ORDER
S.K. Hom Chaudhuri, J.
1. The Opposite party filed a complaint petition for prosecution of the accused petitioner alleging commission of offence under Section 120B, I.P.C. read with Sections 500/501/502, I.P.C. and Sections 500/501/502, I.P.C. in the Court of the learned Judicial Magistrate, Bomdila.
2. The learned Magistrate on perusal of the complaint and initial statement and evidence of some witnesses on behalf of the complainant, registered case C.R. 26 of 1988 under Section 120B, I.P.C. read with Sections 500/501/502, I.P.C. and under Sections 500/501/502, I.P.C. and issued sommons to the accused petitioners on 2-6-88. After receipt of the summons from the Court of the learned Magistrate, the accused petitioner filed a transfer petition in the Hon’ble Supreme Court praying for transfer of the case from Bomdila to New Delhi or any other State and the petition was registered as Transfer Petition (Criminal) No. 90 of 1988 in the Hon’ble Supreme Court. The Hon’ble Supreme Court after hearing both sides by order dt. 25-1-89 dismissed the petition. The petitioner did not appear in the Court of the learned Magistrate and instead filed the Criminal Revision No. 80 of 1989 in this Court under Section 482. Cr.P.C. for quashing the proceeding of C.R. Case No. 26 of 1988 pending in the Court of learned Magistrate, Bomdila.
3. The Criminal Revision No. 80/89 was moved before me on 22-2-89 and after the petition was heard for a considerable time a prayer being made by the counsel of the petitioner to place some other decisions of the apex Court in support of his contention, the petition remained part heard and posted on 23-2-89 but on the prayer of the petitioner the matter was not taken up. On 27-2-89, again on the prayer of the petitioner, hearing was passed over for the day. On 28-2-89 on the prayer of the petitioner further hearing of the petition was adjourned for a week. Although the petition was heard in part. It appears that on 15-3-89 on behalf of the petitioner an attempt was made to move the petition before the Court presided by Hon’ble Mr. Justice Manisana. In view of the fact that the matter was heard by me, the following order was passed on 15-3-89 by Hon’ble Mr. Justice Manisana — “Let the matter be posted before Hon’ble Mr. Justice S. K. Homchoudhuri today; if possible.
4. On 17-3-89 when the case was posted in my Court on the prayer of the petitioner, the hearing was again adjourned. It however, appears that on 30-3-89 a prayer was made in the Court presided by Honble Mr. Justice Phukan for withdrawal of the petition with the permission to file a fresh petition and the prayer was allowed by order dt. 30-3-89. The fact that the petition was heard in part by me, was however not brought: to the notice of Hon’ble Justice Phukan. When said fact came to his notice, Hon’ble. Justice Phukan by his order dated 28-4-89 revoked his order dt. 30-3-89 and directed that the matter be placed before me. In the meantime, on 7-4-89 another petition registered as Criminal Revision No. 151/89 under Section 482, Cr.P.C. on the same prayer of quashing the proceeding in C.R. No. 26 of 1988 pending in the Court of the learned Magistrate, Bomdila was moved by the petitioner in the Court of Hon’ble Mr. Justice Haque and that by order dt. 7-4-89 issued Notice of Motion making it returnable within a month. By the said order further proceeding in C.R. Case No. 26/88 was also stayed.
5. The facts and grounds stated in Criminal Revision No. 80/89 are identical, word for word save and except the additional paragraph, namely, paragraph 24 added to Crirninal Revision No. 151/89 stating that Criminal Revision No. 80/89 was withdrawn by the petitioner with the permission to file another petition for enabling them to collect some important paper, namely, Charge Sheets of C.B.I. case pending before the Special Judge, Delhi and after receipt of the said document the second petition was filed. The Opposite party filed a counter in Criminal Revision No. 151/89 wherein he has stated that the statements made in paragraph 24 of the petition to the effect that the petitioner withdraw the earlier petition (Crl. Revision No. 80/89) with a view to collect charge sheet of C.B.I. case was incorrect in-asmuch as the charge sheet of the C.B.I. case pending before the Special Judge. Delhi was annexed to the affidavit-in-opposition filed in the Hon’ble Supreme Court in Transfer Petition (Criminal) No. 90 of 1988. The opposite party has submitted that it was nothing but a lame excuse and the sole purpose was to avoid this Court in which the petition was part heard, because the petitioner apprehended that the petition would be dismissed in lemine. Neither the facts stated nor the grounds taken in the: Crl. Revision No. 151/89 disclose any relevance with charge sheet of the C.B.I. case pending in the Court of Special Judge,. Delhi. Be that as it may, in view of the order dt. 28-4-89 passed in Crl. Revn. No. 80/89 by Hon’ble Mr. Justice Phukan revoking the earlier order dt. 30-3-89 Crl. Revision No. 80/89 has been restored to file. But in the meantime, on the same identical facts and grounds, Criminal Revision No. 151/89 was filed and notice of Motion was issued on 7-4-89. Consequently, two petitions with identical points for quashing the proceedings in C.R. Case No. 26/88 are pending.
6. Mr. S. K. Sen, learned-counsel for the petitioner submits that the order dt/28-4-89 passed in Criminal Revision No. 80/89 revoking the earlier order dt. 30-3-89 is without jurisdiction and void. Inasmuch as the Court has no jurisdiction to pass order . dt. 28-4-89. This submission cannot be entertained on the sole ground that I cannot. sit in appeal in respect of an order passed by another Judge of this Court. To resolve the difficulty, I have decided to hear and dispose of both the petitions.
7. The inherent jurisdiction of the High Court under Section 482, Cr.P.C. can be exercised to quash the proceeding either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It is a settled law that ordinarily the criminal proceedings instituted against accused persons should be tried and the High Court would be slow and reluctant to interfere with the proceeding at the interlocutory stage. The apex Court in the case of R.P. Kapoor v. State of Punjab (AIR 1960 SC 866 : 1960 Cri LJ 1239), however, indicated the following facts and circumstances where the inherrent jurisdiction to quash the proceeding can and should be exercised by the High Court : (1) Where it manifestly appear that there is a legal bar against institution and continuation of the criminal proceeding in respect of offences alleged. Absence of requisite sanction, may for instance furnish cases under this category, (2) Where the allegations in the First Information Report or the complaint, even if are taken at their face value and accepted in their entirety, do not constitute the offence alleged; (3) Where the allegation made against the accused person may constitute an offence as alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charges.
8. Mr. Sen, the learned counsel for the petitioner submits that the impugned proceeding, namely, C.R. Case No. 26/88 is liable to be quashed in the absence of requisite sanction as provided under Section 196, Cr.P.C. The learned counsel submits that the basic allegations made in the complaint is criminal conspiracy to commit the offence of defamation and the allegation is that the offence alleged to be committed by the accused petitioner are punishable under Section 120B, I.P.C. read with Sections 500/501/502, I.P.C. Sub-section (2) of Section 196, Cr.P.C. provides that no Court shall take a cognizance of the offence of any criminal conspiracy punishable under Section 120B of the I.P.C. other than a criminal conspiracy to commit an offence punishable with death imprisonment or rigorous imprisonment for term of two years or upwards, unless the State Govt. or the District Magistrate has consented in writing to the initiation of the proceeding. In the instant case, for commission of offence under Section 500/501/502, I.P.C. maximum punishment is two years simple imprisonment, and that being so, without sanction of the Government or the District Magistrate, the learned Magistrate had no jurisdiction to take cognizance of the offence punishable under Section 120B, I.P.C. read with Sections 500/501/502, I.P.C. The learned counsel submits that on the ground, namely, want of sanction alone the proceeding is liable to be quashed.
9. Mr. Gurdayal Singh, the learned counsel appearing for the opposite party on the other hand submits that the C.R. Case No. 26/88 was registered not only under Section 120B read with Sections 500/501/502, I.P.C. but also was registered independently for committing offence under Sections 500/501/502, I.P.C, and that although sanction was not obtained in respect of offence under Section 120B that did not vitiate the trial on the substantive allegation under Sections 500/501/502, I.P.C. In support of his contention the learned counsel for the opposite party has placed reliance In the case of Madanlal v. State of Punjab, (AIR 1967 SC 1590) : (1967 Cri LJ 1401).
10. In the said decision the apex Court amongst other held — “Conspiracy to commit offence is by itself distinct from the offence to do which the conspiracy is entered into. Such an offence, if actually committed, would be subject matter of separate charge. If that offence does not require sanction though the offence of conspiracy does and the sanction is not obtained, the Court can proceed with the trial as to the substantive offence as if there was no charge of conspiracy.”
11. The aforesaid decision of the Hon’ble Supreme Court is applicable to the fact of the instant case inasmuch as if the charge under Section 120B cannot be entertained by the learned Magistrate for want of sanction, the Magistrate can certainly proceed with the trial in respect of the allegation of commission of substantive offence Sections 500/501/502 I.P.C.
12. Mr. Sen, the learned counsel for the petitioner submits that without taking cognizance of offence under Section 120B, I.P.C., the learned Magistrate could not have issued process against all the accused persons since all the accused persons cannot be roped together with the allegation of committing substantive offence under Sections 500/501/502, I.P.C. Whether all the accused petitioners or one of them have committed the offence under Section 500/501/502, I .P.C, as alleged in the. complaint petition is a matter to be decided by the trial Court after taking evidence and that cannot be a ground for interference under Section 482, Cr.P.C. Besides, before filing the complaint the opposite party through his advocate served notices on each of the accused petitioners drawing their attention to the alleged offences committed by them by publishing the news item in the Press and asked for unqualified apology for defamation of the petitioner which damaged his prestige and position to a great extent and also to publish the same unqualified apology in the next issue of the newspaper otherwise to face the consequence. In reply to the said notice none of the petitioner stated that he or they are not responsible for publication of the alleged offensive news item. The aforesaid notice of the opposite party to each of the petitioners and their reply are annexed to both the petitions and are marked Annexures-III and IV respectively.
13. Another leg of submission of Mr. Sen is that the allegation in the complaint even if taken at their face value and accepted in their entirety do not constitute offence as alleged. Besides, chances of ultimate conviction of the petitioner were bleak.
14. I have perused the complaint petition and I am unable to accept the submission of Mr. Sen. The allegations of the complaint petition if taken in its face value do constitute the offence alleged.
15. The last submission of Mr. Sen is that the complaint case is filed at Bomdila just to harass the petitioner and for the ends of justice the proceeding should be quashed.
16. I Have gone through the Transfer Petition (Criminal) No. 90/88 filed before the Hon’ble Supreme Court, a copy of which was annexed to the petition and I find that identical statements were made before the Hon’ble Supreme Court in the transfer petition as are made in this petition. The Hon’ble Supreme Court by order dt. 25-1-89 dismissed the said petition for transfer.
17. The learned counsel of the opposite party has fairly stated that the offence under Sections 500/501/502, I.P.C. are bailable offences and he will not make an objection if the accused petitioners are enlarged on bail on execution of P.R. Bond since it would be difficult for them to get local surety at Bomdila. He has also fairly submitted that he will not oppose, it some of the petitioners due to difficulty approach the learned Magistrate for exemption from appearance on each date of hearing of the case.
18. For foregoing reasons, the petitions have no substance and are liable to be dismissed.
19. However, it is directed that the lea ed Magistrate on appearance before him by “he petitioners shall enlarge all the petitioners on bail on execution of P.R. Bond only.
20. Both the petitions are dismissed with the above direction/observation. The ad interim order staying further proceedings of the case C.R.26/88 passed on 7-4-89 in Criminal Revision No. 151/89 stands vacated.