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Magistrate can't refer complaint about offence u/s 500 IPC to police for investigation u/s 156(3) CrPC
Prashanth Sambargi Vs The State of Karnataka
CRIMINAL PETITION No. 349 OF 2021
About/from the judgment:
The High Court recently quashed the proceedings initiated under section 156(3) of the Criminal Procedure Code (CrPC), wherein the Magistrate court referred the complaint filed for defamation under section 499, 500 of the Indian Penal Code to the police for further investigation.
While doing so, the Bench relied on the Apex court judgement in the case of Subramanian Swamy v. Union Of India, (2016) 7 SCC 221, wherein it was held that when a complaint made by the complainant before the Magistrate involves offence punishable under Section 500 of the IPC, the Magistrate cannot exercise powers under Section 156(3) of the Cr.P.C. so as to direct Police to register a crime and then investigate into the offence, in view of the specific bar contained in Section 199 of the Cr.P.C.
Section 199 provides that no Court shall take cognizance of an offence punishable under Chapter XXI of IPC except upon a complaint made by some person aggrieved by the offence.
A single judge bench said,
"In the light of the judgment of the Apex court and that of the learned single Judge of the High Court of Kerala (supra) interpreting Sections 199, 499 and 500 of the IPC, the order of the learned Magistrate directing investigation and all proceedings thereto would be a nullity in law."
It added, "Therefore, the proceedings require to be obliterated and the matter remitted back to the learned Magistrate to take up such proceedings bearing in mind the observations made in the course of the order."
The petitioner Prashant Sambargi had approached the court calling in question proceedings pending before the Additional Chief Metropolitan Magistrate, Bangalore registered for offences punishable under Sections 499 and 500 of the IPC read with Section 67 of the Information Technology Act, 2008.
The complainant who had taken a hand loan from the petitioner had lodged the private complaint stating that after dismissal of the cases filed by the petitioner against him he circulated messages on WhatsApp group depicting the complainant to be an alleged cheat.
The counsel appearing for the petitioner argued that the very complaint was not maintainable in the teeth of the Ninth exception to Section 499 of the IPC which takes away the effect of defamation to become punishable under Section 500 of the IPC and would submit that Section 67 of the Act also cannot be invoked as it is not even defamatory and circulated amongst a particular group.
Counsel for the complainant submitted that statement made in WhatsApp group called 'Parivartane' against the complainant is on the face of it defamatory, as the complainant is yet to be found guilty in any of the cases. Mere registration of crime against the complainant cannot mean that he could be defamed and his image be lowered in the like minded people of the society.
Further, it was submitted that it is a matter for trial as Ninth exception to Section 499 of the IPC is always a question of fact.
The High Court Government Pleader supported the contention raised by the complainant.
The court also relied on the judgement of the High Court of Kerala considering the very issue in the case of Suresh v. Sub-Inspector of Police, 2019 (4) KLT 106, where it was held that Magistrate has no jurisdiction under Section 155(2) to direct the Police to register a crime and conduct investigation in respect of a petition involving allegation in relation to Section 500 of the IPC.
In this light, the instant Court observed,
"The proceedings require to be obliterated and the matter remitted back to the learned Magistrate to take up such proceedings bearing in mind the observations made in the course of the order."
Accordingly it allowed the petition and quashed the magistrate court order. It also directed the trial court to take further proceedings in the case from the stage of registration of the complaint and take all appropriate action in accordance with law.
Read the Judgment
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