NILAMANI ROUTRAY Vs. BENNETT COLEMAN AND CO LTD

JUDGEMENT

(1.) An order passed by the learned Subdivisional Judicial Magistrate, Bhubaneswar recalling the process issued against the opposite party on a complaint Under Section 500 read with Section 34, IPC brought by the petitioner arraigning the opposite party as accused No, 3 is assailed in the present petition. The bare facts are that the complaint was filed alleging commission of offence by Shri Pritish Nandy, the Editor and Publisher of the Illustrated Weekly of India and Dr. Claude Alvares as also the present opposite party alleging that the petitioner was a Cabinet Minister of the Government of India since 23 -4 - 1989 and was Minister of Environment and Forest til! 2 -4 -1990. Two issues of the Illustrated Weekly of India were published for the period July 29 -August 4, 1990 and August 26 -September 1, 1990 respectively containing articles captioned,'A Hallow Mockery'' and 'The Real issues, Both the articles contained defamatory imputations and aspersions against the petitioner. The first article was written by accused No. 2 Dr. Claude Alvares and the second one was written by Shri Pritish Nandy. As regards the opposite party the averment is of it being the proprietor of the Illustrated Weekly of India the accused Nos. 1 and 3 to have pubiished/publicised/to have got pubished the two issues of the periodical through the local office of the opposite party at New Capital, Bhubaneswar. The learned Subdivisional Judicial Magistrate, Bhubaneswar, after recording the statement of the petitioner Under Section 200, CrPC conducted an inquiry under Sec 202, CrPC wherein he recorded the statement of a witness Sri Rama Krushha Mishra and felt a prima facie case Under Section 500 read with Section 34, IPC to have been made out and taking cognisance, directed issue of summons against all the accused. The opposite party thereafter entered appearance and filed a petition on 25 -8 -1993 for recalling the process against it. The learned SDJM after hearing both sides allowed the petition for which the present petition has been occasioned.

(2.) THE learned SDJM reached the conclusion that in view of the decision in AIR 1992 SC 2206 : (1992) 5 OCR 66 (K. M. Mathew v. State of Kerala and Anr.) he had the authority to reconsider and recall the process issued. On merits he held of the opposite party having no part to play in editing, printing and publishing the articles for which he took the view that there was no prima facie case for the opposite party to stand trial. Besides, he also took exception to the fact that the opposite party had not been represented by its Board of Directors/ employees etc. He found that there was no specific allegation against the opposite party that it itself had committed any offence. To reach the decision reliance was placed by him on AIR 1968 SC 110 (The State of Maharashtra v. Dr. R. B. Chowdhuri and Ors.).

(3.) DEALING with the duty of the Court in directing issue of process on a private complaint, I had the occasion to observe in (1993) 6 OCR 657 (Bharat Ranjan Misra v. Shyam Sundar Agarwal) : ' xx xx it is true that in a case where the cognizance taken in a complaint and the direction for issue of process are assailed before the Court seeking their quashing a consideration as to whether ultimately a conviction would ensue on the com - plaint or not is not appropriate and the factors which should weigh with the Court are that whether even if the prosecution allegations are taken as uncontroverted, a prima facie case is made out. Even so it is also not the law that when some alle - gations are made in the complaint, the Court is to merely act as a rubber stamp to direct issue of process. Some kind of check on the genuineness of the complaint is inherent so that the Court is not used for an oblique purpose but is approached for bringing an offender to book. The demarcating line between the two approaches is extremely thin and the Court has to be conscious while dealing with the same. On the one hand the right of a prosecutor where his rights have been infringed and he is aggrieved by the criminal conduct is to be safeguarded and justice meted out, and on the other hand, a possibly innocent citizen is to be protected from unnecessary and undue harassment by letting loose a prosecution against him mala fidely. xx xx' It follows that even though the consideration at the stage of issuing process is not as to whether the case would ultimately end in conviction, yet the Court has to remain alert that it is not being used for an ulterior purpose without there being any remote chance of conviction in the case. In that case reliance was placed on AIR 1988 SC 709 (Madrvavrao Jiwaji Rao Scindia v. Sambhajirao Chandrajirao Angre) where the observations made was : 'The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offences. It is also for the Court to take into consideration in a particular case to consider whe - ther it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a prosecution to continue, the Court may, while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'