ORDER
B.P. Das, J.
1. Heard learned counsel for the petitioner and learned counsel for the opposite party.
2. This application has been filed against the order dated 7.5.2001 passed by the learned J.M.F.C. (Rural), Cuttack in I.C.C.Case No. 33 of 2001 taking cognizance of the offence under Section 500, IPC against the petitioner.
3. Learned counsel for the petitioner submits that the petitioner is the Principal of Tangi College. One Miss Bilkesh Parveen is also a lecturer in English of the said College. On 26.12.2000, an explanation was called for from Miss Parveen to explain as to why she is coming to and going from college with the present opposite party who is not an employee of the said College and his presence in the College campus being objected to by the students. It is also further alleged that he has threatened the students to see that some of them fail in the examination. After issue of the show cause to the said Bilkesh Parveen the present opposite party issued a Pleader’s notice to the petitioner on 27.2.2000 with intimation to the Governing Body of the College. Thereafter on 21.4.2001, a complaint petition was filed and on 24.4.2001 initial statement was recorded. The case was then posted to 26.4.2001 for enquiry under Section 202, Cr.P.C. Again this was reposted to 2.5.2001 for the said purpose. As the advocate for the complainant submitted that he would not adduce evidence in the inquiry under Section 202, Cr.P.C., the same was closed and the learned Magistrate took cognizance on 7.5.2002. Learned counsel for the petitioner submits that after going through the grounds set-forth in the complaint petition, the learned Magistrate thought improper to fix a date for enquiry under Section 202, Cr.P.C. and postponed issuance of process. Since the complainant did not prefer to adduce evidence in the inquiry under Section 202, Cr.P.C., according to the petitioner, the learned Magistrate should not have taken cognizance of the offence.
4. In this regard, I may refer to Section 202. Cr.P.C.
“202. Postponement of issue of process – (1) Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made :
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
5. A plain reading of the aforesaid provision, as it appears that Sub-section (1) of Section 202, Cr.P.C. provided that the cognizance taking Magistrate if thinks fit may postpone to issue of process and either himself conduct an enquiry or direct for investigation so as to decide whether or not, there is sufficient ground to proceed i.e. to proceed with the proceeding by issue of process to the accused. In other words, the proviso to Sub-section (2) of Section 202, Cr.P.C. requires the Magistrate to call upon the complainant to produce all his witnesses to record their statement under oath to examine whether a prima facie case is made out. In case of Niranjan Parida and Anr. v. Paresh Chandra Parida, reported in 77 (1994) CLT 913, in a similar case this Court held that once postponing the issuance of process keeping the matter for enquiry under Section 202, Cr.P.C. and thereafter the Magistrate taking cognizance on the basis of initial statement without holding enquiry under Section 202, Cr.P.C. is ipso facto bad. Once the Magistrate has postponed the issuance of process, he could not have issued the process without examining the witnesses of the complainant. Accordingly, the cognizance taken by the Magistrate against present petitioner cannot be sustained. That apart, the complaint of the complainant is a counterblast to the issuance of explanation to one Miss Parveen who is subordinate to the petitioner and is under the administrative control of the petitioner who is the Principal. Section 499 of the Indian Penal Code is the definition of defamation, which speaks as follows :
“499. Defamation – 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 the cases hereinafter expected, to defame that person.”
6. As it appears, the document basing upon which the cognizance was taken finds place on record of the complaint case. It is a confidential communication between the Principal and Miss Bilkesh Parveen. It is Bilkesh Parveen, who could have been the aggrieved person and not the present complainant. The document basing upon which the complaint has been filed is a confidential, communication between a higher officer and his subordinate. It is still a mystery how this letter came to the hands of the present complainant who is a lecturer in another college, and ultimately used as an instrument to lodge a complaint against the present petitioner. The show cause issued by the Principal is in discharge of the official function of the Principal.
7. The allegation made by the opposite party in the complaint that the confidential communication between the Principal and the said Parveen has harmed the reputation of the complainant cannot be accepted. Even if it cannot be construed to be an imputation to Miss Bilkesh Parveen because the act of the petitioner will come within the Seventh exception to Section 499, IPC.
8. In view of the above, it can be safely concluded that the learned Magistrate has committed an illegality by issuing process against the petitioner. Accordingly, the application is allowed. The cognizance taken against the petitioner-Saroj Kumar Tripathy in I.C.C.No. 33 of 2001 is set aside.
9. The Criminal Misc. Case is accordingly disposed of. L.C.R. be sent back.
10. Urgent certified copy of this order be granted as per rules.