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TMI Blog2019 (7) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... laint Case No.11356/SS/2016 instituted by the respondent No.2 for the offence of defamation and alleging that the act of the respondent (present petitioner) has damaged his reputation. By the said impugned order, process is issued against the accused Nos.2 to 12 for the offences punishable under Section 500 read with 34 of the Indian Penal Code. 2. Before adverting to the order impugned before us, it would be necessary to refer to the bare minimum facts in a chronological manner to have a better understanding of the issue before us. Tata Sons Ltd., is an unlisted public company registered under the provisions of the Companies Act, 1886. The said company is having substantial shareholdings in various listed and unlisted private companies which form a part of the Tata Group of Companies. The said Tata Sons Ltd., is a shareholder of Tata Steel Ltd., Tata Chemicals Ltd. and Tata Motors Ltd., as it holds ordinary shares representing a marginal percentage of the paid up ordinary share capital of the three companies. Thus, Tata Sons Ltd., is a promoter/share holder in the three operating companies i.e. Tata Chemicals, Tata Motors and Tata Steels. The petitioner No.1Ratan Tata was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock exchanges affirming their confidence in the Board, Chairman and the Management of the Tata Chemicals and it also reassured all the stake holders, Management of the company and its subsidiary where ever located of their full confidence and support. The said statement was issued by one Mr.Rajiv Chandan, General Counsel and Company Secretary on behalf of the independent Directors of Tata Chemicals Ltd. It is this conduct of the respondent No.2 which was perceived as unfavourable and prompted the Tata Sons Ltd., which is a shareholder of Tata Chemicals Ltd., to requisition the Board of Directors of Tata Chemicals for convening an Extraordinary General Meeting of its shareholders in the manner prescribed under the law to pass two resolutions. Accordingly, on 10.11.2016 itself the Chief Operating Officer and the Company Secretary of Tata Sons Ltd., i.e. petitioner No.11 issued notice to the Board of Directors of Tata Chemicals Ltd., in its capacity as shareholder of Tata Chemicals Ltd. The Circular Resolution came to be passed by the Board of Directors of Tata Sons Ltd., which included the petitioner Nos.1 to 10 to submit requisition for convening Extraordinary General Meeting of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein and this amounted to an irresponsible behavior. It is in the backdrop of this fact we have heard the submissions advanced on behalf of the petitioners as well as the respondents and we would be making reference to the rival contentions of the respective parties by making reference to the voluminous documents placed before us. 4. To continue the assertion of facts, it may be noted that the end result of the proceedings is that the Extraordinary General Meeting of all the three holding companies came to be held and the respondent No.2 was removed as Director by requisite majority and in case of Tata Steel Ltd., on 21.12.2016 in case of Tata Motors on 22.12.2016 and in case of Tata Chemicals on 23.12.2016. 5. It is to be noted that Suit No.50 of 2017 came to be filed by few public shareholders in relation to the removal of the respondent No.2 along with the Notice of Motion No.345 of 2017. The said suit came to be instituted on 13.12.2016 and certain affidavits came to be filed in this suit which have been sought to be relied upon by the parties. It is also to be noted that the respondent No.2 instituted Civil Suit which came to be numbered as Civil Suit No.225 of 2017 before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is stated in the complaint that if the other independent Directors have expressed their support towards Mr.Cyrus Mistry as Chairman of the Company, Board and Management of the operating companies, it is not on account of the action on the part of the complainant but the collective and unanimous decision of the independent Director which is reflected in the Minutes of meeting of Tata Chemicals and Tata Motors. It is also stated in the complaint that as an independent Director, the complainant is entitled to express his support in the Chairman, the Board and the Management of the operating companies and he is entitled to do so after exercising his independent business judgment as his fiduciary duty is only to the companies in which he is a Director. In the said complaint, a request is made to the Magistrate to take cognizance of the offence committed under Section 500 of the I.P.C. read with Section 109 and also read with Section 34 of the I.P.C. and a request was made to issue process against the accused persons. 7. On this complaint, the Magistrate recorded the verification of the complainant on 14.12.2018 and passed the impugned order on 15.12.2018 in which the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector by following the procedure set out in the said section. He would submit that Board of Tata Sons took a decision to replace Mr.Cyrus Mistry as its Chairman on 24.10.2016 and the proceedings came to be initiated to remove him from the operating companies and notices came to be issued for removal of Mr.Cyrus Mistry as Director of all the companies in which he was the Director. In this process on 10.11.2016, the meeting of the Tata Chemicals was being held and in the evening, one of the nonexecutive Director of the Tata Chemicals Mr.Bhaskar Bhat submitted his resignation as Director of the Tata Chemicals and the various events which transpired in the meeting, came to be documented through the affidavits which included the affidavit of Mr.Rajiv ChandanCompany Secretary, Mr.MukundManging Director and Mr.Bhaskar BhatNonexecutive Director who resigned. This affidavits came to be tendered in suit filed by one Mr.Janak Mathura Das seeking stay of the EGM's of the Tata Companies on account of the resolution proposed for removal of the respondent No.2. Mr.Sanghvi invited our attention to the affidavit reflecting the conduct of the respondent No.2 in the meeting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brief factual material was necessary since the meeting was to be held for removing a director in whom the Tata Sons as shareholder had lost confidence and any such comment made for achieving the objective, in any case cannot constitute the defamation. The learned senior counsel further submits that if it leads to a criminal offence of a defamation, it would have a disastrous effect as those who are expected to take an independent and objective decision in an institution would be stalled in exercise of their duty if such a course is permitted. He would further submit that the power of removal of a person including an independent director is vested in the Board of Directors of the company cannot be stultified through threats of criminal prosecution. Shri.Sanghvi has placed reliance on the judgment of the Hon'ble Apex Court in case of Subramanian Swamy V/s. Union of India, Ministry of Law & Ors. (2016 7 SCC 221).To support to his submission that there has to be imputation and it must have been made in the manner as provided in the Section 499 of the Indian Penal Code with the intention to cause harm to the reputation of a person about whom it is made. He would submit that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned Magistrate and therefore, the Magistrate could not have issued process to the said respondents who were located beyond his jurisdiction. He would place reliance upon judgment of the Apex Court in the case of Abhijit Pawar V/s. Hemant Madhukar Nimbalkar & Anr. 2017 3 SCC5 28 where the requirement of the amended Section 202 is reiterated. The submission of Shri.Sanghvi is to the effect that the said approach of the Magistrate in not following the provisions of Section 202 itself discloses the nonapplication of mind on the part of the Magistrate. He would also place heavy reliance on the judgment of the Apex Court in case of Udai Shaker Awasthi V/s. State of Uttar Pradesh & Anr. 2013 2 SSC 435 and a judgment in case of Vijay Dhanuka & Ors. V/s. Najma Mamtaj & Ors. (2014 14 SCC 638) wherein it is held that the requirement to conduct an inquiry and direct investigation before issuing process against the accused beyond the territorial jurisdiction of the Magistrate concerned is held to be mandatory, the object, being to protect innocent persons residing at far off places from being harassed. Apart from the said two points, Shri.Sanghvi would also submit that the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order justifying issuance of the process against the present petitioners, we have heard learned counsel Shri.Abad Ponda. According to Shri.Ponda the statements contained in the Special Notices to which he has exhaustively referred to, are per se defamatory in nature and he would further submit that having regard to the respondent No.2's eminent stature and reputation it was incumbent upon the petitioners before levelling any allegation to ascertain the truthfulness of the same and there ought to have been some care shown on their part to find out whether the allegations are true or false. He would submit that when an independent Director is alleged to be acting in consonance with another, it is a direct affront on his independence and this is no short of questioning his integrity as any independent Director. He would place reliance on the judgment of the Hon'ble Apex Court in case of Shiv Narayan Laxmi Naryan V/s. State of Maharashtra 1980 2 SCC 465 to submit that a conclusion derived by the petitioners that on account of the act of the respondent No.2 as the company is in jeopardy and this has desired effect of harming and tarnishing his reputation. Shri.Ponda is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meeting of the independent Directors of the Tata Chemicals on 10.11.2016 which reads thus : "On the basis of the above criteria, the independent Directors concluded that in their view the Board, Management and Chairman had been acting in a manner consistent with law and prudence in the best interest of the company and that nothing adverse(covert or avert)had come to their notice which necessitated a revision of their assessment which had been made by them on March 22, 2016. Considering the above the Independent Directors unanimously affirmed their confidence in the Board, its Chairman and the management in the conduct of the Company's business. Independent Directors also reaffirmed that all the decisions taken with regard to the operations and business of the Company had been taken by the Board unanimously and executed by the Chairman and management as per the directions of the Board." 12. Based on the aforesaid statements and the Resolution, Mr.Ponda has vehemently submitted that the material available on record disclose otherwise and in fact there is no basis for making the defamatory allegation by the petitioners against a responsible independent Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion misleading. Shri.Ponda submit that respondent No.2 has addressed a letter dated 21.11.2016 to the Board of Directors and the Company Secretary of Tata Steel and had asserted that the allegations in the Special Notice are absolutely false and baseless and he had clarified that the draft notice and the explanatory statement circulated by the Company Secretary reproduces the highly defamatory statement made by the Tata Sons Ltd., in the Special Notices and this letter was received by the Tata Sons Ltd., before the Board meeting dated 21.11.2016 where such letter was discussed at length. Shri.Ponda would submit that the petitioners had responded to the respondent No.2's letter and denied the allegation and had reiterated that the Special Notice was confidential communication. He would also invite our attention to the fact that pursuant to the decision of the Board in its meeting held on 21.11.2016 a Board meeting of Tata Steel Ltd., was held on 25.11.2016 to consider and approve the notice convening an Extraordinary General Meeting and prior to it, legal opinion was also sought and circulated to the members of the Board which was duly considered and discussed in the meetin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons, he has issued the process. He would further submit that there is absolutely no reason for this Court to resort to its extraordinary jurisdiction to interfere in such a matter since there are several triable issues and under the inherent power of this Court, a just prosecution cannot be stultified. 14. The Writ Petition has been filed before us under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure and relief is sought to the effect of quashing and setting aside the order passed by the Additional Chief Metropolitan Magistrate, Mumbai on 15.12.2018. The present petition was initially listed before the learned Single Judge, however, in light of the judgment in case of Abdul Pal Abdul Rahim V/s. State of Maharashtra 2012All MR (Criminal) 131, the learned single Judge was pleased to issue direction for listing of the matter before the Division Bench in light of the power sought to be invoked and, that is how, the matter came to be listed before us. It is trite position of law that the power conferred on this Court under Section 482 of the Cr.P.C. is the inherent power and the said power is to be exercised with great circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propose resolution for removal of the respondent No.2 as Director of the Relevant Tata companies. The Special Notice and requisition under the provisions of the Companies Act came to be issued by the Tata Sons Ltd., and was addressed to the Board of Directors of the three holding companies, for convening an Extraordinary General Meeting of the shareholders of the respective companies. The separate notices came to be issued to the Board of Directors of all the three holding companies on 10.11.2016. The Special Notice proceed to state that Tata Sons is a shareholder of the three companies and hold equity shares in the respective companies. After making reference to the provisions of Section 100(2)(a) and other applicable provisions of the Companies Act, 2013, the Notice proceed to state that Tata Sons Ltd., submit the requisition to the Holding Companies for convening an Extraordinary General Meeting of their shareholders in the prescribed manner to pass two resolutions on following subjects: Item No.1 Removal of Mr.Cyrus Mistry as Director. Item No.2 Removal of Mr.Nusli Wadia as Director. Since we are not concerned with item No.I of the Special Notice, we would refer to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive holding companies forwarded the copy of the Special Notice and requisition dated 10.11.2016 to the respondent No.2 and drawn his attention to Section 169(4) of the Companies Act and intimated him that in case he intends to make any representation to the members of the company in resolution for his removal as a Director, the same should be forwarded for circulation to the members. Similar communications were addressed by all the three companies to the respondent No.2. On 21.11.2016, the respondent No.2 addressed a letter to the Board of Directors of the three holding companies as well as their respective Company Secretaries and he responded that the statement contained in the Special Notice issued by Tata Sons Ltd., was without any evidence or proof and that the allegations were absolutely baseless, false, defamatory and libelous and with an intention to harm his reputation. He also makes a mention that he had an opportunity to read the draft notice and the explanatory statement circulated by the Company Secretary of the Companies and the draft reproduces the highly defamatory statement made by the Tata Sons Ltd., in the Special Notice. A request is therefore made by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and if through fit, pass an Ordinary Resolution for removal of Mr.Cyrus P. Mistry and Mr.Nusli Wadia as Directors of the Company. Mr.Nusli Wadia is an independent Director of the Company. He was appointed as a NonExecutive Director of the Company by the Board on December 22, 1998 and by the shareholders at the AGM held on August 12, 1999. Being a director liable to entire by rotation, Mr.Wadi's reappointment was approved at various, AGM's held on July 26, 2002, July 11, 2005, August 25, 2009, August 12, 2011 and August 21, 2013 in terms of the provisions of the Companies Act, as applicable from time to time. As required under the listing agreement, Mr.Wadia has been an independent Director of the Company since March 2001. As required under Section 149 of the Companies Act, 2013, Mr.Wadia was appointed as an independent Director of the Company with effect from July 31, 2014. Mr.Wadia is the Chairman of the NRC and a Member of the Eco's. The Board has been informed by the independent Directors individually that they have not been approached by Mr.Wadia that could be considered as influencing their independence in the Company. Mr.Wadia, vide his lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards Tata Sons Ltd., as well as various stake holders and Tata Sons Ltd., has exercised these rights as shareholder of the holding company and issued a Special Notice to the Board of Directors on 10.11.2016 pursuant to Section 100, Section 115 and Section 169 of the Companies Act calling upon the Board of Directors to convene an Extraordinary General Meeting of shareholders of the Companies to pass the two resolutions. It was also clarified that it was a fairly well settled position that there was no requirement, legally or otherwise as a shareholder to provide any reason while seeking the removal of a Director in terms of Section 169 of the Act. The Special Notice was therefore sought to be justified and the respondent No.2 was called upon to consider withdrawal of the notices issued by him. It is a specific case of the petitioners that the respondent No.2 by email has categorically approved the final draft notice and the explanatory statement of the Extraordinary General Meeting of Tata Motors as well as Tata Chemicals and these emails have been suppressed in the complaint during verification. The issue as to whether the subsequent circulation of the explanatory statement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director needs to be protected by the shareholders. He also clarified that the representation preferred by him keeping in mind the spirit of Section 169 of the Companies Act and with no other intention. At the bottom of the said representation, a note similar to the one appended to the letter which we have reproduced above is also added, permitting the shareholder to seek any other clarification on an email address of the respondent No.2. Such representations have been addressed to the shareholders of all the three respective companies. In the said representation, the respondent No.2 has deciphered the allegations levelled against him and in great detail has highlighted his role on the Board of Directors and has also levelled certain allegations about the inappropriate behavior of the interim Chairman of Tata Sons LtdShri.Ratan Tata. It can thus be seen that in the entire representation, Shri.Nusli Wadia had offered an explanation and requested the shareholder to take a conscious decision by taking into consideration the information put forth by him in the representation and as to how his removal was an attempt to undermine the entire institution of Independent Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the petitioners proposed under the provisions of the Companies Act and it is contained in the Special Notices which were issued by the Tata Sons Ltd., under Section 169(2) read with Section 115 of the Companies Act, in its capacity as a shareholder of the Relevant Tata Companies inter alia seeking removal of the respondent No.2 as the Director of the Relevant Tata companies. It is also sought to be justified that the issuance of Special Notices by Tata Sons Ltd., was necessitated by conduct of respondent No.2, a matter in which the Tata Sons Ltd., had material interest (being promoter and controlling shareholder of Relevant Tata Companies) and aimed at protecting its interest. It is thus sought to be submitted that the Special Notices were issued in exercise of the statutory power conferred upon the Tata Sons Ltd., under the Companies Act and a subject wherein a Tata Sons Ltd., had a legitimate, legal interest and duty to do so. At this stage, it would be apposite to refer to Section 169 of the Companies Act 2013 which deals with "Removal of Directors". The relevant Section 169 of Companies Act reads as under : 1) A company may, by ordinary resolution, remove a direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory matter; and the Tribunal may order the company's costs on the application to be paid in whole or in part by the director notwithstanding that he is not a party to it. 20. The Companies Act also contain a provision in form of Section 115 which provides for resolution requiring a Special Notices which stipulate that where, by any provision contained in the Companies Act or in the Articles of a Company, Special Notice is required of any resolution, notice of the intention to move such resolution shall be given to the Company by such number of members holding not less than one percent of total voting power or holding shares on which such aggregate sum not exceeding Rs. 5 lakh rupees, as may be prescribed, has been paidup and the company shall give its members notice of the resolution in such manner as may be prescribed. At this juncture, reference would also be necessary to Section 101 and Section 102 of the Companies Act. Section 101 prescribes for the manner in which a meeting of a company can be called, where as Section 102 prescribed that a statement setting out the material facts concerning each item of special business to be transacted at a General Meeting, shall be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the company's default, the Director may without prejudice to this right to be heard orally require that the representation shall be read out at the meeting. The only exception carved out to the said procedure, is proviso appended to subSection (4) which set out that the copy of representation need not be sent out and the representation need not be read out in the meeting if, on the application either of the Company or of any person who claims to be aggrieved had approached the Tribunal and the Tribunal is satisfied that the rights of such person are being affected then it may not be permit publicity of the said representation. 22. It is in light of this statutory scheme we are called upon to examine whether the publication of the imputation against the respondent No.2 in the Special Notice is defamatory. Section 499 of the Indian Penal Code defines defamation in the following manner : "Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace in the Special Notice. The Special Notice issued by the Tata Sons Ltd., as a promoter is in form of requisition to the holding companies to call for an Extraordinary General Meeting for removal of their independent Director in whom "Principal shareholder" (Tata Sons) have lost confidence. The Special Notice is thus issued for the purpose of seeking removal of an independent Director of the Company since the principal shareholders are of the opinion that the respondent No.2 is acting in a manner that is designed to harm the "Tata Group" and his conduct reflect that he is not conducting himself independently and instead has been inter alia galvanizing independent Directors and acting prejudicial and as such, the Principal shareholder are apprehensive that in future his action may put the company and its future in great jeopardy and impact the overall morals of the works, employees and management who have joined Tata Company. The imputation contained forms part of the resolution passed by the Board of Directors of Tata Sons Ltd i.e. the present petitioners and it is contained in a requisition/Special Notice proposing resolutions for removal of the respondent No.2 as Director of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Special Notice cannot be viewed independent of the purpose for which it is included in the Special Notice and if the petitioners have adopted a legal course permissible to be adopted under the frame work of the statute governing it, we do not think the allegations can be termed as "per se defamatory". The Special Notices though categorically have mentioned that there was no legal requirement, legal or otherwise and is discretion of the Relevant Tata companies that the Special Notices were circulated to the shareholders of the Relevant Tata companies, they cannot be held liable since the statutory scheme itself contemplates that the notice should be accompanied by a brief statement of information and facts that would enable the members to understand the meaning, scope and implication of the items and business to be transacted in the meeting and to take decision thereof. If removal of the respondent No.2 was one of the agenda of the notice and it is accompanied by a brief statement why such action of removal is initiated, we are not ready to accept the submission of Shri.Ponda and examine the bona fides or otherwise of the said action since, we are of the clear opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. He also made it clear that company has reasonable time to circulate the representation to the shareholders in visible as well as electronic form. He also clarified that the documents referred to in the representation are also available for inspection/perusal and supplied his email address from where this information can be sought. In the detailed representation, the respondent No.2 himself has referred to the allegation and rebutted them one by one and offered his explanation. Not only this, he independently addressed a letter to the shareholders on 21.12.2016 and requested the shareholders to take conscious decision in the interest of the entire institution of independent Directors. In the backdrop of this fact, we express that the respondent No.2 has also chosen to avail statutory right available to him under subSection (4) of Section 169 and has responded to the resolution of removal and availed the opportunity of appealing to the shareholder to take a conscious decision after going through the response submitted by him through his representation to the allegation/imputations levelled in the Special Notice. Therefore, it is not that the imputations have been fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate before the Magistrate the allegations in the Notices were published which were per se defamatory and damaged his reputation. He has also proceeded to state that he has requested the accused person to withdraw the defamatory allegations. It is pertinent to note that even in 2018, he does not make any statement as to the culmination of the said proceedings into his removal as Director of the Company. The Magistrate therefore proceeds only on the basis of the Special Notice dated 10.11.2016 and even fail to take into account the subsequent replies, counter replies or even the representation preferred by the respondent No.2 and he himself reminding the Companies of its imperative duty to circulate the same and an independent letter addressed by him to the shareholders. The learned Magistrate while exercising his power under Section 200 of Cr.P.C. refers to "Perusal of the documents as per list of documents". He makes a reference to the record of minutes of independent Directors of Tata Chemicals dated 10.11.2016 outcome of the meeting, the Special Notice dated 10.11.2016, copy of articles (news papers etc.) and also the notices issued by the respondent No.2 to the accused persons r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 being wellknown business personalities, they drew the attention of the media and the allegations/imputations and the story of removal of the respondent no.2, no wonder, happened to be a hot topic for media. However, it is not conclusively established as to it is the petitioners who have leaked the information to the media and particularly when we have noted that the respondent no.2 himself had addressed the communication to the shareholders independent of his representation in terms of subsection (4) of Section 169 and which he requested for being circulated to the shareholders. The allegations of the respondent no.2 in respect of disparaging remarks/comments being widely circulated is also not correct since it was only circulated to the shareholders and they had a right to know the background of the resolution on which they were supposed to vote. In light of the decision of the Apex Court in case of S. Khushboo (supra), since there was no intention to malign the image of respondent no.2 by making his conduct known to the public and particularly when the petitioners were exercising their statutory power, we record that there is no prima facie case of defamation in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd, Vs. Special Judicial Magistrate (1998) 5 SCC 749, a two Judge Bench has held that summoning of an accused in a criminal case is Investigating Agency serious matter and criminal law cannot be set into motion as a matter of course" 29. Further reliance placed by the learned counsel for the petitioner in the latest judgment of the Apex Court in case of Birla Corporation Vs. Adventz Investments and holdings, 2019 SCC Online 682, where the Apex Court has elaborated and clarified the scope of enquiry in the following words : 56. As held in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another AIR 1963 SC 1430 and in a series of judgments of the Supreme Court, the object of an enquiry under Section 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for proceedings against the accused and the entire purpose of the enquiry is to determine whether a prima facie case is made out. In the judgment in Birla Corporation (supra), the Hon'ble Apex Court after making reference to the earlier precedents observed thus : 30. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in Bhushan Kumar and Another v. State (NCT of Delhi) and Another (2012) 5 SCC 424, it was held as under: "11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint. 30. The Apex Court, therefore, held that since summoning of an accused is a serious matter affecting ones dignity and reputation in the Society, there has to be application of mind before proceeding against the accused persons and though it may not contemplate a detail order but the Magistrate has to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. Shri Ponda has made a submission that the Code of Criminal Procedure do not specify any mode or manner of enquiry under Section 202 though the Apex Court in case of Birla Corporation Vs. Adventz (supra) has laid down the guidelines revolving around the exercise of the said power. He would rely upon the same judgment relied upon by the learned senior counsel for the petitioners and invite our attention to the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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