Decided on May 17,1968

SHYAMESH Appellant


- (1.)THESE are two connected revisions arising out of the orders of the learned sessions Judge, Jodhpur dated 14th December, 1967 in Criminal Original cases no. 5 of 1964 and No. 6 of 1965.
(2.)IN view of the short point involved in these cases it is not necessary to set out the facts in detail. Suffice it to say that the petitioner Shyamesh who is an editor and publisher of a weekly newspaper 'karwat' published an alleged defamatory article against Shri Gumansingh, the then Superintendent of Police, at Pali. After obtaining the previous sanction of the Government of Rajasthan in this behalf, the public Prosecutor, Pali filed a complaint under Sections 500, 501 and 502, Indian penal Code on 6-7-1964 in the Court of Sessions Judge. Pali against the accused petitioner in accordance with the provisions of Section 198-B, Criminal Procedure code.
(3.)IT appears that the accused petitioner moved an application before this Court for transfer of the case to some other Court for reasons which it is not necessary to relate here. This Court eventually withdrew the case from the Court of Sessions judge, Pali and transferred it to the Court of Sessions Judge, Jodhpur for trial. I am informed that an objection about misjoinder of charges was taken before the learned Sessions Judge on behalf of the accused as a result of which there were two cases registered in respect of this complaint, and they were numbered as criminal Original cases No. 5 of 1964 and No. 6 of 1965. After some evidence on behalf of the prosecution had been recorded Hon'ble Shri Lehar Singh Mehta, who was seized of these cases as Sessions Judge, Jodhpur, was elevated to the High court and Shri Kalyan Dutt Sharma succeeded him as Sessions Judge, Jodhpur. Consequently there was a de novo trial before Shri Kalyan Dutt Sharma and when the case came up before him on 14-12-1967 for recording the prosecution evidence an application was moved wherein a preliminary objection was taken on behalf of the accused petitioner to the effect that the cases should be dismissed under Section 259, Criminal Procedure Code as the complainant viz. the Public prosecutor. Pali was absent. To be more specific the contention of the accused-petitioner was that the cases had been taken cognizance of upon a complaint made in writing by the Public Prosecutor, Pali and as such the Public Prosecutor, pali was the complainant and since the procedure prescribed for the trial of such a complaint was the same as prescribed for the trial by a Magistrate of warrant cases instituted other- wise on a Police report, Section 259, Criminal Procedure code had full application and therefore it was prayed that the Court may be pleased to exercise its powers under Section 259, Cr. P. C. , and dismiss the cases on account of the failure on the part of the complainant to appear before the court. It may be stated that the Public Prosecutor, Jodhpur attached to the Court of sessions Judge, Jodhpur was looking after these cases ever since they were transferred to the Court of Sessions Judge, Jodhpur. He, therefore, opposed the preliminary objection raised on behalf of the accused petitioner and contended that he was entitled to appear and act on behalf of the State in the case and that his presence was sufficient. The learned Sessions Judge disallowed the preliminary objection and held that the appearance of the Public Prosecutor, Jodhpur who held charge of the case was sufficient in the eye of law. He also held that Shri Guman singh the aggrieved person, who was present in the Court had put his signatures on the complaint, and, therefore, in his view no case for dismissal of the complaint on account of the non-appearance of the Public Prosecutor, Pali was made out. In this view of the matter the application by which the aforesaid preliminary objection was raised by the petitioner was rejected. The petitioner has therefore come up in revision before this Court.

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