast, was titled as “Mumbai Khakiwalachi Dulhi”. That, the said telecast/news became the talking point of the area and everyone started looking at Respondent No.2 as if he was a culprit. The said incident not only lowered his self-esteem and confidence but also slaughtered his image, dignity and reputation in the eyes of his relatives, friends, colleagues, well wishers and the common public.
3.4) That, the accused never made any efforts to find out the truth of the story, the real facts and transmitted the prejudicial news item. That, the said news has put a serious question mark on the integrity, honesty and character of Respondent No.2 and defamed, lowered the dignity and tremendously harmed the reputation of Respondent No.2 as well as the entire Police Force in the State of Maharashtra.
3.5) By notice dated 7th January 2014, Respondent No.2, through his Advocate, called upon the accused to tender unconditional apology. That, the accused, through their Advocates by reply dated 20th January 2014, refused to tender an apology.
3.6) On the aforesaid basis, the complaint came to be filed. The verification statement was recorded on 28th July 2015.
3.7) Respondent No.2 made an Application on 24th November 2015 seeking amendment to add the present Petitioners as co-accused to the complaint, on the ground that, Respondent No.2 had inadvertently forgotten to incorporate the names of the accused. That, as the Petitioners are Managing Directors of the accused, they are responsible for commission of the offence. On the same day, i.e. 24th November 2015, the amendment was allowed. The process was then issued on 11th April 2017 against all the accused.
Mr. Bhavesh Parmar, learned Advocate appearing for the Petitioner submitted that:-
4.1) The complaint was filed on 4th April 2015, against the Editor of TV 9 Media Maharashtra Private Limited. On 28th July 2015, verification was recorded. That, on 24th November 2015, Respondent No.2 preferred an Application seeking amendment of the private complaint to add the Petitioners as original Accused Nos. 1 and 2. On the same day, an Application for amendment was allowed.
4.2) After the Application for amendment was allowed, on or about 11th April 2017, the Magistrate passed the Order issuing process against all the three accused under Section 499 and 500 of the Indian Penal Code. Post the amendment, re-verification has not been conducted.
4.3) The verification is dated 28th July 2015. The Order granting the amendment is dated 24th November 2015 at which time only Accused No.1 was arraigned as an accused. The said verification dated 28th July 2015 could not have been relied upon by the learned Magistrate while passing the Order of issuance of process dated 11th April 2017 against the Petitioners. It was, therefore, necessary for the Magistrate to record the verification once again .
4.4) The order allowing amendment dated 24th November 2015 is contrary to the law laid laid down by the Hon’ble Supreme Court in the case of S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609. An amendment which is formal in nature and a curable amendment may be allowed, as such an amendment does not cause prejudice to the Accused. There is no provision in Code of Criminal Procedure to entertain an application for amendment. If the amendment which is sought does not relate to a curable infirmity or cannot be corrected by a formal amendment, or if there is a likelihood of prejudice caused to the other side, the Court should not allow such amendment.
4.5) While allowing the amendment, the Petitioners ought to have been heard. Even if it is assumed that, the amendment was correctly carried out, there is absolutely no averment or allegation against the Petitioners in the complaint. Therefore, the impugned Order issuing process ought to be quashed.
4.6) Respondent No.2 has specifically stated that the defamation is not only personal but also that of the entire Police Force of the State of Maharashtra. That, in such a case, specific permission/authorization in writing from the State of Maharashtra would be required.
4.7) Respondent No.2 purposely showed the address of the accused at Mumbai so as to invoke the jurisdiction of this Court. That, this is fit case to exercise powers under Section 482 for quashing of the complaint. That, there are no reasons given, nor does the Order reflect an application of mind.
Mr. Vishal Deshmukh, learned counsel appearing for the Respondent No.2 submitted that:-
5.1) A prima facie case is made out, as the manner in which the incident has been described in the news article clearly indicates the intention of the Petitioners to defame Respondent No.2.
5.2) In reply to the notice which was issued by Respondent No.2, the accused have refused to tender an apology and, therefore, the offence has been made out.
5.3) No clarification was sought from the Respondent No.1 before the telecast. That, the amendment which was carried out was essential in the interest of justice. That, not adding the Petitioners who are Managing Directors of TV9, was an inadvertent error on the part of Respondent No.2. Respondent No.2 had filed an Affidavit in support of the amendment Application. The reason for not including the names of the Petitioner as accused is stated as inadvertently forgotten to incorporate the names of the accused persons.
5.4) The Order of issuance of process clearly demonstrates the application of mind. That, the offence of defamation is clearly made out, inasmuch as people have contacted Respondent No.2 and made enquiries in respect of the Article. The defences raised by the Petitioners can be considered at the time of the trial.
Mrs. Sangita Phad, learned APP appearing for the Respondent - State adopted the arguments advanced by Mr. Vishal Deshmukh, learned Advocate for Respondent No.2.
Before considering the facts of the case and examining whether a case for exercising the inherent powers of this Court under section 482 of the Code of Criminal Procedure (now Section 528 BNSS) is made out, it would be necessary to refer certain judgments which deal with the importance and necessity of verification statement as is recorded under Section 200 of CrPC (now Section 223 of the BNSS).
7.1) The Hon’ble Supreme Court in the case of Nirmaljit Singh Hoon Vs. The State of West Bengal reported in 1973 3 SCC 753 while considering the importance, object and necessity regarding examining the complainant under Section 200 of the CrPC in paragraph 22 observed that :-
“22…….Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complaint and the witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vaxatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding…..”
7.2) This Court in the case of Nova Electricals v. State of Maharashtra, reported in 2006 SCC OnLine Bom 1310 in para 6, 7 and 8 has observed that :-
“6.It is not in dispute that the act of verification is to be performed by the Court. The complainant cannot be penalized for omission to record verification by the Court. It is also not in dispute that the parameters for quashing of the entire proceeding are quite different, inasmuch as for quashing of proceeding, it has to be established that either there is no cause of action or the proceeding would amount to an abuse of process of Court. This is not the case here. In this view of the matter, prayer is rightly restricted only to the legality of the impugned order of issuing process passed on 20th November, 2002. Time and again, provisions of Section 200 of the Criminal Procedure Code, has been interpreted by this Court. Section 200 itself makes it clear that verification is mandatory. …..”
7.Recording of verification is not a mere formality. By recording verification, the Magistrate has to ascertain whether the complaint is genuine or frivolous. The object of verification is to discourage frivolous proceeding. The Magistrate has to apply his mind to the facts of the case and to decide whether all formalities are completed and whether grounds to proceed with the matter for redressal of genuine grievance exist. This aspect has been dealt with by the Apex Court in the matter of S.W. Palnitkar & Others v. State of Bihar, reported in (2002) 1 SCC 241 : (AIR 2001 SC 2960). The Apex Court has observed in para No. 15 as under:
“15.In case of a complaint under Section 200, Cr. P.C. or I.P.C. a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding………”
8.It is only after the verification that the Magistrate can proceed to examine whether there are sufficient grounds for proceeding and if he is satisfied that prima facie case for issuance of process is made out, then he can issue process against the accused in respect of the offence alleged in the com plaint.”
7.3) This Court in the case of Amarnath Baijnath Gupta v. Mohini Organics Pvt. Ltd., reported in 2008 SCC OnLine Bom 1194 after relying on the judgment of the Hon’ble Supreme Court in the case of Nirmaljit Singh Hoon (Supra) has observed that :-
“24.On plain reading of section 200 of the said Code it appears that it is the obligation of the Magistrate to examine the complainant which means that the learned Magistrate is obliged to put questions to the complainant for eliciting the truth from him. The said provision enjoins a judicial duty to be performed by the Judicial Magistrate which requires an application of judicial mind. The said work of recording the statement cannot be done mechanically by simply filling details such as the date of cheque, name of the bank, date of intimation of dishonour of the cheque etc.; in a format which is already kept ready. Generally, the complaints are drafted by the lawyers as per the instructions of the complainants. Thus, a complaint is the translated version or a formulated version made by the Advocate on the instructions received from the complainant. Therefore, the examination of the complainant under section 200 by the learned Magistrate is very important. During the course of such examination the complainant tells the truth. In fact, the object of the learned Magistrate recording such statement is of eliciting the truth from the complainant. Therefore, while recording a statement under section 200 of the said Code in such a complaint, the learned Magistrate cannot merely reproduce the data in a preconceived format. He must give an opportunity to the complainant to state and describe the role played by the accused especially when directors/officers of a company are sought to be held vicariously liable. The object of examination is that a true version on oath of the complainant is brought on record.”
7.4) This Court in the case of Captain Lance Irwin Lobo V. Ismail D’Souza @ Angelo Ismail de Souzla reported in 2008 (6) ABR (NOC) 1078 (BOM) has observed as under :-
“16.The recording of the statement on oath of the complainant under Section 200 Cr.P.C. is not an empty formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the accused persons are responsible therefor. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what offence/s is made out, notwithstanding that the other party at that stage is unrepresented. As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. A Magistrate is required to examine the nature of the allegations made in the complaint and the evidence both oral and documentary to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. In other words, the examination of the complainant on oath is for the purpose of ascertaining whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass……”
7.5) This Court in the case of Jagdish v. State of Maharashtra, reported in 2016 SCC OnLine Bom 4556 while relying on the judgment of the Hon’ble Supreme Court in para 18 has observed that :-
“18.In the light of the view taken by this Court in the matters of Capt. Lance (supra) and Amarnath (supra), evidence of the complainant recorded on oath on the point of issuance of process is in due compliance of Section 200 of the CrPC. Such recording of evidence in common parlance is said to be a verification. Verification and recording of evidence of the complainant on issuance of process is, therefore, one and the same and such recording therefore, amounts to compliance of Section 200.”
7.6) The Hon’ble Supreme Court in the case of Dayle De'Souza v. Union of India, reported in (2021) 20 SCC 135 has observed that :-
“36.Equally, it is the court's duty not to issue summons in a mechanical and routine manner. If done so, the entire purpose of laying down a detailed procedure under Chapter XV of the 1973 Code gets frustrated. Under the Proviso (a) to Section 200 of the 1973 Code, there may lie an exemption from recording pre-summoning evidence when a private complaint is filed by a public servant in discharge of his official duties; however, it is the duty of the Magistrate to apply his mind to see whether on the basis of the allegations made and the evidence, a prima facie case for taking cognizance and summoning the accused is made out or not. This Court explained the reasoning behind this exemption in National Small Industries Corpn. Ltd. v. State (NCT of Delhi) [National Small Industries Corpn. Ltd. v. State (NCT of Delhi), (2009) 1 SCC 407 : (2009) 1 SCC (Civ) 192 : (2009) 1 SCC (Cri) 513] : (SCC p. 415, para 12)
“12.The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. (See Nirmaljit Singh Hoon v. State of W.B. [Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753 : 1973 SCC (Cri) 521] ) Where the complainant is a public servant or court, clause (a) of the proviso to Section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process.”
The issue of process resulting in summons is a judicial process that carries with it a sanctity and a promise of legal propriety.”
7.7) This Court in the case of New India Assurance Co. Ltd. v. Samraj Gold Exports (P) Ltd., reported in 2026 SCC OnLine Bom 2646 has observed that :-
“18.However, it is material to note that the verification statement of the complainant was not recorded by the learned Magistrate but said statement was provided to the Court by the learned Advocate for the complainant and the same statement the learned Magistrate took on record. This fact is distinctly recorded in the roznama of the complaint which is not disputed by the complainant. Therefore, it is apparent that the verification statement was not recorded in accordance with the provisions of Section 200 of CrPC
20.The examination of the complainant and his witness under Section 200 of CrPC is not a mere formality but said examination is to be done intelligently and in such a manner as to enable the Magistrate to determine whether there is a prima facie sufficient ground for proceeding. Thus, in such a determination Section 200 of CrPC plays a very crucial role.
21.Now turning to the case in hand. In the instant case, the careful reading of the verification statement of the complainant clearly show that it was prepared/drafted by the learned Advocate for the complainant. However, neither in the roznama of the complaint case nor in the complaint or on the verification statement the learned Magistrate has endorsed that he questioned the complainant as required under Section 200 of CrPC and confirmed that verification statement from his answers. On the contrary, on the said verification statement the learned Magistrate merely endorsed as “Before me” and signed below it. Thus, it is evident that the learned Magistrate has not performed his duty as ruled by Section 200 of CrPC but mechanically. Therefore, the verification is not acceptable in law because it cannot be taken aid of to ascertain the truth or otherwise about the allegations made in the subject complaint.
22.Now coming to the impugned order of issue process. Bare perusal of said Order show that not a single reason is recorded by the learned Magistrate as to how the alleged offence punishable under Sections 406, 420, 465, 468, 471 and 120B of IPC has been made out and against which accused. In this regard reference is required to be made to the cited decision in Lalankumar Singh (Supra), therein in para 28 the Supreme Court has observed and held that, “The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. …”.
In this context, a reference was made to the decision in Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri) 687 : (2015) 191 Comp Cas 177. Therein in para 53 it is held that, “… the words “sufficient grounds for proceeding” appearing in the section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”
(emphasis supplied)
In case of State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49, in para 8, the Supreme Court has observed that:
“Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union ([1971] 1 All ER 1148) observed “The giving of reasons is one of the fundamentals of good administration”. In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120)(NIRC) it was observed:“Failure to give reasons amounts to denial ofjustice”. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at”. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasijudicialperformance.”
As held in Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. In the case in hand, this enunciation has been overlooked by the learned Magistrate while passing the impugned order of issue process against the accused persons.”
Perused the entire record. Perusal of the complaint would indicate that, at the first instance, the complaint was filed only against the Editor of TV 9 Media Maharashtra Private Limited. Respondent No.2, in the complaint, only referred to the said accused. After the complaint was filed, the verification statement of Respondent No.2 came to be recorded on 28th July 2015 by the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai. Perusal of the said verification statement indicates that, it is in line with the complaint as filed by Respondent No.2 on 4th April 2015. Thereafter, an Application for amendment was filed on 24th November 2015 on the ground that, Respondent No.2 had inadvertently forgotten to incorporate the names of the present Petitioners, who were the Managing Directors. The permission to amend and add the Petitioners as Accused Nos. 1 and 2 was granted. In support of the amendment application, Respondent No.2 filed an Affidavit dated 24th November 2015. In the Application for amendment, apart from praying that the accused/Petitioners be added as Accused, there is no other amendment sought. The amendment was allowed on 24th November 2015.
8.1) The learned Magistrate, thereafter, by Order dated 11th April 2017 issued process against the accused. Reliance was placed on the Order dated 4th April 2015, complaint, verification statement dated 28th July 2015, copy of the FIR, CD of news clipping, notice dated 7th January 2014, and reply dated 20th January 2014. After the amendment was allowed, no verification/re-verification of the complaint was recorded after adding the Petitioners as original Accused Nos. 1 and 2. I also find that, no verification statement of Respondent No.2 has been recorded after 28th July 2015. Though the Order of issuing process refers to certain facts and details, there is no reference to the names of the newly added Accused. The record indicates that, after the amendment was allowed, Respondent No.2 has only added the Petitioners as Accused Nos. 1 and 2. There is no averment at all made against the Petitioners i.e. Original Accused Nos. 1 and 2.
8.2) It is settled law that, while issuance of process, the Court is required to apply its judicial mind to the facts of the case, and as such the said application of judicial mind should be reflected in the Order itself. Though the Order of issuance of process dated 11th April 2017, has some details, there is no reference to the present Petitioners, the role attributed to them or the overt act of commission or omission attributed to the Petitioners. The Order of issuance of process is required to reflect the application of mind as well as the reasons for issuance of process, which should be reflected in the Order ifself, though in brief. It is not that, there has to be a detailed explanation or expression of views. The same is neither required nor warranted.
8.3) In the present case, the verification statement of Respondent No.2 is of 28th July 2015 i.e. before the filing of the amendment application. It is therefore clear that, the verification statement will not have any reference to the present Petitioners. On record there is no other verification statement or reverification statement. Record indicates that, the enquiry under Section 202 of the CrPC, though carried out was restricted to the fact whether an individual policeman can file a complaint for defamation for his personal defamation and for the defamation of the entire police force under the Maharashtra Police Services Rules. I find that, before issuing the process against the Petitioners there was no verification statement recorded. Pertinent to note that, order of issuing process is after the amendment and includes the newly added accused. The object and purpose of recording a verification statement of the Complainant is to ascertain and arrive at the true and correct facts of the case. The recording of the statement of a Complainant under Section 200 of the CrPC (now 223 of BNSS) is to bring out the truth. It is not an empty formality. In the present case, after allowing the amendment it was necessary for the Court to record a verification statement and ascertain the prima facie facts/truth. The Court while issuing a process ought not to have relied upon the verification statement dated 28th July 2015 wherein there can be no reference to the present Petitioner.
8.4) Considering that, no amendment of any sort was carried out in the complaint apart from adding the Petitioners as Original Accused Nos. 1 and 2, one fails to understand how without any averment whatsoever and merely because Petitioners were Managing Directors of the company, even a prima facie case was made out against the Petitioners. I find that, in the complaint there is no amendment carried out, which would attribute any role or any act of commission or omission to the present Petitioners.
Considering the peculiar facts of the present case and for the aforestated reasons, I am of the considered view that the Petitioners have made out a fit and proper case for this Court to exercise its inherent powers under Section 482 of the CrPC. Therefore, the twin conditions for invoking the said jurisdiction are fully satisfied, and it becomes imperative to interdict and quash the impugned orders to prevent the abuse of the process of law and to ensure that the ends of justice are met.
In view of the aforesaid facts and circumstances, the proper and appropriate course would be to quash the order of issuance of process dated 11th April 2017 and direct the trial court to proceed in accordance with law from the stage of verification.
In view of the above, the Petition is partly allowed in terms of prayer clause (b).
The trial Court is directed to proceed with the matter as expeditiously as possible and in accordance with the law. It is made clear that, this Court has not expressed any opinion whatsoever on the merits of the matter or the rights of the parties. All contentions of the parties are expressly kept open.