Magistrate’s Responsibility To Examine Material On Record In Defamation Complaints Is Of Higher Degree: J&K&L HC
|The Jammu & Kashmir and Ladakh High Court observed that the responsibility of a Magistrate to examine the material on record in a complaint alleging defamation is of a higher degree.
The Court set aside an order of issuance of process in a defamation case by a Trial Magistrate, observing that the order, based upon social media posts, reflected its “mechanical functioning.” The Bench noted that the Magistrate had recorded only the preliminary statement of the complainant at the time of issuing process against the petitioner. The Court stated that it was a fit case for the Magistrate to resort to investigation in terms of Section 202 of the Cr.P.C to ascertain truth or falsehood of the complaint instead of issuing process.
A Single Bench of Justice Sanjay Dhar observed, “A perusal of the impugned order dated 26.03.2019 reveals that it is nowhere mentioned as to which offences are, prima facie, made out against the petitioner. In this regard, it is to be noted that in the complaint respondent has alleged commission of offences under Section 406, 500, 501, 506, 326/511 and 109 RPC but the learned trial Magistrate has not stated as to which of these offences is made out against the petitioner. This clearly reflects mechanical functioning of the learned trial Magistrate.”
Sr. Advocate Anil Bhan appeared for the petitioner, while Advocate Sajad Sultan represented the respondent.
Although the complainant had alleged the commission of offences under Sections 406, 500, 501, 506, 326, 511 and 109 of the RPC, the Court pointed out that the Magistrate had not stated as to which of these offences were made out against the petitioner.
The Bench stated that “the responsibility of a Magistrate to examine the material on record in the case of complaints alleging commission of offence of defamation is of a higher degree.”
The Court explained that although it is the discretion of the Magistrate to either proceed to issue process against an accused on the basis of the allegations made in the complaint and the preliminary evidence recorded or to postpone the issue of process and hold an enquiry in terms of Section 202 of the Cr. P. C but such discretion cannot be exercised in an arbitrary manner.
“In spite of this, having regard to the acrimonious matrimonial relationship between the parties, the fact that the petitioner was living beyond the territorial jurisdiction of the learned trial Magistrate and the complainant had not produced any preliminary evidence excepting his own statement, this was a fit case where the learned trial Magistrate instead of issuing process against the petitioner should have resorted to enquiry/investigation,” the Court stated.
The Bench also stated that under Section 202 of J&K Cr.P.C, it was not incumbent upon the Magistrate to hold an enquiry in a case where the accused was residing beyond his territorial jurisdiction of the Court.
“Apart from this, the learned trial Magistrate has not even adhered to the mandate of sub-section (1)(a) of Section 204 of the Cr. P. C which provides that summons cannot be issued against the accused until a list of prosecution witnesses has been filed and in the instant case, no such list of prosecution witnesses is accompanying the impugned complaint,” the Court remarked.
Consequently, the Court set aside the impugned order passed by the trial Magistrate.
Accordingly, the High Court allowed the petition.
Cause Title: Manju Bhat v. Amit Wanchoo
Appearance:
Petitioner: Sr. Advocate Anil Bhan; Advocates Danish Majeed and Bhat Shafi
Respondent: Advocates Sajad Sultan & Shahid Zamir