Excelsior Correspondent
SRINAGAR, Aug 2: Observing that it is the duty of the Magistrate to examine the material in a defamation complaint before proceeding ahead, High Court has quashed the order of issuance of process passed by the trial court.
Justice Sanjay Dhar said that it is the responsibility of a Magistrate to examine the material on record in a complaint alleging defamation is of a higher degree. The court set aside the order of the trial court whereby the process of trial was issued by the court below against the accused on the basis of social media posts.
The petitioner-Manju Bhat who is accused before the trial court has challenged complaint filed by respondent-Dr. Amit Wanchoo against her alleging commission of offences under Sections 406, 500, 501, 506, 326/511 and 109 RPC pending before the Court of Judicial Magistrate 1st Class (1st Additional Munsiff), Srinagar as also the order dated 26.03.2019 passed by the trial Magistrate in the complaint whereby the process has been issued against the petitioner-Bhat.
The court added that the Magistrate had recorded only the preliminary statement of the complainant at the time of issuing process against the petitioner-accused and it was the fit case for the court below to have the proper investigation of the contention raised by the complainant against the accused-petitioner under Section 202 of the Cr.P.C to ascertain truth or falsehood of the complaint instead of issuing process.
According to the complainant, a marital discord arose between the parties and the petitioner-accused left the company of the complainant and went to Pune to reside with her parents. It has been alleged in the complaint that the petitioner has been attacking the reputation of the complainant by posting defamatory remarks and false allegations through print and social media.
It has been further averred in the complaint that respondent is a well known businessman and a social activist operating in Kashmir and that the petitioner is indulging in malicious campaign against him so as to defame and shame him.
“A perusal of the impugned order dated 26.03.2019 reveals that it is nowhere mentioned as to which offences are, prima facie, made out against the petitioner. In this regard, it is to be noted that in the complaint respondent has alleged commission of offences under Sections 406, 500, 501, 506, 326/511 and 109 RPC but the trial Magistrate has not stated as to which of these offences is made out against the petitioner. This clearly reflects ‘mechanical functioning’ of the trial Magistrate.”
Although it is the discretion of the Magistrate court added, to either proceed to issue process against an accused on the basis of the allegations made in the complaint and the preliminary evidence recorded or to postpone the issue of process and hold an enquiry in terms of Section 202 of the Cr. P. C but such discretion cannot be exercised in an arbitrary manner.
“In spite of this, having regard to the acrimonious matrimonial relationship between the parties, the fact that the petitioner was living beyond the territorial jurisdiction of the trial Magistrate and the complainant had not produced any preliminary evidence accepting his own statement, this was a fit case where the trial Magistrate instead of issuing process against the petitioner should have resorted to enquiry/investigation,” read the judgment.
Justice Dhar on perusal of the trial court record said the court below has not even adhered to the mandate of sub-section (1)(a) of Section 204 of the Cr. P. C which provides that summons cannot be issued against the accused until a list of prosecution witnesses has been filed and in the instant case, no such list of prosecution witnesses is accompanying the impugned complaint.
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