SAXENA, J. - (1.) THIS petition has been filed under Section 482 Cr. P. C. against the order dated 28. 8. 1991 passed by the learned Chief Judicial Magistrate, Sirohi in Cr. Case No. 106/91, whereby he took cognizance of the offence punishable under Section 500 IPC against the petitioners on a private complaint filed by respondent Sohan Lal Patni.
(2.) SUCCINCTLY stated the relevant facts are that on 21. 8. 1991, respondent Sohan Lal filed a Criminal complaint before the learned Chief Judicial Magistrate against the petitioners on the basis of a news item titled ;qorh ds lkfk dffkr ;ksupkj ds ekeys esa ,l-ih- ls iwnrkn dh published on 31. 07. 1991 in the Jodhpur Edition of Rajasthan Patrika. Petitioners No. l & 2 Prashant Kothari and Milap Chandra Kothari are Manager and Editor of Rajasthan Patrika, Jodhpur and Rajasthan Patrika, Jaipur respectively, while petitioner No. 3 Bhagwan Sahai Trivedi is the Editor of Rajasthan Patrika, Jodhpur. Petitioner No. 5 Mahavir Jain is the Correspondent, Rajasthan Patrika. Petitioner No. 4 has not been named and has been addressed a Lorokf/kdkjh (owner), Rajasthan Patrika Jodhpur. It will be worth-while to quote the impugned news item in extenso: *** The respondent Sohan Lal in his complaint alleged that the aforesaid news item was sent by the Sirohi Correspondent of Rajasthan Patrika without making any inquiry and that the same was published malafidely with a view to defame him. He further alleged that he is a Lecturer in Government College, Sirohi and that after publication of the said news item, his moral and intellectual character and his personal reputation were lowered in his colleagues as also in the members of the society. It was further alleged that the said news item was misleading and by that his prestige was lowered down. The trial Magistrate recorded the statement of respondent Sohan Lal under section 200 Cr. P. C. and examined Mohd. Yaqub Khan and Bhim Raj Jain under Section 202 Cr. P. C. and by his impugned order took cognizance against the petitioners for the offence under section 500 IPC. Mr. M. L. Kala, the learned counsel for the petitioners have vehemently contended that from the contents of the criminal complaint and the evidence recorded by the Magistrate even the basic ingredients for defamation are not make out, that the impugned news item was published in good faith and that contents thereof were correct, which have neither been denied by the respondent in his complaint nor in his statement. He has submitted that the leaned Magistrate without applying his mind properly has taken cognizance in a routine manner with the result that the petitioners are being harassed unnecessarily and as such the impugned order, which tantamount to abuse of the process of the court should be quashed. On the other hand Mr. Salil Trivedi, the learned counsel for the respondent Sohan Lal has asserted that from the title and first paragraph of the impugned news item, prima facie it appears that Shri Sohan Lal was connected with the sex scandal, while on the other hand he had rescued the girl from the clutches of culprits and gone to the police station for reporting the matter. According to him, the learned Magistrate after recording the evidence was satisfied that prima facie offence under Section 500 IPC was made out. He has thus rightly taken cognizance against the petitioners, who were responsible for publishing the said news item. He has submitted that the satisfaction of the learned Magistrate should not be interfered with under the inherent powers of this Court. For this he has placed reliance on the following cases: Smt. Pragati K. Shah & Ors. vs. State of Rajasthan (1), Harish Meena & another vs. The State of Raj. & Anr. (2) and Bishambhar Lal vs. The Slate of Raj. & another (3 ).
(3.) I have given my most anxious and careful consideration to the rival contentions and perused the relevant record. It is true that at the stage of taking cognizance and issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same. If he is prima facie satisfied that sufficient grounds exist for proceeding against the accused, then he is well within his competence to take cognizance of such offence against the accused person. But while taking cognizance of the offence a Magistrate should also take into consideration the inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. More-over the discretion has to be judicially exercised by the Magistrate. Once the Magistrate has exercised his jurisdiction fairly, properly and judiciously, then it is not for the High Court to substitute its own discretion for that of the Magistrate or to de novo examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately and in conviction of the accused, because these considerations are totally foreign to the scope and ambit of inquiry under Section 202 Cr. P. C. However, if the contents of the complaint per se do not disclose the essential ingredients of an offence, which is imputed against the accused or where the facts incorporated in the complaint or in the statements of witnesses recorded under Section 200 and 202 Cr. P. C. on their face value do not make out any case against the accused or where allegations detailed in the complaint are patently absurd or inherently improbable, so that no prudent person can ever reach a conclusion that there exist sufficient grounds for proceeding against the accused, or where the Magistrate has exercised his discretion in issuing the process improperly arbitrarily and capriciously and has considered wholly irrelevant factors or inadmissible evidence or where the complaint suffers from fundamental legal defects, such as bar of limitation, want of prosecution sanction or absence of the complaint by a legally competent person, then certainly the High Court can exercise its inherent powers under Section 482 Cr. P. C, for setting aside or quashing such orders passed by the Magistrate. For this I place reliance on the law laid down by the Apex Court in Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (4 ). In Smt. Pragati K. Shah's case (cited supra), it has been held that the High Court can not exercise its inherent powers unless there is illegality or Magistrate has acted without jurisdiction in taking cognizance of an offence against an accused person. ;