J.G. Chitre, J.@mdashThe Petitioner is hereby taking exception to the act of the learned Magistrate to issue process against him for offences
punishable u/s 500 IPC in context with the complaint filed by respondent NO. 1, the complainant. Shri Desai, counsel appearing for the petitioner,
submitted that the imputation as alleged in the complaint is not at all defamatory and a reading of it indicates that the provisions of Section 500 of
IPC cannot be attracted. On that count, according to him, the complainant should have been dismissed by the Magistrate refusing to take the
cognizance.
2. He placed reliance on two judgment of Supreme Court (1) K.M. Mathew v. State of Kerala and Anr. reported in 1992 SCC (Cri) 88 and (2)
Jawaharlal Darda and Others Vs. Manoharrao Ganpatrao Kapsikar and Another, . Relying on K.M. Mathew v. State of Kerala and Anr. (supra),
Shri Desai submitted that the Chief Editor cannot be held responsible for the item published in the newspaper and, therefore, on this ground the
learned Magistrate should have refused to take cognizance of the complaint of respondent No. 1. He sought the support from the judgment of
Supreme Court in Jawaharlal Darda''s case (supra).
3. Mr. Dhakephalkar appearing for Respondent No. 1 read out the complaint, more particularly, paragraph No. 7 of it wherein a specific
allegation has been made by the present petitioner that the said matter has been published in the said newspaper at the instance of all the accused
and their active collusion with accused No. 1, the present petitioner. The complainant - the present respondent No. 1 - has alleged that the said
matter was deliberately printed in Malayala Manorama daily. Therefore, according to Shri Dhakephalkar, Chief Editor, the present petitioner,
cannot be exonerated without there being judicial application of mind of the trial Court on these issues. He submitted that the petitioner should have
an application before the trial Court and should have sought an adjudication on the point involved. But instead of doing that, the petitioner has
approached the High Court directly and, therefore, on that count, the petition is fit to be dismissed.
4. This Court dismisses the submissions advanced by Shri Dhakephalkar appearing for respondent No. 1 on the point that the petitioner is
precluded from approaching the High Court directly. There is no such restriction because the powers of the High Court are wide and exhaustive. It
is a matter of day to day experience that on account of the pressure of the work in trial Court the grievances are not adjudicated within reasonable
time and the people are required to attend the Court on and often without there being an active hearing of the matter. Attending the Court of the
Magistrate and thereafter moving the Session Court and thereafter the High Court would be also a time consuming process. If the person
aggrieved has reasonable grounds to believe that there is no case against him which can be tried in a criminal court, he has got a legal right to move
the High Court for quashing such show cause notice, process issued, the proceedings initiated. He need not undergo the ordeal suggested. There
cannot be restrictions on the powers of High Court indicated by Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
Code"" for convenience) and Articles 226 and 227 of the Constitution of India.
5. This Court upholds the submissions advanced by Shri Dhakephalkar that the ratio of the judgments of the Supreme Court in K.M. Mathew''s
case (supra) and Jawaharlal Darda''s case (supra) would not be applicable to the present case. Needless to indicate that each and every case has
to be adjudicated on the fats and circumstances of it, independently. There cannot be a general rule applicable to all cases because every case has
its different set of facts and circumstances. There has to be a judicial application of mind for the purpose of adjudicating as to what role has been
alleged to have been performed by so indicted accused. For that the complaint has to be perused at the first instance. If there is no case made out
in the complaint prima facie, the Magistrate should not take cognizance of such complaints and allow its time to be consumed for such hastily and
frivolous litigations because every visit to the Court implies annoyance, distraction of such person from his occupation of livelihood and expenditure
in getting the legal advice and engaging a lawyer to defend him. In addition to that, the expenditure incurred in furnishing the surety bonds, etc. it
causes humiliation to such person also because he is required to visit the Court frequently and has to answer the queries of the persons present
there who are curious to know the reason for his presence there. It is a matter of experience that everybody loves to be in peace and loves to
carry on his occupation calmly, quietly, pleasantly with peace of mind.
6. The observations of the Supreme Court in K.M. Mathew''s case (supra) cannot be applied without application of judicial mind to the complaint
and without its perusal. If there are allegations made by the complainant against the accused, if they are born out by the material which has been
annexed to the complaint, the Magistrate is obliged to apply judicial mind to it before he takes cognizance of that or dismisses the complaint at the
threshold. In K.M. Mathew''s case facts were indicating that the Chief Editor of Malayalam Manorama was not concerned whatsoever at all with
the matter which was published in said issue of Malayalam Manorama. It appears from the tone of the judgment that there were no allegations
made against him specifically in the complaint and no role was attributed to him. But in this case a role has been attributed to him by making a
positive and specific allegation that there was collusion between the brother of the deceased and the present petitioner, the Chief Editor of
Malayala Manorama and on account of that the said imputation was published in the said issue of Malayala Manorama. Therefore, counsel
appearing for the petitioner cannot bid for discharge of the petitioner without reading paragraph 7 of the complaint.
7. Shri Dhakephalkar submitted that the tone of the imputation published has to be understood keeping oneself acquainted with the expectations of
the people from other State to which the deceased, the petitioner, respondent No. 1 happened to be belonging. He submitted that the deceased
was working in the commercial institution owned by the respondent No. 1. He happened to be the resident of Kerala State. Therefore, the people
residing in the said village must have been expecting that respondent No. 1 who happened to be the resident of Kerala State should do something
for the purposes of helping the concerned persons to get the dead body carried to the State of Kerala, the native place of the deceased. But the
imputation published suggests that he did not do so. Defamation can be by two clauses : (1) by direct imputation and (2) by way of innuendo. The
present is prima facie case of imputation by innuendo. Therefore, such complaint needs a judicial enquiry to be held by the Magistrate in whose
court the said complaint has been presented. It means a judicial enquiry to probe the role of the present petitioner.
8. The cases which are based on direct imputation and cases which are based on imputations by innuendo had to be given due considerations. For
the purposes of finding out whether the imputations are sufficient to attract the provisions of Section 499 of IPC a judicial enquiry has to be made
prima facie by the concerned Magistrate. It cannot be dismissed at the threshold without application of judicial mind and without due judicial
enquiry. When it is a case of direct imputation, the matter becomes simple. But when it is based on innuendo defamation the trial Magistrate has to
be given sufficient scope to exercise his rightful jurisdiction and discretion. In such cases, High Court should be cautious in interfering and should
not interfere unless it is satisfied at least reasonably.
9. Thus, the petition stands dismissed. The stay stands vacated. Rule stands discharged. The petitioner is at liberty to move appropriate application
before the trial Court. The trial Court should decide the case as early as possible and should consider the application for exemption if presented by
the accused in view of Section 205 of the Code. The observations made in this judgment should not weigh at the time of judicial enquiry or the trial
which Magistrate may do at various stages of the trial for avoiding possibility of any prejudice to either side.