ORDER
S.J. Hyder, J.
1. The applicant has been summoned to stand his trial along with the Editor and correspondent of the Journal known as ‘Awaz’ for the offence punishable under Section 500 of the Penal Code (hereinafter referred to as ‘the Penal Code’). The news item was published in an issue of the Journal ‘Awaz’ which, inter alia, stated that the applicant had lodged a First Information Report at the police station stating that a tenant residing on the first floor of the house had made his life difficult inasmuch as the said tenant was throwing acid in the drinking water used by the family members of the applicant. In the said news item it is also stated that the applicant was opposed to the unlawful activities of the said tenant who was carrying on trade in brass etc. in an illegal manner.
2. In the complaint filed by the opposite party, it was alleged that the said news item was published in the said Journal at the instance of the applicant. Before filing the complaint the opposite party served a notice through a lawyer on the applicant stating that he was responsible for the publication of the said news item. The opposite party received reply of the said notice from the applicant denying the said allegation.
3. The trial Magistrate, in order to arrive at his satisfaction before issuing processes against the applicant and others arrayed accused in the complaint, examined evidence under Section 202 of the Cr. P.C. (hereinafter referred to as ‘the Code’).
4. The Opposite Party produced two witnesses at that stage. All that these witnesses have stated is that on account of the publication of the said news item in the Journal ‘Awaz’, the esteem in which they held the opposite party has considerably diminished. None of these, however, stated that the applicant was responsible for the publication of the said news item in the Journal ‘Awaz’. There is also nothing substantial in the testimony of the opposite party recorded on the back of the complaint from which it may be concluded that the applicant was responsible for the publication of the news item.
5. The Trial Magistrate, however, passed an order on Sept. 22,1982, summoning all the three persons who were arrayed as accused in this case. Against the order of the Trial Magistrate, the applicant preferred a revision before the learned Sessions Judge, Giridih, The said revision was dismissed by the said court by its judgment and order dt. Mar. 25, 1983. This application has now been preferred by the applicant under Section 482 of the Code and a prayer has been made that the Criminal proceedings initiated against him at the instance of the opposite party amounted to an abuse of the judicial processes, has no prima facie case existed against the applicant. According to the applicant, there is not an iota of evidence on the record which may establish that the applicant was instrumental in getting the news item published in the Journal ‘Awaz’
6. It is significant that no grievance has been made out in the complaint filed by the opposite party in respect of the report lodged at the police station by the applicant. The only grievance made out in the complaint is to the effect that the purport of the said First Information Report was got published in collusion with the applicant in the Journal ‘Awaz’.
7. I have carefully looked into the matter “Awaz”. convinced that there is no whisper in the testimony of the prosecution witness examined under Section 202 of the Code which may connect the applicant with the publication of the news item. No summon, therefore, could have been issued against the applicant for the offence punishable under Section 500 of the Penal Code and the trial which he is now required to stand is an abuse of the process of the Court.
8. Learned Counsel appearing on behalf of the opposite party has, however, urged that since a revision has been preferred by the applicant before the learned Sessions Judge and the said revision had been dismissed, an application before this Court with the help of Section 482 of the Code was not legally maintainable. It was pointed out by the learned Counsel that the present application is, in fact, a revision and second revision at the instance of the applicant was barred by the express provision of law contained in Sub-section (3) of Section 397 of the Code. In the alternative he submitted that the inherent powers of this Court under Section 482 of the Code are of an extraordinary nature and this Court should not allow its jurisdiction under that provision of law to be invoked when the applicant had elected for the remedy of revision filed before the Court of Session.
9. In the case of Amarnath v. State of Haryana , the following principles of law were laid down by the Supreme Court:
(1) While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under Sub-section (2) of Section 397 of the Code of 1973, the inherent powers contained would not be available to defeat the bar contained in Section 397 (2) of the Code.
(2) The impugned order of the Magistrate was not an interlocutory order.
The judgment of the Court in the case of Amarnath (supra) was pronounced on behalf of the Court by N. L. Untwalia, J. The correctness of the decision came up for consideration of the Supreme Court again in the case of Madhu Limaye y. State of Maharashtra . Untwalia, J. speaking for the Court came to the conclusion that proposition (2) stated in Amarnath’s case (supra) was correct. As regards proposition (1) in the said case, the Court observed that for the reasons to be stated in its judgment, the Statement of law apropos point No. 1 is not quite accurate and required to be modulated. After referring to a number of decisions, three propositions were laid down by the Court in that case:
(1) That the power under Section 482 of the Code is not to be resorted to if there Js a specific provision in the Code for the redress of the grievance of the aggrieved party.
(2) That the said power should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
10. At first blush it may appear that the third proposition extracted above is a re-affirmation of the principle embodied in ‘ Amarnath’s case (1977 Cri LJ 1891) and there has been no modulation of the law laid down in that case. However a clear scrutiny of the judgment in Madhu Limaye (1978 Cri LJ 165) (supra) would dispell that impression. That principle is only a general rule of guidance. To that general rule there is an exception. That exception may be described in the words of the Supreme Court itself. It says:
But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of inherent power by the High Court…
It would thus appear that according to the Supreme Court ordinarily the power conferred on the High Court under Section 482 of the Code is not exercisable so as to defeat any other provisions contained in the Code. Nevertheless such powers may be exercised in exceptional cases to secure the ends of justice or to prevent abuse of the process of the court. The lines drawn between the two sets of cases is no doubt thin but all the same real. It is left to the good sense of the Judges of the High Court, to act in any manner they decide.
11. The manner in which I have interpreted the decision of the Supreme Court in Madhu Limaye (1978 Cri LJ 165) (SC) (supra) has been approved by a Full Bench of the Andhra Pradesh High Court in, the case of Puritipati Jogga Reddy, . It is also in consonance with the decision of the Court in Ishwar Dayal Singh v. State of Bihar 1980 BBCJ 436.
12. Learned Counsel appearing on behalf of the opposite party next contended that the jurisdiction of the Magistrate at the stage of Section 202 of the Code was of a summary nature and -at such stage he had only to look into whether there was prima facie evidence against the applicant or not. In support of this contention he relies in the case of Smt. Nagawwa v. Veeranna Shivalingappa . The legal position which has been canvassed before me on behalf of opposite party is well established. However, as I have- already pointed out that there was no material before the Magistrate on the basis of which he could issue processes against the applicant to stand his trial for the offence punishable under Section 500 of the Penal Code. When speaking of the materials on record I am referring to the prima facie evidence which existed before the learned Magistrate when he issued processes against the applicant.
13. In my opinion, it will be gross abuse of the process of the Court if the applicant is made to stand his trial for the offence punishable under Section 500 of the Penal Code on the basis of the facts stated above. The entire Criminal proceeding against the applicant for the offence punishable under Section 500 of the Penal Code has, therefore, to be quashed.
14. The result is that this application succeeds and the order of the learned Magistrate dt. Sept. 22,1982, issuing processes against the applicant to stand his trial for the offence punishable under Section 500 of the Penal Code is hereby quashed. It is made clear that the trial may proceed against the remaining accused.