ORDER
M.S.A. Siddiqui, J.
1. By this petition under Section 482 Cr. P.C., the petitioners seeks quashing of the order dated 3.3.1999 passed by the Metropolitan Magistrate, Delhi directing issue of process against them.
2. Briefly stated, the facts giving rise to the present petition are that on 28.1.1999, the respondent filed a complaint against the petitioners
charging them having published the D.O. letter 26.6.1998, knowing or having good reasons to believe the same to be false and defamatory of the respond-ent in order to harm his reputation in the eyes of the public in general and among his acquaintances in particular. On the complaint being filed, process was issued against the petitioners for the offence punishable under Section
500 I.P.C. Aggrieved thereby, the petitioners have filed the
present petition under Section 482 Cr. P.C.
3. It is undisputed that the petitioner No. 1 is the Vice-Chairman of the Delhi Development Authority and the petitioner No. 2 is the Private Secretary to the Commissioner (Personnel) D.D.A. The complaint arises out of the D.O. letter dated 26.6.1998 written by the petitioner No. 1 to Shri Bhure Lal, Secretary, Central Vigilance Commissioner, New Delhi. The said letter is as under :-
“CONFIDENTIAL
Vice-Chairman : Delhi Development Authority, Vikas Sadan, New Delhi – 110023.
D.O. No. F.PS/VC/98/Secret.
dated : the 26th June, 1998
Dear Shri,
I am writing this letter because a reference has been made by CVC to CVO, DDA regarding allegations levelled by one Sukhbir Sharma
against Shri Arvind Kumar, Commission (Personnel), DDA, Shri Sukhbir Sharma had resigned from DDA long ago and now heads one
of the many Unions in DDA. His basic grouse against Shri Arvind Kumar is because the latter has implemented the policy of rotational transfers based on ‘tenure’ in public dealing posts of Housing, Lands and Buildings departments of DDA. With his interests getting hurt, Sukhbir Sharma has been making false allegations against Commissioner (Personnel) on petty issues to various authorities. He even had these allegations included in the petition filed by his supporters in the Delhi High Court against these rotational transfers, alleging mala fide. The Hon’ble Court has rejected the petition and not accepted the charge of mala fide.
I have gone through the allegations referred to DDA and find them false and malicious, made with an intent to trouble an honest and efficient officer. There is no vigilance angle involved in these allegations and I would request you to treat them with contempt which these allegations deserve.
Incidentally, Sukhbir Sharma is reported to have amassed huge property in Delhi. A list of such reported properties is enclosed, which may perhaps be investigated by CVC/CBI.
Yours sincerely,
(P.K. GHOSH)
Shri Bhure Lal
Secretary,
Central Vigilance Commission,
New Delhi.”
4. A photostat copy of the said letter was produced before the trial court with an endorsement at the bottom “for attention of the members of all the Unions headed by Shri Sukhbir Sharma”. Surprisingly, the said endorsement does not bear the signatures of the petitioner No. 1 or any other official of the DDA. A bare perusal of the said endorsement clearly indicates that the same has been typed with some other typewriter. A photostat copy of the original letter has been produced before this Court, which does not contain the said endorsement which appears to have been added subsequently. It is significant to mention that the said letter is a demiofficial letter and it has been marked as “Confidential” and “Secret”. This clearly shows that the said letter was intended to be secret and confidential. Thus, the precaution taken bythe author of the letter (petitioner No. 1) clearly suggests that he never intended to make it known to the people in general. Had the petitioner No. 1 intended to circulate the said letter or to make it known to the public, he should not have marked it as “confidential” or “Secret”. That apart, the tenor of the letter shows that the petitioner No. 1 had sent his comments to the Secretary, Central Vigilance Commissioner regarding some complaint made by the respondent against the Commissioner (Personnel) of the D.D.A. That being so, there was no
occasion to forward copies of the said confidential and secret communication to the members of all the Unions headed by the respondent. It is relevant to mention that on 21.2.1999 the DDA had lodged a report at the police station about the theft of the office copy of the said letter from the concerned file. The aforesaid circumstances clearly suggest that the said letter was not circulated to the public but it was urreptitiously removed from the concerned file and tampered with by adding the endorsement “For attention of the members of all the Unions headed by Shri Sukhbir Sharma”, to show that the same was published. In a case of instant nature, publication is an essential ingredient of the offence punishable under Section 500 I.P.C. and without publication there is no offence of defamation.
5. That apart, the said letter contain certain comments regarding the complaint made by the respondent against the Commissioner (Personnel) of the D.D.A. It does not contain any defamatory word against the respondent. That being so, there was absolutely no justification for taking cognizance of the offence under Section 500 I.P.C. against petitioner No. 1.
6. It is undisputed that the petitioner No. 1 is the Vice-Chairman of the D.D.A., D.D.A. is an authority created under the statute by the Government and such an authority is an affair of the State and the Officer appointed as the Vice-Chairman of the D.D.A. is definitely a public servant employed in connection with the affairs of the State within the meaning of Section 197 Cr.P.C. Consequently, prosecution of the petitioner No. 1 is also bad
for want of sanction under Section 197 Cr.P.C.
7. So far as the petitioner No. 2 is concerned, there is nothing on record to make out any case against him. Admittedly, he is not the author of the letter in question. He had neither made nor published any defamatory statement against the respondent. It has to be borne in mind that setting criminal law in motion is fraught with serious consequences. Before issuing a process against the accused, the Magistrate should satisfy himself that the allegations made in the complaint on its face value and the sworn statements coupled with the documents filed prima facie reveal the commission of any offence against him. In the instant case, the impugned order does not reflect that the learned Magistrate has applied his mind to the facts of the case and the law applicable thereto. On the other hand, I am constrained to observe that the learned Magistrate has acted in a mechanical manner in taking cognizance of the offence against the petitioners. In this context, I may usefully excerpt the following observations of their Lordships of the Supreme Court in M/s. Pepsi Food Ltd. Vs. Special Judicial Magistrate, AIR 1998 SC 128 :-
“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law
set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
8. For the foregoing reasons, the petition is allowed and the impugned order dated 3.3.1999 is set aside and the proceedings emanating from the complaint filed by the respondent and pending on the file of the Metropolitan Magistrate, Delhi are quashed.