1 910.APL.1498.24.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APL) NO.1498 OF 2024 M/s Bata India Limited, and others .Vs. Shri Altaf Ahmed S/o Abdul Majeed and another Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order Mr. Shyam Dewani, Adv. a/w S.S. Dewani, Adv. for applicants. Ms Soniya Thakur, A.P.P. for non-applicant/State. Mr. Piyush Shukla, Advocate for non-applicant No.1. CORAM : ANIL S. KILOR, J. DATED : 21/03/2025 1. In the present matter, the order dated 14.06.2022, passed by the learned Judicial Magistrate First Class, (Court No. 6), Nagpur, in S.C.C. No.329167 of 2013, issuing process, is under challenge. The brief facts of the present case are as under :- 2. The applicant is a company incorporated in the provisions of the Companies Act, 2013. There was a dispute about the recovery of possession by the non-applicant No.1 who is the owner of the premises. The premises is alleged to have got vacated by the non-applicant No.1, forcibly. Then, a complaint was made to the police by the applicant and on finding that, no cognizance was taken, writ petition was filed namely Criminal Writ Petition No.471 of 2012, which was dismissed with liberty to the petitioner to avail such 2025:BHC-NAG:2915 2 910.APL.1498.24.odt remedy as available to the petitioner under law. Thereupon, criminal complaint was filed which is pending and the summons is pending, it is not yet served. 3. The respondent No.1 after dismissal of the writ petition, filed a private complaint for the offences punishable under Section 499 of the Indian Penal Code, 1860 (for short “IPC”). 4. The complaint is based on the alleged defamatory statements made by the applicants in the writ petition, which were reproduced in the complaint. 5. The learned Magistrate considering the complaint, verification statement, report filed by the police under Section 202 of the Code of Criminal Procedure, documents on record and written arguments filed by the advocate for the complainant, issued process against the applicants, the same is under challenge in the present application. 6. I have heard the learned counsel for the respective parties. 7. Shri Dewani, learned counsel for the applicants submits that before issuing the process, the learned Magistrate ought to have considered, whether the exception to Section 499 of the IPC, is applicable to this case. He submits that, it is a settled law that, while considering a 3 910.APL.1498.24.odt private complaint alleging defamation, the learned Magistrate before summoning the accused, should not confine himself to the allegations made by the petitioner, but must also apply his judicial mind to the exceptions under Section 499 of the IPC. For this purpose, he has placed reliance upon recent judgment of the Hon’ble Supreme Court of India in the case of IVECO Magirus Brandschutztechnik GMBH ..vs.. Nirmal Kishore Bhartiya and another, reported in (2024) 2 SCC 86. 8. On the other hand, the learned counsel for the non-applicant No.2 strongly opposed the present application and submits that, the findings recorded by this Court while dismissing the petition filed by the applicant/company shows that the allegations made in the writ petition are defamatory in nature. 9. It is pointed out that the findings recorded by this Court in the order dated 29.11.2012, were based on the report of the Police. He further submits that, the exceptions will not apply to the present case, as the pleadings in the writ petition were not made with a bonafide intention. He therefore submits that as the learned Magistrate has considered complaint, verification statement, report filed by the Police under Section 202 of the Cr.P.C., documents on record and written arguments filed by the complainant, the learned Magistrate has applied his mind and after getting satisfied that the allegations in the complaint attracts offence 4 910.APL.1498.24.odt under Section 499 of the IPC, the learned Magistrate rightly issued the process. 10. The learned A.P.P. reiterates the submission of the learned counsel for the non-applicant No.1 and prays for dismissal of the present application. 11. In light of the above referred arguments and submissions made by the learned counsel for the respective parties and having gone through the record, it is evident that the only question fell for consideration is whether the learned trial Court has considered the exceptions to the Section 499 of the IPC, before issuing process. 12. However, before examining the factual aspects of the present matter, it would be appropriate to refer the law in this regard as observed by the Hon’ble Supreme Court of India in the case of Iveco (Supra), has held thus :- “62. 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 5 910.APL.1498.24.odt 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 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.” 13. From the above referred observations, it is evident that, although there is nothing in the law only there is nothing in law which is in expressed terms mandates the Magistrate to consider whether any exceptions to Section 499 of the IPC is attracted, there is no bar either. It is further observed 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 6 910.APL.1498.24.odt 499 of the 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. 14. In the teeth of the above referred principles of law, if the order impugned dated 14.06.2022, issuing process is perused, it is apparent that, the learned Magistrate did not consider the exceptions to Section 499 of the IPC, while issuing process, to have a clear idea of what constitutes defamation. In the circumstances, I am of the opinion that, this matter needs to be remanded back to the learned Magistrate to take afresh decision after considering exceptions to Section 499 of the IPC. 15. Accordingly, the application is partly allowed. Order below Exh.1 dated 14.06.2022, passed by the learned J.M.F.C. (Court No.6), Nagpur, is hereby quashed and set aside and the matter is remanded back to the learned Magistrate to reconsider the same afresh in view of the observations made in the case of Iveco (Supra). The learned Magistrate shall take decision afresh within 15 days from the next fixed date. JUDGE C.L.Dhakate