# Brij Bhushan Sharan Singh v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 841
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Application U/S 482. No. 1604 of 2024
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-bhushan-sharan-singh-v-state-of-u-p-anr-51679
- **Pages:** 27

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 500 - Against summoning order -
Complainant
alleges
that
applicant
addressed two letters to Chief Minister
and
Chief
Secretary,
containing
defamatory
imputations
regarding
his
character and conduct - Copies of letters,
newspaper clippings and social media
printouts have been filed - St.ments u/s
200
and
202
Cr.P.C.,
along
with
depositions of two witnesses, support
allegation that accused circulated letters
through social media and newspapers
with
intent
to
tarnish
complainant's
reputation - Held, impugned letters were
neither addressed nor communicated to
complainant, these letters appears to be
confidential, no material on record, which
may suggest even remotely that it is
applicant, who had caused these letters
published in print media or on social
media platforms and constitute privileged
communication
between
two
constitutional
authorities
-
Essential
ingredients of Section 499 IPC are absent
- Complainant's and witnesses' St.ments
u/s 200 and 202 Cr.P.C. are vague and do
not disclose offence - Letters, fall within
Eighth Exception to Section 499 IPC - Trial
court
failed
to
examine
statutory
ingredients, did not adhere to amended
provision of Section 202 Cr.P.C. and
conducted no proper inquiry - In absence
of sufficient grounds, issuance of process
u/s 500 IPC was unwarranted - Case falls
within Guideline Nos. 1 and 7 of Bhajan
Lal (infra) and continuation of criminal
proceedings would amount to abuse of
process of law, warranting interference -
Thus,
summoning
order
and
entire
proceedings, quashed. (Para 21, 39)

Application allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,645 of 93,993. This is a partial read: ask again with offset=39645 for what follows._

3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
841
proceed to decide the dispute between
the parties, as expeditiously, as possible.
----------
(2024) 3 ILRA 841
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Application U/S 482. No. 1604 of 2024

Brij Bhushan Sharan Singh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sachin
Upadhyay,
Amandeep
Singh,
Shivendra S Singh Rathore, Tajdar Ahmad

Counsel for the Respondents:
G.A., Arvind Kumar Tewari, Ashish Kumar
Mishra, Gaurav Tewari, Pramod Kumar
Shukla

Criminal Law - Indian Penal Code, 1860 -
Section 500 - Against summoning order -
Complainant
alleges
that
applicant
addressed two letters to Chief Minister
and
Chief
Secretary,
containing
defamatory
imputations
regarding
his
character and conduct - Copies of letters,
newspaper clippings and social media
printouts have been filed - St.ments u/s
200
and
202
Cr.P.C.,
along
with
depositions of two witnesses, support
allegation that accused circulated letters
through social media and newspapers
with
intent
to
tarnish
complainant's
reputation - Held, impugned letters were
neither addressed nor communicated to
complainant, these letters appears to be
confidential, no material on record, which
may suggest even remotely that it is
applicant, who had caused these letters
published in print media or on social
media platforms and constitute privileged
communication
between
two
constitutional
authorities
-
Essential
ingredients of Section 499 IPC are absent
- Complainant's and witnesses' St.ments
u/s 200 and 202 Cr.P.C. are vague and do
not disclose offence - Letters, fall within
Eighth Exception to Section 499 IPC - Trial
court
failed
to
examine
statutory
ingredients, did not adhere to amended
provision of Section 202 Cr.P.C. and
conducted no proper inquiry - In absence
of sufficient grounds, issuance of process
u/s 500 IPC was unwarranted - Case falls
within Guideline Nos. 1 and 7 of Bhajan
Lal (infra) and continuation of criminal
proceedings would amount to abuse of
process of law, warranting interference -
Thus,
summoning
order
and
entire
proceedings, quashed. (Para 21, 39)

Application allowed. (E-13)

List of Cases cited:
1. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& anr.MANU/SC/1655/2016 : (2017) 3 SCC 528,
(Paras 23 to 26)

2. Bansilal S. Kabra Vs Global Trade Finance
Limited & anr., passed by Bombay High Court in
Criminal Application No.1344 of 2010, dated
16.1.2024

3. M/S Iveco Magirus Brandschutztechnik GMBH
Vs Nirmal Kishore Bhartiya & Anr. 2023 LiveLaw
(SC) 860, (Paras 32.1, 33.1, 33.2)

4. National Bank of Oman Vs Barakara Abdul
Aziz & anr.MANU/SC/1123/2012 : (2013) 2 SCC
488, (Para 8)

5. Vijay Bharadwaj & ors..Vs St. of U.P.,
Application U/s 482 No.2430 of 2021, dated
03.01.2023

6. ShivJee Singh Vs Nagendra Tiwary & ors..,
Criminal Appeal No.1158 of 2010 decided on
06.07.2010 arising out of SLP (Crl.) No. 1416 of
2009, (Paras 7, 8)

7. Rameshbhai Pandurao Hedau Vs St. of
Gujarat (2010) 4 SCC 185, (Paras 20 to 23)

8. G.H.C.L. Employees Stock Option Trust Vs
India Infalin Ltd. 2013 (4) SCC 505
842 INDIAN LAW REPORTS ALLAHABAD SERIES
9. M/s. Pepsi Foods Ltd. & anr. Vs Special
Judicial Magistrate & ors.., AIR 1998 S. C . 128

10. Bhushan Kumar and Anr Vs St. (NCT of
Delhi) & anr.AIR 2012 Supreme Court 1747

11. Smt. Nagawwa Vs Veeranna Shivalingappa
Konjalgi & others, AIR 1976 Supreme Court
1947

12. Sunil Bharti Mittal Vs Central Bureau of
Investigation (Three Judges Bench), AIR 2015
Supreme Court 923

13. Birla Corporation Limited & ors.Vs Adventz
Investments and Holdings Limited & ors..,
MANU/SC/0714/2019, (Paras 26 to 29, 33, 36 to
38)

14. Ahmad Ali Quraishi & ors.Vs The St. of
U.P.& ors.(2020) 13 SCC 435, (Paras 10 to 16)

15. Google India Pvt. Ltd. Vs Visakha Industries
& ors..MANU/SC/1708/2019

16. Rajendra Kumar Sitaram Pande Vs Uttam,
MANU/SC/0093/1999, (Para 7)

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard Shri Purnendu Chakraborty
assisted by Shri Shivendra Shivam Singh
Rathore and Shri Sachin Upadhyay, learned
counsels for the applicant, Shri Rajesh
Kumar Singh, learned A.G.A.-I for the
State as well as Shri Pramod Kumar
Shukla, learned counsel for the informant/
complainant and perused the record.

2. This application has been filed
under Section 482 Cr.P.C. by the applicant-
Brij Bhushan Sharan Singh for quashing
of the order dated 10.01.2024, passed by
the learned Additional Chief Judicial
Magistrate-III (MP/ MLA), Lucknow in
Complaint Case No. 80654/ 2023 (Dr.
Mohd. Kamran Vs. Brij Bhushan Sharan
Singh), whereby the applicant has been
summoned to face trial U/S 500 I.P.C.

3. Learned counsel for the applicant
submits that the trial Court has passed the
impugned order without application of
mind and simply on the basis of recording
of the statement of the complainant under
Section 200 Cr.P.C. and of his witnesses
recorded under Section 202 Cr.P.C., the
applicant/
accused
person
has
been
summoned to face trial for committing
offence under Section 500 I.P.C.

4. It is vehemently submitted that
while summoning an accused person to
face trial under Section 204 Cr.P.C., the
trial Court was obliged to record sufficient
grounds for proceeding further and the
impugned order passed by the trial Court
has been passed so carelessly that the trial
Court has failed to record any reasons,
which may even remotely describe the
sufficiency of grounds.

5. It is further submitted the trial Court
has also not considered the amended
provision of Section 202 Cr.P.C. whereby it
is obligatory on the part of the trial Court to
either enquire into the case himself or
direct an investigation to be made by a
police officer or by any other person for the
purpose of deciding whether or not there is
sufficient grounds for proceeding as the
applicant/ accused was a resident of
another district. Thus, the trial Court has
failed in ascertaining the facts and
circumstances of the case as well as the
sufficiency of material which may warrant
the summoning of the applicant for
committing the offence under Section 500
I.P.C.

6. It is also submitted that letters,
which are stated to have been written by
the applicant are confidential documents
and there is no iota of evidence or material
which may even remotely suggest that it
3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
843
was the applicant who had leaked these
papers in the media and there is also no
material or evidence which may suggest
that on the basis of these letters, the
recognition of the newspaper of the
complainant was cancelled.

7. While drawing the attention of this
Court towards the two newspapers cuttings,
which have been placed on record, it is
submitted that two other defamation
complaint cases were filed by the applicant
and the summoning order passed in both
these complaints was challenged by filing
application under Section 482 Cr.P.C.
No.7123 of 2023 and 8636 of 2023 and
vide
orders
dated
25.07.2023
and
29.08.2023, the proceedings of one case
were stayed and in another case, the order
pertaining to taking no coercive action was
passed.

8. It is further submitted that the
complainant/ opposite party No.2 is in a
habit of filing frivolous complaints and in
this regard when he filed a writ petition
bearing Misc. Bench No.1303 of 2014, the
same was dismissed by this Court with the
cost of Rs. 1 lakh. It is also highlighted that
applicant is also in a habit of blackmailing
people and a criminal case against him was
also lodged at police station- Hazaratganj.

9. It is further submitted that even if
the case of the complainant is taken on its
face, the same is covered under 8th
Exception of Section 499 of I.P.C., as the
applicant is a public representative and is
duty bound to bring in knowledge any
accusation against any person in the
knowledge of those who are having lawful
authority over the person with regard to
subject matter of accusation.

10. It is further submitted that the
summoning of the applicant has been
passed in disregard to the settled principles
of summoning an accused person to face
trial and is an abuse of process of law and
the same be set aside and proceedings of
the Court below be quashed.

11. Reliance has been placed in this
regard has been placed on the law laid
down by Hon'ble Supreme Court in Abhijit
Pawar v. Hemant Madhukar Nimbalkar
and Anr. MANU/SC/1655/2016 : (2017) 3
SCC 528, Bansilal S. Kabra Vs. Global
Trade Finance Limited and Anr. Passed
by Bombay High Court in Criminal
Application No.1344 of 2010 of date
16.1.2024,
M/S
Iveco
Magirus
Brandschutztechnik GMBH Vs. Nirmal
Kishore Bhartiya & Anr. 2023 LiveLaw
(SC) 860, National Bank of Oman v.
Barakara
Abdul
Aziz
and
Anr.
MANU/SC/1123/2012 : (2013) 2 SCC 488
as well as a single Judge judgment of this
Court passed in leading application U/s 482
No. 6048 of 2019 of dated 22.12.2023 and
Vijay Bharadwaj and Others Vs. State of
U.P. passed by a Coordinate Bench of this
Court in Application U/S 482 No.2430 of
2021 of date 03.01.2023.

12. Learned AGA on the other hand
submits that since it is a complaint case, it
is for this Court to assess the propriety of
the order passed by the trial Court.

13. Shri Pramod Kumar Shukla,
learned
counsel
appearing
for
the
informant/
complainant
vehemently
submits that complainant is enrolled on the
rolls of Bar Council of Uttar Pradesh and
regularly appears as an Advocate before
this Court as well as before the District and
Sessions Court, Central Administrative
Tribunal and is also a member of Oudh Bar
Association, Lucknow and in the light of
Rule 51 of Bar Council of India, he is also
844 INDIAN LAW REPORTS ALLAHABAD SERIES
having the status of a freelance journalist
and is engaged in the profession for about
25 years and performing his duties with
utmost honesty, sincerity, devotion and
dedication.

14. It is further submitted that three
criminal cases have been filed against the
applicant
on
the
instance
of
one
Dayashankar, who happens to be a PCS
Officer and applicant has highlighted his
misdeeds
with
regard
to
official
embezzlement
and
corrupt
practices
committed by him in his service tenure and
due to this reason, three criminal cases
have been lodged against him and the
criminal history of the applicant has been
explained in para No.6 of the counter
affidavit.

15. It is vehemently submitted that
applicant/ accused through various letters
written to the Hon'ble Chief Minister and
Chief Secretary of Uttar Pradesh and by
circulating these letters in print media and
digital
media
platforms
harmed
and
tarnished the reputation of the complainant.

16. It is further submitted that the
applicant/ accused in his letter as termed
the complainant/ opposite party No.2 as a
blackmailer and has also written letters to
the aforesaid authorities whereby the
reputation of the complainant/ opposite
party No.2 has been spoiled in the eyes of
his well wishers, family members, relatives
and friends.

17. It is also submitted that these
letters written by the accused/ applicant
were also printed in some newspapers,
which has caused serious harm, loss and
damage to his reputation and the same has
spoiled his name and reputation in the eyes
of his friends, relatives and general public
as these allegations of blackmailing were
totally false.

18. It is also submitted that these
defamatory letters were published on
digital media i.e. Bhadasformedia.com and
in
support
of
the
complaint,
the
complainant has produced a copy of these
letters along with complaint and also
testified himself and two of his witnesses,
namely, Anil Kumar Singh and Ajai Kumar
and the trial Court after considering the
sufficient grounds had summoned the
applicant to face trail and thus, no illegality
has been committed therein by the trial
Court.

19. It is further submitted that at the
stage of summoning, only a prima facie
case and sufficient grounds are required to
be seen and meticulous exercise of
appreciation of evidence is required to be
done.

20. Reliance in this regard has been
placed on the law laid down by Hon'ble
Supreme Court in ShivJee Singh Vs.
Nagendra Tiwary and others passed in
Criminal Appeal No.1158 of 2010 decided
on 06.07.2010 arising out of SLP (Crl.) No.
1416 of 2009 and Rameshbhai Pandurao
Hedau Vs. State of Gujarat (2010) 4 SCC
185.

21. Having heard learned counsel for
the parties and having perused the record, it
is relevant to have a glance on the factual
matrix of the case. The case of the
complainant appears to be that two letters
of date 25.09.2022 were written by the
applicant/ accused persons to the Hon'ble
Chief Minister and Chief Secretary of Uttar
Pradesh and the language used therein is
defamatory so far as the applicant is
concerned. A copy of the complaint has
3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
845
been placed on record, which would
demonstrate that the substance of both
these letters have been placed in the
complaint itself in para no.9 of the
complaint wherein it is stated that various
criminal cases pertaining to hatching
conspiracy of exhortation, intimidation,
theft and of molestation are registered
against the complainant in different police
stations and various newspapers have been
registered by complainant giving different
addresses and also that while he was
pursuing his LLB, he was acting as a full
fledged freelance journalist. It is also
written in one of the letter described in para
No.9 of the complaint, a copy of which has
also been enclosed with the complaint that
the complainant is making frivolous
complaints against Veena Traders and also
spreading false news against above Veena
Traders on different whatsapp groups and
an Officer, namely, Dayashankar had
lodged an F.I.R. against him pertaining to
blackmailing and the complainant by taking
bribe money from the competitors of Veena
Traders is placing wrong facts before local
administration. The complainant in support
of the allegations apart from producing the
copy of the letters has also placed on
record, the photocopy of two newspapers as
well as print out of social media platforms
and got his statement recorded under
Section 200 Cr.P.C. as also of his witnesses
under
Section
202
Cr.P.C.
The
complainant/ opposite party No.2 in his
statement recorded under Section 200
Cr.P.C. has stated that the applicant Brij
Bhushan Sharan Singh in his various letters
has addressed him as a conspirator, thief
and have also circulated these letter in
different social media platforms and
newspapers and by doing this, an attempt
has been made to tarnish his image and
reputation. The opposite party No.2/
complainant
has
also
produced
two
witnesses, namely, Anil Kumar Singh and
Ajai Kumar, who had stated that they have
seen these letters
on
social medial
platforms and these letters were written
with the intention of tarnishing the image
and reputation of the complainant /
opposite party No.2.

22. The trial Court by passing a short
order of one page has summoned the
applicant/
accused to face
trial for
committing offence under Section 500
I.P.C. It is also important at this stage to
have a glance on the relevant provision of
Section 499 I.P.C.:-

" Section 499:- Defamation

Whoever, by words either spoken
or intended to be read, or by signs or by
visible representations, makes or publishes
any imputation concerning any person
intending to harm, or knowing or having
reason to believe that such imputation will
harm, the reputation of such person, is
said, except in the cases hereinafter
excepted, to defame that person.

First Exception.- Imputation of
truth which public good requires to be
made or published.- It is not defamation
to
impute
anything
which
is
true
concerning any person, if it be for the
public good that the imputation should be
made or published. Whether or not it is for
the public good is a question of fact.

Second
Exception.-
Public
conduct of public servants.- It is not
defamation to express in a good faith any
opinion whatever respecting the conduct of
a public servant in the discharge of his
public
functions,
or
respecting
his
character, so far as his character appears
in that conduct, and no further.

Third Exception.- Conduct of
any
person
touching
any
public
question.- It is not defamation to express
846 INDIAN LAW REPORTS ALLAHABAD SERIES
in good faith any opinion whatever
respecting the conduct of any person
touching
any
public
question,
and
respecting his character, so far as his
character appears in that conduct, and no
further.

Fourth Exception.- Publication
of reports of proceedings of Courts.- It is
not defamation to publish substantially true
report of the proceedings of a Court of
Justice, or of the result of any such
proceedings.

Fifth Exception.- Merits of case
decided in Court or conduct of witnesses
and
others
concerned.-
It
is
not
defamation to express in good faith any
opinion whatever respecting the merits of
any case, civil or criminal, which has been
decided by a Court of Justice, or respecting
the conduct of any person as a party,
witness or agent, in any such case, or
respecting the character of such person, as
far as his character appears in that
conduct, and no further.

Sixth Exception.- Merits of
public performance.- It is not defamation
to express in good faith any opinion
respecting the merits of any performance
which its author has submitted to the
judgment of the public, or respecting the
character of the author so far as his
character appears in such performance,
and no further.

Seventh Exception.- Censure
passed in good faith by person having
lawful authority over another.- It is not
defamation in a person having over
another any authority, either conferred by
law or arising out of a lawful contract
made with that other, to pass in good faith
any censure on the conduct of that other in
matters to which such lawful authority
relates.

Eighth Exception.- Accusation
preferred in good faith to authorised
person.- It is not defamation to prefer in
good faith an accusation against any
person to any of those who have lawful
authority over that person with respect to
the subject-matter of accusation.

Ninth Exception.- Imputation
made in good faith by person for
protection of his or other's interests.- It
is not defamation to make an imputation on
the character of another provided that the
imputation be made in good faith for the
protection of the interests of the person
making it, or of any other person, or for the
public good.

Tenth
Exception.-
Caution
intended for good of person to whom
conveyed or for public good.- It is not
defamation to convey a caution, in good
faith, to one person against another,
provided that such caution be intended for
the good of the person to whom it is
conveyed, or of some person in whom that
person is interested, or for the public
good."

23. The law with regard to the fact as
to what is responsibility of the Trial Court
while summoning a proposed accused in a
complaint case, is now no more res integra
and the same has been settled by the
Hon'ble Supreme Court in the following
cases:-

"9. In G.H.C.L. Employees Stock
Option Trust VS. India Infalin Ltd. 2013
(4) SCC 505, it was emphasized by the
Hon'ble Supreme Court that "summoning
of accused in a criminal case is a serious
matter. Hence, criminal law cannot be set
into motion as a matter of course. The
order of the Magistrate summoning the
accused must reflect that he has applied his
mind to the facts of the case and the law
applicable thereto. The Magistrate has to
record his satisfaction with regard to the
3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
847
existence of a prima facie case on the basis
of specific allegations made in the
complaint
supported
by
satisfactory
evidence and other material on record."

10. In AIR 1998 S. C . 128 , M/s.
Pepsi Foods Ltd. and another v. Special
Judicial Magistrate and others it was held
as under:-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. It is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinize the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

11. In AIR 2012 SUPREME
COURT 1747 "Bhushan Kumar and Anr
v. State (NCT of Delhi) and Anr" Hon'ble
Apex Court has held that:-

"10. Section 204 of the Code does
not mandate the Magistrate to explicitly
state the reasons for issuance of summons.
It clearly states that if in the opinion of a
Magistrate taking cognizance of an offence,
there is sufficient ground for proceeding,
then the summons may be issued. This
section mandates the Magistrate to form an
opinion as to whether there exists a
sufficient ground for summons to be issued
but it is nowhere mentioned in the section
that the explicit narration of the same is
mandatory, meaning thereby that it is not a
pre-requisite for deciding the validity of the
summons issued."

12. In AIR 1976 SUPREME
COURT
1947,
Smt.
Nagawwa
Vs.
Veeranna
Shivalingappa
Konjalgi
&
others, it is held by The Apex Court that:-

"It is well settled by a long catena
of decisions of this Court that at the stage
of issuing process the Magistrate is mainly
concerned with the allegations made in the
complaint or the evidence led in support of
the same and he is only to be prima facie
satisfied whether there are sufficient
grounds for proceedings against the
accused. It is not the province of the
Magistrate to enter into a detailed
discussion of the merit or de-merits of the
case nor can the High Court go into this
matter in its revisional jurisdiction which is
a very limited one."

"4.It would thus be clear from the
two decisions of this Court that the scope of
the inquiry under Section 202 of the Code
of Criminal Procedure is extremely limited
- limited only to the ascertainment of the
truth or falsehood of the allegations made
in the complaint - (i) on the materials
placed by the complainant before the
Court; (ii) for the limited purpose of
finding out whether a prima facie case for
issue of process has been made out; and
(iii) for deciding the question purely from
the point of view of the complainant
without at all adverting to any defence that
the accused may have. In fact it is well
settled that in proceedings under Section
202 the accused has got absolutely no locus
standi and is not entitled to be heard on the
848 INDIAN LAW REPORTS ALLAHABAD SERIES
question whether the process should be
issued against him or not."

"It is true that in coming to a
decision as to whether a process should be
issued the Magistrate can take into
consideration
inherent
improbabilities
appearing on the face of the complaint or
in the evidence led by the complainant in
support of the allegations but there appears
to be a very thin line of demarcation
between a probability of conviction of the
accused and establishment of a primafacie
case against him. The Magistrate has been
given an undoubted discretion in the matter
and the discretion has to be judicially
exercised by him. Once the Magistrate has
exercised his discretion it is not for the
High Court, or even the Supreme Court, to
substitute its own discretion for that of the
Magistrate or to examine the case on
merits with a view to find out whether or
not the allegations in the complaint, if
proved, would ultimately end in conviction
of the accused. These considerations are
totally foreign to the scope and ambit of an
inquiry
under
Section
202
which
culminates into an order under Section
204. Thus in the following cases an order
of the Magistrate issuing process against
the accused can be quashed or set aside:

(1) Where the allegations made in
the complaint or the statement of the
witness recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complaint does not disclose the
essential ingredients of an offence which is
alleged against the accused;

(2) where the allegations made in
the complaint are patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the accused;

(3) where the discretion exercised
by the Magistrate in issuing process is
capricious and arbitrary having been based
either on no evidence or on materials
which are wholly irrelevant or inadmissible
and

(4) where the complaint suffers
from fundamental legal defects, such as,
want of sanction, or absence of a complaint
by legally competent authority and the
like."

13. In AIR 2015 SUPREME
COURT 923, Sunil Bharti Mittal v.
Central Bureau of Investigation (Three
Judges Bench), Hon,ble Apex Court held
as under:

"45. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding. This
Section relates to commencement of a
criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to
whom it has been transferred under Section
192), upon a consideration of the materials
before him (i.e., the complaint, examination
of the complainant and his witnesses if
present, or report of inquiry, if any), thinks
that there is a prima facie case for
proceeding in respect of an offence, he
shall issue process against the accused.

46. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into Court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he thinks
that it is unlikely to result in a conviction.

47.
However,
the
words
"sufficient
grounds
for
proceeding"
appearing in the Section are of immense
3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
849
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.
The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case
against accused, though the order need not
contain detailed reasons. A fortiori, the
order would be bad-in-law if the reason
given turns out to be ex facie incorrect.""

24.
Learned
counsel
for
the
complainant has relied on the law laid
down by Hon'ble Supreme Court in Abhijit
Pawar (supra) and the relevant paragraphs
of the same is reproduced as under:-

"23. Admitted position in law is
that in those cases where the accused is
residing at a place beyond the area in
which
the
Magistrate
exercises
his
jurisdiction, it is mandatory on the part of
the Magistrate to conduct an enquiry or
investigation before issuing the process.
Section 202 CrPC was amended in the year
2005 by the Code of Criminal Procedure
(Amendment) Act, 2005, with effect from
22-6-2006 by adding the words "and shall,
in a case where the accused is residing at a
place beyond the area in which he
exercises his jurisdiction". There is a vital
purpose
or
objective
behind
this
amendment, namely, to ward off false
complaints against such persons residing at
a far-off places in order to save them from
unnecessary
harassment.
Thus,
the
amended provision casts an obligation on
the Magistrate to conduct enquiry or direct
investigation before issuing the process, so
that false complaints are filtered and
rejected.
The
aforesaid
purpose
is
specifically mentioned in the note appended
to the Bill proposing the said amendment.

24. The essence and purpose of
this amendment has been captured by this
Court in Vijay Dhanuka v. Najima Mamtaj
[Vijay Dhanuka v. Najima Mamtaj, (2014)
14 SCC 638 : (2015) 1 SCC (Cri) 479] in
the following words: (SCC p. 644, paras
11-12)

"11. Section 202 of the Code,
inter alia, contemplates postponement of
the issue of the process 'in a case where the
accused is residing at a place beyond the
area in which he exercises his jurisdiction'
and thereafter to either inquire into the
case by himself or direct an investigation to
be made by a police officer or by such
other person as he thinks fit. In the face of
it, what needs our determination is as to
whether in a case where the accused is
residing at a place beyond the area in
which
the
Magistrate
exercises
his
jurisdiction, inquiry is mandatory or not.

12. The words 'and shall, in a
case where the accused is residing at a
place beyond the area in which he
exercises his jurisdiction' were inserted by
Section 19 of the Code of Criminal
Procedure (Amendment) Act (Central Act
25 of 2005) w.e.f. 23-6-2006. The aforesaid
amendment,
in
the
opinion
of
the
legislature,
was
essential
as
false
complaints are filed against persons
residing at far-off places in order to harass
them. The note for the amendment reads as
follows:

'False
complaints
are
filed
against persons residing at far-off places
simply to harass them. In order to see that
innocent persons are not harassed by
unscrupulous persons, this clause seeks to
amend sub-section (1) of Section 202 to
make it obligatory upon the Magistrate that
before summoning the accused residing
beyond his jurisdiction he shall enquire
into the case himself or direct investigation
to be made by a police officer or by such
850 INDIAN LAW REPORTS ALLAHABAD SERIES
other person as he thinks fit, for finding out
whether or not there was sufficient ground
for proceeding against the accused.'

The use of the expression "shall"
prima facie makes the inquiry or the
investigation, as the case may be, by the
Magistrate mandatory. The word "shall" is
ordinarily mandatory but sometimes, taking
into account the context or the intention, it
can be held to be directory. The use of the
word "shall" in all circumstances is not
decisive. Bearing in mind the aforesaid
principle, when we look to the intention of
the legislature, we find that it is aimed to
prevent innocent persons from harassment
by
unscrupulous
persons
from
false
complaints. Hence, in our opinion, the use
of
the
expression
"shall"
and
the
background and the purpose for which the
amendment has been brought, we have no
doubt in our mind that inquiry or the
investigation, as the case may be, is
mandatory before summons are issued
against the accused living beyond the
territorial jurisdiction of the Magistrate."

25. For this reason, the amended
provision casts an obligation on the
Magistrate to apply his mind carefully and
satisfy himself that the allegations in the
complaint, when considered along with the
statements
recorded
or
the
enquiry
conducted thereon, would prima facie
constitute the offence for which the
complaint is filed. This requirement is
emphasised by this Court in a recent
judgment Mehmood Ul Rehman v. Khazir
Mohammad Tunda [Mehmood Ul Rehman
v. Khazir Mohammad Tunda, (2015) 12
SCC 420 : (2016) 1 SCC (Cri) 124] in the
following words: (SCC pp. 429-30, paras
20 & 22)

"20. The extensive reference to
the case law would clearly show that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
considered along with the statements
recorded or the inquiry conducted thereon,
would constitute violation of law so as to
call a person to appear before the criminal
court. It is not a mechanical process or
matter of course. As held by this Court in
Pepsi Foods Ltd. v. Judicial Magistrate
[Pepsi Foods Ltd. v. Judicial Magistrate,
(1998) 5 SCC 749 : 1998 SCC (Cri) 1400]
to set in motion the process of criminal law
against a person is a serious matter.

***

22. The steps taken by the
Magistrate under Section 190(1)(a) CrPC
followed by Section 204 CrPC should
reflect that the Magistrate has applied his
mind to the facts and the statements and he
is satisfied that there is ground for
proceeding further in the matter by asking
the person against whom the violation of
law is alleged, to appear before the court.
The satisfaction on the ground for
proceeding would mean that the facts
alleged in the complaint would constitute
an offence, and when considered along
with the statements recorded, would, prima
facie, make the accused answerable before
the court. No doubt, no formal order or a
speaking order is required to be passed at
that
stage.
The
Code
of
Criminal
Procedure requires speaking order to be
passed under Section 203 CrPC when the
complaint is dismissed and that too the
reasons need to be stated only briefly. In
other words, the Magistrate is not to act as
a post office in taking cognizance of each
and every complaint filed before him and
issue process as a matter of course. There
must be sufficient indication in the order
passed by the Magistrate that he is satisfied
3 All. Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.
851
that the allegations in the complaint
constitute an offence and when considered
along with the statements recorded and the
result of inquiry or report of investigation
under Section 202 CrPC, if any, the
accused is answerable before the criminal
court, there is ground for proceeding
against the accused under Section 204
CrPC, by issuing process for appearance.
The
application
of
mind
is
best
demonstrated by disclosure of mind on the
satisfaction. If there is no such indication
in a case where the Magistrate proceeds
under Sections 190/204 CrPC, the High
Court under Section 482 CrPC is bound to
invoke its inherent power in order to
prevent abuse of the power of the criminal
court. To be called to appear before the
criminal court as an accused is serious
matter affecting one's dignity, self-respect
and image in society. Hence, the process of
criminal court shall not be made a weapon
of harassment."

26.
The
requirement
of
conducting
enquiry
or
directing
investigation before issuing process is,
therefore, not an empty formality. What
kind of "enquiry" is needed under this
provision has also been explained in Vijay
Dhanuka case [Vijay Dhanuka v. Najima
Mamtaj, (2014) 14 SCC 638 : (2015) 1
SCC (Cri) 479] , which is reproduced
hereunder: (SCC p. 645, para 14)

"14. In view of our answer to the
aforesaid question, the next question which
falls for our determination is whether the
learned Magistrate before issuing summons
has held the inquiry as mandated under
Section 202 of the Code. The word
"inquiry" has been defined under Section
2(g) of the Code, the same reads as
follows:

'2. (g) "inquiry" means every
inquiry, other than a trial, conducted under
this Code by a Magistrate or court;'

It is evident from the aforesaid
provision, every inquiry other than a trial
conducted by the Magistrate or the court is
an inquiry. No specific mode or manner of
inquiry is provided under Section 202 of
the Code. In the inquiry envisaged under
Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the
Code, examination of the complainant only
is necessary with the option of examining
the witnesses present, if any. This exercise
by the Magistrate, for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the accused,
is nothing but an inquiry envisaged under
Section 202 of the Code."

25. Relevant paragraphs of M/S Iveco
Magirus
Brandschutztechnik
GMBH
(supra), which has been relied by applicant
is also reproduced for convenience as
under:-

"32.1 The question that arose
before this Court was, whether the High
Court of Bombay was right in its view that
when a Magistrate directs an enquiry
under section 202 of the CrPC for
ascertaining the truth or falsehood of a
complaint and receives a report from the
enquiring officer supporting a plea of selfdefence made by the person complained
against, is it not open to him to hold that
the plea is correct on the basis of the report
and the statements of witnesses recorded by
the enquiring officer? Must the Magistrate,
as a matter of law, issue process in such a
case and leave the person complained
against to establish his plea of self-defence
at the trial?

33.1 We consider it appropriate
to quote certain pertinent observations
from such decision, hereinbelow:

It seems to us clear from the
entire scheme of Chapter XVI of the Code
852 INDIAN LAW REPORTS ALLAHABAD SERIES
of Criminal Procedure that an accused
person does not come into the picture at all
till process is issued. This does not mean
that he is precluded from being present
when an enquiry is held by a Magistrate He
may remain present either in person or
through a counsel or agent with a view to
of what is going on. But since the very
question for consideration being whether
he should be be informed called upon to
face an accusation, he has no right to take
part in the proceedings nor has the
Magistrate any jurisdiction to permit him
to do so. It would follow from this,
therefore, that it would hot be open to the
Magistrate to put any question to witnesses
at the instance of the person named as
accused but against whom process has not
been issued, nor can he examine any
witnesses at the instance of such a person.
Of course, the Magistrate himself is free to
put such questions to the witnesses
produced before him by the complainant as
he may think proper in the interests of
justice. But beyond that, he cannot go No
doubt, one of the objects behind the
provisions of Section 202 CrPC is to enable
the Magistrate to scrutinise carefully the
allegations made in the complaint with a
view to prevent a person named therein as
accused from being called upon to face an
obviously frivolous complaint. But there is
also another object behind this provision
and it is to find out what material there is
to support the allegations made in the
complaint. It is the bounden duty of the
Magistrate while making an enquiry to
elicit all facts not merely with a view to
protect the interests of an absent accused
person, but also with a view to bring to
book a person or persons against whom
grave allegations are made. Whether the
complaint is frivolous or not has, at that
stage, necessarily to be determined on the
basis of the material placed before him by
the complainant. Whatever defence the
accused may have can only be enquired
into at the trial.