CRIMINAL MISCELLANEOUS No.24475 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- BHANTE ANAND, Member ,Bodh-Gaya Temple Management Committee and National General Secretary of All India Bodh-Gaya Temple Liberation Stuggle Committee, situated within Town and P.S-. Bodh-Gaya, District-Gaya ------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Bhante M. Winalsara Thara, Assistant General Secretary, Mahabodhi Society of India, registered office & Head Quarters 4A, Bankim Chatterjee Street, Calcutta-700073, at present Bhikhu Incharge, Bodh-Gaya Centre of Mahabodhi Society of India, P.S.- Bodh-Gaya, District-Gaya ------------ Opp.Parties --------------- For the petitioner: Sri Syed Arshad Ali, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. For Opp.Party no.2: Sri Rabindra Kumar Tiwary, Advocate ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of entire criminal prosecution against him in Complaint Case No. 403 of 2000/ 409 of 2000 including the order dated 24.7.2000 passed by Shri S.K.Singh, Judicial Magistrate, 1st Class, Gaya. By the said order, the learned Magistrate has taken cognizance of offences under Sections 500 and 506 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2, who was Assistant General Secretary, Mahabodhi Society of India, Gaya filed a complaint in the court of the learned Chief Judicial Magistrate, Gaya, which was 2 registered as Complaint Case No. 403 of 2000. In the complaint petition, it was alleged that on 10.11.1999 a news item was published in a Newspaper, namely, “ PRABHAT KHABAR” ( Hindi Edition) at the instance of the petitioner under the heading that “MAHABODHI SOCIETY VISHW HINDU PARISHAD KE GOAD ME CHALI GAI; Bhante Anand”. It was alleged that the said news was totally false and defamatory against the complainant and his organization. The complainant thereafter sent a legal notice through his advocate to the petitioner on 3.1.2000 ventilating his grievance and asking him to tender unqualified apology. Instead of tendering apology, it was alleged that after receiving the legal notice, the petitioner gave threatening to the complainant over telephone. The complainant in his complaint petition has given a detailed assertion made in the news item, which according to the complainant, was defamatory. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint petition, the complaint examined four witnesses at the enquiry stage and thereafter the learned Magistrate, prima facie, satisfied with the allegation made in the complaint petition took cognizance of offences under Sections 500 and 506 of the Indian Penal Code and directed for summoning the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. 4. Sri Syed Arshad Ali, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance has raised several grounds. Learned counsel for the petitioner, while referring the averments made in paragraph-7 of the petition, has firstly argued that no offence is made out in the facts and circumstances of the present case. Learned 3 counsel for the petitioner has asserted that the petitioner had taken defence in detail in paragraph-7 of the petition. Learned counsel has specifically placed paragraph-7 of the petition, which is as follows: 7. That the defence case of the petitioner is that he is a member of Bodh-Gaya Temple Management Committee and National General Secretary of All India, Bodh Gaya Temple Libration Struggle Committee situated at Bodh-Gaya and is equally responsible devotes for revival and propagation of the message of Lord Buddha and work towards inter-religious harmony through the message of love and compassion of lord Buddha apart from performing religious , social, educational and charitable activities ancillary to attainment of its main object of propagation of Budhist message through the work of libration of Budha temples from the unauthorized possession/occupation of others. The news item referred to in the complaint petition (Annexure-2 Series ) forming the basis of this Criminal Prosecution is the press report of the reporter of “ Prabhat Khabar” daily news paper in which the similar statement of complainant have also been published through the reporter against this petitioner and his society. Those statements are nothing but a healthy criticism of both the societies against each other in a democratic form of society for their positive performance in their respective field of responsibilities to achieve the aim and object of their respective mission. The statements do not form any criminal mens rea and do not constitute any offence as alleged under Sections 500 and 506 of the Indian Penal Code. “ It was argued that the news item suggests that it was a healthy criticism and it was not made with an object to defame either the complainant or his organization. It was further argued that the news item comes under the exemption as prescribed under Section 499 of the Indian Penal Code. It was further submitted that from the contents of the complaint 4 petition, it is evident that it was only a civil dispute between the petitioner and the complainant. Learned counsel for the petitioner has submitted that really the prosecution of the petitioner on such allegation will amount to allowing the abuse of the process of the court. It was further submitted that both the petitioner and the complainant had criticized each other and, as such, it cannot be termed as an offence either under Section 500 or under Section 506 of the Indian Penal Code. It was submitted by the learned counsel for the petitioner that the learned Magistrate, while taking cognizance and passing order for issuance of process against the petitioner, has failed to apply its mind in judicious manner and on this score alone, the petition is liable to be allowed. Learned counsel for the petitioner has referred to a Judgment of this Court, reported in 2000(2) PLJR 53; Jaydeyal Banka & Ors Vs. State of Bihar & Ors.. On the ground that the dispute was civil in nature, learned counsel for the petitioner has referred to a Judgment of this Court reported in 2000(2) PLJR 243 ; Ramashish Choudhary & Ors Vs. State of Bihar & Anr. It was submitted that if the allegation is civil in nature, then summoning of the petitioner can be termed as an abuse of the process of the court. Learned counsel for the petitioner has also relied upon a Division Bench Judgment of this Court, reported in 2000(2) PLJR 467; Uttamsen Gupta & Ors. Vs. Bihar Public Service Commission and others. On the basis of the aforesaid decisions, learned counsel for the petitioner has submitted that since both the petitioner and the complainant are members of Religious Society, it can be said that there was no mens rea for committing any offence, as alleged by the complainant. On the aforesaid grounds, it has been prayed to quash the order of cognizance and allow the present petition. 5 5. Sri Rabindra Kumar Tiwary, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioner. It was submitted that despite the fact that the petitioner had made a defamatory publication, which hurt the conscience of the complainant, the Assistant General Secretary of Mahabodhi Society of India has rightly approached the Court for taking action against the petitioner. It was submitted that even after publication the petitioner was asked by the complainant through legal notice to tender unqualified apology, in spite of tendering apology, the petitioner even threatened the complainant over telephone, which has been categorically mentioned in the complaint petition. Learned counsel for Opp.Party no.2 has referred to a Judgment of the Hon’ble Supreme Court reported in AIR 1960(SC) 154; Romesh Chandra Arora Vs.State of Punjab. It was submitted that besides material on record to show commission of offence of defamation, there is material on record that the petitioner intimidated the complainant and, as such, learned Magistrate has rightly taken cognizance both under Sections 500 and 506 of the Indian Penal Code. Accordingly, it has been prayed by Sri Rabindra Kumar Tiwary , learned counsel appearing on behalf of Opp.Party no.2 that the present petition may be rejected. 6. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has supported the stand taken on behalf of Opp.Party no.2. It was submitted by the learned Addl.Public Prosecutor that the argument, which has been advanced by the learned counsel for the petitioner, may not be examined in detail at the stage of hearing a petition under Section 482 of the Code of Criminal Procedure which has been preferred against the order of cognizance. It was submitted by Smt. Pandey, 6 learned Addl.Public Prosecutor that those grounds can well be looked into at the appropriate stage before the court below. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the records and examining the arguments advanced by the parties, the Court is of the opinion that this is not the stage for this Court to examine the allegations made in the complaint petition meticulously and in detail. Time without number it has been held by the Apex Court as well as this Court that power under Section 482 of the Code of Criminal Procedure is to be exercised only in exceptional and rarest of rare cases on the basis of materials available on the record. The Court is of the opinion that it is not a fit case warranting exercise of inherent jurisdiction in favour of the petitioner and, as such, the prayer of the petitioner for quashing of order of cognizance is hereby rejected and the petition stands dismissed. 8. In view of dismissal of the present petition, interim order of stay dated 8.11.2001 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated : the 13th September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)