Hari Jai Singh and anr. Vs. Suresh Kumar Gupta - Court Judgment

Excerpt:
(i) criminal - period of limitation - section 500 of indian penal code, 1860 and section 468 of criminal procedure code, 1974 - petition against order dropping proceeding in complaint under section 500 has been set aside - impugned order set aside on ground that bar created by section 468 would not apply as complaint has been presented in court within period of limitation and trial magistrate was directed to proceed with trial of case - complaint on allegations that news defaming complainant was published in newspaper run by accused - alleged news item was published on 31.05.1995 - complaint was presented before trial magistrate on 14.05.1998 which was well within period of limitation of three years from date of publication of alleged defamatory news item - impugned order justified.(ii).....orderm.r. verma, j.1. this petition under sections 397/401 read with section 482 of the criminal procedure code (here-after referred to as 'the code') is directed against the order dated 31-8-2000 passed by the learned additional sessions judge, nahan whereby the order dated 1-5-1999 passed by the learned additional chief judicial magistrate, court no. (i), paonta sahib dropping the proceeding in complaint under section 500 of the indian penal code instituted by the complainant/respondent (hereinafter referred to as 'the complainant') has been ordered to be dropped, has been set aside.2. brief and relevant facts leading to the presentation of this petition are that the complainant filed a complaint under section 500 of the indian penal code against the accused/petitioners (hereinafter.....

Judgment:
ORDER

M.R. Verma, J.

1. This petition under Sections 397/401 read with Section 482 of the Criminal Procedure Code (here-after referred to as 'the Code') is directed against the order dated 31-8-2000 passed by the learned Additional Sessions Judge, Nahan whereby the order dated 1-5-1999 passed by the learned Additional Chief Judicial Magistrate, Court No. (I), Paonta Sahib dropping the proceeding in complaint under Section 500 of the Indian Penal Code instituted by the complainant/respondent (hereinafter referred to as 'the complainant') has been ordered to be dropped, has been set aside.

2. Brief and relevant facts leading to the presentation of this petition are that the complainant filed a complaint under Section 500 of the Indian Penal Code against the accused/petitioners (hereinafter referred to as 'the accused) on the allegations that a news defaming the complainant was published in the Tribune Chandigarh on 31-5-1995 and the said newspaper is run by the accused. It was claimed that the said news defamed complainant and lowered down his reputation in general public. After recording the preliminary evidence, the trial Magistrate directed issue of process against the accused vide order dated 12-11-1998. On appearance, the accused filed an application for dropping the proceedings against them on the ground that the trial Court had taken cognizance of the offence allegedly committed by them after expiry of the period of limitation as prescribed under Section 468 of the Code. The learned trial Magistrate accepted the plea of the accused and the proceedings against the accused were dropped. The complainant preferred a revision petition which was decided by the learned Additional Sessions Judge, Sirmaur by the impugned judgment and the order of the trial Magistrate dropping the proceedings against the accused was set aside on the ground that the bar created by Section 468 of the Code would not apply as the complaint had been presented in the Court within the period of limitation and the trial Magistrate was directed to proceed with the trial of the case in accordance with law. Being aggrieved, the accused have preferred the present petition.

3. I have heard the learned counsel for the petitioners but could not have the advantage of hearing anyone for the complainant as no appearance was entered for him.

4. It was contended by the learned counsel for the petitioners that the provisions of Section 468 of the Code bars the Courts from taking cognizance of a case after expiry of the prescribed period of limitation. Therefore, in the event of the Court not taking cognizance within the prescribed period, it cannot take cognizance beyond the prescribed period. It was further contended that in the case in hand though the complaint had been filed before the expiry of the prescribed period but the cognizance was taken by the trial Magistrate after expiry of such period, therefore, the proceedings were rightly dropped in view of the bar created by Section 468 of the Code and the learned Additional Sessions Judge has wrongly interfered with such order.

5. Section 468 of the Code reads as under :

'468. Bar to taking cognizance after lapse of the period of limitation.-- (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be --

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.'

6. A reading of Section 468 supra makes it clear that it places a statutory obligation upon the Court not to take cognizance of the offences of the categories specified in Sub-section (2) after the expiry of period of limitation as prescribed therein. It is, therefore, open to the accused when he appears or is brought before the Court to plead that the complaint or the challan filed against him and taken cognizance of by the Court is barred by limitation and if the plea is found substantiated and the case does not fall under Section 470 or 471 or 472 of the Code, the Court is under obligation to drop the proceedings. It is further clear from the aforesaid provisions that it is taking of the cognizance after the lapse of the period of limitation which has been barred by the statute. The question, therefore, arises as to when a Magistrate (Court) must be deemed to take cognizance of an offence for the purpose of Section 468 of the Code ?

7. In the ordinary course and as per the preponderance of the judicial pronouncements, a Court takes cognizance of offence when it applies its mind to the material before it and decides to issue process against the accused to secure his presence. In my view, however, the period of limitation for the purpose of Section 468 of the Code shall have to be reckoned from the starting point till the date of filing of the complaint/charge sheet against the accused. The Court must be deemed to have taken cognizance of the offence when the complaint/charge sheet is presented to it.

8. The expression 'taking cognizance of an offence' has not been defined in the Code. The most material provisions to find out the meaning of the expression 'taking cognizance of an offence' are contained, in Sections 190 and 200 of the Code.

9. Sub-section (1) of Section 190, which provides for taking of cognizance of offences by the Magistrate, reads as follows :--

'190. Cognizance of offences by Magistrates, (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.'

10. Evidently, the aforesaid provisions empowers the Magistrate to take cognizance of offences on receipt of a complaint/police report or information received from any person or upon his own knowledge.

11. Section 200 of the Code provides for the manner in which on receipt of a complaint the Magistrate is to proceed with the case and it reads as under :--

'200. Examination of complainant,-- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry of trial to another Magistrate under Section 192 :

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.'

12. The words 'A Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present' evidently provides the manner in which the Magistrate taking cognizance on the complaint is to proceed to take preliminary evidence of the complainant on the basis of which he is to determine whether process against the accused is to be issued or not. Therefore, with reference to the context it cannot be held for the purpose of Section 468 of the Code that the Magistrate invariably takes cognizance of offences only when he decides to issues process against the accused under Section 204 of the Code. Therefore, for all intents and purposes of Section 468 of the Code, a Court must be deemed to have taken cognizance on a criminal complaint at the stage of presentation of the complaint to the Court and its proceedings therewith as provided under Section 200 of the Code. To hold contrary, will lead to injustice and defeat the provisions of the Code intended to promote the administration of criminal justice. It cannot be disputed that after the presentation of the complaint the Magistrate has to examine the complainant and his witnesses or postpone the issue of process and inquire into the case himself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. These processes in a given case are likely to take time and are dependent on the time available with the Magistrate or the person who has been directed to investigate the allegations made in the complaint and early conclusion of these processes is not within the power and control of the complainant. Therefore, it would be unreasonable to hold that a complaint even if presented within the period of limitation but the process against the accused is not issued by the Magistrate within the period of limitation, the Court shall be debarred from taking cognizance of an offence. Therefore, it will be rational and reasonable to hold that the period of limitation is to be determined in view of the date of presentation of the complaint and not with regard to the date when the process is ordered to be issued by the Magistrate against the accused under Section 204 of the Code.

13. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976 Cri LJ 1361 : (AIR 1976 SC 1672) while examining the meaning of the expression 'taking cognizance of an offence' the Hon'ble Supreme Court held as under :--

'14. This raises the incidental question : What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular cases including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a)........'

14. In Kamal H. Javeri v. Chandulal Gulabchand Kothari (1985 Cri LJ 1215), a similar question arose before Bombay High Court and it was held as under :--

'28. Thus having taken resume of these several authorities and after considering the provisions of Sections 47 to 473, Cr.P.C., I am of the opinion that the limitation prescribed under Section 468 is to be read with reference to the filing of the complaint and not with reference to the date of cognizance or issuance of process, for determination of period of limitation prescribed in Section 468, Cr.P.C. The first submission of Shri Vashi has, therefore, no force and has got to be rejected.'

15. In Dr. Anand R. Nerkar v. Smt. Rahimbi Shaikh Madar, 1991 Cri LJ 557, while dealing with a question as in hand, Bombay High Court held as under :--

'12. It is very clear from these sections of the Code of Criminal Procedure that the Magistrate takes cognizance of the complaint when it is received, that he is required at that point of time to consider the preliminary issues, such as jurisdiction, that he is required to hold a preliminary inquiry into the matter or direct such inquiry through the Police and thereafter dispose of the complaint or take steps for securing the appearance of the accused and proceed with the case. It stands to reason, therefore, that the point of time when the Court takes cognizance of a criminal complaint is the stage at which the complaint is presented to the Court or filed in the Court. It follows by necessary implication that for the purpose of computing limitation, it is this date that is material and not the date on which the process is issued. The subsequent stages, such as the examination of the complainant and witnesses, the consideration of the case on merits, the preliminary enquiry, etc., would all take considerable time and it would, therefore, be unreasonable and irrational to compute the period of limitation from the date when the process is issued. Furthermore, these processes are dependent on the time available to the Court which is something over which the complainant has no control and it would, therefore, be wholly untenable to hold that a complaint, even if presented within the period of limitation, would be barred merely because a certain amount of time elapsed until the order of process was passed. The submission of Mr. Sawant, will, therefore, have to be rejected, since the date on which the complaint in the present case was presented before the learned Magistrate was well within the period of limitation.'

16. In Appu Ramani v. The State, (1993 Cri LJ 1974), while dealing almost a similar question, a Division Bench of the Andhra Pradesh High Court held as under :

'11. ....................If the complaint/ charge-sheet is filed within the period of limitation, the Court has got powers to return the same for complying with the defects pointed out by it. Even if the complaint/ charge-sheet is represented after complying with the defects/objections pointed out by the Court within the time granted by the Court and if that date falls beyond the period of limitation, still the Court has to take cognizance of the case by duly taking into account the original date of filing of the complaint/charge-sheet filed in the first instance as the limitation prescribed under Section 468, Cr.P.C. is to be reckoned with reference to the date of filing of the complaint/charge-sheet in the Court in the first instance but not with reference to the date of taking cognizance.'

17. In the case in hand, the alleged defamatory news item was published on 31-5-1995 and the complaint was presented before the learned trial Magistrate on 14-5-1998, i.e. well within the period of limitation of three years from the date of publication of the alleged defamatory news item.

18. In view of the above discussion, the impugned order cannot be said to be illegal or unwarranted and, therefore, does not call for any interference by this Court.

19. As a result, this petition merits dismissal and is accordingly dismissed.