Bombay High Court Sets Aside Revisional Remand Order in Defamation and Criminal Intimidation Complaint. The Court Held That Allegations of Impotency Made in Matrimonial Proceedings Fall Within Exception to Section 499 of Indian Penal Code and That Revisional Court Erred in Remanding Without Recording Findings or Admitting Unraised Ground.

Criminal writ petition under Article 227 of the Constitution challenging an order of the Additional Sessions Judge in a criminal revision, which had remanded a private complaint case for inquiry under Section 202 CrPC.

The petitioners (accused persons) sought quashing of the revisional court's order dated 3 April 2024 that remanded the matter to the Magistrate for inquiry under Section 202 CrPC and fresh decision on issuance of process.

The Magistrate had dismissed the complaint under Section 203 CrPC finding no prima facie case for offences under Sections 500, 506 read with 34 IPC. The revisional court remanded the matter without recording findings on the Magistrate's reasoning and on an erroneous assumption that the complainant was denied opportunity to examine witnesses.

The 11th Additional Chief Metropolitan Magistrate, Kurla, by order dated 15 April 2023, dismissed the complaint under Section 203 CrPC. The Additional Sessions Judge, Greater Mumbai, by order dated 3 April 2024, allowed the revision in part and remanded the matter for inquiry under Section 202 CrPC and fresh decision on process issuance.

Whether the revisional court erred in remanding the matter on a ground not raised in the revision memo (denial of opportunity to examine witnesses). Whether the revisional court was required to record prima facie findings on the trial court's reasoning regarding the exception under Section 499 IPC and absence of criminal intimidation before remanding. Whether allegations of impotency made in matrimonial proceedings fall within the exceptions to defamation under Section 499 IPC, precluding issuance of process. Whether the High Court could consider the defence of exception under Section 499 IPC at the pre-process stage while exercising jurisdiction under Article 227.

Petitioners: The sole ground for remand was that the complainant was not given an opportunity to examine witnesses, but no such grievance was raised in the revision memo; the complainant had only stated that after recording verification and hearing advocate, the impugned order was passed. Petitioners: The revisional court failed to record any finding about the trial court's conclusions that impotency is a ground of divorce and there was no material of criminal intimidation; the averments made before lawful authority in judicial proceedings are covered by exception to Section 499 IPC. Petitioners: Relied on Arun Purie v. State of NCT of Delhi and Iveco Magirus Branschutztechnik GMBH v. Nirmal Kishore Bhartiya to argue that exception can be raised at every stage. Respondent No.1: The petition cannot be entertained at this stage because there is no order of issuance of process; the complainant needs an opportunity to satisfy the court about issuance of process. Respondent No.1: All petitioners are residents of Chhattisgarh, hence inquiry under Section 202 CrPC would be required. Respondent No.1: The allegations about impotency are not warranted and not made in good faith; they are per se defamatory as judicial records are public; complainant cannot wait for final findings in matrimonial proceedings as complaint may become time-barred; relied on X v. Y.

At the pre-process stage, the court may consider exceptions to defamation if ex facie applicable. Allegations made in matrimonial proceedings in good faith fall within the exception to Section 499 IPC. A revisional court must record prima facie findings on the trial court's reasoning before remanding. A Magistrate has no duty to suo motu ask the complainant to examine witnesses; the complainant must express willingness. The High Court under Article 227 can correct patent errors in revisional orders, including non-consideration of relevant findings and reliance on grounds not raised.

Admittedly, impotency is one of the ground of the divorce. There is nothing on record to show that at any any point of time the accused persons have given criminal intimidation to the complainant. The learned Metropolitan Magistrate is directed to conduct the inquiry under section 202 of Cr.P.C. and then decide afresh the point of issuance of process against respondents No.2 to 4 i.e. accused No.1 to 3 in the complaint case. There is one more reason why the impugned order cannot be sustained in the eyes of law.

Respondent No.1 filed a private complaint before the 11th Additional Chief Metropolitan Magistrate, Kurla alleging offences under Sections 500, 506 read with 34 IPC against the petitioners. The Magistrate recorded the complainant's verification statement and heard the complainant. By order dated 15 April 2023, the Magistrate dismissed the complaint under Section 203 CrPC, holding that no prima facie case was made out because the alleged defamatory statements were made in matrimonial proceedings where impotency was a ground for divorce, and there was no material of criminal intimidation. The complainant filed a Criminal Revision Application before the Additional Sessions Judge, Greater Mumbai. By order dated 3 April 2024, the revisional court did not uphold the dismissal but remanded the matter to the Magistrate for inquiry under Section 202 CrPC and fresh decision on issuance of process, citing lack of opportunity for the complainant to examine witnesses. The petitioners/accused then filed the present Criminal Writ Petition under Article 227 of the Constitution challenging the revisional remand order.

• Indian Penal Code, 1860: Section 34, Section 499, Section 500, Section 506
• Code of Criminal Procedure, 1973: Section 202, Section 203
• Constitution of India: Article 227