# Karmraj Singh & Ors v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-16
- **Case number:** Application U/S 482 Cr.P.C. No.27519 of 2007
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karmraj-singh-ors-v-state-of-u-p-anr-47546
- **Pages:** 8

## Headnote

(A) Criminal Law-Defamation-Trial court
convicted the complainant but Appellate Court
acquitted-complaint cannot be quashed under
8th exception to section 499 IPC on this groundhave to be proved in Trial-Magistrate after
examining the witnesses u/s 200 and 202 Cr.P.C.
have summoned the accused-alleged offence in
which applicants are summoned committed in
District Roorki-as per section 177 Cr.P.C.-CJM,
Saharanpur did not have jurisdiction to try the
offence-Complaint quashed.

Application allowed. (E-9)

List of Cases cited:-

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES
founded
reasons
for
rejecting
the
applications. Therefore, the order dated
7.10.2021 passed by the learned trial court
is liable to be affirmed for the following
reasons:

(i) The applications for recalling
the witnesses PW-1 and PW-5 have been
filed after a long delay of 4 years, 1 year
after recording the chief-examination of
PW-1 and PW-5 respectively, and the
reasons
assigned
therein
are
unsatisfactory.

(ii) The trial of the present case is
pending since 2015 and the applicant is in
judicial custody and the trial is pending for
defence evidence.

(iii) The identity of scribe Suresh
Singh has been disclosed by PW-2 Suresh
Singh and he was not an eye-witness.

(iv)
The
applicant
has
an
opportunity to produce oral or documentary
evidence with regard to the fact that Suresh
Singh has died before/or after the incident.

(v) The FIR has been lodged
about 46 hours after the incident on the
basis of information received from the
injured PW-2 Balindera Singh.

(vi) According to PW-1 Vinod
Kumar Singh, Suresh Singh was scribe of
the complaint (Tahrir). However, this fact
has not been disclosed in the Tahrir.

29. For the aforesaid reasons,
impugned order dated 7.10.2021 passed by
the trial court is affirmed. Accordingly, the
present application is dismissed along with
the applications filed by the applicant under
Section 311 of the Code.
30. Before parting with the judgment,
it is made clear that the observations made
in this judgment are limited to the purpose
of determination of this application and
will in no way be construed as an
expression on the merits of the case. The
trial court will adjudicate the matter on its
own merits uninfluenced by any of the
observations made therein.

The present case has been delivered on
18.01.2022 inadvertently date on which
case was reserved the case is wrongly typed
as 17.11.2022 instead the same should be
17.11.2021, therefore, to rectify the said
mistake, file of the said case has been
summoned from the office suo-moto and
the same is rectified by me by order dated
20.01.2021 deleting the date on which case
was reserved as 17.11.2022 and in place of
it substitute the date on which case was
reserved as 17.11.2021.

This order shall also be treated as a
part of the judgment already passed in the
present application.
----------
(2022)02ILR A586
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 Cr.P.C. No.27519 of 2007

Karmraj Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anurag Pathak

Counsel for the Opposite Parties:
A.G.A.,Sri Sumit Daga
2 All. Karmraj Singh & Ors. Vs. State of U.P. & Anr.
587
(A) Criminal Law-Defamation-Trial court
convicted the complainant but Appellate Court
acquitted-complaint cannot be quashed under
8th exception to section 499 IPC on this groundhave to be proved in Trial-Magistrate after
examining the witnesses u/s 200 and 202 Cr.P.C.
have summoned the accused-alleged offence in
which applicants are summoned committed in
District Roorki-as per section 177 Cr.P.C.-CJM,
Saharanpur did not have jurisdiction to try the
offence-Complaint quashed.

Application allowed. (E-9)

List of Cases cited:-

1. SubramanianSwamy Vs U.O.I., Ministry of
Law & ors. (2016) 7 SCC 221

2.
Birla
Corporation
Limited
Vs
Adventz
Investments & Holdings Limited & ors. (2019)16
SCC610

3. VijayDhanuka & ors. Vs Najima Mamtaj & ors.
(2014)14SCC 638
(Delivered by Hon'ble Sameer Jain, J.)

1. List has been revised. Learned
counsel for the applicants and learned AGA
for the State are present. None present on
behalf of opposite party no.2.

2. Heard Sri Anurag Pathak, learned
counsel for the applicants, Sri M.P.S. Gaur,
learned A.G.A. for the State and perused
the record of the case.

3. The present application under
Section 482 Cr.P.C. has been filed by the
applicants with a prayer to quash the
further proceedings of Complaint Case No.
1317 of 2007, under sections 500, 211,
120B IPC pending before learned Judicial
Magistrate (II), Saharanpur.

4. Perusal of the record shows that
opposite party no.2 filed a criminal
complaint against applicants on 26.03.2007
in the Court of Additional Chief Judicial
Magistrate-I, Court No.19, Saharanpur with
the allegation that he (opposite party no.2)
and applicant no.1 were posted as guards in
sub-prison Roorki and he (opposite party
no.2) lodged a criminal complaint against
applicant no.1 and his family members
under Sections 147, 148, 149, 323, 307,
504, 506, 427, 460 IPC, which was finally
decided on 13.08.2004 by Additional
District and Sessions Judge, Roorki and
applicant no.1 and other accused persons
were found guilty and were convicted
under Section 323 IPC, therefore, due to
that reason applicant no.1 was having
enmity with opposite party no.2 and he
(applicant no.1) moved an application
under Section 156(3) Cr.P.C. on false
allegations against opposite party no.2 and
his family members. 5. On 27.03.2001 a
case was registered against him (opposite
party no.2) under Sections 323, 316, 504
IPC at Case Crime No. 58 of 2001 at Police
Station Gangnahar Roorki. It is further
alleged that opposite party no.2 was
arrested
and
during
investigation
he
remained in Roorki jail for about 12 days
and after investigation, charge-sheet was
filed against opposite party no.2 and his
wife under Sections 323, 504, 506 IPC and
no charge-sheet was filed under Section
316 IPC. On 24.04.2006, trial court
acquitted opposite party no.2 and his wife
under Sections 504, 506 IPC, but convicted
them under Section 323/34 IPC. It is
further mentioned in the complaint that
opposite party no.2 challenged the order of
the trial court dated 24.04.2006 before the
Court of Sessions in Criminal Appeal No.
53 of 2006. On 31.07.2006, the appeal filed
by opposite party no.2 was allowed and
conviction order dated 24.04.2006 passed
by the trial court was set aside by the Court
of Sessions and opposite party no.2 and his
wife Smt. Neelam Dixit were acquitted. It
588 INDIAN LAW REPORTS ALLAHABAD SERIES
is further mentioned in the impugned
complaint that as opposite party no.2 and
his family members were having very good
reputation in the society, therefore, due to
false case lodged by applicant no.1, their
social image was badly damaged and they
were defamed and due to false case lodged
by applicant no.1, the opposite party no.2
could
not
be
promoted,
therefore,
applicants may be summoned and convict
under Sections 500, 501, 211, 120B IPC.

6. In support of the complaint,
opposite party no.2 examined himself
under Section 200 Cr.P.C. and witnesses
Ram Charan and Rajendra Singh were
examined under Section 202 Cr.P.C.

7.

On
05.07.2007,
ACJM-I,
Saharanpur summoned the applicants under
Sections 500, 211, 120B IPC.

8. Learned counsel for the applicants
contented that as the trial court convicted
opposite party no.2 and his wife under
Section 323/34 IPC, therefore, it cannot be
said that case lodged by applicant no.1 was
a false case, even, if the appellate court
allowed the appeal of opposite party no.2
and acquitted him of all the charges.
Therefore, prima facie no offence under
Sections 500, 211, 120B IPC is made out
against the applicants and further as per
Exception eight to Section 499 IPC no
offence under Section 500 IPC is made out
against applicants. He further contended
that all the applicants are the resident of
District Nai Teehri (Uttrakhand), therefore,
they reside beyond the jurisdiction of the
Court of District Saharanpur and as per
Section 202(1) Cr.P.C., an inquiry or
investigation was necessary before issuing
summons to applicants, which was not
done/conducted in the present case and
without any inquiry/investigation, learned
Magistrate
merely
on
the
basis
of
statements recorded under Sections 200 and
202 Cr.P.C. issued summons against the
applicants, therefore, on this ground also
summoning order dated 05.07.2007 is
liable to be set aside.

9. Learned counsel for the applicants
also submitted that from the perusal of the
complaint as well as the statements of
witnesses recorded under Section 200, 202
Cr.P.C., it is apparent that cause of action,
if any, can only arise at Roorki and not in
Saharanpur, therefore, impugned complaint
dated 26.03.2007 filed by opposite party
no.2 in the Court of ACJM-I, Court No.19,
Saharahpur is bad in law and Magistrate of
District
Saharanpur
was
not
having
jurisdiction to try the case, therefore, from
this angle too, summoning order dated
05.07.2007 is liable to be quashed.

10. Per contra, learned A.G.A.
submitted that perusal of the complaint
clearly shows that the application under
Section 156(3) Cr.P.C. was moved by the
applicant no.1 against opposite party no.2
and his wife only due to the reason that
earlier opposite party no.2 lodged a
criminal complaint against applicant no.1
and his family members, in which, a
conviction order was passed, therefore, the
FIR lodged against opposite party no.2 and
his wife in pursuance of application moved
under Section 156(3) Cr.P.C. by applicant
no.1 cannot be said to be filed/lodged in
good faith and as appellate court found the
allegation false, therefore, prima facie
offence under Sections 500, 211, 120B IPC
is made out against the applicants and
benefit of Exception eight to Section 499
IPC
cannot
extended
in
favour
of
applicants. He further contended that as
learned trial court recorded the statements
of witnesses under Section 202 Cr.P.C.,
2 All. Karmraj Singh & Ors. Vs. State of U.P. & Anr.
589
therefore, trial court conducted an inquiry,
as desired under law, therefore, present
application moved on behalf of applicants
is liable to be dismissed.

11. I have heard both the parties and
perused the record of the case. The first
argument advanced by learned counsel for
the applicants is that as trial court convicted
the opposite party no.2 on the complaint
lodged by applicant no.1 and only in
appeal, opposite party no.2 and his wife
were acquitted, therefore, it cannot be said
that applicant no.1 was having any
intention to harm the opposite party no.2
and
complaint/application
moved
by
applicant no.1 was false and, therefore,
applicants are entitled to get benefit of
Exception eight to Section 499 IPC.

Section 499 of Indian Penal
Code, which defines the defamation runs as
follows:-

"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
expected,
to
defame
that
person.

Explanation 1.--It may amount to
defamation to impute anything to a
deceased person, if the imputation would
harm the reputation of that person if living,
and is intended to be hurtful to the feelings
of his family or other near relatives.

Explanation 2.--It may amount to
defamation
to
make
an
imputation
concerning a company or an association or
collection of persons as such.

Explanation 3.--An imputation in
the form of an alternative or expressed
ironically, may amount to defamation.

Explanation 4.--No imputation is
said to harm a person's reputation, unless
that imputation directly or indirectly, in the
estimation of others, lowers the moral or
intellectual character of that person, or
lowers the character of that person in
respect of his caste or of his calling, or
lowers the credit of that person, or causes
it to be believed that the body of that
person is in a loathsome state, or in a state
generally considered as disgraceful.

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 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.
590 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

Explanation.--A Justice of the
Peace or other officer holding an inquiry in
open Court preliminary to a trial in a
Court of Justice, is a Court within the
meaning of the above section.

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.

Explanation.--A
performance
may be substituted to the judgment of the
public expressly or by acts on the part of
the author which imply such submission to
the judgment of the public.

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."

12. From the perusal of Section 499
IPC, it is apparent that the present matter
can fall under 8th exception, but the
question is whether at the time of issuing
summons, on the basis of exceptions to
Section 499 IPC, a criminal defamation
complaint can be dismissed?

13. The law is well settled that a
person, who pleads the exception has the
2 All. Karmraj Singh & Ors. Vs. State of U.P. & Anr.
591
burden to prove the same and, therefore, at
the stage of issuing summons, it is not
possible
to
give
advantage
of
any
exceptions to Section 499 IPC including
8th exception to the accused persons, as
accused can only take advantage of the
same during trial.

14. This question has been decided by
Hon'ble
Supreme
Court
in
case
of
Subramanian Swamy Vs. Union of India,
Ministry of Law and others (2016) 7
SCC 221. Hon'ble Supreme Court in this
case in paragraph No. 209 observed as
under:-

"It is settled position of law that
those who plead Exception must prove it. It
has been laid down in M.A. Rumugam
(supra) that for the purpose of bringing any
case within the purview of the Eighth and
the Ninth Exceptions appended to Section
499 IPC, it would be necessary for the
person who pleads the Exception to prove
it. He has to prove good faith for the
purpose of protection of the interests of the
person making it or any other person or for
the public good. The said proposition
would definitely apply to any Exception
who wants to have the benefit of the same.
Therefore, the argument that if the said
Exception
should
be
taken
into
consideration at the time of the issuing
summons
it
would
be
contrary
to
established criminal jurisprudence and,
therefore, the stand that it cannot be taken
into consideration makes the provision
unreasonable,
is
absolutely
an
unsustainable one and in a way, a
mercurial one. And we unhesitatingly repel
the same"

15. Thus, the argument advanced by
learned counsel for the applicants that in
view of 8th exception to Section 499 IPC,
the impugned complaint as well as
summoning order both are liable to be
quashed, cannot be accepted as it can only
be proved by the applicants during trial and
not at this stage.

16. The next argument was that
applicants are the resident of Uttarakhand,
therefore,
they
reside
beyond
the
jurisdiction of Additional Chief Judicial
Magistrate-I, Court No.19, Saharanpur,
who
issued
summons
to
applicants,
therefore, as per Section 202(1) Cr.P.C.
before issuing summons to applicants an
inquiry/investigation was necessary, which
was not done in the present matter.

17. The law in this regard is also well
settled that as per Section 202(1) Cr.P.C. if
a criminal complaint was filed before the
Magistrate against a person, who resides
outside his jurisdiction then before issue of
process against him it is mandatory for the
Magistrate to either inquire the case
himself or direct the investigation to be
made by a police officer or by such other
person as he thinks fit. A reference in this
regard
may
be
taken
from
Birla
Corporation
Limited
Vs.
Adventz
Investments and Holdings Limited and
others (2019) 16 SCC 610. (Paras 30, 31
& 32)

18. Now, the question is whether in
the present case before issuing summons to
applicants, learned Magistrate conducted
any
inquiry/investigation
or
not
as
contemplated under Section 202(1) Cr.P.C.
The record of the case shows that two
witnesses,
namely
Ram
Charan
and
Rajendra Singh were examined under
Section 202 Cr.P.C. and summoning order
dated 05.07.2007 shows that trial court at
the time of issuing process to the applicants
relied upon the statements under Sections
200 and 202 Cr.P.C. Now, the question is
592 INDIAN LAW REPORTS ALLAHABAD SERIES
whether statements of witnesses recorded
under Section 202 Cr.P.C. is an inquiry for
the purpose of Section 202(1) Cr.P.C. or
not.

19. Hon'ble Supreme Court in the
case of Vijay Dhanuka and others Vs.
Najima Mamtaj and others (2014) 14
SCC
638
after
observing
that
an
inquiry/investigation as contemplated under
Section 202(1) Cr.P.C. is necessary before
issuing summons to accused if they reside
beyond the jurisdiction of trial court,
further observed in paragraph No. 14 as
follows:-

"In view of our answer to the
aforesaid question, the next question which
falls for out 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."

20. Thus, from the judgment of
Vijay Dhanuka case (supra), it is apparent
that if Magistrate examined witnesses
under Section 202 Cr.P.C. and if he was
satisfied with the statements recorded
under Section 200 Cr.P.C. and 202
Cr.P.C.,
that
accused
should
be
summoned then he can summon them
even those accused resides beyond its
jurisdiction, as the statement recorded
under Section 202 Cr.P.C. is an inquiry as
defined under Section 2(g) of Cr.P.C.

21. In the present case, learned trial
court
examined
Ram
Charan
and
Rajendra Singh under Sections 202
Cr.P.C. and relied upon their statements
at the time of issuing process, therefore,
in view of Hon'ble Supreme Court in
Vijay Dhanuka case (supra), it cannot be
said that without conducting any inquiry,
learned Magistrate issued summons to
applicants. Thus, this point raised by
learned counsel for the applicants also
fails.

22. The last contention raised by
learned counsel for the applicants is that
learned
Additional
Chief
Judicial
Magistrate-I, Court No. 19, Saharanpur was
not having jurisdiction to try the case as all
the alleged offences under Section 500,
211, 120B IPC, in which, applicants were
summoned were committed in Roorki and
not in District Saharanpur. I find force in
this argument.

23. Perusal of the complaint and
statements recorded under Sections 200 and
202 Cr.P.C. shows that application under
Section 156(3) Cr.P.C. was moved by
2 All. Nitin Garg Vs. State of U.P. & Anr.
593
applicant no.1 against opposite party no.2
and his wife before Judicial Magistrate,
Roorki and FIR was also lodged at Police
Station Gangnahar, Roorki. The trial court
situated at Roorki conducted the trial of
opposite party no.2 and his wife and
convicted them under Section 323/34 IPC
and further the appellate court, who
acquitted the opposite party no.2 and his
wife, was also not situated in District
Saharanpur,
therefore,
admittedly
the
alleged offences were committed in Roorki
and not in District Saharanpur. Now, the
question is whether cause of action of the
present
case
can
arise
in
District
Saharanpur or not.

24. Section 177 of The Code of
Criminal
Procedure
states
about
the
jurisdiction of the criminal courts in
inquiries and trials, which reproduced as
under:-

"177. Ordinary place of inquiry
and trial. Every offene shall ordinarily be
inquired into and tried by a Court within
whose local jurisdiction it was committed."

25. As per Section 177 of The Code of
Criminal Procedure an offence shall ordinarily
be inquired and tried by the court within whose
jurisdiction it was committed. As, I have
already observed that the alleged offences in
which applicants were summoned were
committed in District Roorki, therefore, as per
Section 177 of The Code of Criminal
Procedure, the Additional Chief Judicial
Magistrate-I, Court No.19, Saharanpur was not
having jurisdiction to try the same, as there is no
evidence on record, which can show that the act
done in Roorki was having any consequence
which has ensued in District Saharanpur,
therefore, no advantage of Section 179 Cr.P.C.
may be given to opposite party no.2.

26. Thus, in my considered view
ACJM-I,
Saharanpur
was
not
having
jurisdiction to try the present case.

27. Therefore, present application under
Section 482 Cr.P.C. is allowed and impugned
complaint being Complaint No. 1317 of 2007
under Sections 500, 211, 120B IPC pending
in the Court of Additional Chief Judicial
Magistrate-I, Court No.19, Saharanpur and
summoning order dated 05.07.2007 are
hereby quashed
----------
(2022)02ILR A593
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 Cr.P.C. No.43233 of 2017

Nitin Garg ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Varun Dev Sharma

Counsel for the Opposite Parties:
A.G.A.,Sri Tapan Kumar Mishra, Sri Sushil
Kumar Shukla

(A) Criminal Law-Matrimonial dispute-no
allegation of dowry demand
-parties
settled the disputes amicably-mutually
divorced-other criminal cases which were
pending
are
disposed-parties
reached
settlement-chargesheet quashed.

Application allowed. (E-9)

List of Cases cited:-

1. Gian Singh Vs St. of Pun. & anr., (2012) 10
SCC 303