IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1504 of 2006 RAKESH SHARMA son of late R.P.Sharma, the publisher, Hindustan Hindi Daily, Budh Marg Patna, at present residing at 18/20 Kasturba Gandhi Marg, New Delhi. ----- ----- ----Petitioner Versus 1.STATE OF BIHAR 2.Neelu Sharma, W/o Sri Vishwanath Vishwakarma, Mohalla-Loharbaghat P.S.-Alamganj, Distt.-Patna, present posted at Agamkuan P.S. as Mahila Constable. ---- ----- ----Opposite Parties ----------- 4. 22.2.2010. Heard Mr. K.N.Gupta, learned counsel for the petitioner and Mr.Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State. In the present case by order dated 18.7.2006 notice was ordered to be issued to opposite party no.2 on whose complaint learned Judicial Magistrate, Patna City, had taken cognizance of the offence under sections 500, 501 and 120B of the Indian Penal Code. Despite the order, notice could not be served on opposite party no.2 and thereafter by order dated 6.1.2009 it was directed to serve notice on opposite party no.2 through counsel representing her in Complaint Case No.484 of 2001 which was pending in the court of Sri Rajesh Kumar. Judicial Magistrate, Ist Class, Patna City to be served through the court of the Magistrate concerned. The office note makes it clear that service of notice was effected as per report of the Judicial Magistrate, Ist Class, Patna City. The report of the learned Judicial Magistrate, Patna City is kept at flag ‘A’ which indicates that opposite party no.2 had also put her signature on Goswara. The report is dated 13.2.2009. Despite valid service of notice, none appeared on 2 behalf of opposite party no.2. The petitioner before this court is a publisher of a Hindi newspaper namely ‘Hindustan’. Learned counsel for the petitioner challenging the order dated 28.9.2001 passed in Complaint Case No.484 of 2001 registered for the offences under sections 500, 501and 120B of the Indian Penal Code, submits that on bare perusal of the complaint petition the offences under the said sections do not apply in the case particularly against the petitioner. He submits that while taking cognizance the learned Magistrate, Patna City has mechanically passed the impugned order. He further submits that one of the accused namely, Yashoda Nand Singh, who figured as accused no.6 in Complaint Case No.484 of 2001, had earlier moved this court against the order of taking cognizance dated 28.9.2001 and a Bench of this Court by an order dated 24.2.2003 passed in Cr. Misc. No.4413 of 2002 quashed the order of cognizance and allowed the petition of accused, Yashoda Nand Singh. Learned counsel for the petitioner submits that news item was published on the basis of letter, which was given by Yashoda Nand Singh, who was M.L.C. at the relevant time, to the Director General of Police. He submits that the publisher had received a copy of the letter from the office of Director General of Police and thereafter the contents of the letter were published in the news-paper. He submits that, prima facie, on perusal of news item it does not indicate that intentionally any particular 3 defamatory publication was made against opposite party no.2 and no case is made out against this petitioner. He submits that allowing the proceeding on the basis of such complaint amounts to allowing the abuse of process of Court for which the court under section 482 of the Code of Criminal Procedure can exercise its power for preventing such an abuse. Though none appeared on behalf of the complainant i.e. opposite party no.2 despite service of notice, learned counsel Mr.Jharkhandi Upadhyay, Additional Public Prosecutor, appearing on behalf of the State, submits that power under section 482 of the Code of Criminal Procedure is to be exercised in rarest of the rare cases and the court is not required to look into the materials which are to be seen by the court below and, accordingly, he submits that the present quashing application is fit to be rejected. I have perused the materials which are available on record and also heard the arguments advanced by both the learned counsel for the petitioner and the State. The court is aware regarding its limitation while exercising power under section 482 of the Code of Criminal Procedure. It is true that this power is to be exercised in exceptional and rarest of the rare cases but at the same time it is the duty of the court to prevent abuse of process of the court if, prima facie, the court is satisfied that the proceeding before the court below appears to be an abuse of process of law. In the facts and circumstances of the present case that too in view of the fact that the petitioner, being a publisher, on receipt of information from the office of Director General of Police had 4 simply published the contents of the communication which was made to the police officer, who was Director General of Police, he appears to have not committed offence of defamation. Besides this, the man, namely, Yashoda Nand Singh, on whose letter written to the Director General of Police, this proceeding was initiated and the contents of which letter had been alleged by the complainant as defamation against her, had approached this court invoking jurisdiction under section 482 of the Code of Criminal Procedure and a Bench of this court by a reasoned order date 24.2.2003, which is annexure-3 to this petition, has already quashed the order of cognizance in respect of an accused i.e. Yashoda Nand Singh. The case of the petitioner also appears to be almost on similar footing, rather on better footing than the case of Yashoda Nand Singh and, accordingly, I do not see any reason why this court may not stop the abuse of process of court by the complainant by way of allowing the proceeding before the court below to further proceed. Accordingly, in view of the peculiar facts and circumstances of the case and also in consonance with the order dated 24.2.2003 passed in Cr.Misc. No.4413 of 2002, I set aside the order of cognizance dated 28.9.2001 in respect of the petitioner and allow the petition. Accordingly, this petition is allowed. Md.S. ( Rakesh Kumar, J.)