1. The present petition under Section 482 Cr.P.C. has been filed for quashing of the order dated 30th October, 2013 passed by the learned Chief Judicial Magistrate, Faizabad (Ayodhya) in Complaint Case No.11857 of 2010: Mahendra Tripathi vs Rajesh Singh & 2 Ors whereby learned Chief Judicial Magistrate had issued summons only against Suman Gupta, Deputy Editor, Dainik Jan Morcha and he did not issue summons against respondent Nos.2 and 3.
2. The petitioner herein filed a complaint being Complainant Case No.11857 of 2010 in the Court of learned Chief Judicial Magistrate under Sections 323, 379, 403, 406, 409, 420, 468, 469, 471, 474, 500, 504, 120B IPC.
3. The complainant claimed in the complaint that he was a respected member of the society and he was actively participating in several social works. Earlier, he was appointed as a Special Police Officer by respondent No.2. He was a Journalist of some repute. It was also said that he was editor of a monthly magazine, ''Bhartiya Lahar'. He was District bureau of S-1 National Channel and several other news channels. He was president of Press Club, Ayodhya. Respondent No.2 was an IPS Officer who was working as Addl. Superintendent of Police, Faizabad in the year 2002, and he only appointed the complainant as Special Police Officer.
4. Respondent No. 3 was incharge of Police Station Mahila Thana, Faizabad in the year 2002. Suman Gupta was a member of the Indian Press Council and Deputy Editor of Newspaper, ''Janmorcha'. She published a forged document dated 21.11.2002 on internet website, bhadasmedia.com. Title under which the aforesaid forged letter was published would read "egsanz f=ikBh ds ckjs esa ;g fpV~Bh gh dkQh gSA" (This letter itself is enough in respect of Mahendra Tripathi). It was also stated that Suman Gupta falsely gave her written statement before the chairman of Press Council of India, Justice G. N. Ray that the complainant was arrested for making blue films and their distribution.
5. It was alleged that in September, 2002 the complainant exposed a sex racket running in Faizabad which was being run from a famous beauty parlour of the city, Apsara beauty parlour. He also gave a complaint at the police station and to respondent No.2 for taking necessary action in the matter. It was also alleged that the complainant continued further investigation of the aforesaid sex racket as an effective and competent journalist and Special Police Officer. During investigation he could come to know that the sex racket was being run in connivance with respondent Nos.2 and 3 and for that reason respondent no.2 did not return the video cassette and other evidence which the complainant handed over him earlier. The complainant tried to get back the video cassette and evidence collected by him from respondent no.2 on which respondent nos.2 and 3 got angry and started criminal conspiracy against the complainant.
6. To destroy the professional career, family and social life of the complainant, several false cases got registered from one family against the complainant. Proceedings under the Uttar Pradesh Control of Goondas Act were undertaken against the complainant by respondent no.2. However, the complainant was absolved by the court.
7. On 21.09.2002 on instance of the complainant, as Special Police Officer, a case in respect of the aforesaid offence was registered as Case Crime No.13 of 2002 under Section 294 IPC. However, in the said case, respondent no.3 herself became the complainant. In the information given by the complainant, there were names of around one dozen persons involved in sex racket from Kanpur to Faizabad, however, respondent no. 3 only registered the FIR against three persons and other persons were left out by taking huge bribe from them by respondent no.2 who was the Additional S.P. at the relevant time. Respondent Nos. 2 and 3 ensured closure of city news channel, Shaher ki Baat.
8. It was also stated that the letter dated 21.11.2002 allegedly written by the respondent No.2 to the Assistant Director, Information, Faizabad in his official capacity was published on 12.10.2009. In the said letter, it was mentioned that against the complainant, a case was registered at Police Station Kotwali at Case Crime No.766 of 2002 under Sections 495, 498-A, 506 IPC on the complaint of his wife. During investigation of the case, it was found that complainant's activities amongst the women of the society did not appear to be decent. He in the garb of journalism would entice innocent girls of the city and would click their obscene photographs. It was also said that he would talk to them in obscene language. Finally, the respondent no.2 asked Assistant Director, Information, Faizabad to cancel the recognition of complainant's newspaper.
9. It was said in the complaint that the complainant tried to find out whether the said letter was addressed by respondent No.2 and, he sent request under the Right to Information Act for providing him the copy of the said letter allegedly written by respondent No.2. However, no such letter was available in the office of Assistant Director, Information, Faizabad or in the Police Department. It was said that the letter dated 21.11.2002 was a forged document which was published on 12.10.2009 by Suman Gupta in connivance of respondent Nos.2 and 3.
10. Statement of the complainant was recorded under Section 200 Cr.P.C. and two witnesses under Section 202 Cr.P.C. Learned Magistrate after considering the complaint and the evidence available on the case file, rejected the complaint under Section 203 Cr.P.C.
11. Aggrieved by the aforesaid order dated 21.05.2012 passed by learned C.J.M., Faizabad (Ayodhya), the complainant filed Criminal Revision No.163 of 2012 in the Court of Addl. District and Sessions Judge, Court No.7, Faizabad. The learned Revisional Court vide order dated 17.09.2012 held that there was nothing on record to substantiate the charge that respondent No.2 had written the letter dated 21.11.2002 to the Assistant Director, Information, Faizabad. However, since learned Magistrate did not consider the case regarding publication of the said document on internet by Suman Gupta on 12.10.2009 and also regarding that respondent Nos.2 and 3 were public servants whether provisions of Section 197 Cr.P.C. would be attracted or not, remanded the matter to the learned Magistrate for deciding the case afresh.
12. On remand, the learned Magistrate vide impugned order dated 30.10.2013 held that the allegations against the respondent Nos.2 and 3 had been made in respect of discharge of their public duties being public servants and, therefore, no cognizance could be taken against them in absence of necessary sanction under Section 197 Cr.P.C. It was also held that veracity of letter allegedly written on 21.11.2002 by respondent No.2 to Assistant Director, Information, Faizabad was not clear. Even the complainant did not receive any information about the said letter whether it was written by respondent No.2 or not under information sought by him under Right to Information Act. In respect of allegation of criminal intimidation, assault etc., it was said that limitation period had already expired and, the complainant did not bring on record any evidence which would suggest involvement of respondent Nos.2 and 3 or hatching any criminal conspiracy with Suman Gupta for publishing the letter on internet website, bhadasmedia.com. In view thereof, learned Magistrate issued summons only against Suman Gupta.
13. The aforesaid order of the learned Magistrate was impugned by the complainant/petitioner in Crl. Revision No.05 of 2014 before the learned Sessions Court, Faizabad. Learned Revisional Court considering the contents of the alleged letter dated 21.11.2002 allegedly written by respondent No.2 to the Assistant Director, Information, Faizabad had stated that even if the letter was written by him, intent of the letter was to make the Assistant Director, Information, Faizabad aware of the activities of the petitioner/complainant, and request was made to cancel the recognition of his newspaper. The letter if constituted in its proper perspective would not mean that respondent No.2 had any intention for defaming the complainant/petitioner. It was also said that at the time of alleged offence, respondent Nos.2 and 3 were posted as Addl S.P.(City) and Sub-Inspector, Mahila Thana respectively who come within the definition of public servants, and therefore, no cognizance could be taken against them without sanction of State Government. In view thereof, the learned Revisional Court dismissed the revision and upheld the order dated 30.10.2013 passed by learned C.J.M.
14. It is important to mention here that the petitioner has not challenged the order dated 07.01.2014 passed by the revisional Court in Crl. Revision No.05 of 2014 whereby the order dated 30.10.2013 passed by the learned C.J.M. was upheld. Technically, this petition should be dismissed on this ground alone but since, it has remained pending since 2014 before this Court, it would be appropriate to decide the case on merits.
15. Heard Mr. Chandan Srivastava, learned counsel for the petitioner, Ms. Nandita Bharti, learned counsel for respondent No.2 and Mr. Anurag Verma, learned A.G.A. for the State.
16. Learned counsel for the petitioner has submitted that the fact that letter dated 21.11.2002 was not available in the record of the police or the Assistant Director, Information, Faizabad would mean that this letter was a forged letter. He has also submitted that the photocopy of the letter would reveal that it was signed by respondent No.2, and unless this letter was handed over to Suman Gupta, it would not have been possible for her to publish the said letter on internet, bhadasmedia.com. He, therefore, submits that involvement of respondent No.2 in publication of the offending news items on website, bhadasmedia.com is clearly established. He has also submitted that this letter was not written in discharge of the public duty by respondent No.2 and, therefore, provisions of Section 197 Cr.P.C. are not attracted in the present case. No sanction form the State Government is required for taking cognizance against respondent no. 2. He has further submitted that respondent Nos. 2 and 3 both were against the petitioner and, they conspired with Suman Gupta to defame him. They also got the complainant involved in several false cases. Learned Magistrate without considering these aspects had not issued the process against respondent Nos. 2 and 3 and, therefore, impugned order is liable to be set aside. He has also placed reliance on the judgment of the Supreme Court in the case of Devinder Singh & Ors Vs. State of Punjab (2016) 12 SCC 87 to submit that a public servant is not entitled to indulge in criminal activities to that extent provisions of Section 197 Cr.P.C. has to be construed narrowly in a restricted manner.
17. On the other hand, Mr. Anurag Verma and Ms. Nandita Bharti have submitted that there is nothing on record to prove that the letter in question dated 21.11.2002 was written by respondent No.2. The petitioner has not stated that from where he did get the photocopy of the letter inasmuch as from the documents he produced along with the complaint, he did not receive this letter under the Right of Information Act. In view thereof, it would not be appropriate to say that respondent No.2 had written this letter and made it available to Ms. Suman Gupta after 7 years for publication. They have also submitted that even if it is believed that the letter was written by respondent No.2 to the Assistant Director Information, Faizabad, the said letter was written in performance of his public duty for cancelling the recognition of the newspaper of the complainant/petitioner and, it was not intended in any manner to defame the petitioner. They have also submitted that it is far fledged to believe that 7 years after the date of the letter they would have been involved in hatching the criminal conspiracy with Suman Gupta for its publication to defame the petitioner. They supported the impugned order and have prayed for dismissal of the writ petition.
18. Counsels representing the respondents have also submitted that even if it is assumed that the letter was written by respondent No.2, it was in discharge of their official duties and, therefore, without sanction from the State Government under Section 197 Cr.P.C., cognizance could not have been taken against the respondent Nos.2 and 3 by the learned Magistrate, and learned Magistrate was correct in not summoning them.
19. Ms. Nandita Bharti, Advocate has placed reliance on the following judgments:-
(i) Ramjeet Yadav vs State of U.P. and Ors passed in Crl. Misc. Case No.587 of 2009;
(ii) Anil Kumar & Ors vs M.K. Aiyappa & Anr : (2013) 10 SCC 705;
(iii) State through C.B.I. vs. B.L. Verma : (1997) 10 SCC 772;
(iv) L.Narayana Swami vs State of Karnataka & Ors : (2016) 9 SCC 598
20. The question which requires to be considered in the present case is whether there was sufficient material before the learned Magistrate against the respondent Nos.2 and 3 to summon them for offence under Section 500 IPC? The Supreme Court in the case of Subramanyam Swami vs Union of India (2016) 7 SCC 221 in para 208 has held that the Magistrate is under heavy duty to scrutinize the complaint and the material before him before summoning the accused for an offence of defamation. The Magistrate is required to scrutinize the averments in the complaint, material and evidence and, only if the offence is clearly made out then, the accused should be summoned and not otherwise.
Para 208 of the aforesaid report is extracted hereinbelow:-
"208. We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative."
21. In the present case allegation against respondent Nos.2 and 3 is that respondent No.2 manufactured the letter dated 21.11.2002 allegedly addressed to the Assistant Director, Information, Faizabad containing imputation against the petitioner and, in criminal conspiracy with Suman Gupta, same was published by her on 12.10.2009 on internet website, bhadasmedia.com. Learned Magistrate after scrutinizing the complaint and the evidence brought by the petitioner did not find substance that respondent Nos.2 and 3 had any role in publication of the said letter 7 years after it was written on the website, bhadasmedia.com by Suman Gupta.
22. I have perused the complaint. Respondent Nos.2 and 3 were posted in the year 2002 as Additional Superintendent of Police (City) and Sub-Inspector, Mahila Thana, Faizabad respectively. It would be far fetched to assume that they would have been involved in hatching the criminal conspiracy 7 years after they left the place for defaming the petitioner by publishing the alleged letter dated 21.11.2002 on bhadasmedia.com website by Suman Gupta.
23. It is important to note here that if the alleged letter dated 21.11.2002 is considered in its proper perspective, it was a communication by respondent No.2 to Assistant Director, Information, Faizabad in discharge of his public duty. The contents of the letter itself cannot be said to be defamatory. When the letter was written in discharge of the public duty, sanction under Section 197 Cr.P.C. would be required for taking cognizance against respondent Nos. 2 and 3 for an offence under section 500 IPC. No such sanction was available with the learned Magistrate and, therefore, learned Magistrate had not summoned them in the impugned order. The Supreme Court in the case of Devinder Singh and Ors vs State of Punjab (supra) has culled out the principles gathered from several decisions in respect of requirement of taking sanction from the competent authority against a public servant for his prosecution. It would be apt to extract para 39 of the aforesaid judgment.
"39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
24. If the offence alleged to have been committed by a public servant is directly or reasonable connected with the official duty, sanction for prosecuting the public servant would be a condition precedent. The question of sanction for prosecution of a public servant is of paramount importance to protect a public servant who has acted in good faith while performing the official duty. The purpose and object of the provisions of Section 197 Cr.P.C. are that a public servant should not be an unnecessarily harassed on a complaint of an unscrupulous person and duty is on the executive authority to protect him. The Supreme Court in the case of Anil Kumar & Ors vs M.K. Aiyappa & Anr : (2013) 10 SCC 705 has held that a Magistrate cannot order investigation against a public servant while invoking the powers under Section 156(3) Cr.P.C. if there is no previous sanction by the competent authority. Paras 13 and 14 of the aforesaid report are extracted hereinbelow:-
"13. The expression "cognizance" which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] , and this Court expressed the following view: (SCC pp. 375, para 6) "6. ... ''10. ... And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ''no court shall take cognizance of such offence except with the previous sanction'. Use of the words ''no' and ''shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word ''cognizance' means ''jurisdiction' or ''the exercise of jurisdiction' or ''power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.' [Ed.: As observed in State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539.] "
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:
"13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out." [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.] The meaning of the said expression was also considered by this Court in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] ."
25. It is also well settled that the bar under Section 197 Cr.P.C. for taking cognizance is mandatory where allegations against the public servant constitute an offence which he had purportedly done in discharge of his public duty before taking cognizance. Without sanction or it's absence by the competent authority as provided under Section 197 Cr.P.C., cognizance of the said offence cannot be taken by the Court.
The Supreme Court in the case of State through C.B.I. vs. B.L. Verma : (1997) 10 SCC 772 in paras 3 to 5 has held as under:-
"3. After notice to the petitioner and others, a learned Single Judge of the High Court decided Writ Petition No. 683 of 1996 by its order dated 4-12-1996 holding that sanction under Section 197(1) CrPC was a sine qua non for taking cognizance of the offence against the respondent, and since no sanction had been obtained the trial court could not have taken cognizance of the offence against him and directed the dropping of the proceedings pending against the respondent. The CBI is aggrieved with this order. Hence this SLP.
4. The High Court has traced the history of the case and advanced cogent reasons for directing the dropping of the proceedings pending against the respondent. The learned Single Judge has held:
"I am, therefore, of the opinion that the alleged acts of the petitioner were directly and reasonably connected with his official duties or in any case in the purported exercise of his official duties as an officer of the Directorate of Enforcement and, in my view, the same would attract the protection of Section 197(1) of the Code."
5. We agree with the reasons given by the High Court and are of the opinion that in the established facts and circumstances of the case as noticed by the High Court the allegations made against the respondent who was a public servant at the time of the commission of the alleged offence, no cognizance of the offence could have been taken against him in the absence of sanction under Section 197 CrPC. It is not disputed that the actions alleged against him lay within the scope of his official duties or at any event were allegedly committed in the purported discharge of his duties as Director of Enforcement, though it is canvassed that he had abused his official position while discharging his official duties. The High Court has rightly found that that would not oust the necessity of sanction under Section 197 CrPC to take cognizance of the offence. The expression "no court shall take cognizance of such offence except with the previous sanction" occurring in Section 197 CrPC unmistakably shows that the bar on the exercise of powers by the court to take cognizance is mandatory and the previous sanction from the competent authority for prosecution of the public servant, who is accused of having committed an offence either in the execution of his duties or in the purported execution of his duties is essential to take cognizance. Thus in the absence of sanction under Section 197 CrPC the court of the Chief Metropolitan Magistrate could not have taken cognizance of the offence against the respondent and the High Court, therefore, committed no error in directing the dropping of proceedings against him, in the absence of such a sanction."
26. Considering the facts and circumstances of the present case in the light of discussion of law, the order passed by learned Magistrate does not suffer from any illegality or impropriety. There was not enough material before the learned Magistrate to summon respondent Nos.2 and 3 for offence under Section 500 IPC as discussed above nor there was any sanction by the competent authority for their prosecution and, therefore, the learned Magistrate has rightly not summoned them. I do not find any infirmity or illegality in the impugned order, therefore, this petition being without merit and substance is hereby dismissed.
Order Date:-18.12.2019 Prateek