( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 735 OF 2009 Vijayprakash s/o Shriniwas Totla, R/o Near Rani Laxmibai Tower, Parli Vaijnath, Dist. Beed. PETITIONER VERSUS 1. The State of Maharashtra 2. Radheshyam s/o Shankarlal Totla, R/o Vaidhyanath Vidhyalaya, Parali-Vaijanath, Dist. Beed. 3. Sow. Saraswati w/o Satyanarayan Bajaj, R/o Mondha, Bhokar, Dist. Nanded. 4. Sou. Meera w/o Santoshkumarji Lahoti, R/o Nirmal Saw Mill, MIDC Parbhani. 5. Sow. Shobha Amrita w/o Dattaprasadji Randad, R/o Guruwar Peth, Ambajogai, District Beed. RESPONDENTS ..... Mr. M.M. Patil (Beedkar), advocate for the petitioner. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th August, 2009] ORAL JUDGEMENT : 1. This is a petition in which original ( 2 ) complainant seeks to challenge order dated 26-05-2009 rendered by the learned Adhoc Additional Sessions Judge, Ambajogai, in criminal revision application No. 67/2007 whereby issuance of process by the learned Magistrate in S.C.C. No. 2457/2006 for offence punishable under section 500 read with section 34 of the I.P. Code came to be set aside and the complaint has been dismissed. 2. Heard learned counsel for the petitioner. 3. The complaint was filed by the petitioner on basis of allegation that a public notice dated 7th January, 2006 (Exh-B) which was published in the local newspaper called “Marathwada Sathi” and subsequently in another newspaper called “Vivek ‘Sindhu” tantamounts to his defamation. The learned Judicial Magistrate directed inquiry into the complaint and lateron issued the process. The learned Sessions Judge, however, came to the conclusion that there was no sufficient material to issue the process and the complaint was liable to be dismissed. ( 3 ) 4. Herein, the tenor of the newspaper publication purports to show that a bogus city survey entry was manipulated by showing that Shankarlal Kanhyalal Marwadi had died and his only legal heir was the nephew i.e. father of the complainant. The newspaper publication further indicated that as on the date of such entry i.e. 09-03-1975, Shankarlal Kanhyalal Marwadi (Totla) was in fact alive and he died later on i.e. on 30th June, 2000. Thus, it was on the basis of the dispute raised regarding date of death of said Shankarlal s/o Kanhyalal Totla that the authenticity of the mutation entry was challenged through the public notice. The publication of such a notice only indicates that civil rights were claimed by the respondents as the legal heirs of said Shankarlal Totla. There is civil dispute going on between the parties. A mere publication of notice like present one cannot, by any stretch of imagination, be regarded as defamatory publication. The petitioner (complainant) appeared to have filed the private complaint case only with a view to utilize such publication as an instrument to harass the respondents. Therefore, the learned Sessions Judge came to the ( 4 ) conclusion that the publication of the notice would not amount to defamation, particularly, when the date of death of Shankarlal s/o Kanhyalal Totla was being disputed by the respondents (accused). The learned Sessions Judge observed, therefore, that there was no application of judicial mind to the fact situation and as such, the order of issuance of process came to be quashed. 5. Mr. M.M. Patil (Beedkar) invited my attention to “State v. Shri G.N. Agrawal and others” 2006 ALL MR (Cri) 175 and “State of M.P. v. S.B. Johari and others” (AIR 2000 S.C. 665). In case of “State of M.P. v. S.B. Johari and others” (supra), the Apex Court considered question pertaining to quashment of charge. It has been held that at stage of framing of the charge, the trial Court is not required to marshal material on record but only has to prima facie consider whether there is sufficient materials against accused. In “State v. Shri G.N. Agrawal and others” (supra), a Single Bench of this Court held that at the stage of ( 5 ) issuance of process, the Magistrate is expected to see whether a prima facie case is made out or not and accordingly either issue process or reject the complaint. It has been held that when the Sessions Court directed quashing of the order of issuance of process, then it had prejudged the issue on the evidence brought on record. The question regarding availability of prima facie material would depend on facts and circumstances of each case. 6. So far as the question of discharge is concerned, the law requires certain latitude in private complaint cases in as much as the criterion is quite different. The Apex Court in “Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra” 2008 ALL MR (Cri.) 3222 (S.C.), has widened to some extent the scope of section 227 of the Criminal Procedure Code and succinctly explained the expression “not sufficient ground for proceeding against accused” as used in section 227 of the Criminal Procedure Code. It has been held that if two (2) views are equally possible and if Judge is ( 6 ) satisfied that facts giving rise to a mere suspicion as distinguished from a grave suspicion, do exist, then he will be right in discharging the accused. Thus, it would not be proper to proceed against the accused on basis of mere suspicion, but there must be grave suspicion available from the record. In the fact situation of the present case, there is not even a grain of suspicion available from the nature of publication. The main intention of the publication of the notice is purportedly to make aware of the members like the respondents (accused). Under the circumstances, there was no reasonable ground to proceed and issuance of process was not quiet in law. The order rendered by the learned Sessions Judge is, therefore, proper and legal. No interference is warranted. Hence, the writ petition is dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp735-09