M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBHversusNIRMAL KISHORE BHARTIYA & ANR

                  [2023] 13 S.C.R. 220 : 2023 INSC 880



                             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 confine 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 benefit
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 ‘sufficient
ground for proceeding’ exists as distinguished from ‘sufficient 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
                                     220
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            221
              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 justified 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 benefit 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 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
222           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


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
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                          223
              NIRMAL KISHORE BHARTIYA


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. LPA-
668/2010 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

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1959 of 2012.
224             SUPREME COURT REPORTS                         [2023] 13 S.C.R.


     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 five-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 finding 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
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            225
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


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 offences 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 floated by the
            Airports Authority of India (“AAI”, hereafter) for supply of 40
            (forty) Airfield Crash Fire Tenders at various airports across the
            country. The appellant, a Germany-based manufacturer of fire
            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
            file 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 different authorities
            including the Minister of Civil Aviation, Government of India,
            the Chairman of AAI, the Chief Vigilance Officer, 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.
226            SUPREME COURT REPORTS                        [2023] 13 S.C.R.


       iv.   Dissatisfied 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 petition 5 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 finally 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
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            227
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


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
specific 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
            offence 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 offence
            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 offence under section 499, IPC, since
            documents filed 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.
228            SUPREME COURT REPORTS                      [2023] 13 S.C.R.


       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 benefit of exception can only be afforded 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 affidavit
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 finding, 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
    M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                        229
     NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


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 disqualification in course of the tender process;
and, if indeed, such letters were issued without knowledge and consent
of the appellant, it defies logic as to why they were made part of the writ
petition in the first 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
230           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


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 confine 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 benefit 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?
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                         231
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     c.   Depending on the answers to the above, whether the benefit 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 first 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 first 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
232           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


      mentioned above cannot be sustained. It was also unnecessary for the
      High Court to have considered this aspect and differed 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 offence 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
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                           233
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     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 verification? 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)
234           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


     19. The decision of another Bench of 3 (three) Hon’ble Judges in
Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathu 12 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 filed in the Court of Judicial Magistrate, Ist Class, at Nasik,
      on a reading of the complaint we do not think that we will be justified
      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 offence punishable under Section 500. It is the
      settled legal position that a court has to read the complaint as a whole
      and find out whether allegations disclosed constitute an offence under
      Section 499 triable by the Magistrate. The Magistrate prima facie came
      to the conclusion that the allegations might come within the definition
      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 filed 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
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                             235
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


      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
offence under section 500, IPC.
      21. In M.A. Rumugam v. Kittu Alias Krishnamoorthy14, the respondent
filed a private complaint against the appellant for commission of the
offence of defamation under section 500, IPC. Taking cognizance of the
said complaint, the Magistrate issued summons to the appellant. Aggrieved
thereby, he filed a petition before the High Court of Judicature at Madras
praying to call for the records pertaining to the complaint petition filed 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 filed 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
filed 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 fide would, thus, be on the appellant alone.
      22. In Subramanian Swamy v. Union of India15, this Court considered
the issue from a different 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
236           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


      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
      definitely apply to any Exception who wants to have the benefit 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 first decision cited by Ms.
Viswanathan, i.e., Rajendra Kumar Sitaram Pande (supra). The facts, the
relevant issue and the finding – 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 Officer 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 Officer, Amravati, containing
      false imputations to the effect that the complainant had come to the
      office in a drunken state and abused the Treasury Officer, Additional
      Treasury Officer and the Collector and circulated in the office using
      filthy 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 Officer to hold an
      enquiry and submit a report and the said Treasury Officer did submit
      a report to the Magistrate. The question for consideration is whether
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            237
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     the allegations in the complaint read with the report of the Magistrate
     make out the offence under Section 500 or not. Section 499 of the Penal
     Code, 1860 defines the offence of defamation and Section 500 provides
     the punishment for such offence. 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 Officer 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 officer of the complainant alleging that he had abused
     the Treasury Officer 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 satisfied 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 fit 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 confirm 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 satisfied 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,
238          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


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. At best, we read the decision as one
where, in the given facts and circumstances, the Court felt that requiring
the appellants to undergo a trial would be a travesty of justice; hence, the
decision must be held to be confined to the facts of the case.
     25. Now, it is time to consider the other decision relied on by Ms.
Viswanathan, i.e., Aroon Purie (supra). In such decision, the decision in
Jawaharlal Darda v. Manoharrao Ganpatrao Kapsikar16 was considered.
Before we look into Aroon Purie (supra), we propose to ascertain whether
Jawaharlal Darda (supra) lays down a law having the force of a binding
precedent.
      26. The decision in Jawaharlal Darda (supra) reveals that the
respondent 1 had filed a complaint on 2nd February, 1987 in the court of the
relevant Magistrate alleging that by publishing a news item in its newspaper
‘Daily Lokmat’, on 4th February, 1984, the appellant being the then Chief
Editor of that daily and 4 (four) others associated with the newspaper in one
capacity or the other, had committed offences punishable under sections 499,
500, 501 and 502 read with section, 34 IPC. Process was issued against all
the accused by the Magistrate. Upon a challenge being laid to such order, the
relevant Sessions Court quashed it being of the opinion that by publishing
that news item, none of the accused had committed any offence. That order
was challenged by the complainant by filing a petition in the High Court
under section 482, Cr. PC. The High Court was of the opinion that the
Sessions Court misinterpreted the publication. It was also of the view that
when the Magistrate had found prima facie case against the accused and
thought it fit to issue process, it was not proper for the Sessions Court to
set aside that order by exercising revisional power. This Court restored the
order of the Sessions Court holding as follows:
      “4. As we have stated earlier, the news item was published on 4-2-
      1984. The complaint in that behalf was filed by the complainant on
      2-2-1987. The news item merely disclosed what happened during the
      debate which took place in the Assembly on 13-12-1983. It stated


16 (1998) 4 SCC 112
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                           239
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     that when a question regarding misappropriation of government funds
     meant for Majalgaon and Jaikwadi was put to the Minister concerned,
     he had replied that a preliminary enquiry was made by the Government
     and it disclosed that some misappropriation had taken place. When
     questioned further about the names of persons involved, he had stated
     the names of five persons, including that of the complainant. The said
     proceedings came to be published by the accused in its Daily on 4-2-
     1984. Because the name of the complainant was mentioned as one of
     the persons involved and likely to be suspended he filed a complaint
     before the learned CJM alleging that as a result of publication of the
     said report he had been defamed.
     5. It is quite apparent that what the accused had published in its
     newspaper was an accurate and true report of the proceedings of
     the Assembly. Involvement of the respondent was disclosed by the
     preliminary enquiry made by the Government. If the accused bona fide
     believing the version of the Minister to be true published the report in
     good faith it cannot be said that they intended to harm the reputation of
     the complainant. It was a report in respect of public conduct of public
     servants who were entrusted with public funds intended to be used
     for public good. Thus the facts and circumstances of the case disclose
     that the news items were published for public good. All these aspects
     have been overlooked by the High Court.”
                                          (underlining ours, for emphasis)
      It is clear from the above reasoning that this Court went on to reverse
the order of the High Court and restore that of the Sessions Court on the
grounds that the accused published the report in good faith and bona fide
believing the version of the Minister to be true, that it cannot be said that
they intended to harm the reputation of the complainant, and that the
news item was published for public good. Therefore, relief was given to
the accused having regard to the facts obtaining therein and without there
being any discussion on the point that we are seized of. This decision too
appears to have been rendered by this Court considering the special facts
and circumstances.
      27. Significantly, the precedents which we have referred to at an
earlier part of this judgment do not appear to have been cited by the parties
240           SUPREME COURT REPORTS                             [2023] 13 S.C.R.


in Rajendra Kumar Sitaram Pande (supra) and Jawaharlal Darda (supra)
and, thus, the Hon’ble Judges on the Bench did not have the benefit of
considering the same.
      28. What Aroon Purie (supra) reveals is that the operative part of
the Trial Magistrate’s order was extracted, wherein the decisions in Balraj
Khanna (supra) and M.N. Damani (supra) were referred to; however,
the case was decided without any express reference by the Court to such
precedents.
       29. We need not examine the facts in Aroon Purie (supra) in any great
detail in view of the question of law that the Court formulated and the answer
to it. The question, in paragraph 18, reads as follows:
      “We now turn to the question: whether the benefit of any of the
      exceptions to Section 499 of the IPC can be availed of and on the
      strength of such exception, the proceedings can be quashed at the
      stage when an application moved under Section 482 of the Code is
      considered?”
      After quoting paragraphs 5 and 7 from the decisions in Jawaharlal
Darda (supra) and Rajendra Kumar Sitaram Pande (supra), respectively,
and conscious of the legal position, the Court cautiously proceeded to hold
as follows:
      “21. It is thus clear that in a given case, if the facts so justify, the benefit
      of an exception to Section 499 of the IPC has been extended and it is
      not taken to be a rigid principle that the benefit of exception can only
      be afforded at the stage of trial.”
                                               (underlining ours, for emphasis)
      30. Jawaharlal Darda (supra) and Rajendra Kumar Sitaram Pande
(supra), we reiterate, are decisions where the disputes arising before the
Court were resolved without laying down any law capable of being treated as
precedents within the meaning of Article 141 of the Constitution. However,
the approach adopted seems to have persuaded the Court in Aroon Purie
(supra) to proceed to make the observation, highlighted above, which has
opened up an arena of debate as to whether, the benefit of an Exception to
section 499, IPC could be afforded at the stage of trial only or whether, if the
     M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                         241
      NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


facts of a given case so justify, such benefit can be extended and proceedings
quashed at the stage a petition under section 482, Cr. PC is being dealt with.
      31. At this stage, it would not be out of place to refer to and discuss
a few other decisions of this Court which are considered relevant for
the present adjudication. In all these decisions, the issue of legality of
summoning orders was examined and resting on the discussion of the
relevant laws vis-à-vis the facts of each case, the impugned order was either
maintained/interdicted. While the first two decisions are of ancient vintage,
viz. Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar17 and Chandra Deo
Singh v. Prokash Chandra Bose18, being decisions rendered by Benches
of 3 (three) and 4 (four) Hon’ble Judges, respectively, the remaining three
are decisions of not too distant an origin, viz. Jeffrey J. Diermeier v. State
of West Bengal19, Manoj Kumar Tiwari v. Manish Sisodia20 and B.R.K.
Aathithan v. Sun Group21 rendered by Benches of 2 (two) Hon’ble Judges
of this Court.
      32. Vadilal Panchal (supra) arose from the decision of the Bombay
High Court reversing an order of the Presidency Magistrate under section
203, Cr. PC. In course of a public agitation, one Sitaram died because
of a gunshot injury inflicted by the appellant. Upon a complaint being
lodged before the Presidency Magistrate, he ordered an inquiry by the
Superintendent of Police, CID. Materials collected in course of such inquiry
suggested that the appellant, who was accused of murdering Sitaram, had
exercised his right of self-defence. Considering the same and after extending
due opportunity to the complainant, the Presidency Magistrate dismissed
the complaint. The Bombay High Court set aside the order of dismissal and
directed the Presidency Magistrate to issue process against the appellant
and deal with the case in accordance with law, on the ground that though
Sitaram’s death was indisputable, the accused would have to establish the
necessary ingredients of the right of private defence as laid down in section
96 and onwards of the Indian Penal Code; that there was nothing in any of


17   (1961) 1 SCR 1
18   (1964) 1 SCR 639
19   (2010) 6 SCC 243
20   2022 SCC OnLine SC 1434
21   2022 SCC OnLine SC 1705
242           SUPREME COURT REPORTS                          [2023] 13 S.C.R.


the sections in Chapter XVI to show that such an exception can be held to
be established from the mere report of the police; that there is nothing in
sections 202 or 203 of the Cr. PC abrogating the rule as to the presumption
laid down in section 105 of the Evidence Act and the mode of proof of
exception laid down in imperative language in that section; and that it was
not a proper case in which the Presidency Magistrate should have dismissed
the complaint under section 203, there being no evidence before him as and
by way of proof to establish the exception of the right of private defence
pleaded by the accused.
       32.1 The question that arose before this Court was, whether the High
Court of Bombay was right in its view that when a Magistrate directs
an enquiry under section 202 of the Cr. PC for ascertaining the truth or
falsehood of a complaint and receives a report from the enquiring officer
supporting a plea of self-defence made by the person complained against,
is it not open to him to hold that the plea is correct on the basis of the report
and the statements of witnesses recorded by the enquiring officer? Must the
Magistrate, as a matter of law, issue process in such a case and leave the
person complained against to establish his plea of self-defence at the trial?
      32.2 While setting aside the impugned judgment and restoring the
order of the Magistrate, this Court held that the Bombay High Court was
in error in holding in such case that as a matter of law, it was not open to
the Presidency Magistrate to conclude that no offence had been made out
and there was no sufficient ground for proceeding further on the complaint
on the materials before him.
     32.3 After discussing the scheme of sections 200, 202 and 203, Cr.
PC, this is what this Court held:
      “10. Now, in the case before us it is not contended that the learned
      Presidency Magistrate failed to consider the materials which he had to
      consider, before passing his order under Section 203 CrPC. As a matter
      of fact the learned Magistrate fully, fairly and impartially considered
      these materials. What is contended on behalf of the respondent-
      complainant is that as a matter of law it was not open to the learned
      Magistrate to accept the plea of right of self-defence at a stage when
      all that he had to determine was whether a process should issue or
      not against the appellant. We are unable to accept this contention as
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                             243
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     correct. It is manifestly clear from the provisions of Section 203 that
     the judgment which the Magistrate has to form must be based on the
     statements of the complainant and his witnesses and the result of the
     investigation or inquiry. The section itself makes that clear, and it is not
     necessary to refer to authorities in support thereof. But the judgment
     which the Magistrate has to form is whether or not there is sufficient
     ground for proceeding. This does not mean that the Magistrate is
     bound to accept the result of the inquiry or investigation or that he
     must accept any plea that is set up on behalf of the person complained
     against. The Magistrate must apply his judicial mind to the materials
     on which he has to form his judgment. In arriving at his judgment he
     is not fettered in any way except by judicial considerations; he is not
     bound to accept what the Inquiring Officer says, nor is he precluded
     from accepting a plea based on an exception, provided always there are
     satisfactory and reliable materials on which he can base his judgment
     as to whether there is sufficient ground for proceeding on the complaint
     or not. If the Magistrate has not misdirected himself as to the scope of
     an enquiry under Section 202 and has applied his mind judicially to
     the materials before him, we think that if (sic, it) would be erroneous
     in law to hold that a plea based on an exception can never be accepted
     by him in arriving at his judgment. What bearing such a plea has on
     the case of the complainant and his witnesses, to what extent they are
     falsified by the evidence of other witnesses — all these are questions
     which must be answered with reference to the facts of each case. No
     universal rule can be laid in respect of such questions.”
                                            (underlining ours, for emphasis)
     33. Profitable reference can next be made to the decision in Chandra
Deo Singh (supra), where a Bench of 4 (four) Hon’ble Judges had the
occasion to consider a challenge to a judgment of the High Court at Calcutta.
There, this Court was presented with a circumstance where two complaints
alleging murder of a darwan were lodged before the Sub-Divisional
Magistrate. The first complaint was lodged by a distant relative of the
deceased accusing three persons of murder whereas the second complaint
was lodged by the appellant accusing the respondent no.1 of murdering
his uncle. By separate orders, the Sub-Divisional Magistrate directed a
244          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


Magistrate, First Class, to conduct judicial inquiry. Separate reports were
submitted by the Magistrate, First Class. In his first report, he opined that
a prima facie case to proceed against the three accused persons had been
made out whereas, in his second report, he opined that no prima facie
case to proceed against the first respondent had been made out. The Sub-
Divisional Magistrate, perusing the second report, dismissed the complaint
of the appellant against the respondent no.1 without assigning any reason.
The Sub-Divisional Magistrate, however, issued summons against the three
other accused. Thereafter, the appellant approached the Sessions Judge with a
revision who, after hearing the respondent no.1, directed the Sub-Divisional
Magistrate to make a further inquiry against him. Thence, the respondent
no.1 preferred a revision application before the High Court challenging the
direction of the Sessions Judge. The same was allowed by a Single Judge
of the High Court and upon grant of certificate under Article 134(1)(c) of
the Constitution, the matter was carried to this Court. It was held that upon
a finding of a prima facie case, the Magistrate was bound to issue process
despite the charged person having a defence. Further, it was held that the
matter was to be decided by an appropriate forum at the appropriate stage,
and issuance of process could not be refused.
     33.1 We consider it appropriate to quote certain pertinent observations
from such decision, hereinbelow:
      “7. ***, it seems to us clear from the entire scheme of Chapter XVI
      of the Code of Criminal Procedure that an accused person does not
      come into the picture at all till process is issued. This does not mean
      that he is precluded from being present when an enquiry is held by
      a Magistrate. He may remain present either in person or through a
      counsel or agent with a view to be informed of what is going on. But
      since the very question for consideration being whether he should be
      called upon to face an accusation, he has no right to take part in the
      proceedings nor has the Magistrate any jurisdiction to permit him to
      do so. It would follow from this, therefore, that it would not be open
      to the Magistrate to put any question to witnesses at the instance of
      the person named as accused but against whom process has not been
      issued; nor can he examine any witnesses at the instance of such a
      person. Of course, the Magistrate himself is free to put such questions
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                           245
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     to the witnesses produced before him by the complainant as he may
     think proper in the interests of justice. But beyond that, he cannot go.
     … No doubt, one of the objects behind the provisions of Section 202
     CrPC is to enable the Magistrate to scrutinise carefully the allegations
     made in the complaint with a view to prevent a person named therein
     as accused from being called upon to face an obviously frivolous
     complaint. But there is also another object behind this provision and it
     is to find out what material there is to support the allegations made in
     the complaint. It is the bounden duty of the Magistrate while making
     an enquiry to elicit all facts not merely with a view to protect the
     interests of an absent accused person, but also with a view to bring to
     book a person or persons against whom grave allegations are made.
     Whether the complaint is frivolous or not has, at that stage, necessarily
     to be determined on the basis of the material placed before him by
     the complainant. Whatever defence the accused may have can only
     be enquired into at the trial. An enquiry under Section 202 can in no
     sense be characterised as a trial for the simple reason that in law there
     can be but one trial for an offence. Permitting an accused person to
     intervene during the enquiry would frustrate its very object and that
     is why the legislature has made no specific provision permitting an
     accused person to take part in an enquiry. ***”
                                           (underlining ours, for emphasis)
      33.2 Considering the decision in Vadilal Panchal (supra), what was
said therein was explained in the following words:
     “13. *** we may point out that since the object of an enquiry
     under Section 202 is to ascertain whether the allegations made in
     the complaint are intrinsically true, the Magistrate acting under
     Section 203 has to satisfy himself that there is sufficient ground
     for proceeding. In order to come to this conclusion, he is entitled
     to consider the evidence taken by him or recorded in an enquiry
     under Section 202, or statements made in an investigation under
     that section, as the case may be. He is not entitled to rely upon any
     material besides this. ***”
                                           (underlining ours, for emphasis)
246           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


    In the same paragraph, after referring to the decision in Ramgopal
Ganpatrai Ruia v. State of Bombay22, the Court proceeded to rule that:
      “*** Thus, where there is a prima facie case, even though much can
      be said on both sides, a committing Magistrate is bound to commit
      an accused for trial. All the greater reason, therefore, that where there
      is prima facie evidence, even though an accused may have a defence
      like that in the present case that the offence is committed by some
      other person or persons, the matter has to be left to be decided by the
      appropriate forum at the appropriate stage and issue of process cannot
      be refused. Incidentally, we may point out that the offence with which
      Respondent 1 has been charged with is one triable by jury. The High
      Court, by dealing with the evidence in the way in which it has done, has
      in effect sanctioned the usurpation by the Magistrate of the functions
      of a jury which the Magistrate was wholly incompetent to do.”
                                            (underlining ours, for emphasis)
      34. It is true that neither Vadilal Panchal (supra) nor Chandra Deo
Singh (supra) arose out of proceedings for defamation but in both cases
defence of the accused was considered in varying circumstances. As noted
above, in Vadilal Panchal (supra) the order of the Presidency Magistrate
dismissing the complaint on the ground that the accused had exercised his
right of self-defence was restored upon setting aside of the order of the High
Court of Bombay; whereas, in Chandra Deo Singh (supra), the order of
the Sub-Divisional Magistrate directing further inquiry was restored upon
setting aside the order of the High Court at Calcutta. The decision in Vadilal
Panchal (supra) was not overruled by the larger Bench in Chandra Deo
Singh (supra). Such decisions, in our opinion, assume relevance because
the guidance provided thereby carries great weight.
       35. In Jeffrey J. Diermeier (supra), this Court was called upon to
consider whether the High Court at Calcutta was right in refusing to quash
a private complaint under section 500 read with section 34, IPC. It was
held that it is for the accused to demonstrate, by leading evidence during
trial, that the purportedly defamatory statement came under an exception


22 1958 SCR 618
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                         247
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


enumerated in section 499, IPC. The appellants therein had issued a public
notice against the respondent no. 2, which the respondent no. 2 alleged to
be defamatory in nature. The appellants pleaded that the aforesaid notice
was published in public interest, and thus it was covered under the Tenth
Exception to section 499, IPC. This Court held that it was trite law that
the burden of proof for the accused could not be proof beyond reasonable
doubt, yet the accused still had to show a preponderance of probability that
his statement would be covered under an exception to section 499, IPC.
A mere averment by the accused stating that his statement was in public
good was not sufficient to accept his defence and he must justify the same
by leading evidence during trial. Considering the complaint as a whole as
well as for the aforesaid reasons, this Court held that the impugned order
did not warrant interference.
       36. In Manoj Kumar Tiwari (supra), an order refusing to quash a
summoning order was considered by this Court. Therein, the Additional
Chief Metropolitan Magistrate had issued a summons to one of the accused
under section 500, IPC without going into the contents of the alleged
defamatory statement. The High Court of Delhi, on the other hand, while
examining the statements, upheld the summons by simply relying on
section 499 of the IPC. This Court held that this was an erroneous approach
because the Magistrate ought to have applied his mind to the complaint
and determined whether the statement was prima facie defamatory,
before issuing summons to the accused. This Court further held that a
complaint could not be sustained on statements which were, on the face
of it, non-defamatory. Also, it was held that it is a fundamental rule of
criminal jurisprudence that if the allegations contained in a complaint do
not constitute the offence complained of, then the accused should not be
made to undergo the ordeal of a trial.
      37. B.R.K. Aathithan (supra) is the decision of most recent origin.
Therein, the factual conspectus was such that certain reportage concerning
the appellant was telecast on a television channel of the respondents, and
the same was contended as defamatory. This Court emphasised the need
for application of judicial mind by the Judicial Magistrate, while noting
the consideration of the Fourth Exception to Section 499, IPC at the stage
of issuance of process. This Court observed there as follows:
248           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


      “16. This essentially involved application of judicial mind to reach a
      definite conclusion as to whether or not the accused be summoned. In
      the instant case, the learned Judicial Magistrate having found that the
      allegations made by the appellant were in the teeth of fourth exception
      to Section 499 IPC, he declined to issue process to the respondents. Such
      dismissal cannot be said to be without application of judicial mind. The
      application of judicial mind and arriving at an erroneous conclusion are
      two distinct things. The Court even after due application of mind may
      reach to an erroneous conclusion and such an order is always justiciable
      before a superior Court. Even if the said Order is set aside, it does not
      mean that the trial court did not apply its mind.”
     38. We note that in a different context, this Court in National Bank
of Oman v. Barakara Abdul Aziz23 summed up the duty of a Magistrate as
follows:
      “8. The duty of a Magistrate receiving a complaint is set out in Section
      202 CrPC and there is an obligation on the Magistrate to find out if there
      is any matter which calls for investigation by a criminal court. The scope
      of enquiry under this section is restricted only to find out the truth or
      otherwise of the allegations made in the complaint in order to determine
      whether process has to be issued or not. Investigation under Section 202
      CrPC is different from the investigation contemplated in Section 156
      as it is only for holding the Magistrate to decide whether or not there is
      sufficient ground for him to proceed further. The scope of enquiry under
      Section 202 CrPC is, therefore, limited to the ascertainment of truth or
      falsehood of the allegations made in the complaint:
      (i) on the materials placed by the complainant before the court;
      (ii) for the limited purpose of finding out whether a prima facie case for
      issue of process has been made out; and
      (iii) for deciding the question purely from the point of view of the
      complainant without at all adverting to any defence that the accused
      may have.”
                                             (underlining ours, for emphasis)



23 (2013) 2 SCC 488
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            249
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


      39. Undoubtedly, the decisions of this Court proceed on two lines.
While there are several decisions where this Court has consistently laid
down the law in one particular line that it is for the Magistrate to consider
the Exceptions to section 499, IPC for extension of benefit thereof at the trial
when a defence is pleaded by the party seeking to avail the same and upon
the burden of proof being discharged by him and that such Magistrate while
deciding the question purely from the point of view of the complainant may
not advert to the possible defence of the accused at the time of exercising
power under section 202, the other line of decisions seem to proceed
on the premise that there is no bar in considering the Exceptions if the
accused, even without appearing before the Magistrate in response to the
summoning order, lays a challenge thereto under section 482, Cr. PC and
satisfies the relevant High Court, by referring to the complaint itself and
the statements of the complainant and his witness, that the facts alleged
(even if deemed to be true) do not constitute an offence and hence, there
was no sufficient ground for proceeding. In fact, Aroon Purie (supra) has
observed that there is no rigid principle that the Exceptions can only be
considered at the pre-trial stage; in other words, at the stage of consideration
of a petition for quashing, it can be so extended in a given case, and the
Court would be empowered to quash the proceedings if extension of such
benefit is justified on facts.
      40. What applies to Judges of the High Courts faced with decisions
of this Court where a cleavage of opinion is discernible, and particularly
when the High Courts are technically bound by both decisions, equally
applies to Hon’ble Judges of this Court. It would be inappropriate for a
Bench, comprised of 2 (two) Judges of this Court, to hold which line of
decisions lays down the correct law. In such a scenario, when there are
decisions of this Court not expressing views in sync with each other, the
first course to be adopted is to ascertain which is the decision that has been
rendered by a larger Bench. Obviously, inter se decisions of this Court, a
decision of a Constitution Bench would be binding on Benches of lesser
strength. None of the decisions that we have considered is rendered by
a Constitution Bench. However, a sole judgment rendered by a Bench
of 4 (four) Hon’ble Judges and 3 (three) decisions rendered by Benches
comprised of 3 (three) Hon’ble Judges are there, which call for deference.
Ordinarily, the decision of a larger Bench has to be preferred unless of
250          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


course a Bench of lesser strength doubts an earlier view, formulates the
point for answer and refers the matter for further consideration by a larger
Bench in accordance with law. If, however, the decisions taking divergent
views are rendered by Benches of co-equal strength, the next course to be
adopted is to attempt to reconcile the views that appear to be divergent and
to explain those contrary decisions by assuming, to the extent possible,
that they applied to different facts. The other course available is to look at
whether the previous decision has been noticed, considered and explained
in the subsequent decision; if not, the earlier decision continues to remain
binding whereas if the answer is in the affirmative, the subsequent decision
becomes the binding decision. We add a caveat that if the subsequent
Bench, instead of deciding the matter before it finally upon consideration
of the decision of the earlier Bench, formulates the point of difference
and makes a reference for a decision by a larger Bench, it is the former
decision that continues to govern the field so long the larger Bench does
not decide the reference.
      41. There is also authority for the proposition that while deciding
cases on facts, more so in criminal cases, the courts should bear in mind
that each case must rest on its own facts and the similarity of facts in one
case cannot be used to bear in mind the conclusion of fact in another case.
We may usefully refer to the decision in Kalyan Chandra Sarkar v. Rajesh
Ranjan24 in this context.
     42. Bearing the above principles in mind, we have perused the
decisions, apparently striking discordant notes, with utmost care. It is
observed that the conclusions reached in each of the decisions are based on
the particular facts in each case and that the questions arising for decision
on this appeal can be answered by harmonising the law as declared upon
drawing guidance therefrom.
      43. To the extent relevant, section 2(n) of the Cr. PC defines “offence”
as any act or omission made punishable by any law for the time being
in force. Section 200 ordains what a Magistrate, inter alia, is required
to do on receipt of a complaint. In taking cognizance of an offence on a
complaint, he is required to (i) examine upon oath the complainant and


24 (2005) 2 SCC 42
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                           251
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


the witness present, if any; (ii) reduce in writing the substance of such
examination; (iii) get the signature of the complainant and the witness, if
any, on such writing; and (iv) sign the same too. Section 202 is a provision
that enables the Magistrate to postpone the issue of process against the
accused and, if he thinks fit, either (a) inquire into the case himself or
(b) direct an investigation to be made by (i) a police officer or (ii) by
such other person he thinks fit. The statute permits the Magistrate to
take such steps to facilitate a decision whether there is sufficient ground
for proceeding against the accused by ascertaining the truth or falsity
of the allegations made in the complaint. Section 203 authorizes the
Magistrate, after considering the statements on oath of the complainant
and the witness, if any, under section 200 or the result of the inquiry or the
investigation under section 202, to dismiss a complaint, with brief reasons,
should in his judgment there be no ‘sufficient ground for proceeding’.
On the other hand, section 204 under Chapter XVI of the Cr. PC titled
‘Commencement of Proceedings before Magistrates’ envisages that the
Magistrate taking cognizance shall take steps for the issue of necessary
process if in his opinion there is ‘sufficient ground for proceeding’. It is
therefore abundantly clear, from the aforesaid general scheme, that the
accused does not enter the arena of adjudication made by the Magistrate
prior to issuance of process.
      44. Thus, when a Magistrate taking cognisance of an offence proceeds
under section 200 based on a prima facie satisfaction that a criminal offence
is made out, he is required to satisfy himself by looking into the allegations
levelled in the complaint, the statements made by the complainant in
support of the complaint, the documentary evidence in support of the
allegations, if any, produced by him as well as statements of any witness
the complainant may choose to produce to stand by the allegations in
the complaint. Although we are not concerned with section 202 here, if
an inquiry or an investigation is conducted thereunder, it goes without
saying that the reports should also be looked into by the Magistrate before
issuing process under section 204. However, there can be no gainsaying
that at the stage the Magistrate decides to pass an order summoning the
accused, examination of the nature referred to above ought not to be
intended for forming an opinion as to whether the materials are sufficient
for a ‘conviction’; instead, he is required to form an opinion whether the
252          SUPREME COURT REPORTS                         [2023] 13 S.C.R.


materials are sufficient for ‘proceeding’ as the title of the relevant chapter
would indicate. Since the accused does not enter the arena at that stage,
question of the accused raising a defence to thwart issuance of process does
not arise. Nonetheless, the fact that the accused is not before the Magistrate
does not mean that the Magistrate need not apply his judicial mind. Nothing
in the applicable law prevents the Magistrate from applying his judicial
mind to other provisions of law and to ascertain whether, prima facie, an
“offence”, as defined in section 2(n) of the Cr. PC is made out. Without
such opinion being formed, question of “proceeding” as in section 204
does not arise. What the law imposes on the Magistrate as a requirement
is that he is bound to consider only such of the materials that are brought
before him in terms of sections 200 and 202 as well as any applicable
provision of a statute, and what is imposed as a restriction by law on him
is that he is precluded from considering any material not brought on the
record in a manner permitted by the legal process. As a logical corollary to
the above proposition, what follows is that the Magistrate while deciding
whether to issue process is entitled to form a view looking into the materials
before him. If, however, such materials themselves disclose a complete
defence under any of the Exceptions, nothing prevents the Magistrate
upon application of judicial mind to accord the benefit of such Exception
to prevent a frivolous complaint from triggering an unnecessary trial.
Since initiation of prosecution is a serious matter, we are minded to say
that it would be the duty of the Magistrate to prevent false and frivolous
complaints eating up precious judicial time. If the complaint warrants
dismissal, the Magistrate is statutorily mandated to record his brief reasons.
On the contrary, if from such materials a prima facie satisfaction is reached
upon application of judicial mind of an “offence” having been committed
and there being sufficient ground for proceeding, the Magistrate is under
no other fetter from issuing process. Upon a prima facie case being made
out and even though much can be said on both sides, the Magistrate would
have no option but to commit an accused for trial, as held in Chandra
Deo Singh (supra). The requirement of recording reasons at the stage of
issuing process is not the statutory mandate; therefore, the Magistrate is
not required to record reasons for issuing process. This is also the law
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                            253
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


declared by this Court in Jagdish Ram v. State of Rajasthan25. Since it
is not the statutory mandate that reasons should be recorded in support of
formation of opinion that there is sufficient ground for proceeding whereas
dismissal of a complaint has to be backed by brief reasons, the degree of
satisfaction invariably must vary in both situations. While in the former it
is a prima facie satisfaction based on probability of complicity, the latter
would require a higher degree of satisfaction in that the Magistrate has to
express his final and conclusive view of the complaint warranting dismissal
because of absence of sufficient ground for proceeding.
       45. 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 ‘sufficient
ground for proceeding’ exists as distinguished from ‘sufficient 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 section 499, IPC is attracted, there is no bar either. After
all, what is ‘excepted’ cannot amount to defamation on the very terms of
the provision. We do realize that more often than not, it would be difficult
to form an opinion that an Exception is attracted at that juncture because
neither a complaint for defamation (which is not a regular phenomenon in
the criminal courts) is likely to be drafted with contents, nor are statements
likely to be made on oath and evidence adduced, giving an escape route to
the accused at the threshold. However, we hasten to reiterate that 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
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 section 499, IPC, the Magistrate, upon due application of



25 (2004) 4 SCC 432
254          SUPREME COURT REPORTS                          [2023] 13 S.C.R.


judicial mind, would be justified 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.
        46. Adverting to the aspect of exercise of jurisdiction by the High
Courts under section 482, Cr. PC, 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. We may not be
understood to undermine the High Courts’ powers saved by section 482,
Cr. PC; 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. However, the tests laid down for quashing an F.I.R. or
criminal proceedings arising from a police report by the High Courts in
exercise of jurisdiction under section 482, Cr. PC not being substantially
different from the tests laid down for quashing of a process issued under
section 204 read with section 200, the High Courts on recording due
satisfaction are empowered to interfere if on a reading of the complaint,
the substance of statements on oath of the complainant and the witness, if
any, and documentary evidence as produced, no offence is made out and
that proceedings, if allowed to continue, would amount to an abuse of the
legal process. This too, would be impermissible, if the justice of a given
case does not overwhelmingly so demand.
      47. Based on our understanding of the law and the reasoning that we
have adopted, issue of process under section 204 read with section 200, Cr.
PC does not ipso facto stand vitiated for non-consideration of the Exceptions
to section 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.
     48. The above discussion answers the questions of law formulated
by us.
   M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                          255
    NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


      49. Moving on to answer question (a), what we find in the present
case is that the Trial Court did not take recourse to section 202, Cr. PC and
hence obtaining reports of inquiry or investigation, as the case may be,
did not arise. Though not under any statutory requirement, the Trial Court
has given brief reasons in its order showing application of mind. 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 25th March, 2010 issuing summons to the accused, it
does not appear to us 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. If at all the benefit of the Fourth Exception or any other pleaded
exception is to be availed of, the 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.
     50. On facts of this case, we are satisfied that the Trial Court was
not unjustified in issuing summons to the accused based on the materials
before it.
      51. We also hold that the omission of the learned Judge in dealing
with the other points raised in the petition by the appellant does not afford
any ground for us to interfere, having noticed that by a detailed judgment
delivered on the same day on the petition of Aggarwal, the learned Judge
had applied his mind and spurned a similar challenge. However, it is
observed that the learned Judge would have been well advised to add a
sentence in the order impugned that no separate reason was being assigned
to dispose of the other points raised by the appellant in view of the reasons
already assigned for disposal of Aggarwal’s petition laying challenge to
the summoning order.
     52. Question (a), thus, stands answered against the appellant.
256          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


      53. Having regard to what we have held above, questions (b) and (c)
need not detain us for long. We could have left them unanswered but since
some argument was advanced touching the same, we propose to briefly
deal therewith.
      54. Answer to question (b) 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. At this stage it would not
be inappropriate to consider the other line of argument advanced by Mr.
Taneja that those documents/materials on which the appellant seeks to
rely have not been admitted or accepted by the complainant and are yet
to be proved; hence, the same cannot be looked into while considering a
prayer for quashing. The ratio of the decision in Supriya Jain (supra) finds
support from an earlier decision of this Court in Chand Dhawan (Smt.) v.
Jawaharlal26, where it was held that the High Court of Punjab and Haryana
was not justified in quashing the complaint and the criminal proceedings on
the ground of abuse of the process of court by relying on additional material
produced by the accused, which was not admitted in evidence or accepted
by the complainant.
      55. The Power of Attorney is yet not proved by the appellant according
to law and, therefore, could not have been considered by the learned 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 in the light
of the guiding factors for applicability of an Exception as indicated in
the concurring judgment authored by Hon’ble O. Chinnappa Reddy, J. in
Sewakram Sobhani (supra).
      56. 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.


26 (1992) 3 SCC 317
    M/S IVECO MAGIRUS BRANDSCHUTZTECHNIK GMBH v.                           257
     NIRMAL KISHORE BHARTIYA [DIPANKAR DATTA, J.]


     57. Turning to question (c), 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. This, in our opinion, is not the right stage to opine
one way or the other and, therefore, we leave it open for being decided by
the Trial Court in accordance with law.
      CONCLUSION
      58. Having answered all the questions, what is left for us is to dismiss
the appeal which we hereby order. The appeal is dismissed, with the result
that the interim order shall stand vacated forthwith. There shall, however,
be no order for costs.
       59. Except to the extent decided by this judgment, all other points are
left open to be urged by the appellant before the Trial Court for a decision
by it.
      60. Since the proceedings have been unduly delayed, the Trial Court
is encouraged to expedite the same.


Headnotes prepared by:                                         Appeal dismissed.
Ankit Gyan