Case Details M/s Iveco Magirus Brandschutztechnik Gmbh vs Nirmal Kishore Bhartiya & Anr.

Held: The exercise of jurisdiction by the High Courts u/s. 482, Cr.P.C., in a case where the offence 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 offence 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 finding 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 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 satisfied: (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 offence 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 finding of a prima facie case having been made out at that stage is so outrageously illogical or in defiance 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 confined to the Fourth Exception, for due consideration thereof by the Trial Court – Therefore, the Trial Court was not unjustified 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 effect 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 lawfully and not unlawfully – As far as the benefit 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: Jeffrey 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