Oral Judgment:

Heard learned Advocate for the petitioner and learned APP.

2. Perused the record.

3. The proceedings of the case for grant of succession certificate were begun in Succession Case No.124 of 1982. The Succession Certificate was granted. It was challenged in a First Appeal. It was decided. A Letters Patent Appeal No.51 of 1995 was filed by Joseph Thomas Rebello against the Judgment delivered in the First Appeal.

4. The appellant Joseph Thomas Rebello died during pendency of Letters Patent Appeal. The accused persons - present petitioners filed application for substitution as legal representatives of the appellant.

5. In the said application for substitution, certain statements were made by the applicants which pertain to the complainants sister. He is thereby aggrieved and therefore, filed the private complaint case No.100 of 2005 under Section 499, 500 read with Section 34 of the Indian Penal Code.

6. The statement contained in the complaint narrating the act of those accused which according to complainant were defamatory are described in the complaint as follows:

"6........ Hence an application for bringing legal representatives of late Mr. Joseph Rebello vide Civil application No.1488/05 was filed by the above named accused no.1, 2 & 3 as they (accused No.1 & 2) are real daughters of said late Joseph Rebello and accused No.3 is adopted daughter of deceased, by virtue of the adoption through IInd extra Assistant Judge Exquire Shri M.B. Chawan in Misc. Civil Application No.97/1966 and to that effect certificate of guardianship has been issued to the wife of deceased Smt. Juliana Beharilal Shah, by way of misrepresentation of material facts while applying for issuance of said certificate ........" (Quoted from page 16 of petition paper book)

7. According to the complainant, the quoted statement is erroneous on facts and hence defamatory in the background of what Mr.Rebello had admitted in the judicial proceedings. The narration as to why the contents are defamatory as seen in the private complaint read as follows:

"6......... It is submitted that said Mr. Rebello in his chief examination in aforesaid succession case No.124/1982 that "It Crim. Writ Petition No.174 /08. 4 is true that I had not adopted Rani (Joan) but had merely brought up that girl". It is true that said Rani (Joan) had mentioned her name as my daughter in the school record, I am not having any document to show that Rani (Joan) had shown my name as her father. It is clearly mentioned that I am (complainant) the brother of Julian B. Shah and my sister said Julian B. Shah and my sister said Julian B. Shah serving at Nagpur at Medical College & Hospital from year 1956 as a staff Incharge and sister well known - reputed lady in Medical College, hospital, I was also working in Railway Department in the year 1956 and made permanent in service in the year 1958 July.................." (Quoted from page 16 of petition paper book)

8. In the said complaint, learned Judicial Magistrate First Class, Court No.6th, Nagpur, ordered issue of process.

9. The text of the order of issue of process reads as follows:

"Perused the complaint and verification. Heard the Adv. for complainant. Complainant has made prima facie case against the accused. Hence issue process u/sec. 500 R/w 34 IPC against the accused, Process be returnable on 15.11.05". (Quoted from page 24 of petition paper book.

10. By present petition, the accused persons have challenged the order of issue of process.

11. It is seen that the statements contained in the application for being brought on record as legal representatives of appellant are foundation of their claim as to how they are the legal heirs. Therefore, the applicants were within their rights to assert their source of right in contrast with and/or in exclusion to others and thereby plead and aver the grounds of refusal of the adversary.

12. Therefore, these averments do not constitute an act of defamation as the applicants/accused were within their right to aver accordingly.

13. The statement of Mr. Rebello recorded in Succession Case No.124 of 1982 that he had not adopted Rani (Joan), but had merely brought up that girl etc. does not in any manner fortify the complainants plea that he or his sister do thereby get defamed. The complaint is thus absolutely vague.

14. The order of issue of process discloses that the Magistrate thought that prima facie case has been made out. However, the order is cryptic than laconic.

15. Holding that "prima facie case is made out" is barely an adjective. As to how the text of averments defame and satisfy the Magistrate have to be at least indicated, briefly, and not at length, in the order of issue of process, which has not been done. On the contrary, this Court is satisfied that no defamation is revealing from the imputations subject matter whatsoever.

16. Moreover, the accused were within their right to incorporate said averment.

17. The order of issue of process is, therefore, passed without application of mind and is otherwise not sustainable being erroneous.

18. In the result, rule is made absolute.

19. The order passed on 10-10-2005 in Criminal Case No.100 of 2005 filed by the respondents is hereby quashed and set aside and the Criminal Complaint No.100/2005 of the Court of Judicial Magistrate First Class, Court No.6 at Nagpur is dismissed.