(Prayer: This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the charge sheet filed by the respondent police in Crime No.237/2018 arising out of PCR No.04/2018 for the alleged offences punishable under Sections 426, 427 and 500 of IPC R/W Section 34 of IPC, pending on the file of Senior Civil Judge and JMFC at Sira, Tumakuru District, in CC No.449/2019.)

Oral Order

1. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent No.1/State.

2. This petition is filed praying this Court to quash the charge-sheet in Crime No.237/2018 arising out of PCR No.4/2018, for the offence punishable under Sections 426, 427 and 500 of IPC read with Section 34 of IPC, pending on the file of the Senior Civil Judge and JMFC at Sira, Tumkur in C.C.No.449/2019.

3. The factual matrix of the case of the complainant in the complaint is that the complainant is the plaintiff in O.S.No.9/2010, wherein prayer was sought for declaration and possession and other reliefs against accused Nos.1 and

2. The said suit was dismissed on 24.06.2017 and aggrieved by the said judgment and decree, the complainant has filed an appeal in R.A.No.179/2017 and the same is pending before the III Additional District Judge at Tumakuru. The subject matter involved in the said case is with respect to the suit property described as items Nos.1 to 3. The sisters of the complainant, including the complainant herself have also filed a suit in O.S.No.40/2006, praying for the relief of partition and separate possession, claiming 1/5th share and the said suit was decreed partly in favour of the complainant and her sisters. Aggrieved by the same, they preferred the regular appeal and the same is also pending. It is contended that accused Nos.1 and 2 have made a paper publication in the newspaper, namely, Praja Pragathi and Vijayavani on 17.01.2018 and in the said paper, an allegation is made that the complainant indulged in creation of documents and badly imputing the documents of the properties as false, bogus and further alleged about cheating the officials and attempting to alienate these properties to the public and requested the public not to have any transaction with the complainant. The accused Nos.3 and 4 without any basis and evidence have acted in collusion with accused Nos.1 and 2 and have made a wide publication, thereby it affected the image, character and reputation of the complainant in the society and the same attracts Sections 500, 427, 426 read with Section 34 of IPC. A prayer is also made to take cognizance against the accused persons. But the Trial Court passed an order invoking Section 156(3) of Cr.P.C. referring the matter to the police to investigate the matter and file the report. The police having investigated the matter, filed the charge-sheet. In column No.17, an accusation is made in terms of the contents of the complaint of PCR. The Trial Court has taken the cognizance. Hence, the petitioners, who are accused Nos.1 and 2 have approached this Court by filing the petition.

4. The main contention of the learned counsel for the petitioners is that a false complaint is filed and there is no any truth in the complaint and the Magistrate without any jurisdiction has proceeded to pass an order referring the matter under Section 156(3) of Cr.P.C. The very approach of the Trial Court is erroneous. The learned counsel would vehemently contend that when the matter was referred for investigation, charge-sheet was filed and taking of cognizance by the Trial Court is also vitiated. The learned counsel would contend that the police have also without any jurisdiction under the Code of Criminal Procedure proceeded to investigate the matter and filed the charge-sheet for the offences punishable under Sections 426, 427 and 500 of IPC. The learned counsel also contend that Section 500 of IPC refers to about punishment for defamation. In the instant case, the complainant had alleged that in view of the public notice, her reputation has been damaged. But in the entire charge-sheet, there is any material to demonstrate to attract Section 500 of IPC. The police have no role in the investigation of the defamation case. It is like civil case seeking for punishment for damage caused to the reputation and the Trial Court at the first instance ought to have recorded the sworn statement and thereafter should have passed an order in accordance with law. The very approach of the Trial Court referring the matter under Section 156(3) of Cr.P.C. is erroneous.

5. The learned counsel in support of argument relies upon the judgment of this Court passed in Crl.P.No.675/2020 dated 25.05.2022, wherein this Court having referred to the judgment of the Apex Court in the case of SUBRAMANIAN SWAMY v. UNION OF INDIA reported in (2016) 7 SCC 221 extracted paragraph No.207 of the said judgment. This Court also taken note of the judgment of Kerala High Court in the case of SURESH v. SUB-INSPECTOR OF POLICE reported in (2019) 4 KLT 106, wherein the Kerala High Court considered Section 199 of Cr.P.C. i.e., prosecution for defamation and having discussed the principle laid down in the judgment comes to the conclusion that ought not to have invoked Section 156(3) of Cr.P.C.

6. Per contra, the learned High Court Government Pleader appearing for respondent No.1/State would submit that the police have investigated the matter, since the paper publication was given wherein the name of the complainant was referred and referring the name in the public notice amounts to a defamation and hence, investigated the matter and filed the charge-sheet.

7. The respondent No.2/complainant though represented through counsel, the learned counsel is absent.

8. Having considered the material on record, it is very clear that private complaint was filed invoking the offences under Sections 426, 427 and 500 of IPC and the Trial Judge committed an error in referring the matter under Section 156(3) of Cr.P.C. When the complaint was filed, the learned Magistrate should have seen the contents of the complaint and if the Court comes to the conclusion that the same can be considered, ought to have taken the cognizance and proceeded to record the sworn statement and the same has not been done, as contemplated under Section 200 of Cr.P.C. In a case of defamation, there cannot be any referring the matter to the police for investigation and there was a foundational defect in passing such an order. The police have also exercised the power and failed to take note of the offences invoked, particularly offences under Section 500 of IPC and other incidental offences of Sections 426 and 427 of IPC and investigated the matter and filed the charge- sheet. The Trial Judge while taking the cognizance fails to take note of the charge-sheet material, except making the reference that perused the charge-sheet and proceeded to issue the process by taking the cognizance under Section 190(1)(b) of Cr.P.C. The Trial Court even did not make any observation that charge-sheet material discloses that there is a prima facie case to proceed against the petitioners. There is a fundamental error on the part of the Magistrate in referring the matter under Section 156(3) of Cr.P.C. and also considering the charge-sheet and taking of cognizance. Having considered the principles laid down in the judgment referred supra, it is a fit case to exercise the power under Section 482 of Cr.P.C. or otherwise it amounts to miscarriage of justice.

9. In view of the discussions made above, I pass the following:

ORDER

          (i) The petition is allowed.

          (ii) The order passed by the learned Trial Judge referring the matter under Section 156(3) of Cr.P.C. is quashed. The taking of cognizance based on the investigation report in C.C.No.449/2019 is also quashed.

          (iii) The learned Magistrate is directed to take up further proceedings in the case from the stage of registration of the complaint and all appropriate action in accordance with law.