BHUJANGASWAMY Vs. SUBRAMONIAM

JUDGEMENT

(1.) First respondent is common in both cases and be is a subordinate of the petitioners in the Customs Department. In connection with his promotion and transfer back to a place first respondent filed two Original Petitions before this Court under Art.226 of the Constitution against the petitioners as O.P.Nos. 4590 and 7701 of 1982. In the counter affidavits tiled by the petitioners, as respondent in those cases, they said "The motivation for asking for posting is obvious. While working as Air Customs Officer at Madras a lady passenger made a complaint against the petitioner (first respondent herein) that he demanded money". Alleging that this defamatory imputation was made in furtherance of the common intention of the petitioners, first respondent filed C. C. Nos. 113 and 124 of 1983 before the Chief Judicial Magistrate, Ernakulam for an offence punishable under S.500 read with S.34 of the Indian Penal Code. These two Criminal Miscellaneous Cases are for quashing the proceedings in those two cases in exercise of the inherent powers of this Court.

(2.) The Magistrate took cognizance of the offence and issued process. Nobody had a case before me that the imputation was not made or published or that it is not per as defamatory. If so evidently the complaints disclose the offence. The two grounds relied on by the petitioners for quashing the compilings are: (t) The Magistrate acted illegally in taking cognizance without the complainant producing sanction for prosecution and (2) They are entitled to the benefit of the 9th exception to S.499 of the Indian Penal Code.

(3.) Normally when a competent magistrate takes cognizance of an offence on the basis of information which discloses commission of the offence the accused will have to stand trial before the magistrate taking all the available defence. Both sides should have the opportunity of placing all the relevant materials on which the magistrate will have to give his verdict. Then the normal remedies of appeal or revision must follow as the concerned parties desire. Interference by the High Court in the trial of such cases in exercise of the inherent powers saved under S.482 of the Code of Criminal Procedure could only be in exceptional cases in order to avert an illegality and the consequent miscarriage of justice when no other provision is available. Taking cognizance of an offence on the basis of a complaint which does not disclose the offence will be an illegality. So also it may be illegal to take cognizance on the basis of a complaint filed by a person who is not competent to set the law in motion. Same may be the case in which cognizance is taken without the requisite sanction when, as in S.197 of the Code, it is provided that no court shall take cognizance except with the previous sanction. These are only instances which are not exhaustive. In all such cases it is a question of illegality affecting the very jurisdiction of the court to try the case. When the cognizance itself is illegal and thus without jurisdiction the accused cannot be asked to go and stand his trial before the magistrate pointing out the illegality. That will amount to harassment and injustice which will have to be avoided. On the basis of such a trial no conviction could follow and the purpose of the trial cannot be bringing an offender to justice for which alone a criminal trial could be had. In such cases this Court will be fully justified in avoiding the ordeal of the trial by quashing the complaint in exercise of the inherent powers.