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Criminal Revision No. 2 of 1986, decided on 2nd April, 1987.

--Ss. 499 & 500-- Defamation'--Definition--Scope and application of S.499, P.P.C.--[Words and phrases].

"Defamation" is defined under section 499, Penal Code. It postulates that whoever by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases listed under three exceptions to defame that person. The exceptions are: an imputation is not defamation (i) if it is in the public good, but this is a question of fact, (ii) if it is made in good faith respecting the conduct of a public servant in the discharge of his public functions or respecting his character and (iii) if opinion is expressed in good faith respecting the conduct of any person touching any public question respecting his character so far as the character appears in that conduct and no further. All these exceptions are questions of fact and are to be proved by accused claiming all or any one of such exceptions.

PLD 1967 S C 317 and PLD 1983 S C 73 ref.

---Ss. 499 &500--Defamation--Cognizance of offence, how to be taken. In order to take cognizance of an offence, Magistrate or Trial Court has to satisfy that the facts listed in the complaint or police report, prima facie constitute the alleged offence. The satisfaction of a prima facie case in order to take cognizance and issue process, is quite different in degree and standard of proof from a proved case. At the initial stage, the Court or Magistrate has to ensure that at least the facts placed before him are sufficient, in the eye of lave, to constitute the alleged offence. He has not to go deep to appreciate those facts to satisfy that the allegations would positively result in conviction. The other aspect of the proposition is that Magistrate has to satisfy himself that the complaint, prima facie, constitutes an offence. The satisfaction of the Magistrate, again, rests on the material placed before him. The Court has to ensure that the discretion vested in it is not exercised in an arbitrary manner but in a judicial fashion, as such, exercise ought to be self-speaking.

---Ss. 200 to 204--Complaint to Magistrate--Issuance of summons or warrants for attendance of accused--Requisite conditions--Expression sufficient ground' used in S. 204, Cr.P.C.--Connotation--When material is placed before the Court, in shape of a complaint accompanied by tentative evidence, and Court is satisfied from such material that reasonable ground is present, Court is vested with discretion to issue process--Court, at the stage of issuing process, may enter into an inquiry or may not--Court is not supposed to observe rules of evidence as at such a stage Court has only to satisfy that reasonable grounds exist to enable him to proceed with the case--Any omission, error or irregularity on the part of the Court does not destroy the action.

Section 204, Cr.P.C. postulates that when in the opinion of a Court taking cognizance of an offence, there is sufficient ground for proceeding, it shall issue summons or warrant, as the case may be, for the attendance of the accused. The requisite condition listed under the section is the presence of sufficient grounds for proceeding against the accused. The presence of sufficient grounds and its satisfaction is to be ascertained from the facts placed before the Court. The provisions of section 204(1) do not lay down further conditions to enable the Court taking cognizance of an offence, to issue process. The expression sufficient grounds' used in the section necessarily requires presence of facts or evidence prima facie constituting an offence to enable the Court to issue process. Therefore, when material is placed before the Court, in the shape of a complaint accompanied by tentative evidence, and Court is satisfied from such material that reasonable ground is present, it is vested with discretion to issue process. At the stage of issuing process, the Magistrate may enter into an inquiry or may not. The sole thing in consideration is satisfaction of the Magistrate. On holding preliminary inquiry, the law does not enjoin upon the Magistrate to observe rules of evidence as at that stage the Magistrate has only to satisfy that reasonable grounds exist to enable him to proceed with the case. In case any omission, error or irregularity occurs, such a position does not destroy the action.

--Ss. 499 & 500--Criminal Procedure Code (V of 1898), Ss. 439 & 204)- Defamation- -Interlocutory order--Issuance of process- -Revisional powers of High Court not to be resorted to lightly unless it is satisfied that proceeding, action or omission in the trial, has resulted in consequence of wrong exercise of jurisdiction--Unless such action, error or omission has patently resulted in miscarriage of justice, interlocutory order may not be reversed--Accused cannot, in revision, attempt to place his defence before High Court and endeavour to satisfy that in presence of the defence complaint was likely to fail--Duty of Court stated.

The revisional powers conferred on High Court are not to be resorted to lightly unless it is satisfied that the proceeding, action or omission in the trial, has resulted in consequence of wrong exercise of jurisdiction. Unless such action, error or omission has patently resulted in miscarriage of justice, the interlocutory order may not be reversed. In the present case, the accused-petitioner attempted to place his defence before High Court and endeavoured to satisfy that in presence of the defence, the complaint is likely to fail. High Court was not persuaded to adhere to such an approach as that being premature a stage to enter into the proposed controversy to accept, or not, innocence of the accused petitioner. Accused is free to place his defence before the trial Court to his acquittal instead of approaching High Court at a premature stage.

The revisional or inherent power of the High Court is not to be used to divert the course of criminal proceedings. High Court should be extremely reluctant to interfere where charge of a prima facie case has been framed on evidence or accused is summoned.

When Magistrate proceeds according to the provisions of the Code, the High Court will respect the decision of Magistrate and will be slow to disturb the order that he has passed. Magistrate, at the stage of issuing process, should not refuse to issue process merely because he thinks that it is unlikely that the proceedings will result in conviction.

Magistrate or trial Court has to confine its action within the ambit provided under section 204(1), Cr.P.C. and not beyond that. Once it is satisfied that the Magistrate or trial Court has acted in accordance with the rules of procedure, the High Court may not lightly interfere in the order of Magistrate. Since the order of taking cognizance and issuing process, though not happily worded, was not in departure to the rules of procedure contained under the Code and the impugned order substantially fulfilled the conditions listed under section 204, subsection (1), Cr.P.C., the High Court declined to interfere in the impugned order at that stage.

Ghulam Muhammad's case P L D 1967 S C 317 and Subal Chandra's case A I R 1926 Cal. 795 ref.

Sayab Khalid for Petitioner.

Rafique Mahmood for Non-Petitioner.

Date of institution: 26th January, 1986.

The petition is addressed for quashment of order, issuing process to accused-petitioner under sections 500 and 504, Penal Code, passed by Revenue Assistant/Magistrate 1st Class, Rawalakot, on January 9, 1986.

2. Subedar (Retd.) Muhammad Ashraf made a complaint to Additional, District Magistrate, Rawalakot, under sections 500 and 504, Penal Code, and alleged that he was a retired Subedar, educated and respected person in the locality. Muhammad Sarwar Khan, accused, was closely related to him but was inimical towards him on account of family disputes. In order to harm his reputation, he made imputation through a complaint, dated October 13, 1985 addressed to Prime Minister, wherein, in para 2, the complainant was described of the age of 60-65 years, having passed only Matric and lacking the basic requisite qualifications for his appointment in the Education Department, whereas the actual position was otherwise. On November 22, 1985, the aforesaid imputation was reiterated in public to apprise the Prime Minister of the same. On December 7, 1985 through a letter addressed to Prime Minister, the allegation was repeated and photostats of the letter were distributed in public. Through another letter addressed to Prime Minister on December 5, further false allegations were levelled against the complainant to harm his reputation in public. The accused propagated openly against the complainant by reiterating false allegations in order to defame him. On September 5, 1985, in a public meeting at Bangoin, which the Prime Minister presided, in consequence of manoeuvring of accused, Mumtaz, his son, delivered a speech detrimental to the reputation, honour and prestige of the complainant The complainant appended photostats of aforesaid documents with the complaint. The learned Additional District Magistrate sent the complain to Revenue Assistant/Magistrate 1st Class for its disposal under law. On receipt of the complaint, trial Magistrate conducted preliminary inquiry by recording statements of the complainant, Ghulam Yasin Khan, his son and Muhammad Siddique Khan. On going through the allegations listed in the complaint, supported by statements in preliminary inquiry, the trial Magistrate felt persuaded to take cognizance and issued process to accused on January 9, 1986. This order is challenged in revision.

3. Mr. Sayab Khalid, the learned counsel for the accused-petitioner contended that the trial Magistrate failed to comply with the provisions of the Criminal Procedure Code by issuing process to accused as, in view of the learned Counsel, the material placed before the Magistrate was insufficient and constituted no ground to issue process by taking cognizance of the alleged offence. He emphasised that the statements of the complainant and his witnesses were insufficient by themselves and the documents appended with the complaint were not proved in evidence under law. The contention was controverted by Mr. Rafique Mahmood who, by taking me through the allegations ascribed to the accused petitioner in the complaint and statements of the witnesses, argued that the trial Magistrate applied mind to the facts of the case and in exercise of judicial discretion, took cognizance of the complaint by issuing process to accused. It was argued that this Court, in exercise of its revisional powers, should not lightly interfere in the impugned order. He cited P L D 1967 S C 317 and PLD 1983SC73.

4. The complaint is addressed under section 500, Penal Code, relating to defamation. Defamation' is defined under section 499, Penal Code. It postulates that whoever by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in cases listed under three exceptions, to defame that person. The exceptions are: an imputation is not defamation (i) if it is in the public good, but this is a question of fact, (ii) if it is made in good faith respecting the conduct of a public servant in the discharge of his public functions or respecting his character and (iii) if opinion is expressed in good faith respecting the conduct of any person touching any public question respecting his character so far as the character appears in that conduct of fact and are to be proved by accused claiming all or any one of such exceptions. Section 504, Penal Code, deals with an offence of intentional insult with intent to provoke breach of the peace.

5. In order to take cognizance of an offence, Magistrate or trial Court has to satisfy that the facts listed in the complaint or police report, prima facie constitute the alleged offence. The satisfaction of a prima facie case in order to take cognizance and issue process, is quite different in degree and standard of proof from a proved case. At the initial stage, the Court or Magistrate has to ensure that at least the facts placed before him are sufficient, in the eye of law, to constitute the alleged offence. He has not to go deep to appreciate those facts to satisfy that the allegations would positively result in conviction. The other aspect of the proposition is that Magistrate has to satisfy himself that the complaint prima facie constitutes an offence. The satisfaction of the Magistrate, again, rests on the material placed before him. The Court has to ensure that the discretion vested in it is not exercised in an arbitrary manner but in a judicial fashion, as such, exercise ought to be self-speaking. Sections 200, 201, 202, 203 and 204, Criminal Procedure Code, deal with complaints to a Magistrate. Section 204 postulates that when in the opinion of a Court taking cognizance of an offence, there is sufficient ground for proceeding, it shall issue summons or warrant, as the case may be, for the attendance of the accused. The requisite condition listed under the section is the presence of sufficient grounds for proceeding against the accused. The presence of sufficient grounds and its satisfaction is to be ascertained from the facts placed before the Court. The provisions of section 204(1) do not lay down further conditions to enable the Court taking cognizance of an offence, to issue process. The expression sufficient grounds' used in the section necessarily requires presence of facts or evidence prima facie constituting an offence to enable the Court to issue process. Therefore, when material is placed before the Court, in the shape of a complaint accompanied by tentative evidence, and Court is satisfied from such material that reasonable ground is present, it is vested with discretion to issue process. At the stage of issuing process, the Magistrate may enter into an inquiry or may not. The sole thing in consideration is satisfaction of the Magistrate. On holding preliminary inquiry, the law does not enjoin upon the Magistrate to observe rules of evidence as at that stage the Magistrate has only to satisfy that reasonable grounds exist to enable him to proceed with the case. In case any omission, error or irregularity occurs, such a position does not destroy the action.

6. The revisional powers conferred on this Court are not to be resorted to lightly unless it is satisfied that the proceeding, action or omission in the trial, has resulted in consequence of wrong exercise of jurisdiction. Unless such action error or omission has patently resulted in miscarriage of justice, the interlocutory order may not be reversed. In present case, the accused-petitioner attempted to place his defence before this Court and endeavoured to satisfy that in presence of the defence, the complaint is likely to fail. I do not feel persuaded to adhere to such an approach as it is premature a stage to enter into the proposed controversy to accept, or not, innocence of the accused-petitioner. He is free to place his defence before the trial Court to seek his acquittal instead of approaching this Court at a premature stage. In Ghulam Muhammad's case P L D 1967 S C 317, Mr. Justice Hamoodur Rehman, while examining the scope of revisional and inherent powers of High Court under sections 435, 438, 439 and 561-A, Criminal Procedure Code, observed that the revisional or inherent power of the High Court is not to be used to divert the course of criminal proceedings. High Court, in view of the learned Judge, should be extremely reluctant to interfere where charge of a prima facie case has been framed on evidence or accused is summoned. In Subal Chandra's case A I R 1926 Cal. 795, the learned Judges constituting the Division Bench emphasised upon the duty of Magistrate in proceeding according to the' rules of procedure and emphasised that when Magistrate proceeds according to the provisions of the Code, the High Court will respect the decision of Magistrate and will be slow to disturb the order that he has passed. It is further elaborated that Magistrate, at the stage of issuing process, should not refuse to issue process merely because he thinks that it is unlikely that the proceedings will result in conviction. I am in agreement with the aforesaid view of the Supreme Court and Calcutta High Court and hold that Magistrate or trial Court has to confine its action within the ambit provided under section 204(1) and not beyond that. Once it is satisfied that the Magistrate or trial Court has acted in accordance with the rules of procedure, the High Court may not lightly interfere in the order of Magistrate. In present case, the order of taking cognizance and issuing process, though not happily worded, is not in departure to the rules of procedure contained under the Code. The impugned order substantially fulfils the conditions listed under section 204, subsection (1) Cr.P.C. Therefore, I do not feel inclined to interfere in the impugned order at this stage. The petition is, therefore, dismissed.

M.B.A.//296/H.A Petition dismissed

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