# CASE DETAILS M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v. NIRMAL KISHORE BHARTIYA & ANR

- **Citation:** 2023 INSC 880
- **Court:** Supreme Court of India
- **Decided:** 2023-10-05
- **Case number:** Criminal Appeal No. 1959 of 2012
- **Bench:** Bela M. Trivedi, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-m-s-iveco-magirus-brandschutztechnik-gmbh-v-nirmal-kishore-36626
- **Pages:** 38

## Headnote

Issue for consideration: (i) Whether, while considering a private
complaint alleging defamation, the Magistrate before summoning the
accused ought to confi ne himself to the allegations forming part of the
petition only or he may, applying his judicial mind to the exceptions to s.499,
IPC, dismiss the complaint holding that the facts alleged do not make out
a case of defamation?
(ii) Whether and, if at all, to what extent, is it open to the High Courts
to exercise inherent power saved by s.482, Cr. PC to quash proceedings for
defamation by setting aside the summoning order upon extending the benefi t
of any of the Exceptions to s.499, IPC?
Code of Criminal Procedure, 1973 - Issue Process - Complaint of
Defamation - Application of judicial mind by the Magistrate:
Held: In the context of a complaint of defamation, at the stage the
Magistrate proceeds to issue process, he has to form his opinion based on
the allegations in the complaint and other material (obtained through the
process referred to in section 200/section 202) as to whether 'suffi cient
ground for proceeding' exists as distinguished from 'suffi cient ground for
conviction', which has to be left for determination at the trial and not at the
stage when process is issued - Although there is nothing in the law which
in express terms mandates the Magistrate to consider whether any of the
Exceptions to s. 499, IPC is attracted, there is no bar either - It is not the
law that the Magistrate is in any manner precluded from considering if
at all any of the Exceptions is attracted in a given case; the Magistrate is
under no fetter from so considering, more so because being someone who
221
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA
is legally trained, it is expected that while issuing process he would have
a clear idea of what constitutes defamation - If, in the unlikely event, the
contents of the complaint and the supporting statements on oath as well as
reports of investigation/inquiry reveal a complete defence under any of the
Exceptions to s. 499, IPC, the Magistrate, upon due application of judicial
mind, would be justifi ed to dismiss the complaint on such ground and it
would not amount to an act in excess of jurisdiction if such dismissal has
the support of reasons.[Para 45]
Code of Criminal Procedure, 1973 - s. 482 - Power of the High
Court to quash proceedings for defamation by setting aside the
summoning order upon extending the benefi t of any of the Exceptions
to s.499, IPC:
Held: The exercise of jurisdiction by the High Courts u/s. 482, Cr.P.C.,
in a case where the off ence of defamation is claimed by the accused to have
not been committed based on any of the Exceptions and a prayer for quashing
is made, law seems to be well settled that the High Courts can go no further
and enlarge the scope of inquiry if the accused seeks to rely on materials
which were not there before the Magistrate - This is based on the simple
proposition that what the Magistrate could not do, the High Courts may
not do - It may not be understood to undermine the High Courts' powers
saved by s.482, Cr.P.C.; such powers are always available to be exercised
ex debito justitiae, i.e., to do real and substantial justice for administration
of which alone the High Courts exist - The issue of process u/s. 204 r/w.
s.200, Cr.P.C. does not ipso facto stand vitiated for non-consideration of
the Exceptions to s.499, IPC unless, of course, before the High Court it
is convincingly demonstrated that even on the basis of the complaint and
the materials that the Magistrate had before him and without there being
anything more, the facts alleged do not prima facie make out the off ence
of defamation and that consequently, the proceedings need to be closed.
[Paras 46 and 47]
Penal Code, 1860 - s. 499 - Exceptions to s.499 - Trial Court upon
considering the complaint u/s. 200 Cr.P.C. returned a prima facie fi nding
in order dated 25.03.2010 that accused no.1, the appellant (accused

## Text

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[2023] 13 S.C.R. 220 : 2023 INSC 880
220
CASE DETAILS
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH
v.
NIRMAL KISHORE BHARTIYA & ANR.
(Criminal Appeal No. 1959 of 2012)
OCTOBER 05, 2023
[BELA M. TRIVEDI AND DIPANKAR DATTA, JJ.]
HEADNOTES
Issue for consideration: (i) Whether, while considering a private
complaint alleging defamation, the Magistrate before summoning the
accused ought to confi ne himself to the allegations forming part of the
petition only or he may, applying his judicial mind to the exceptions to s.499,
IPC, dismiss the complaint holding that the facts alleged do not make out
a case of defamation?
(ii) Whether and, if at all, to what extent, is it open to the High Courts
to exercise inherent power saved by s.482, Cr. PC to quash proceedings for
defamation by setting aside the summoning order upon extending the benefi t
of any of the Exceptions to s.499, IPC?
Code of Criminal Procedure, 1973 - Issue Process - Complaint of
Defamation - Application of judicial mind by the Magistrate:
Held: In the context of a complaint of defamation, at the stage the
Magistrate proceeds to issue process, he has to form his opinion based on
the allegations in the complaint and other material (obtained through the
process referred to in section 200/section 202) as to whether 'suffi cient
ground for proceeding' exists as distinguished from 'suffi cient ground for
conviction', which has to be left for determination at the trial and not at the
stage when process is issued - Although there is nothing in the law which
in express terms mandates the Magistrate to consider whether any of the
Exceptions to s. 499, IPC is attracted, there is no bar either - It is not the
law that the Magistrate is in any manner precluded from considering if
at all any of the Exceptions is attracted in a given case; the Magistrate is
under no fetter from so considering, more so because being someone who
221
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA
is legally trained, it is expected that while issuing process he would have
a clear idea of what constitutes defamation - If, in the unlikely event, the
contents of the complaint and the supporting statements on oath as well as
reports of investigation/inquiry reveal a complete defence under any of the
Exceptions to s. 499, IPC, the Magistrate, upon due application of judicial
mind, would be justifi ed to dismiss the complaint on such ground and it
would not amount to an act in excess of jurisdiction if such dismissal has
the support of reasons.[Para 45]
Code of Criminal Procedure, 1973 - s. 482 - Power of the High
Court to quash proceedings for defamation by setting aside the
summoning order upon extending the benefi t of any of the Exceptions
to s.499, IPC:
Held: The exercise of jurisdiction by the High Courts u/s. 482, Cr.P.C.,
in a case where the off ence of defamation is claimed by the accused to have
not been committed based on any of the Exceptions and a prayer for quashing
is made, law seems to be well settled that the High Courts can go no further
and enlarge the scope of inquiry if the accused seeks to rely on materials
which were not there before the Magistrate - This is based on the simple
proposition that what the Magistrate could not do, the High Courts may
not do - It may not be understood to undermine the High Courts' powers
saved by s.482, Cr.P.C.; such powers are always available to be exercised
ex debito justitiae, i.e., to do real and substantial justice for administration
of which alone the High Courts exist - The issue of process u/s. 204 r/w.
s.200, Cr.P.C. does not ipso facto stand vitiated for non-consideration of
the Exceptions to s.499, IPC unless, of course, before the High Court it
is convincingly demonstrated that even on the basis of the complaint and
the materials that the Magistrate had before him and without there being
anything more, the facts alleged do not prima facie make out the off ence
of defamation and that consequently, the proceedings need to be closed.
[Paras 46 and 47]
Penal Code, 1860 - s. 499 - Exceptions to s.499 - Trial Court upon
considering the complaint u/s. 200 Cr.P.C. returned a prima facie fi nding
in order dated 25.03.2010 that accused no.1, the appellant (accused
no.2) and its district manager were responsible for writing, sending,
publishing letters containing malicious and defamatory statements and
SUPREME COURT REPORTS
[2023] 13 S.C.R.
222
consequently summoned the three accused persons u/ss. 500/107/34,
IPC - Propriety:
Held: At the stage, when the Trial Court made the summoning order,
two aspects were required to be satisfi ed: (1) whether the uncontroverted
allegations as made in the petition of complaint read with the examination
of the complainant, prima facie, tend to suggest an off ence having been
committed, and (2) whether it is expedient and in the interest of justice to
proceed - Keeping in view the allegations made in the petition of complaint
and the evidence placed before the Trial Court by the complainant and on a
plain reading of its order dated 25.03.2010 issuing summons to the accused,
it does not appear that the fi nding of a prima facie case having been made
out at that stage is so outrageously illogical or in defi ance of legal principles
and acceptable standards that it would merit interference by this Court -
Appellant would be free to appear before the Trial Court and raise whatever
defence is available to it in law, not necessarily confi ned to the Fourth
Exception, for due consideration thereof by the Trial Court - Therefore, the
Trial Court was not unjustifi ed in issuing summons to the accused based on
the materials before it. [Paras 49, 50]
Penal Code, 1860 - s.499 - Exceptions to s.499 - Whether a
company can be prosecuted for defamation when the alleged defamatory
statements are made not by it (the company) but by its authorised agent:
Held: It must necessarily depend on the facts of each case, meaning
thereby the quality of evidence that is led in course of the trial and the
weight to be attached to it - In the instant case, the Power of Attorney is
yet not proved by the appellant-company according to law and, therefore,
could not have been considered by the Judge and cannot be considered by
this Court as well - Even if proved, its eff ect and import necessarily have
to be considered by the Trial Court - However, if from evidence led it is
established that the authorised agent had issued defamatory statements with
the consent of the principal or that the principal, without giving consent,
had due knowledge of such defamatory statements, yet, did not caution/
reprimand the agent for doing so or had not disowned the statements so
made, there is no reason why a prosecution for defamation should be nipped
in the bud on the specious ground that an authorised agent is supposed to act
223
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA
lawfully and not unlawfully - As far as the benefi t of the fourth exception is
concerned, it is for the appellant to demonstrate before the Trial Court that
the Fourth Exception is attracted, or plead any other defence, and discharge
its burden of proof in respect thereof during the course of the trial. [Paras
54, 55, 56, 57]
LIST OF CITATIONS AND OTHER REFERENCES
Balraj Khanna & Ors. v. Moti Ram (1971) 3 SCC 399 : [1971] Suppl.
SCR 447; Sewakram Sobhani v. R.K. Karanjia (1981) 3 SCC 208 : [1981]
3 SCR 627; Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathu (1996)
6 SCC 263 : [1996] 5 Suppl. SCR 771; Subramanian Swamy v. Union of
India (2016) 7 SCC 221 : [2016] 3 SCR 865; Rajendra Kumar Sitaram
Pande v. Uttam (1999) 3 SCC 134 : [1999] 1 SCR 580; Jawaharlal Darda
v. Manoharrao Ganpatrao Kapsikar (1998) 4 SCC 112; Vadilal Panchal v.
Dattatraya Dulaji Ghadigaonkar [1961] 1 SCR 1; Ramgopal Ganpatrai Ruia
v. State of Bombay [1958] SCR 618; National Bank of Oman v. Barakara
Abdul Aziz (2013) 2 SCC 488 : [2012] 11 SCR 500 - relied on.
Iridium India Telecom Ltd. v. Motorola Incorporated & Ors. (2011) 1
SCC 74 : [2010] 14 SCR 591; Morgan Tetronics Ltd. v. State & Anr. LPA668/2010 dt. 17 th September 2010: Aroon Purie v. State of NCT of Delhi
(2022) 15 SCALE 541; Supriya Jain v. State of Haryana (2023) SCC OnLine
SC 765; M.N. Damani v. S.K. Sinha (2001) 5 SCC 156 : [2001] 3 SCR 415;
M.A. Rumugam v. Kittu Alias Krishnamoorthy (2009) 1 SCC 101 : [2008]
15 SCR 642; Chandra Deo Singh v. Prokash Chandra Bose [1964] 1 SCR
639: Jeff rey J. Diermeier v. State of West Bengal (2010) 6 SCC 243 : [2010]
7 SCR 128; Manoj Kumar Tiwari v. Manish Sisodia 2022 SCC OnLine SC
1434; B.R.K. Aathithan v. Sun Group 2022 SCC OnLine SC 1705; Kalyan
Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42; Jagdish Ram v. State
of Rajasthan (2004) 4 SCC 432 : [2004] 2 SCR 846; Chand Dhawan (Smt.)
v. Jawaharlal (1992) 3 SCC 317 : [1992] 2 SCR 83 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1959 of 2012.
SUPREME COURT REPORTS
[2023] 13 S.C.R.
224
From the Judgment and Order dated 10.12.2010 of the High Court of
Delhi at New Delhi in CRLMC No.2845 of 2010.
Appearances:
Ms. Aparna Viswanathan, R. Gopalakrishnan, Advs. for the Appellant.
Manoj D. Taneja, Ms. Gauri K. Dass Mohanti, Snehasis Mukherjee,
Sunil Fernandes, Ms. Priyansha Sharma, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DIPANKAR DATTA, J.
THE APPEAL
1. This appeal, by special leave, is at the instance of a German company
("the appellant", hereafter). It assails a short fi ve-line order of a learned Judge
of the High Court of Delhi ("learned Judge", hereafter) dated 10th December
2010. By such order, the learned Judge dismissed a petition1 under section
482 of the Code of Criminal Procedure, 1973 ("Cr. PC", hereafter) presented
by the appellant as not maintainable relying on the decision of this Court
in Iridium India Telecom Ltd. v. Motorola Incorporated & Ors.2 and
a Bench decision of the High Court of Delhi in Morgan Tetronics Ltd. v.
State & Anr.3
CHALLENGE BEFORE THE HIGH COURT OF DELHI
2. Appellant had approached the High Court of Delhi taking exception to
an order dated 25th March 2010 passed by the Additional Chief Metropolitan
Magistrate (SE), New Delhi ("Trial Court", hereafter) on a complaint4 lodged
under section 200, Cr. PC by the respondent ("complainant", hereafter). The
Trial Court upon considering the complaint returned a prima facie fi nding in
the said order that Mr. M.C. Aggarwal (accused no.1), the appellant (accused
no. 2) and its District Manager (Asia), Mr. Lorenzo Boninsegna (accused
1
CRL. M.C. 2845/2010
2
(2011) 1 SCC 74
3
LPA-668/2010 dt. 17th September 2010
4
CC No.465/1/09
225
no.3) were "jointly and severally responsible for writing, sending, publishing
the above said letters containing malicious and defamatory statements and
imputation against the complainant" and consequently summoned the three
accused for off ences under sections 500/107/34, Indian Penal Code ("IPC",
hereafter).
FACTS
3. The undisputed and relevant facts leading to the summoning order
impugned before the learned Judge is noticed hereunder:
i.
Global Tender No. EQ/Global/2007-09/01 was fl oated by the
Airports Authority of India ("AAI", hereafter) for supply of 40
(forty) Airfi eld Crash Fire Tenders at various airports across the
country. The appellant, a Germany-based manufacturer of fi re
safety equipment, executed a Power of Attorney in favour of Mr.
M.C. Aggarwal, the respondent no. 2 ("Aggarwal", hereafter),
who happened to be the Managing Director of Brijbasi Hi-Tech
Udyog Ltd. Aggarwal was appointed to be the local representative
of the appellant in India and he was empowered, inter alia, to
fi le suits and take all steps which were deemed expedient in
furtherance of the tender process.
ii.
The company of the complainant, Bhartiya Vehicles &
Engineering Pvt. Ltd, was the Indian associate of one Rosenbauer
International AG ("Rosenbauer", hereafter), another bidder in
the aforementioned tender process.
iii.
On 21st July 2008, AAI rejected the bid of the appellant and
eventually awarded it to Rosenbauer. In the aftermath of the
rejection, on various occasions in 2008, Aggarwal issued
four letters in the nature of complaints to diff erent authorities
including the Minister of Civil Aviation, Government of India,
the Chairman of AAI, the Chief Vigilance Offi cer, AAI, and the
Central Vigilance Commissioner, Government of India, inter
alia, complaining of favouritism and irregularities in the tender
process. These letters allege that the complainant, through illegal
and wrongful methods, persuaded AAI to award the tender
to Rosenbauer. Enumeration of the contents of such letters is
avoided, lest the same prejudices the rights of the parties.
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
226
iv.
Dissatisfi ed with the inaction of the aforementioned authorities
to look into the letters of complaint, Aggarwal, in his capacity
as the local authorised representative of the appellant, invoked
the writ jurisdiction of the High Court on or about 12th August
2008 by presenting a writ petition5 against the Union of
India and AAI. It is pertinent to note that Bhartiya Vehicles &
Engineering Pvt. Ltd., and Rosenbauer were also made parties
to the proceedings. The writ petition was fi nally dismissed
on 13th February 2009 vide a detailed order, which was not
challenged thereafter.
v.
On 30th April 2009, the complainant addressed a legal notice to
the appellant and Aggarwal inter alia alleging that the contents
of the aforementioned four letters of complaint given to the
concerned authorities were defamatory. Pertinently, on 20th
May 2009, the appellant responded to the legal notice inter
alia stating that it had not authorised Aggarwal to write any
such letter, and that the appellant was also not involved in their
preparation.
vi.
It was in this context that the complainant lodged the complaint
before the Trial Court alleging criminal defamation as well as
its abetment under sections 107, 499, and 500 read with section
34 of the IPC against the accused.
vii. The Trial Court, after perusing the complaint and examining
the witnesses in support thereof, ordered the accused to be
summoned as it was of the opinion that a prima facie case was
made out against them.
viii. The challenge by the appellant to the summoning order was
spurned by the High Court vide the impugned order.
CONTENTIONS OF THE APPELLANT
4. On behalf of the appellant, learned counsel Ms. Viswanathan
argued that the High Court committed grave miscarriage of justice in
5
 WP (C) No.6155/2008
227
dismissing the petition by a cryptic order. She contended that several
important questions of law were raised in the petition by the appellant.
Although the objection as to whether a company is capable of being
prosecuted on the ground that it is incapable of possessing necessary
mens rea stood answered by the decisions relied on by the learned Judge,
yet, according to her, the learned Judge should have considered the other
objections raised by the appellant. Not having so considered, it was urged
that the impugned order is indefensible.
5. Ms. Viswanathan, in support of the appeal, raised the following
specifi c contentions:
i.
The impugned order of the learned Judge omitted to consider
that the complaint did not disclose any oral or written
words, spoken or written by the appellant, or sign or visible
representation made by it; and, in the absence of disclosure of
any imputation made by the appellant, the key ingredient of the
off ence of defamation did not exist. The impugned order of the
learned Judge failed to appreciate that issuance of a Power of
Attorney cannot by law constitute an ingredient of an off ence
under section 499, IPC since agents, under section 188 of the
Indian Contract Act, 1872, are authorised to do only lawful
acts; and, as a corollary, execution of such power of attorney
did not amount to authorisation or consent given to Aggarwal
to commit any alleged act of defamation.
ii.
The learned Judge erred in not considering that a writ
petition instituted on behalf of the appellant cannot constitute
an ingredient of an off ence under section 499, IPC, since
documents fi led in civil cases are protected by an "absolute
privilege" and are also covered under the Fourth Exception to
section 499, IPC.
iii.
There has been a gross failure of justice in that the learned Judge
ought to have corrected the manifest error committed by the
Trial Court in issuing process against the accused without the
Trial Court considering whether any of the exceptions to section
499, IPC was applicable on facts and in the circumstances of
the present case.
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
228
iv.
The impugned order of the learned Judge fails to explain why
the decision of this Court in Rajendra Kumar Sitaram Pande
v. Uttam6 was not followed, whereby law has been settled
that issuance of process by a Magistrate without applying the
exceptions to section 499, IPC is unreasonable, excessive and
palpably wrong resulting in failure of justice.
v.
The decision in Aroon Purie v. State of NCT of Delhi7 was
also cited for the proposition that there is no rigid principle
that the benefi t of exception can only be aff orded at the stage
of trial.
6. Resting on the aforesaid contentions, Ms. Viswanathan prayed
that the proceedings emanating from the complaint be quashed.
CONTENTIONS OF THE FIRST RESPONDENT
7. Mr. Taneja, learned counsel representing the complainant invited
our attention to various documents forming part of his counter affi davit
to the special leave petition. According to him, the appellant withheld
relevant materials from this Court and obtained an ex parte interim order
on 29th April 2011 as a sequel whereto the entire proceedings before the
Trial Court have been brought to a grinding halt.
8. Our notice was first invited to the fact that Aggarwal had
independently challenged the summoning order before the High Court of
Delhi by presenting a petition8 under section 482, Cr. PC. By a detailed
order dated 10th December 2010, the same learned Judge (who dismissed
the petition of the appellant) noted that Aggarwal was taking defence
under exceptions to section 499 IPC and that "the Court cannot take the
defence of the petitioner into account to quash the summoning order or to
quash the complaint". Based on such fi nding, the learned Judge rejected
the challenge.
9. Mr. Taneja contended that the learned Judge on 10th December
2010 had considered the petitions of Aggarwal and the appellant, one after
6
(1999) 3 SCC 134
7
2022 (15) SCALE 541
8
CRL. M.C. 3350/2010
229
the other; and, although it is true that the learned Judge while dismissing
the petition of the appellant dealt with the point that a company could be
proceeded against in view of Iridium India Telecom Ltd. (supra) and
Morgan Tetronics Ltd. (supra) and did not assign separate reasons for
spurning the appellant's challenge to the impugned order on the other
grounds raised therein, the appellant was duly represented by its learned
advocate when Aggarwal's petition was considered and in his presence,
the order of dismissal was dictated. What Mr. Taneja hinted at was that
the learned Judge having passed a reasoned order rejecting Aggarwal's
challenge to the summoning order, the learned Judge may not have
considered it necessary to repeat the reasons twice over while dismissing
the petition of the appellant.
10. Next, our attention was drawn by Mr. Taneja to the letters of
complaint issued by Aggarwal before the various public authorities. It was
contended that while acting on behalf of the appellant and also under its
instructions, Aggarwal had made reckless and frivolous allegations against
the complainant amounting to defamation and, in the process, lowered his
reputation and fame in the eyes of the public. He further contended that
the appellant cannot feign ignorance of the letters of complaint issued
by Aggarwal. Referring to the writ petition of the appellant presented
before the High Court of Delhi, he pointed out that the self-same letters
of complaint issued by Aggarwal were made part of such petition while
challenging the appellant's disqualifi cation in course of the tender process;
and, if indeed, such letters were issued without knowledge and consent
of the appellant, it defi es logic as to why they were made part of the writ
petition in the fi rst place where the appellant was arrayed as the writ
petitioner.
11. Relying on the decision of this Court in Supriya Jain v. State of
Haryana9, it was argued by Mr. Taneja that it is not open to the Courts
to quash a complaint based on additional material placed by the accused
which is not part of the record of proceedings before the court below.
According to him, the Power of Attorney is not a piece of evidence that
has been admitted or accepted by the complainant and, thus, it requires
9
(2023) SCC OnLine SC 765
M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.
NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
SUPREME COURT REPORTS
[2023] 13 S.C.R.
230
proof by the appellant. Since the same is yet not proved by the appellant
according to law, therefore, the same cannot be considered at this stage by
this Court. Also, it is for the appellant to respond to the summons and to
raise whatever defence is available to it by appearing before the Trial Court.
12. Reliance was also placed on several decisions by Mr. Taneja,
some of which we propose to refer to a little later, to buttress his contention
that the petition of the appellant was rightly dismissed and that the appeal
deserves dismissal with costs.
THE QUESTIONS
13. Having heard learned counsel appearing for the appellant and the
complainant and on consideration of the materials on record, we are of the
view that the following questions of law emerge for an answer:
i.
Whether, while considering a private complaint alleging
defamation, the Magistrate before summoning the accused ought
to confi ne himself to the allegations forming part of the petition
only or he may, applying his judicial mind to the exceptions to
section 499, IPC, dismiss the complaint holding that the facts
alleged do not make out a case of defamation?

AND
ii. Whether and, if at all, to what extent, is it open to the High Courts
to exercise inherent power saved by section 482, Cr. PC to quash
proceedings for defamation by setting aside the summoning order
upon extending the benefi t of any of the Exceptions to section 499,
IPC?
14. After answering the aforesaid questions, we wish to answer the
following questions emerging from the facts and circumstances of the appeal:
a. Whether the appellant has made out any case for interference with
the judicial orders of the Magistrate and the learned Judge under
challenge?
b. Whether a company can be prosecuted for defamation when the
alleged defamatory statements are made not by it (the company)
but by its authorised agent?
231
c. Depending on the answers to the above, whether the benefi t of
the Fourth Exception to section 499, IPC, as claimed, should be
accorded to the appellant?
ANALYSIS
15. A survey of the decisions of this Court which were cited and those
mentioned in the cited decisions as well as some other decisions, which we
had the occasion to read and consider while preparing this judgment, would
provide guidance and pave the way for us to decide the fate of this appeal.
16. We would fi rst consider the decisions cited by the parties and
those decisions, though not cited by them, are traceable in such decisions,
by maintaining the sequence of their origin.
17. In Balraj Khanna & Ors. v. Moti Ram10, the respondent lodged a
complaint against the fi rst appellant and 6 (six) others under section 500,
IPC, alleging that they had levelled allegations against him which were
defamatory in character. On 2 (two) grounds, the Magistrate dismissed
the complaint. The respondent unsuccessfully applied for revision of
the order of dismissal before the Additional Sessions Judge, whereafter
he approached the High Court of Delhi with success. The High Court,
while setting aside the orders impugned, directed further inquiry. After
considering various foreign decisions as well as decisions of the High
Courts of Orissa, Nagpur, Allahabad and Mysore that were cited, this
Court in paragraph 29 held as follows:
"29. Before concluding the discussion, it is to be stated that the
trial Magistrate has given an additional reason for dismissing the
complaint. That reason is that the resolution passed by the Standing
Committee on December 11, 1964 and the discussion preceding it
by the members of the Standing Committee including the appellants,
is covered by the Exceptions to Section 499 IPC. Unfortunately,
the High Court also has touched upon this aspect and made certain
observations. In our opinion, the question of the application of
the Exceptions to Section 499 IPC, does not arise at this stage.
Rejection of the complaint by the Magistrate on the second ground
10 (1971) 3 SCC 399
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NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
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mentioned above cannot be sustained. It was also unnecessary for the
High Court to have considered this aspect and diff ered from the trial
Magistrate. It is needless to state that the question of applicability of
the Exceptions to Section 499 IPC, as well as all other defences that
may be available to the appellants will have to be gone into during
the trial of the complaint."
 (underlining ours, for emphasis)
18. The next decision is Sewakram Sobhani v. R.K. Karanjia11,
rendered by a Bench of 3 (three) Hon'ble Judges. The appeal was directed
against an order passed by the Madhya Pradesh High Court in exercise
of jurisdiction under section 397, Cr. PC, alternatively under section 482
thereof. The respondent was the Chief Editor, Blitz. An article was published
therein which was per se defamatory. Prosecution for an off ence under
section 500, IPC which was launched stood quashed by the impugned order
on the ground that the case "clearly falls within the ambit of Exception 9 of
Section 499 of the Indian Penal Code, 1860". The appeal was allowed by
the majority and the order under challenge quashed. This is what the Court,
speaking through Hon'ble A.P. Sen, J., said:
"6. The order recorded by the High Court quashing the prosecution
under Section 482 of the Code is wholly perverse and has resulted in
manifest miscarriage of justice. The High Court has prejudged the
whole issue without a trial of the accused persons. The matter was at
the stage of recording the plea of the accused persons under Section 251
of the Code. The requirements of Section 251 are still to be complied
with. The learned Magistrate had to ascertain whether the respondent
pleads guilty to the charge or demands to be tried. The circumstances
brought out clearly show that the respondent was prima facie guilty of
defamation punishable under Section 500 of the Code unless he pleads
one of the exceptions to Section 499 of the Code. ***
It is for the respondent to plead that he was protected under Ninth
Exception to Section 499 of the Penal Code. The burden, such as it is,
to prove that his case would come within that exception is on him. ***
11 (1981) 3 SCC 208
233
7. We are completely at a loss to understand the reasons which impelled
the High Court to quash the proceedings. ***"
Hon'ble O. Chinnappa Reddy, J., in a concurring judgment, made an
illuminating discussion which would also be relevant for answering one of
the questions formulated by us touching upon the facts of this appeal. We
quote the concluding paragraph of His Lordship's judgment, reading thus:
"18. Several questions arise for consideration if the Ninth Exception is
to be applied to the facts of the present case. Was the article published
after exercising due care and attention? Did the author of the article
satisfy himself that there were reasonable grounds to believe that the
imputations made by him were true? Did he act with reasonable care
and a sense of responsibility and propriety? Was the article based
entirely on the report of the Deputy Secretary or was there any other
material before the author? What steps did the author take to satisfy
himself about the authenticity of the report and its contents? Were
the imputations made rashly without any attempt at verifi cation? Was
the imputation the result of any personal ill will or malice which the
author bore towards the complainant? Was it the result of any ill will or
malice which the author bore towards the political group to which the
complainant belonged? Was the article merely intended to malign and
scandalise the complainant or the party to which he belonged? Was the
article intended to expose the rottenness of a jail administration which
permitted free sexual approaches between male and female detenus?
Was the article intended to expose the despicable character of persons
who were passing off as saintly leaders? Was the article merely intended
to provide salacious reading material for readers who had a peculiar
taste for scandals? These and several other questions may arise for
consideration, depending on the stand taken by the accused at the trial
and how the complainant proposes to demolish the defence. Surely
the stage for deciding these questions has not arrived yet. Answers to
these questions at this stage, even before the plea of the accused is
recorded can only be a priori conclusions. 'Good faith' and 'public
good' are, as we said, questions of fact and matters for evidence. So,
the trial must go on."
 (underlining ours, for emphasis)
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NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]
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19. The decision of another Bench of 3 (three) Hon'ble Judges in
Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathu12 outlined the
contours for exercise of jurisdiction to quash a complaint for defamation.
Paragraph 13 being relevant is set out below:
"13. As regards the allegations made against the appellant in the
complaint fi led in the Court of Judicial Magistrate, Ist Class, at Nasik,
on a reading of the complaint we do not think that we will be justifi ed
at this stage to quash that complaint. It is not the province of this Court
to appreciate at this stage the evidence or scope of and meaning of
the statement. Certain allegations came to be made but whether these
allegations do constitute defamation of the Marwari community as a
business class and whether the appellant had intention to cite as an
instance of general feeling among the community and whether the
context in which the said statement came to be made, as is sought
to be argued by the learned Senior Counsel for the appellant, are all
matters to be considered by the learned Magistrate at a later stage. At
this stage, we cannot embark upon weighing the evidence and come
to any conclusion to hold, whether or not the allegations made in the
complaint constitute an off ence punishable under Section 500. It is the
settled legal position that a court has to read the complaint as a whole
and fi nd out whether allegations disclosed constitute an off ence under
Section 499 triable by the Magistrate. The Magistrate prima facie came
to the conclusion that the allegations might come within the defi nition
of 'defamation' under Section 499 IPC and could be taken cognizance
of. But these are the facts to be established at the trial. The case set
up by the appellant are either defences open to be taken or other steps
of framing a charge at the trial at whatever stage known to law. Prima
facie we think that at this stage it is not a case warranting quashing
of the complaint fi led in the Court of Judicial Magistrate, Ist Class at
Nasik. To that extent, the High Court was right in refusing to quash
the complaint under Section 500 IPC."
 (underlining ours, for emphasis)
12 (1996) 6 SCC 263
235
20. Then followed M.N. Damani v. S.K. Sinha13 where this Court, after
applying the law laid down in Sewakram Sobhani (supra) and Shatrughna
Prasad Sinha (supra), set aside the order of the Karnataka High Court and
restored the order of the Magistrate issuing summons to the accused for
off ence under section 500, IPC.
21. In M.A. Rumugam v. Kittu Alias Krishnamoorthy14, the respondent
fi led a private complaint against the appellant for commission of the
off ence of defamation under section 500, IPC. Taking cognizance of the
said complaint, the Magistrate issued summons to the appellant. Aggrieved
thereby, he fi led a petition before the High Court of Judicature at Madras
praying to call for the records pertaining to the complaint petition fi led by the
respondent and to quash the same. Before the High Court, a contention was
raised that the backdrop of events and the manner in which the complaint
petition had to be fi led by the appellant would clearly establish that the action
on his part was not in good faith. The said contention was negatived by the
High Court. This Court had the occasion to consider the applicability of
the provisions of section 482, Cr. PC for quashing of a complaint petition
fi led by the respondent against the appellant under section 500, IPC. While
dismissing the appeal, the Court went on to apply the well-settled principle of
law that those who plead exception must prove it and, therefore, the burden
of proof that his action was bona fi de would, thus, be on the appellant alone.
22. In Subramanian Swamy v. Union of India15, this Court considered
the issue from a diff erent angle. We can do no better than reproduce the
contention and how the same was unhesitatingly repelled in the following
words:
"209. We will be failing in our duty if we do not take note of the
submission of Mr. Bhambhani, learned Senior Counsel. It is submitted
by the learned Senior Counsel that Exceptions to Section 499 are
required to be considered at the time of summoning of the accused but
as the same is not conceived in the provision, it is unconstitutional. It is
settled position of law that those who plead Exception must prove it. It
13 (2001) 5 SCC 156
14 (2009) 1 SCC 101
15 (2016) 7 SCC 221
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has been laid down in M.A. Rumugam 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
defi nitely apply to any Exception who wants to have the benefi t of
the same. Therefore, the argument that if the said Exception should
be taken into consideration at the time of 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."
 (underlining ours, for emphasis)
23. Now, we take up for consideration the fi rst decision cited by Ms.
Viswanathan, i.e., Rajendra Kumar Sitaram Pande (supra). The facts, the
relevant issue and the fi nding - all are captured in paragraph 7, which we
reproduce hereunder:
"The next question that arises for consideration is whether reading the
complaint and the report of the Treasury Offi cer which was obtained
pursuant to the Order of the Magistrate under sub-section (1) of Section
201, can it be said that a prima facie case exists for trial or Exception 8
to Section 499 clearly applies and consequently in such a case, calling
upon the accused to face trial would be a travesty of justice. The
gravamen of the allegations in the complaint petition is that the accused
persons made a complaint to the Treasury Offi cer, Amravati, containing
false imputations to the eff ect that the complainant had come to the
offi ce in a drunken state and abused the Treasury Offi cer, Additional
Treasury Offi cer and the Collector and circulated in the offi ce using
fi lthy language and such imputations had been made with the intention
to cause damage to the reputation and services of the complainant. In
order to decide the correctness of this averment, the Magistrate instead
of issuing process had called upon the Treasury Offi cer to hold an
enquiry and submit a report and the said Treasury Offi cer did submit
a report to the Magistrate. The question for consideration is whether
237
the allegations in the complaint read with the report of the Magistrate
make out the off ence under Section 500 or not. Section 499 of the Penal
Code, 1860 defi nes the off ence of defamation and Section 500 provides
the punishment for such off ence. Exception 8 to Section 499 clearly
indicates that it is not a defamation to prefer in good faith an accusation
against any person to any of those who have lawful authority over that
person with regard to the subject-matter of accusation. The report of the
Treasury Offi cer clearly indicates that pursuant to the report made by
the accused persons against the complainant, a departmental enquiry
had been initiated and the complainant was found to be guilty. Under
such circumstances the fact that the accused persons had made a report
to the superior offi cer of the complainant alleging that he had abused
the Treasury Offi cer in a drunken state which is the gravamen of the
present complaint and nothing more, would be covered by Exception
8 to Section 499 of the Penal Code, 1860. By perusing the allegations
made in the complaint petition, we are also satisfi ed that no case of
defamation has been made out. In this view of the matter, requiring the
accused persons to face trial or even to approach the Magistrate afresh
for reconsideration of the question of issuance of process would not be
in the interest of justice. On the other hand, in our considered opinion,
this is a fi t case for quashing the order of issuance of process and the
proceedings itself. We, therefore, set aside the impugned order of the
High Court and confi rm the order of the learned Sessions Judge and
quash the criminal proceeding itself. This appeal is allowed."
(underlining ours, for emphasis)
24. The aforesaid determination makes it clear that on perusal of the
allegations levelled in the petition of complaint, the Court was satisfi ed that
no case of defamation had been made out therein and this precisely seems
to be the reason why the Court felt that it would not be in the interest of
justice to require the accused persons to face trial or even to approach the
Magistrate afresh for reconsideration of the question of issuance of process.
We do not read any law having been laid down by this Court in Rajendra
Kumar Sitaram Pande (supra) that wherever a challenge to a summoning
order passed on a complaint for defamation is laid before the High Courts in
a petition under section 482, Cr. PC or such challenge travels to this Court,
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an endeavour must necessarily be made whether any of the exceptions
is attracted so that the proceedings may be closed without subjecting the
accused to long drawn proceedings.