Alexander Thomas, J. - The prayer in the aforementioned Criminal Miscellaneous Case filed under Sec. 482 of the Code of Criminal Procedure is as follows:

"..... prayed that the proceedings pursuant to Annexure I First Information Report in Crime No. 900/2018 of Vadakkekara Police Station, Ernakulam, may be quashed in the interest of justice."

2. Heard Sri. V.A. Vinod, learned counsel appearing for the petitioner, Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-1 & R-2 State authorities and Smt. N. Deepa, learned counsel appearing for contesting respondent No. 3 (lady defacto complainant).

3. It appears that the 3rd respondent defacto complainant had earlier filed a petition before the Judicial First Class Magistrates Court-I, North Paravoor, complaining that the petitioner herein has committed offence as per Sec. 500 of the I.P.C. which is a non cognizable offence, on account of the petitioners publishing certain postings in his Facebook account making certain remarks against the 3rd respondent, which according to her, are derogatory and defamatory to her reputation. It also appears that the learned Magistrate, instead of treating the said petition/complaint as a complaint under Sec. 190 of the Cr.P.C., had proceeded in purported exercise of powers under Sec. 155(2) of the Cr.P.C. had directed the 1st respondent SHO of the Police Station concerned to investigate the matter in the said petition. Anx. 1/7 given on page 13 of the paper book, contains the directions issued by the Judicial First Class Magistrates Court-I, North Paravoor, whereby the said court has directed the Police to register FIR and then to investigate the case made out therein and the same has been received by the 1st respondent SHO on 28.6.2018. Thereupon, the 1st respondent SHO of Vadakkaraka Police Station has registered Anx. I FIR in Crime No. 900/2018 of Vadakkekkara Police Station, as per Sec. 500 of the I.P.C. (criminal defamation), wherein the petitioner herein has been arrayed as the sole accused and the lady defacto complainant named therein is the 3rd respondent herein. It is mentioned in column No. 12 of Anx. I FIR, which deals with the FI contents, that the petitioner has made allegations against the 3rd respondent in some of his updated postings in his Facebook account so as to defame the 3rd respondent and has also referred to her as "demon" to many persons of the locality with the object to defame her, etc. The prime contention taken by the learned counsel for the petitioner is that in view of the specific statutory bar engrafted as per Sec. 199 of the Cr.P.C., the learned Magistrate has no jurisdiction even by resort to Sec. 155 (2) of the Cr.P.C. so as to direct the Police to register a crime in relation to the offence as per Sec. 500 of the I.P.C. and that consequently, the Police has also no jurisdiction whatsoever to register a crime in that regard and to investigate the case for the offence as per Sec. 500 of the I.P.C.

4. It will be pertinent to refer to the provisions contained in Sec. 199 of the Cr.P.C., which reads as follows:

"Sec. 199: Prosecution for defamation.-

(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.

(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Government of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction --

(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;

(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;

(c) of the Central Government, in any other case.

(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."

In this case we are not really concerned much with the applicability of sub-sections (3), (4) and (5) of Sec. 199, as nobody has a case that the alleged defamation has been made as against anyone of the public dignitaries mentioned therein, more particularly in sub-section (2) thereof. Sub-section (1) of Sec. 199 of the Cr.P.C. clearly and categorically mandates that no court shall take cognizance of an offence punishable under Chapter XXI of the I.P.C., except upon a complaint made by some person aggrieved by the offence. In this case, we are also not much concerned with the applicability of the proviso to sub-section (1) of Sec. 199 as nobody has got a case that the complainant concerned is below the age of 18 or comes within any of the categories mentioned in that proviso. Chapter XXI of the I.P.C. is caption with the heading "OF DEFAMATION" and the said Chapter XXI contains Secs. 499, 500, 501 and 502 of the I.P.C. In the instant case it is beyond any dispute that the offence alleged is as per Sec. 499 (criminal defamation), which is punishable as per Sec. 500 (punishment for defamation) of the I.P.C. and hence it is beyond the pale of any controversy that the sole offence alleged in the instant case comes under Chapter XXI of the I.P.C. and therefore there cannot be any dispute about the applicability of sub-section (1) of Sec. 199 of the I.P.C. which deals with the offences mentioned in Chapter XXI of the I.P.C. The legislature has specifically mandated as per Sec. 199(1) of the Cr.P.C. that no court shall take cognizance of an offence punishable under Chapter XXI of the I.P.C. except upon a complaint made by the some person aggrieved by the said offence. Therefore, the only manner on the basis of which, cognizance could be taken by the competent criminal court in respect of an offence alleged as per Sec. 500 of the I.P.C. comes under Chapter XXI of the I.P.C. is that the aggrieved complainant who has locus standi has to file a private criminal complaint as envisaged in Sec. 190(1)a. of the Cr.P.C. and thereafter it is for the criminal trial court concerned to take appropriate decision in the matter of taking cognizance and then to proceed thereafter in accordance with law. If, on the other hand, the learned Magistrate before whom the petition/complaint is filed, does not treat it as a complaint under Secs. 190 and 200 of the Cr.P.C. and then decides to direct the Police to register crime and then to investigate the offence as per Sec. 500 of the I.P.C. in purported exercise of the powers conferred under Sec. 155(2) of the Cr.P.C., then the Police will have to register the crime and after conducting such investigation, if it is found that there is substance in the allegations, it is for the Police to file appropriate final report/charge sheet in the case in terms of Sec. 173 of the Cr.P.C. Thereafter, the criminal trial court will be barred from taking cognizance in respect of an offence as per Sec. 500 of the I.P.C. by following the latter course for the simple reason that the legislature permitted the said court to take cognizance in respect of an offence under Chapter XXI of the I.P.C. only on the basis of a a complaint made by the person aggrieved of the said offence and not on the basis of a final report/charge sheet or Police report given by the Police authority concerned. Since the very taking of the cognizance in such a case is barred by virtue of the specific mandatory provision contained in Sec. 199(1) of the Cr.P.C., it is only to be held that the learned Magistrate has no jurisdiction under Sec. 155(2) to direct the Police to register a crime and conduct investigation in respect of a petition involving allegation in relation to Sec. 500 of the I.P.C. There could be cases, where the petition/complaint given by the complainant concerned would be making allegations, not only in respect of offence as per Sec. 500 of the I.P.C., which is a non cognizable offence but in respect of certain other cognizable offences as well. The Apex Court has held in the case in Subramanian Swamy v. UOI & Ors, [(2016) 7 SCC 221] [LQ/SC/2016/723] has held, more particularly in paragraph 207 thereof that in such situation, the learned Magistrate cannot even exercise the powers under Sec. 156(3) of the Cr.P.C. so as to direct the Police to register a crime as far as the investigation of an offence as per Sec. 500 of the I.P.C. Para 207 of the judgment of the Apex Court in Subramanian Swamy v. UOI & Ors, [(2016) 7 SCC 221] [LQ/SC/2016/723] , p. 350-351 reads as follows:

"207. Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither can any FIR be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly [(1972)1 SCC 450] [LQ/SC/1971/628] , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha [(1993) SCC (Cri) 149] [LQ/SC/1992/324] it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take 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 persons 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. v. Special Judicial Magistrate [(1998) 5 SCC 749] [LQ/SC/1997/1443] , a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course."

5. Therefore, the Apex Court has clearly held that even in cases where the petitions/complaints made by the complainant before the learned Magistrate are in respect of allegations involving, not only offence under Sec. 500 of the I.P.C. which is a non cognizable offence, but also includes other cognizable offences, the learned Magistrate cannot exercise the powers under Sec. 156(3) of the Cr.P.C. so as to direct the Police to register a crime and then to investigate into the offence as per Sec. 500 of the I.P.C. in view of the specific bar contained in Sec. 199 of the Cr.P.C. So the embargo under Sec. 199 of the Cr.P.C. would also bar the jurisdiction of the learned Magistrate under Sec. 156(3) of the Cr.P.C. to order the Police to register a crime and to investigate offence as per Sec. 500 of the I.P.C. in a case where the allegations are, not only in respect of offences as per Sec. 500 of the I.P.C., which is a non cognizable offence, but also in respect of other offences which are cognizable offences, etc. it automatically flows therefrom that where the allegations are solely in respect of the offence as per Sec. 500 of the I.P.C. which is under Chapter XXI of the I.P.C., then the jurisdiction under Sec. 155(2) of the Cr.P.C. is not available to the learned Magistrate to direct the Police to register a crime and investigate the offence as per Sec. 500 of the I.P.C. in view of the specific bar contained in Sec. 199 of the Cr.P.C. Thus in view of the abovesaid legal position settled by the Apex Court in para 207 of the Subramanian swamys case supra, the embargo under Sec. 199 of the Cr.P.C. would also bar the learned Magistrate from taking resort to the provisions contained in Sec. 156(3) of the Cr.P.C. to direct the Police to register a crime and to investigate the offence as per Sec. 500 of the I.P.C. in a case where the allegations involve, not only in respect of offence as per Sec. 500 of the I.P.C. but also other offences which are cognizable offences. Needless to say, in respect of such offences, which are cognizable offences, for which there are no other statutory prohibition, the learned Magistrate can certainly exercise the power so as to direct the Police to register and to investigate into such aforementioned offences. Hence it automatically flows therefrom that where the allegations of a complainant like the 3rd respondent which involves solely the offence as per Sec. 500 of the I.P.C. which is under Chapter XXI of the I.P.C., then the statutory bar under Sec. 199(1) of the Cr.P.C. would also prohibit the learned Magistrate from taking resort to the provisions contained in Sec. 155(2) of the Cr.P.C. so as to direct the Police to register a crime and to investigate the offence as per Sec. 500 of the I.P.C. This crucial aspect of the matter is all the more amplified by the legislature in engrafting the provision contained in sub-section (6) of Sec. 199 of the Cr.P.C., wherein it is stipulated that nothing in Sec. 199 shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint. Therefore by the specific provision in Sec. 199(6) of the Cr.P.C., the legislature has made it clear that for offences under Chapter XXI of the I.P.C., the only remedy of the complainant, who is aggrieved of the said offences, is to file a private criminal complaint as understood in Secs. 190 and 200 of the I.P.C. and then for the competent criminal court concerned to take appropriate decision in the matter of taking cognizance and then to proceed with the matter in accordance with law.

6. Accordingly, it is held that the impugned decision taken by the learned Magistrate as referred to in Anx. I(7), whereby the learned Magistrate has directed the Police to register and to investigate the offence as per Sec. 500 of the I.P.C. in this case is illegal and ultra vires. Consequently, it is only to be held that further impugned action on the part of the 1st respondent SHO in registering Anx. I FIR in Crime No. 900/2018 of Vadakkekara Police Station, for offence as per Sec. 500 of the I.P.C., wherein the petitioner has been arrayed as the sole accused therein, is also illegal and ultra vires. Accordingly, the abovesaid impugned proceedings in Anx. I will stand set aside. However, it is made clear that nothing in this order will in any manner preclude the 3rd respondent in filing an appropriate private criminal complaint in respect of the abovesaid offence and then to proceed with the matter in accordance with law. It is made clear that this Court has only held that the the learned Magistrate has no jurisdiction to take resort to the provision contained in Sec. 155(2) of the Cr.P.C. so as to direct the Police to register a crime and then to investigate the offence as per Sec. 500 of the I.P.C., etc.

With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of.