CRIMINAL LAW AND PROCEDURE – CRIMINAL PROSECUTION – Whether a First Information Report upon which an accused was charged for the offence of criminal defamation can be declared unconstitutional and same quashed at the arraignment stage

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“My Lords, having demonstrated current conventional position on the criminalization of defamation, let us address the issue before us. In India, with legislation similar to those under review, the Supreme Court has held that a High Court can exercise its inherent power to quash criminal proceedings for disputes that are essentially civil in nature between two or disputing parties. However, the Courts in India have always refused to quash the offensive charge at the pre-FIR stage and it should only be done after the trial of the FIR before a Magistrate. In the case of State of Andhra Pradesh v. Golconda Linga Swamy and Ors. (2004) 6 SCC Pg. 522. The Supreme Court observed that the mere allegation of mala fides against the informant are of no consequence and that alone could not be the basis for quashing the proceedings. The High Court was not required to enter into a meticulous analysis of the case for the conduct of the trial to find out whether the case would end in conviction or acquittal. Interference at the threshold with the FIR is made only if the complaint does not disclose any offence or is frivolous, vexatious or oppressive. In another case, State of Kerala and Ors v. O. C. Kuttan and Ors. (1999) 2SCC 651, the Supreme Court held that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. The Court observed that it was a well settled position that an FIR is only an initiation to move the machinery and to investigate into a cognizable offence. Thus, while exercising the power under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.), to decide whether the investigation itself should be quashed utmost care should be taken by the Court and at that preliminary stage, it is not possible for the Court to sift the materials or to weigh the materials and then to come to a conclusion one way or the other. A three Judge Bench of the Supreme Court of India in the case of State of U.P. v. O. P. Sharma ?(1996) 7 SCC 705 indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be and should allow the law to take its own course. The inherent powers should be exercised sparingly and cautiously only if the Court is of the opinion that it would otherwise lead to a gross miscarriage of justice. My Lords, I am relying on these afore quoted cases from similar jurisdiction to urge that the charges based on the FIR be continued, investigation carried out and that the investigation not be quashed at the threshold. While the Courts should be alert to the abuse inherent in the criminalization of civil wrongs the law as it stands is the law. A crime is what the legislature calls a crime no matter how archaic or unpalatable. It is left to the Courts adjudicating on these laws to ensure that no miscarriage of justice occurs in its enforcement. The rule of law today allows everyone with a legitimate cause or grievance to avail himself of remedies available in criminal law. However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable by the law in punitive damages for pursuing misconceived criminal proceedings. I think it is important for this Court to set guidelines for the lower Courts to ensure safeguards in this regard. The Police investigating a criminal complaint must ensure that the complaint is one that has no ready defence. The Court conducting an FIR must verify all facts to ensure that the ingredients of the offence can be proved and that there is no legal defence to the charge. My Lords, at this stage in the proceedings at the Magistrates’ Court, I do not see my way to declaring the law unconstitutional being one unjustifiable in a democratic society. The law itself cannot be viewed in isolation of a live issue. I am aware my Lords that in some instances, where the charge is eventually quashed, the Defendant would have suffered untold damage. However, the facts of each case must be considered before the Court quashes a charge as one that would cause gross miscarriage of justice.” Per HELEN MORONKEJI OGUNWUMIJU, JSC in AVIOMOH v. C.O.P & ANOR (2021-LCER-40461-SC) (Pp 37 – 40 Paras B – F).

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