ABDUL RAUF KHAN Vs. MAJID HUSSAIN

JUDGEMENT

(1.) The applicant, by this application under Section 482 of the Criminal Procedure Code, seek quashing of the proceedings started on a, complaint of the non-applicant before Shri M.R. Pandey, Additional Chief Judicial Magistrate, Bhopal for the alleged offence under Section 500 of the Indian Penal Code. The applicants had made a similar efforts before Shri C.C. Dwivedi, 3rd AddI. Sessions Judge, Bhopal by filling a revision under Section 397 of the Criminal Procedure Code, which was unfortunately dismissed.

(2.) It appears that non-applicant Dr. Majid Hussain was a member of Muslim Welfare Society. The applicants are the members and office-bearers of the said society. The said society in its meeting dated 31-5-1984, passed a resolution against the non-applicant removing him from the membership of the society on the ground that he did not fulfil the requirements of the bye-laws and also because of 'mala fides and black-mailing tactics'. It appears that the aforesaid removal gave rise rivalry between the parties. The non-applicant published articles in some Urdu newspaper against the aforesaid society. The society felt that publication of articles by the non-applicant in news-paper were defamatory. One Rafiq Ahmad Khan, Advocate, acting under instructions from the applicant Mohd. Raja Khan, Secretary, of the Society served a notice dated 22-6-1984 (Annexure-1) on the non-applicant and two others calling upon them to express regret and apology for the writing, printing and publishing the defamatory articles, failing which legal criminal action was to be started in the Court of law. Para No.1 of this notice, which is the subject-matter of the present application, reads as under: That you the addressee No.2 were the member of the Muslim Welfare Society. Due to your mala fides and black: mailing tactics and other disqualifications the society by its resolution dated 31-5- 1984 has removed you from the original membership of the society. Consequently, you have adopted rival attitude and started to defame the society on false grounds. It further appears that the non-applicant did not tender apology and, therefore, a criminal complaint was filed against him in the Court of AddI. Chief Judicial Magistrate, Bhopal on 28-7- 1984, where it is pending. It appears that the non-applicant felt that the aforesaid allegations contained in notice of Shri Rafiq Ahmad Khan, Advocate, amounted to an offence punishable under Section 500 of the Indian Penal Code and. therefore, filed a criminal complaint against the applicants which is the subject-matter of Criminal Trial No. 476/87 in the Court of the Chief Judicial Magistrate, Bhopal. The said complaint is based on notice dated 22-6-1984 and alleges that it makes the imputation that the non-applicant was a black mailer. Quoting aforesaid para No.1 of the notice it is alleged that it amounts to defamation. Acting on the statement of the non-applicant and his two witnesses the learned Magistrate has registered the complaint and issued process against the applicants purporting to be in excercise of power under Section 204 of the Criminal Procedure Code. The applicants in the present application seek quashing of these proceedings.

(3.) It has already been noticed that the applicants had filed a revision under Section 397 of the Criminal Procedure Code challenging the legality of the order issuing process on them. Section 397 (3) of the Criminal Procedure Code prohibits any further application by way of revision by a person who has made an application either to the High Court or to the Sessions Judge. It is submitted that the legislature, infact, intended to make the order in the revision final and therefore, even the inherent powers of this Court under Section 482 of the Criminal Procedure Code would not be available for this purpose. Reliance has been placed on Madhu Limaye v. State of Maharashtra fagir Singh v. Ranbir Singh Raj Kapoor v. State (Delhi Administration) Delhi Municipality v. Ram Kishan and L.V. fadhav v. Shankarrao. None of these cases, however, support the aforesaid submission. They, on the contrary, clarify that two jurisdictions operate in different spheres and have different parameters. Section 482 of the Criminal procedure code confers a separate and independent power on the High Court alone to pass order ex debito justice in cases where grave injustice has been done or where the process of the Court is seriously abused. The decision of Supreme Court in Delhi Municipality v. Ram Kishan (supra) reaffirmed that an order of the Magistrate issuing process against the accused can be quashed or set aside in exercise of powers under Section 482 of the Criminal Procedure Code: