ABHIJIT PAWARversusHEMANT MADHUKAR NIMBALKAR & ANR.

                        [2016] 9 S.C.R. 475



                       ABHIJIT PAWAR                                  A
                                v.
        HEMANT MADHUKAR NIMBALKAR & ANR.
                (Criminal Appeal No. 1225 of2016)
                      DECEMBER 14, 2016                               B
     [A.K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.]
       Code of Criminal Procedure, 1973: s.202 - Persons residing
at a place beyond the area in which the Magistrate exercises his
iurisdiction - Issuance of summons - Held: The procedure stipulated C
in s.202 is mandatory which imposes an obligation on the Magistrate
to ensure that before summoning an accused, who resides beyond
his jurisdiction, the Magistrate shall make necessary inquiries into
the case himself or direct investigation - Jn the instant case,
complainant was aggrieved with the news published in a newspaper
and filed complaint against the accused persons who were D
described as Printer and Publisher, Managing Director, Chairman
of the newspaper - A perusal of summoning order showed that no
inquiry was conducted as contemplated in s.202 - Magistrate did
not look into the matter in terms of the provisions of s. 7 of the Press
Act and applying his mind whether there is any declaration qua E
accused persons under the said Act and, if not, on what basis they
were to be proceeded with along with the editors - Magistrate
directed to take up the matter afresh - Press and Registration of
Books Act, 1861.
      Allowing the appeals, the Court
                                                                      F
      HELD:l. Section 202 of the Cr.P.C. was amended in the
year by the Code of Criminal Procedure (Amendment) Act, 2005,
with effect from 22nd June, 2006 by adding the words 'and shall,
in a case where the accused is residing at a place beyond the
area in which he exercises his jurisdiction'. There is a vital
purpose or objective behind this amendment, namely, to ward off G
false complaints against such persons residing at a far off places
in order to save them from unnecessary harassment. Thus, the
amended provision casts an obligation on the Magistrate to
conduct enquiry or direct investigation before issuing the process,
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                                475
476           SUPREME COURT REPORTS                      [2016] 9 S.C.R.


A     so that false compiaints are filtered and rejected. The requirement
      of conducting enquiry or directing investigation before issuing
      process is, therefore, not an empty formality.[Paras 22, 24][489-
      B-C; 492-C]
            Vijay Dhanuka v. Najima Mamtaj 2014 (4) SCR 171 :
B           (2014) 14 SCC 638; Mehmood Ul Rehman v. Khazir
            Mohammad Tunda (2016) 1 SCC (Cri) 124 - relied on.
        2. In the instant case, the summoning order did not reflected
  any such inquiry. No doubt, the order mentioned that the
  Magistrate had passed the same after reading the complaint,
c verification statement of complainant and after perusing the
  copies of documents filed on record, however, there is no enquiry
  of the nature enumerated in Section 202, Cr.P.C. The Magistrate
  did not look into the matter keeping in view the provisions of
  Section 7 of the Press Act and applying his mind whether there is
  any declaration qua these two persons under the said Act and, if
D not, on what basis they are to be proceeded with along with the
  editors. Application of mind on this aspect was necessary. It is
  not suggested that these two accused persons cannot be
  proceeded with at all only because of absence of their names in
  the declaration under Press Act. What is emphasised is that there
E is no presumption against these persons under Section 7 of the
  Press Act and they being outside the territorial jurisdiction of
  the concerned Magistrate, the Magistrate was required to apply
  his mind on these aspects while passing summoning orders qua
  A-1 and A-2. [Paras 25, 26, 27][492-H; 493-A, C-E)
 F          National Textile Corpn. Ltd. v. Nareshkumar Badrikumar
            Jagad 2012 (14) SCR 472 : (2011) 12 SCC 695 -
            relied on.
         3. No doubt, the argument predicated on Section 202 of
  the Cr.P.C. was raised for the first time by A-1 before the High
G Court. Notwithstanding the same, being a pure legal issue which
  could be tested on the basis of admitted facts on record, the High
  Court could have considered this argument on merits. It is a
  settled proposition of law that a pure legal issue can be raised at
  any stage of proceedings, more so, when it goes to the jurisdiction
  of the matter. For the said reasons, the notice in respect of A-1
H
 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                       477
                       ANR.

is quashed and the Magistrate is directed to take up the matter A
afresh qua A-1 and pass necessary orders. Insofar as appeal filed
by the complainant discharging A-2 is concerned, the High Court
has quashed the notice on the ground that he is only shown as
Chairman and is not shown to be actually associated with the
publication of the newspaper. Since, the matter insofar as A-1 is B
concerned is relegated, for the same reasons the complainant
needs to be given an opportunity to show as to whether A-2 was
actually associated with the publication or not. It is more so when
the High Court has not given any cogent reasons on the basis of
which it has said that Chairman is not shown to be associated
with the impugned publication. Thus, the second appeal is allowed C
as well and the Magistrate is directed to hold the same inquiry as
directed qua A-1 and apply his mind as to whether notice against
A-1 and A-2 needs to be issued or not. [Paras 28, 30 and 31][493-
F-G; 494-B-E]
     Subramaniam Swamy v. Union of India (2016) 1 SCC               D
     221; National Bank of Oman v. Barakara Abdul Aziz
     2012 (11) SCR 500 : (2013) 2 SCC 488; Maharashtra
     State Electricity Distribution Co. Ltd. v. Datar Switchgear
     Ltd. (2010) (1) SCC 479; Ramesh Chand Agganml v.
     State of Haryana and Anr. Crl. Misc. No. 30154/2010;
     Dtd. 22.12.2011 by Punjab and Haryana High Court;               E
     K.M Mathews v. K.A. Abraham 2002 (1) Suppl. SCR
     662 : (2002) 6 SCC 670; Rosy and Am: v. State of
     Kera/a 2000 (1) SCR 107 : (2000) 2 SCC 230;
     Chandradev Singh v. Prakash Chandra Bose AIR 1963
     SC 1430 : 1964 SCR 639 - referred to.                           F
                       Case Law Reference
       (2016) 1 sec 221                  referred to      Para 11
       2012 (11) SCR 500                 referred to      Para 11
       (2010) (1) sec 479                referred to      Para 11
       2002 (1) Suppl. SCR 662           referred to      Para 11    G
       2000 (1) SCR 107                  referred to      Para 15
       1964 SCR 639                      referred to      Para 16
       2014 (4) SCR 171                relied on        Para 22
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478            SUPREME COURT REPORTS                         [2016] 9 S.C.R.



A             (2016) 1 sec (Cri) 124           relied on        Para23
              2012 (14 ) SCR 472               relied on        Para 28
            CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
      1225 of2016.
B           From the Judgment and Order dated 06.11.2012 of the High Court
      of Judicature at Bombay in WP (Cr!.) No. 1772 of2010.
                                       WITH
            Crl. A. No. 1226 of2016.
 C          Ashok Desai, Sidharth Luthra, V. Giri, R. P. Bhatt, Sr. Advs., Ms.
      Shyel Trehan, Hitesh Jain, Ms. Himanie Katoch, Ms. Akshita Sachdea,
      Ms. Liz Mathew, Makarand D. Adkar, Vijay Kumar, Shrikrishna R.
      Ganbawale, Vishwajit Singh, Dr. Bheem Pratap Singh, Nishant
      Ramakantrao Katneshwarkar, Makarand D. Adkar, Advs., for the
      appearing parties.
D
            The Judgment of the Court was delivered by
            A.K. SIKRI, J. 1. Leave granted.
               2. On l 8'h March, 2009, a police squad working under the
      Lokayukta ofKarnataka State, raided certain places and house of certain
 E    police officers including that ofHemant Madhukar Nimbalkar (hereinafter
      referred to as the 'complainant'). After the said raid, the Lokoyukta
      held a press conference in which he stated that the complainant, who
      was an IPS Officer and posted as Superintendent of Police with charge
      of anti-terrorist squad, had collected assets in the region of Rs. 250
      crores. In the process, the Lokayukta discussed the details of the raid
 F    on the properties belonging to the complainant situate in Mumbai,
      Kolhapur and Belgaum. The press statement issued by the Lokayukta
      was widely reported the very next day in a number of prominent national
      as well as local newspapers, like Indian Express, Hindu, Times oflndia
      etc.
 G          3. Sakal Newspaper, which is a Marathi newspaper also carried
      and pub Iished this news item. Kolhapur edition of this newspaper dated
      l9'h March, 2009 records the version ofthe Lokayukta. Likewise,
      statements given by the Lokayukta also appeared in Belgaum, Pune,
      Nasik and Aurangabad editions of Sakal newspaper.
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 ABHIJIT PAWAR v. HEMANI MADHUKAR NIMBALKAR &                              479
                 ANR. [A. K. SIKRI, J.]

       4. Kolhapur edition also carried out another separate news item A
under the caption 'Rich from Silver and Elephant Teeth Smuggling'.
Under this news item, it was, inter alia, mentioned that the complainant
had collected money from silver and elephant teeth smuggling which
came to the knowledge of the newspaper from reliable sources.
Description was also given about his modest background leading very B
ordinary life during his tenure as the student and amassing wealth over a
period of time through the aforesaid smuggling activities which made
him rich.
      It was also stated that he had thrown a huge new year eve party,
about three years ago, spending more than 25 laks of rupees.
                                                                             c
      Likewise, in Belgaum edition, after reproducing the statement
given by the Lokayukta, details of various properties owned by the
complainant were given.
          On l 9'h March, 2009, the editorial was published in Sakal
newspaper with the heading 'Police "Dog" Millionaire'. In this editorial, D
reference was made to the Oscar winning movie "Slum Dog Millionaire".
It was stated that though there was no comparison between the story of
'Jamal', the leading character in the said film and the complainant insofar
as acquisition of wealth by the complainant is concerned, but insofar as
the complainant is concerned, it was mystifying story that one boy in the
middle class family becomes IPS Officer and collects property worth E
Rs. 250 crores within eight to ten years. The particulars of the properties
acquired by the complainant with their value were mentioned and the
editorial also highlighted increase in crime in white collar high class persons
with no limit of corruption.
         To the similar effect were the news published in E-editorial of     F
this newspaper. According to the complainant, the news was very
offensive and contained libelous satire against him generally, and in
particular in the following lines:
       '~Much discussion was held on the word "Dog" in the name
       of movie but in police machinery there are many such                  G
       "dogs" and they are likelihood of"dog" and such is situation.
       The one who should protect law they have become "eater"
       becoming violating and this is not new to this country. The
       roots of corruption and bribe are deep rooted from Delhi to
       all over in small lanes also. There is no fear of law. From
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480             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           this it is clear that corruption is becoming social mannerism."
             5. The complainant, feeling agitated by the aforesaid publications
      in different editions of Sakal newspaper, filed the complaint before the
      ChiefJudicial Magistrate, Kolhapurunder Section 501, 502 and 504 read
      with Section 34 of the Indian Penal Code on 5th November, 2009. In this
B     complaint apart from the four editors of the four editions of the newspaper
      at Kolhapur, Belgaum, Pune and Nasik, Mr. Abhijit Pawar (hereinafter
      referred to as the 'A-1 ), Managing Director of Sakal Newspaper and
      Mr. Pratap Rao Govind Rao Pawar (hereinafter referred to as the 'A-
      2), Chairman of this group of Newspapers (who incidentally is father of
      Abhijit Pawar) were also arrayed as accused persons. In the complaint
c     A-1 Abhijit Pawar is described generally as "Managing Director Editor
      of Sakal Papers Ltd.". He is also described as Printer and Publisher of
      Pune edition. Under statutory declaration, he is described a Printer and
      Publisher of the Pune edition. A-2 is described as Chairman of Sakal
      Papers Ltd. A-3 to A-6 are described as editors of various editions. A-3,
D     Navneet Deshpande, is described as Executive Editor of Pune edition
      and Accused No. 5 Yamaji Malkar as editor for Pune edition.
             6. Verification in respect of this complaint was carried out on 17m
      November, 2009 wherein A-1 is described as 'Managing Director and
      Editor' of Sakal. After recording of the aforesaid verification statement
 E    of the complainant, the Chief Judicial Magistrate, Kolhapur, i.e, the trial
      court issued process against all the accused persons on 24th November,
      2009. Being aggrieved by the said order of issuance of process, all the
      accused persons challenged that order by filing criminal revision before
      the Sessions Court. This was, however, dismissed by the Court of
      Sessions on 26th February, 2010.
 F
             7. As A-I did not appear before the trial court even after the
      dismissal of the criminal revision application, on 14m June, 20 I 0 bailable
      warrants were issued against him. Not satisfied with the dismissal of
      the criminal revision petition and aggrieved by the issuance of the bailable
      warrants, both A-1 and his father, A-2 approached the High Court of
 G    Bombay by way of their respective criminal writ petitions. These writ
      petitions were clubbed together for hearing and have been decided by
      the common judgment dated 61h November, 2012. Vi de this judgment,
      whereas the writ petition of A-I has been dismissed, that of A-2 was
      allowed.
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 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                                  481
                 ANR. [A. K. SIKRI, J.]

         8. It is in this backdrop that A-1 has filed the Criminal Appeal      A
arising out of Special Leave Petition (Criminal) No. 9318of2012.
       9. Against that part of the order of the High Court by which
proceedings against A-2 have been quashed, it is the complainant who
has come up to this Court by filing Criminal Appeal arising out of Special
Leave Petition (Cr!.) No. 9860 of2012.                                          B
        10. Mr. Ashok Desai and Mr. Sidharth Luthra, learned senior
counsel appearing for A-1 have made four-fold submissions while
questioning the order ,of issuance of process passed by the trial court
which is affirmed by the High Court. These are:
        (i) Provisions of Section 202 of the Code of Criminal Procedure,        c
        1973 (Cr.P.C.) are ignored and not complied with by the trial court
        while issuing the process. It is submitted that the procedure
        stipulated in the said provision is mandatory which imposes an
        obligation on the Magistrate to ensure that before summoning an
        accused, who resides beyond his jurisdiction, the Magistrate shall      D
        make necessary inquiries into the case himself or direct
        investigation to be made by a police officer or by such other person
        as he thinks fit for finding out whether or not there is sufficient
        ground to proceed against the accused. It was submitted that
        indisputably A-1 resides outside the jurisdiction of the trial court
        at Kolhapur as he is resident of Pune.                                  E

       11. It is also argued that the order does not contain even the
minimum reasoning necessary for issuance of such process as required
in law explained in Subramaniam Swamy vs. Union of India 1•
       The learned counsel laid great emphasis on the amendment in              F
Section 202, Cr.P.C. in the year 2005 whereby special provision was
made mandating due care to be taken by the Magistrate in respect of
those persons residing at a place beyond the area in which the Magistrate
exercises his jurisdiction, to ensure that innocent persons are not harassed
by unscrupulous persons. It was pointed out that this was avowed
objective behind this amendment specifically noted and explained by this        G
Court in National Bank of Oman vs. Bamkara Abdul Aziz1,
       Some more judgments in support of the aforesaid arguments were
also referred to, which will be taken note of at the appropriate stage.
 1
     (2016) 1sec221
 2 (2013) 2 sec 488
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482             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A         (ii) Second argument of the appellant was that there is no vicarious
  liability in criminal defamation and a person can be held liable only for
  his own act where he has the necessary mens rea, i.e., criminal mind. It
  was submitted that A-1 was, in fact, placed in the same position as A-2
  and, therefore, the High Court should have quashed the process against
B A-1 as well, on the parity of reasoning adopted in the case of A-2.
              To buttress this submission, the learned counsel took aid of the
      judgment of this Court in Maharashtra State Electricity Distribution
      Co. Ltd. Vs. Datar Switchgear Ltd. 3 laying emphasis, in particular, on
      para 13 of the said judgment which reads as under:-
C           "30. It is trite law that wherever by a legal fiction the
            principle of vicarious liability is attracted and a person who
            is otherwise not personally involved in the commission of
            an offence is made liable forthe same it has to be specifically
            provided for in the statute concerned."

D        (iii) Taking the aforesaid argument of vicarious liability further, by
  giving it another dimension, it was submitted that the provisions of the
  Press and Registration of Books Act, 1861 (hereinafter referred to as
  the 'Press Act') take care of such situations thrusting the responsibility
  on the person who is declared as 'editor' in the prescribed format under
  the said Act and making the said declared editor responsible for these
E acts. It was submitted that Section 2(1) of the Press Act defines 'Editor'
  and as per the provisions of the Section, such a declaration is prima
  facie evidence in any legal proceedings, whether civil or criminal, about
  the person on whom the responsibility for the wrongful civil or criminal
  can be foisted upon. It was argued that besides the editor, other persons
F like the printeror publisher ofa newspaper cannot be held liable forthe
  wrongful acts, more particularly, when it comes to criminal prosecution.
  Otherwise, it would create a chilling effect in the freedom of speech. In
  this hue, it was submitted that Section 7, which talks of declaration to be
  primafacie evidence in any legal proceedings, whether whatever civil
  or criminal, only refers to a presumption that the declaration is sufficient
G evidence about the person who is shown to have certain status as a
  printer and/or publisher to be regarded as a printer and/or editor or
  publisher. This is a rebuttable presumption and, in any case, it does not
  involve any automatic criminal liability. In fact the Comts have been
  meticulous and have even regarded that a title like Chief Editor or
      '(2010) (IJ sec 479
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 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                                     483
                 ANR. [A. K. SIKRI, J.]

Executive Editor would not make that person liable as an editor. It is            A
pointed out that in the present case, the description of A-1 is "Managing
Director Editor".
           It was also submitted that the printer and publisher has no role
in selection of the material to be published. Further in the present case
there are successive reports in many newspapers all over India. So                B
there is nothing special about this publication, to attract any vicarious
liability.
        Referring to the judgment in the case of Ramesll Clland
Aggarwal Vs. State of Haryana anti Anr.4, it was argued that the
court held that ifa person is not shown to be as 'editor', no presumption          C
can be drawn. It needs a positive assertion of knowledge of the
objectionable character of the matter and that it is published with his
consent. In the aforesaid case, the petition of printer and publisher had
been allowed. The matter came to this Court and the Court held that
there were no legal and valid grounds for interference. The learned
counsel also placed reliance on K.M. Mathews Vs. K.A. Abralmm5                     D
       (iv) It was lastly submitted that such kind of prosecutions were
totally untenable, misusing and abusing the process of law deterring
persons from exercising their fundamental right to Freedom of Speech
guaranteed under Article 19( I )(a) of the Constitution. It was emphasised
that this freedom has to be jealously guarded and protected when it E
comes to freedom of Press. Submission was that in the present case, a
statement made by Justice Hegde as the Lokayukta ofKamataka who
called a Press Conference for the purpose and in that he gave information
about the corruption has been made the foundation of the charge of
defamation. It is submitted that it is the duty of the newspaper to publish F
an allegation about which a former Supreme Court Judge made a
statement in public as a part of his duty. This was published by several
national papers including The Hindu, Times oflndia, The Indian Express
reporting the press conference. Although the complainant has sweepingly
stated that the information disclosed by the Lokayukta Kamataka is
wrong and false and is contemplating legal course of action to seek G
justice against the false statements made by Lokayukta, the Sakal
publications as a matter of law, and also their public duty as journalists,
 ' Crl. Misc. No. 30154/20 IO; Dtd. 22.12.2011 by Punjab and Haryana High Court
at Chandigarh
  '(2002) 6 sec 670                                                                H
484             SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A     have a right and obligation to publish the statement and even comment
      on the same.
               It was pointed out that the complainant had instituted a civil
      defamation case against Justice Hegde wherein he also impleaded the
      representatives of The Hindu, The Times of India, Deccan Herald, New
B     Indian Express, Deccan Chronicle, Vijaya Karnataka, Kannad Prabha,
      Prajavani, Udayvani, Sanyukta Karnataka. That civil suit itself has been
      dismissed on 28th June, 201 0 as frivolous, with costs, with the observations
      of the Court that it appeared that the plaintiff had filed the said suit in
      order to gain cheap publicity in an attempt to overcome the serious
      allegations made in criminal case against him. The learned counsel placed
c     heavy reliance on a recent judgment of this Court in Subramanian
      Swamy's case wherein there is a copious discussion of the law relating
      to the Freedom of Speech and Expression enjoyed by the Press.
                12. Mr. Bhatt, learned senior counsel appearing on behalf of
      complainant stoutly refuted the aforesaid submissions of the appellant.
D     It was submitted that the appellants were trying to trivialize the issue by
      taking umbrage under the statement which was made by the Lokayukta.
      He argued that the complaint filed by the complainant did not relate to
      the publication of statement made by the Lokayukta. It was submitted
      that undoubtedly it was the right of the paper to publish the statements,
E     as a news item, which were given by the Lokayukta in Press Conference.
      According to the learned senior counsel, however, this limit was crossed
      by the accused persons in publishing the story about the complainant in
      the newspaper wherein serious libelous and defamatory allegations were
      made aboutthe integrity of the complainant which included the allegations
      that the complainant had amassed ill-gotten wealth and richness from
 F    silver and elephant teeth smuggling. According to the learned senior
      counsel, these stories published in the newspaper, which were independent
      and in addition to the statements made by the Lokayukta, damaged the
      reputation of the complainant thereby lowering his image in the society.
      The learned counsel further submitted that another offending act on the
G     part of the accused persons which come within the mischief oflibel wsa
      publication of the editorial under the caption 'Police "Dog" Millionaire'.
      It was argued that right to freedom of speech or freedom of Press for
      that matter, does not extend to defaming or maligning the reputation of a
      person by publishing mischievously damaging and frivolous material. If
      that is done with intent to tarnish the image of the targeted person, it
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 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                               485
                 ANR. [A. K. SIKRI, J.]

becomes an actionable claim under civil law as well as criminal Jaw.        A
       13. Adverting to contention ofthe complainant based on the process
issued under Section 202 of the Code of Criminal Procedure, it was
argued that the Magistrate had followed correct and legal process.
Attention in this behalf was drawn to the following averments made in
the complaint                                                               B
      "a) The private limited company Sakal Papers Ltd., is run
      by the Accused No. 1 and 2 and it publishes news paper
      Sakal froin various places in Maharashtra and Karnataka
      and internet/on line edition eSakal.
      b) There is a coordinating office at Pune which collects,             c
      selects and circulates important news to all the places where
      from the local editions are published. The local editors include
      the news circulated by Pune coordinating office, known as
      Sakal News Service, manned and controlled by the accused
      Nos. 1 and 2 and the important news, particularly the news            D
      which invites the risk of legal proceedings, for such a
      publication are usually brought to the notice of the accused
      and thereafter they are circulated to different editors.
      c) The accused have nurtured some grudge against the
      Respondent No. I and are interested in defaming the                    E
      Respondent No. 1.
      d) The accused No. 2 rules the management of Sakal News
      Paper in the capacity of Chairman of Company and the
      Accused No. 1 being the son of Accused No. 2 are both
      interest in increasing the sale of the newspaper, the profits
                                                                             F
      of which, go to Sakal Papers Ltd.
      e) On 19.3.2009 the Sakal News Service i.e. "Sakal Vrutta
      Seva" at its head office situated at Pune, transmitted to all
      the places for publication a news item at page 49 of SLP
      Paper Book ( Do we need to write page no. of SLP
                                                                             G
      Paper Book?), indicating that Respondent no. 1 had
      amassed Rs. 250 crores illegally, clearly with an intention
      to defame the Respondent No. I. Additional defamatory
      news were published by Sakal print editions and internet/
      on line edition 'eSakal", for which Respondent no. I filed
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486             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           the complaint under Sections 500, 501and502 R/w 34 IPC."
             14. Referring to the above, it was argued that the complainant
      had given a selective gist of newspaper reports and had also indicated a
      deliberate design on behalf of the accused persons to defame a senior
      JPS Officer. Submission was that the learned Magistrate had examined
B     the record, and had been so specific stating the order issuing the process
      and this record contained: (a) all the newspaper reports including internet
      publication and (b) responses of general public to such news reports.
      Therefore, it could not be said that the learned Magistrate had not applied
      his mind to the relevant material which was documentary in nature and,
      thus, there was no legal infirmity whatsoever. It was submitted that no
 C    doubt amendment of Section 202 Cr.P.C. makes it obligatory for the
      Elarned Magistrate to hold an enquiry into the allegations in the complaint
      and other relevant materials. However, in the defamation matter, issuance
      of process after having examination of defamatory material with reaction
      of the public, would certainly be sufficient to satisfy the test of holding
 D    the enquiry under Section 202, Cr.P.C.
             15. The learned counsel accepted the object of amendment of
      Section 202 Cr.P.C. is stated to be to avoid harassment or unnecessary
      inconvenience to the innocent persons. However, according to him such
      alleged harassment is neither a hypothetical situation, nor it is mere legal
 E    submission. If the accused person feels harassment by an order of
      issuance of process then it is expected that he would complain against
      such unjust harassment without any delay and in any case at the first
      opportunity. It was so held in Rosy and Anr. Vs. State of Kerala 6•
      Therefore, the High Court was fully justified in rejecting the contention
      as regards amendment of Section 202 Cr.P.C. being an afterthought.
 F
               16. The learned counsel also referred to the judgment in the case
      of C/iandradev Singh Vs. Prakash Chandra Bose 7 wherein it was
      held that the object of inquiry as contemplated in Section 202, Cr.P.C. is
      to ascertain the truth or falsehood. The Magistrate making the inquiry
      has to do this only with reference to the intrinsic quality of the statements
 G    made before him and the inquiry which would naturally mean the complaint
      itself, the statement on oath made by the complainant, and, the statements
      made before him by persons examined at the instance of the complaint.
      In the facts of the present case, all the defamatory news articles
       '(2000) 2 sec 230
       7 AIR 1963 SC 1430
 H
 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                                   487
                 ANR. [A. K. SIKRI, J.]

published in the print editions of Sakal and the internet edition eSakal        A
were placed before the Learned Magistrate and based on this material
process was issued.
       17. Various judgments were cited in support of the proposition
that satisfaction of the Magistrate, while issuing the process, is to be
confined to the issue as to whether primafacie case is made out against         B
the accused and not sufficient ground for securing his conviction. The
learned counsel also argued that A-1 and A-2 had not even raised any
contention regarding amended provision of Section 202 of Cr.P.C. at
any stage earlier and this argument was raised for the first time before
the High Court.
                                                                                c
       18. Mr. Bhatt, further submitted that it was also misconceived on
the part of the accused persons to argue that they were not responsible
for the defamatory and libelous material published in the newspaper
thereby refuting the argument predicated on the provisions of the Press
Act. He contended that undoubtedly a person whose name is printed on
the copy of the newspaper as an Editor, would be responsible since his D
name is given in the declaration form. However, that does not mean
that action cannot be taken against others, more particularly, if they are
also responsible for such acts. It was argued that there was specific
averments in the complaint that A-1 and A-2 who are Chairman and
Managing Director respectively of the newspaper, were not only aware E
of the impugned publications but the publication was with their active
consent. According to the learned counsel the offence was committed
when in Kolhapur edition the news were published by the local editor
who is also impleaded as an accused in the proceedings and also in the
internet edition 'eSakal'. Under Section 177 read with Section 178, the
offence is triable where act is done or consequence ensues. In this F
case, not only the act is done at Kolhapur but the consequence also has
foHowed at Kolhapur. The complainant is a permanent resident of
Kolhapur. What is triable is the offence and not the accused. The
accused suffers the sentence or punishment as a result of the trial
wherever situated.                                                         G
       19. In the instant case even otherwise where there are six accused
and four of them have not questioned the process after the criminal
revision, the trial could not be segregated by the Chief Judicial Magistrate.
In this behalf, it was emphatically argued that Sakal Papers Ltd., is a
private limited company, owned and managed by said accused, runs a               H
488             SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A Marathi Daily newspaper styled as "Sakal", and, an internet edition
  known as the 'eSakal'. The news to all these print editions and internet
      edition are collected and circulated by a centralised news agency known
      as the "Sakal News Service", and, important news inviting consequences
      are scrutinized and approved by both Mr. Prataprao Pawan and Mr.
      Abhijit Pawar, who handle and operate the said "Sakal News Service".
B
      It is for this reason that, the internet/online edition 'eSakal' and all the
      print editions have a similar news content and editorials, as the actual
      Editors have virtually no control over the selection of matter and the said
      accused have in furtherance of their design to defame the complainant,
      have published the defamatory news through the newspaper controlled
c     by their company Sakal Papers Ltd. The defamatory news items have
      been published with concurrence of the accused in various editions for a
      period of over six months to gain profits by selling them and hence the
      ingredients of Sections 500, 501, 502 read with Section 34 of the !PC
      are satisfied.

D            20. We have considered the respective submissions of the counsel
      for the parties. In these proceedings, we are not concerned with the
      issue as to whether impugned publications make out a case for offence
      under the aforesaid provisions of the !PC? Since the learned Magistrate
      has issued the process qua four editors as well, apart from A-1 and A-
      2, we proceed with the assumption that prima facie case is made out
 E    against the said editors. The question is as to whether the learned
      Magistrate adopted correct procedure while issuing notice to A-1 and
      A-2 as well.
             21. Basic facts which need to be recapitulated for deciding this
      issue are thatA-1 is the Managing Director of Sakal newspapers whereas
 F    A-2 is the Chairman of the Company. Further, insofar as declaration
      under Section 7 of the Press Act is concerned, name of the other accused
      persons are mentioned except these two accused persons. Therefore,
      we have to examine the matter keeping in view non-existence of such a
      presumption against these two accused persons. It is also an admitted
 G    fact that both the accused persons are not residents ofKolhapur and are
      outside his jurisdiction.
             Having regard to these facts, we proceed to examine the matter
      in the light of the provisions of Section 202, Cr.P.C. as well as Section 7
      of the Press Act.
 H
 ABHIJIT PAWAR v. HEMANI MADHUKAR NIMBALKAR &                             489
                 ANR. [A. K. S!KRI, J.]

        22. Admitted position in law is that in those cases where the A
accused is residing at a place beyond the area in which the Magistrate
exercises his jurisdiction, it is mandatory on the part of the Magistrate to
conduct an enquiry or investigation before issuing the process. Section
202 of the Cr.P.C. was amended in the year by the Code of Criminal
Procedure (Amendment) Act, 2005, with effect from 22"d June, 2006 by
                                                                             8
adding the words 'and shall, in a case where the accused is residing at a
place beyond the area in which he exercises his jurisdiction'. There is a
vital purpose or objective behind this amendment, namely, to ward off
false complaints against such persons residing at a far off places in
order to save them from unnecessary harassment. Thus, the amended
provision casts an obligation on the Magistrate to conduct enquiry or C
direct investigation before issuing the process, so that false complaints
are filtered and rejected. The aforesaid purpose is specifically mentioned
in the note appended to the Bill proposing the said amendment. The
essence and purpose of this amendment has been captured by this Court
in Vijay Dlumuka Vs. N<tjima M<tmtaj8 in the following words:
                                                                             D
        "I I. Section 202 of the Code, inter alia, contemplates
        postponement of the issue of the process "in a case where
        the accused is residing at a place beyond the area in which
        he exercises his jurisdiction" and thereafter to either inquire
        into the case by himself or direct an investigation to be
        made by a police officer or by such other person as he               E
        thinks fit. In the face of it, what needs our determination is
        as to whether in a case where the accused is residing at a
        place beyond the area in which the Magistrate exercises
        his jurisdiction, inquiry is mandatory or not.
      12. The words "and shall, in a case where the accused is              F
      residing at a place beyond the area in which he exercises
      his jurisdiction" were inserted by Section 19 of the Code of
      Criminal Procedure (Amendment) Act (Central Act 25 of
      2005) w.e.f. 23-6-2006. The aforesaid amendment, in the
      opinion of the legislature, was essential as false complaints         G
      are filed against persons residing at far off places in order
      to harass them. The note for the amendment reads as
      follows:
          "False complaints are filed against persons residing
• (2014) 14 sec 638
                                                                            H
490            SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A              at far off places simply to harass them. In order to
               see that innocent persons are not harassed by
               unscrupulous persons, this clause seeks to amend sub-
               section (I) of Section 202 to make it obligatory upon
               the Magistrate that before summoning the accused
               residing beyond his jurisdiction he shall enquire into
 B
               the case himself or direct investigation to be made
               by a police officer or by such other person as he
               thinks fit, for finding out whether or not there was
               sufficient ground for proceeding against the
               accused."
 c          The use of the expression "shall" prima facie makes the
            inquiry or the investigation, as the case may be, by the
            Magistrate mandatory. The word "shall" is ordinarily
            mandatory but sometimes, taking into account the context
            or the intention, it can be held to be directory. The use of
D           the word "shall" in all circumstances is not decisive. Bearing
            in mind the aforesaid principle, when we look to the intention
            of the legislature, we find that it is aimed to prevent innocent
            persons from harassment by unscrupulous persons from
            false complaints. Hence, in our opinion, the use of the
            expression "shall" and the background and the purpose for
 E          which the amendment has been brought, we have no doubt
            in our mind that inquiry or the investigation, as the case
            may be, is mandatory before summons are issued ·against
            the accused living beyond the territorial jurisdiction of the
            Magistrate."
 F        23. For this reason, the amended provision casts an obligation on
   the Magistrate to apply his mind carefully and satisfy himself that the
   allegations in the complaint, when considered along with the statements
   recorded or the enquiry conducted thereon, would primafacie constitute
   the offence for which the complaint is filed. This requirement is
 G emphasised by this Court in a recent judgment Melmwod U/ Reliman
   Vs. K/mzir Moliammad Tunda 9 in the following words:
            "20. The extensive reference to the case law would clearly
            show that cognizance of an offence on complaint is taken
            for the purpose of issuing process to the accused. Since it
 H    • (2016) 1 sec (Cri) 124
ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                         491
                ANR. [A. K. SIKRI, J.]

   is a process oftakingjudicial notice of certain facts which       A
   constitute an offence, there has to be application of mind
   as to whether the allegations in the complaint, when
   considered along with the statements recorded or the inquiry
   conducted thereon, would constitute violation of law so as
   to call a person to appear before the criminal court. It is not
                                                                     B
   a mechanical process or matter of course. As held by this
   Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial
   Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400] to
   set in motion the process of criminal Jaw against a person is
   a serious matter.
   22. The steps taken by the Magistrate under Section                c
   190(1 )(a) CrPC followed by Section 204 CrPC should
   reflect that the Magistrate has applied his mind to the facts
   and the statements and he is satisfied that there is ground
   for proceeding further in the matter by asking the person
   against whom the violation oflaw is alleged, to appea,rbefore     D
   the court. The satisfaction on the ground for proceeding
   would mean that the facts alleged in the complaint would
   constitute an offence, and when considered along with the
   statements recorded, would, prima facie, make the accused
   answerable before the court. No doubt, no formal order or
   a speaking order is required to be passed at that stage. The       E
   Code of Criminal Procedure requires speaking order to be
   passed under Section 203 CrPC when the complaint is
   dismissed and that too the reasons need to be stated only
   briefly. In other words, the Magistrate is not to act as a
   post office in taking cognizance of each and every complaint       F
   filed before him and issue process as a matter of course.
   There must be sufficient indication in the order passed by
   the Magistrate that he is satisfied that the allegations in the
   complaint constitute an offence and when considered along
   with the statements recorded and the result of inquiry or
   report of investigation under Sectio.n 202 CrPC, if any, the       G
   accused is answerable before the criminal court, there is
   ground for proceeding against the accused under Section
   204 CrPC, by issuing process for appearance. The
   application of mind is best demonstrated by disclosure of
                                                                      H
492            SUPREME COURT REPORTS                           [2016] 9 S.C.R.



A           mind on the satisfaction. Ifthere is no such indication in a
            case where the Magistrate proceeds under Sections 190/
            204 CrPC, the High Court under Section 482 CrPC is bound
            to invoke its inherent power in order to prevent abuse of
            the power of the criminal court. To be called to appear
            before the criminal court as an accused is serious matter
B
            affecting one's dignity, self-respe~t and image in society.
            Hence, the process of criminal court shall not be made a
            weapon of harassment."
            24. The requirement of conducting enquiry or directing investigation
      before issuing process is, therefore, not an empty formality. What kind
c     of 'enquiry' is needed under this provision has also been explained in
      Vijay Dlianuka8 case, which is reproduced hereunder:
            "14. In view of our answer to the aforesaid question, the
            next question which falls for our determination is whether
            the learned Magistrate before issuing summons has held
D           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
 E              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
 F          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
G           there is sufficient ground for proceeding against the accused,
            is nothing but an inquiry envisaged under Section 202 of the
            Code."
             25. When we peruse the summoning order, we find that it does
      not reflected any such inquiry. No doubt, the order mentioned that the
      learned Magistrate had passed the same after reading the complaint,
H
 ABHIJIT PAWAR v. HEMANT MADHUKAR NIMBALKAR &                                493
                 ANR. [A. K. SIKRI, J.]

verification statement of complainant and after perusing the copies of A
documents filed on record, i.e., FIR translation of complaint, affidavit of
advocate who had translated the FIR into English etc. the operative
portion reads as under:
      "On considering facts on record, it appears that complainant
      has made out prima facie case against the accused for, the             B
      offences punishable under Sections 500, 501, 50 read with
      34 of the Indian Penal Code. Hence issue process against
      the accused for the above offences returnable on
      23.12.2009. case be registered as Summary Case."
      26. Insofar as, these two accused persons are concerned there is       c
no enquiry of the nature enumerated in Section 202, Cr.P.C.
       27. The Learned Magistrate did not look into the matter keeping
in view the provisions of Section 7 of the Press Act and applying his
mind whether there is any declaration qua these two persons under the
said Act and, if not, on what basis they are to be proceeded with along D
with the editors. Application of mind on this aspect was necessary. It is
made clear that this Court is not suggesting that these two accused
persons cannot be proceeded with at all only because of absence of
their names in the declaration under Press Act. What is emphasised is
that there is no presumption againstthese persons under Section 7 of the
Press Act and they being outside the territorial jurisdiction of the concerned E
Magistrate, the Magistrate was required to apply his mind on these
aspects while passing summoning orders qua A-1 and A-2.
      28. No doubt, the argument predicated on Section 202 of the
Cr.P.C. was raised for the first time by A-I before the High Court.
Notwithstanding the same, being a pure legal issue which could be tested      F
on the basis of admitted facts on record, the High Court could have
considered this argument on merits. It is a settled proposition oflaw that
a pure legal issue can be raised at any stage of proceedings, more so,
when it goes to the jurisdiction of the matter (See : National Textile
Corpn. Ltd. Vs. Nareshkumar Badrikumar Jagad; [(2011) 12 SCC                  G
695].
        29. We may like to record that though Mr. Bhatt had refuted the
arguments founded on Section 202 of Cr.P.C., even he had submitted
that in case this Court is satisfied that mandatory requirement of Section
202 is not fulfilled by the learned Magistrate before issuing the process,    H
494              SUPREME COURT REPORTS                         [2016] 9 S.C.R.


A     this Court can direct the Magistrate to do so. Mr. Bhatt, for this purpose,
      referred to the judgment in the case of the National Bank of Oman1 •
             30. For the aforesaid reasons, Criminal Appeal arising out ofSLP
      (Cr!) No. 9318 of2012 is allowed thereby quashing the notice dated 24th
      November, 2009 in respect ofA- I with direction to the learned Magistrate
 B    to take up the matter afresh qua A- I and pass necessary orders as are
      permissible in law, after following the procedure contained in Section
      202, Cr.P.C.
             31. Insofar as appeal filed by the complainant discharging A-2 is
      concerned, the High Court has quashed the notice on the ground that he
 c    is only shown as Chairman and is not shown to be actually associated
      with the publication of the newspaper. Since, we are relegating the
      matter insofar asA-1 is concerned, forthe same reasons the complainant
      needs to be given an opportunity to show as to whether A-2 was actually
      associated with the publication or not. It is more so when we.find that
      High Court has not given any cogent reasons on the basis of which it has
 D    said that Chairman is not shown to be associated with the impugned
      publication. Thus, we allow the second appeal as well and direct the
      learned Magistrate to hold the same inquiry as directed qua A- I and
      apply his mind as to whether notice against A-I and A-2 needs to be
      issued or not.
 E           32. No orders as to costs.


      Devika Gujral                                                Appeals allowed.