High Court Of Judicature At Madras

P.M. Kathiresan V. Shanmugham, Retired Captain

Criminal Original Petition No.2096 of 1993. 24-08-1994

JUDGMENT

Taking cognizance of a private complaint, filed under Section 200 Criminal Procedure Code by the respondent herein, for the alleged offence under Section 500 of the Indian Penal Code, by the learned Judicial Magistrate No. 1, Madurai, is the subject matter of challenge in this proceedings instituted under Section 482 of Criminal Procedure Code, praying to quash the same on several grounds by the petitioner-accused.

2. The noting of the brief facts are extracted as hereunder :- A written complaint, dated 27-10-1987 by the revision petitioner herein was lodged with the Superintendent of Police, Madurai, allegedly containing certain defamatory remarks against the respondent herein, which was taken note of by the respondent herein sometime later and on coming to know of the same and aggrieved on finding it to be defamatory, he has filed the private complaint under Section 200 Criminal Procedure Code before the learned Judicial Magistrate No. 1, Madurai, against the petitioner herein for the offence under Section 500 Indian Penal Code, which after taking the sworn statement and certain procedural wrangle, the learned Magistrate entertained into file and issued process to the petitioner herein to appear before him for the purpose of trial. Aggrieved at this, the petitioner being an accused in the private complaint, has come forward with this petition under Section 482 of the Code of Criminal Procedure to quash the whole proceedings before the learned trial Magistrate.

3. For the purpose of appreciating the matter on hand in its proper perspective, I have extracted the alleged defamatory remarks given by the respondent in the complaint itself as hereunder :-

"It is clear attempt to blackmail as seen from circumstances.

I have made private enquiries of the accused. I gathered the following details. He has no where withal.

He appears to be having intimacy with Annamalai Nadar's wife, whose name is Panchavarnam."

In support of the said written remarks, as per the typed set filed on behalf of the respondent, it was pointed out that the respondent herein being the accused, while giving the evidence before the learned Judicial Magistrate No. 1, Madurai, in C.C. No. 224/89 on 22-5-1989 is also said to have stated so, as pointed above in the passage referred to. It is seen, however, he was cross-examined on that score for the statutory and adjudication of the learned trial Magistrate.

4. Following the passages above referred, the respondent herein appears to have given the statement when he was examined by the learned Magistrate while entertaining the private complaint. The first imputation said to have been made in the complaint addressed to the Superintendent of Police, was made on 27-10-1987. The said complaint was investigated and case was initiated before the learned Magistrate in C.C. 224/89, wherein in support of the alleged defamatory remarks, the revision petitioner has given the evidence on 22-5-1989.

5. This complaint given by the respondent herein under Section 200 Criminal Procedure Code, was taken to file on 23-11-1992 for the alleged offence under Section 500 Indian Penal Code and process was issued to the revision petitioner to appear on 21-1-1993. Aggrieved at this, the present petition under Section 482 of the Code of Criminal Procedure has been filed.

6. It is at this stage, the petition to quash was heard. Mr. R. Shanmughasundaram, the learned counsel appearing on behalf of the petitioner-accused contended the following main points :-

1. Since the alleged defamatory remarks given by the petitioner herein was on 27-10-1987, which has been subsequently investigated by the Police and consequently, a case was initiated before the learned Judicial Magistrate No. 1, Madurai, the private complaint lodged by the respondent herein on 4-7-1991 is clearly out of time and cannot be entertained and in this regard, the learned Magistrate has committed an error in entertaining a time barred complaint to his file;

2. The passage of imputations alleged in the complaint above referred, is not at all per se defamatory and even so, his subsequent evidence given before the court of law on 22-5-1989, cannot be deemed to be the defamatory remarks as it has not come within any of the imputations provided under Section 499 of the Indian Penal Code;

3. Even assuming that the remarks are there, the said grievances were given to a lawful authority in writing and that, therefore, it attracts clearly the eighth exception provided to Section 499 of the Indian Penal Code;

And lastly, since there was enough motive for the petitioner and the respondent, since both of them were already under the serious logger heads, this petition was schemed out long after the time stipulated. Emphasizing the above four points, the learned counsel appearing for and on behalf of the petitioner-accused wants to quash the whole proceedings now pending against the revision petitioner before the learned Judicial Magistrate No. 1, Madurai.

7. Controverting the same, I have heard Mr. Ananthavelu, learned counsel appearing for the respondent-complainant, who would contend that so as to attract Section 468 Clause 2(C), the starting point of the limitation is not exactly the date of complaint, but the date of knowledge of the respondent to be reckoned for the purpose of limitation and not to the date of imputation made for the reason that the aggrieved person may not be aware of the contents of the same, unless he is made to know of the said imputations.

8. The second ground urged by the learned counsel for the respondent is that the question of limitation whether it is sustainable or not can only be raised before the trial Court and not before this Court by seeking the relief under Section 482 of the Code of Criminal Procedure, for the reason that all the facts and figures were made available only before the trial Court and without having any adjudication over the same, it cannot be looked into by a proceedings initiated for the purpose of quashing. Nextly, the learned counsel would contend that irrespective of the existence of motive between the petitioner and the respondent herein or not, since the complaint has been taken the cognizance of by the learned Judicial Magistrate and process has been issued in accordance with the procedural law, the trial must go on and let the matter be adjudicated on merits in accordance with law and it cannot be quashed at this stage. And lastly, it was the contention that since the alleged remarks and imputations are clearly per se defamatory, the present is only a device schemed out to wriggle out of the clutches of law and that, therefore, there are no merits in the petition to quash.

9. In the light of the above rival positions and circumstances projected before me, the only question that arises for consideration is whether the proceedings pending before the learned Judicial Magistrate is within the legal ambits and liable to be quashed or not ?

10. To answer the first question of law, viz., the limitation provided by the Code of Criminal Procedure and which provides a clear answer for the rival contentions made by the Bar on behalf of the parties. I feel it is relevant to extract Section 460 Sub-clause 2(c) of the Code, which reads as follows :-

"(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the catogory specified in Sub-section (2), after the expiry of the period of limitation;

(2) The period of limitation shall be :-

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

Section 500 Indian Penal Code provides for the punishment for the offence committed under Section 499 of the Indian Penal Code. It provides that if the offence under Section 499 of Indian Penal Code is made out, simple imprisonment for a term which may extend to two years or with fine or with both may be imposed. Therefore, it is made clear that if an offence is made out in the private complaint against the petitioner, it clearly attracts Section 468 Sub-clause 2(c), viz., that the cognizance of the offence under Section 500 of Indian Penal Code should have been taken by the learned Judicial Magistrate within a period of three years from the date of its occurrence.

11. Section 469 of Code of Criminal Procedure reads like this :-

"(1) The period of limitation, in relation to an offender, shall commence, -

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) where it is known by whom the offence committed, the first day on which the identity of the offender is know to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier;

(2) In computing the said period, the day from which such period is to be computed shall be excluded.

Section 470 of the Code provides for the exclusion of time in certain cases.

12. For the purpose of reckoning the limitation period, in the context of the rival contentions over the said point, if the date of offence is identified, then it must be the date of complaint given to the Superintendent of Police, which was on 27-10-1987. If that is so, three years' period falls on 27-10-1990. Subsequently, it is seen that the complaint alleged to have been given by the revision petitioner has been investigated, but however, no action was taken. On 22-5-1989, the petitioner has given the evidence also in support of his claim when he was in the box. But, however, he was not cross-examined on behalf of the respondent herein. It is the common case that the same remarks given in the petition has been reiterated again by oral evidence. If the matter is viewed in this angle I, have no hesitation to hold that giving of the evidence before the learned Judicial Magistrate on 22-5-1989 by the revision petitioner is only a consequential one based on his complaint given on 27-10-1987. Therefore, it cannot be deemed that the date of giving evidence on 22-5-1989 is the starting point of the limitation, which is also not the case of both the parties herein, and this view was in consonance with the contentions raised on behalf of the petitioner herein. If the contention of Mr. Anandavelu, the learned counsel for and on behalf of the respondent, that the date of knowledge of the respondent alone is the starting point of limitation to be taken into consideration or accepted, then we have to look into the legal aspects clearly spelt out in Sub-clauses (b) and (c) of Section 469 of the Code. Either in the sworn statement given by the respondent on 4-7-1991 before the learned Judicial Magistrate or in the complaint, no date of knowledge of the alleged offence has been spelt out by and on behalf of the respondent herein. One cannot expect except through the above said course of evidence by any other made, at this stage, to reckon the commencement of the period of limitation or the knowledge of the date of the commission of offence. These two Sub-clauses to Section 469 provides only to the authorities under the law to investigate and not to the private persons. Therefore, for the said reasons alone, I am totally unable to countenance my view with the contentions of the learned counsel appearing for the respondent. On the other hand, Section 468 Sub-clause 2(c) of the Code as relied on by and on behalf of the petitioner is a clear bar for entertaining the complaint.

13. With regard to the second contention raised in this case, the quoting of the case laws pointed out by the Bar is not only relevant but which clearly provides an answer for the said question. In "Surinder Mohan Vikal v. Ascharaj Lal Chopra" (AIR 1978 SC 986), the Supreme Court while dealing with the scope of Sections 468, 469 and 470, Clause (1) of the Code of Criminal Procedure, in identical facts of the case, has observed as follows :-

"A Complaint for commission of offence under Section 406/420, I.P.C. was made by the appellant against the respondent on March 15, 1972 which resulted in acquittal on April 1, 1975 confirmed by the High Court on May 15, 1975. The respondent filed the present complaint under Section 500, I.P.C., on February 11, 1975. The appellant's application to the High Court under Section 482, Cr.P.C. against the issue of summons was rejected. Allowing the appeal, the Supreme Court.

Held :

According to the complaint, the offence under Section 500, I.P.C., committed on March 15, 1972, which was the date of the offence within the meaning of Section 469(1)(a) of the Code, and the period of three years' limitation would be calculated "with reference to that date for purpose of the bar provided by Section 468. But the complaint under Section 500, I.P.C. was filed on February 11, 1976, much after the expiry of that period. It was therefore not permissible for the Court of the Magistrate to take cognizance of the offence after the expiry of the period of limitation".

14. Mr. Anandavelu relied on a case law held between "Ram Kripal Prasad v. The State of Bihar" (1985 Criminal Law Journal 1048 (Full Bench), In which it was held while dealing with the scope of Section 468 to 473, as hereunder :-

"The disputed issue of limitation under Sections 468 to 473, cannot be appropriately raised directly in the High Court for the quashing of proceedings under Section 482. It cannot be said that as lack of sanction being legal bar can provide a ground for quashing criminal proceedings limitation is also an identical bar entitling the petitioners to claim the quashing of proceedings before the High Court in the first instance. Lack of sanction where it is "provided as the pre-required for taking cognizance would present an inflexible and blanket legal bar to the prosecution till the same is obtained. Either the requisite sanction is forthcoming or it is not, no issue of imputation, condoning or overriding the same cannot at all arise. The concept of limitation on the other hand under Chapter 34 of the Code presents no such balnket bar at all. The issue of limitation is first a matter to be raised and then to be computed and thereafter determined by the Court on the basis of proper explanation of delay or overriding the default if necessary in the interests of justice. Whilest the lack of sanction, as for example, under Section 197 of the Code cannot be condoned, the expiry of limitation can be both explained and condoned by the Court. Equally whilst absence of sanction cannot be over ridden or ignored by the Court, Section 473 empowers if that despite the expiry of limitation of the paramount interests of justice so require the prosecution would continue and that is a matter first in the "judicial discretion of the Court taking cognizance. Therefore, in the limited field of quashing a proceeding the total absence of sanction is on an entirely different footing from the question of limitation under Chapter 34 of the Code. It cannot be said that cognizance having once been taken by the trial Court it would not be open to the accused to raise the issue of limitation thereafter nor was it permissible for the Court to determine the same. An accused person has no locus standi in the matter till process has been issued against him. His right to raise the issue of limitation thus can arise only after he puts in appearance subsequent to process issued after taking cognizance. There is no bar to the accused person raising the issue of limitation and indeed as observed earlier the same should be done at the earliest and if raised ought to be adjudicated upon as a preliminary issue. It cannot also be said cognizance having originally been taken by the Chief Judicial Magistrate "and thereafter the case having been transferred for trial to another Magistrate, the issue of limitation cannot be raised in such a transferee Court. It is well settled by virtue of Section 192 that a competent transfer Court exercise all the powers of the Court transferring the same. No hairsplitting distinction can either be drawn or allowed in this context".

15. If the tenant of the legal pronouncement held by the Full Bench of the Patan High Court is imported to the facts of the instant case, one can easily identify the raising of the question of limitation is not an identical bar, but, however, can be raised at any stage or before the High Court and be computed and determined by the Court on the basis of a proper explanation of delay or overriding the default if necessary in the interest of justice. The clear pronouncement by the Full

Bench of Their Lordships has made it clear that it cannot be said that cognizance having once been taken by the trial Court, it would not be open to the accused to raise the issue of limitation thereafter, nor was it permissible for the Court to determine the same. In the unambiguous and clear terms of Their Lordships, it is made clear that there is no bar to the accused person raising the issue of limitation and indeed as observed earlier, the same would be done at the earliest and if raised, ought to be adjudicated upon as a preliminary issue, and that it cannot also be said that cognizance have originally been taken by one Court and thereafter the case having been transferred to another Court, the issue of limitation cannot be raised. Added to the above position of law, clearly spelt out by the Full Bench of the Patna High Court, if the apex Court's declaration of law is taken, it is made clear that the question of limitation can be raised not only at the earliest point of time before the trial Court but also even before this High Court to have the matter adjudicated in full. I have not been placed with any other case law to show the position that the question of law of limitation can be raised only before the trial Court and not before the High Court while the whole proceedings is sought to be quashed on the question of the law of limitation. For all the reasons aforementioned and having fully considered thus, I have no hesitation to hold that the first and second contentions raised on behalf of the petitioner by the Bar are well founded and have a serious in-road in the defence taken by and on behalf of the respondent. Therefore, I endorse my view to the first and second contentions on behalf of the petitioners.

16. Though number of other authorities and case laws have been relied on, since the above referred case laws were the latest one and directly relevant to the case on hand, I do not propose to traverse the same once again in the context of the ruling held by the apex Court in this case as above referred.

17. Then coming on the exception 8 to Section 499 of the Indian Penal Code it is extracted as hereunder :-

"It is not defamation to prefer a good faith and accusation against any person to any of those who have lawful authority over that person with respect to the subject of accusation".

18. It is noticed that the complaint dated 27-10-1987 given by the petitioner therein was to the Superintendent of Police to take necessary action, which was regulated to the Deputy Superintendent of Police for enquiry followed by his investigation and laying the charge sheet and the trial. Therefore, from this it is made clear that the complaint was given to the reason of in lawful authority for the purpose of investigation and to identify the offences or not. But it is not known whether it has been made under the good faith or not. There is no evidence made available in this case. But, however, one can infer that the investigation perpetrated in this regard has resulted in the initiation of a criminal case in CC. 224/89 before the learned Judicial Magistrate No. 1, Madurai, and after the full trial, it had ended in conviction : Therefore, for the said reason, I do not want to say anything more rather than to say that this is a case that squarely comes under the purview of the Exception 8 provided to Section 499 of the Indian Penal Code.

19. In the light of my foregoing consideration and findings given above, I do not propose to give or express any of my view or opinion with regard to the falsity or genuineness of the alleged imputations found in the passage or whether it amounts to an offence or not. But, however, for the reasons given above, I am of the first firm view that the taking of cognizance of the complaint by the learned Judicial Magistrate on 4-7-1991 for an offence committed on 27-10-1987 almost four years after the commission of the alleged offence is clearly within the teeth of Section 468 of the Code and barring that since it attracts the Exception 8 to Section 499 of Indian Penal Code, the present trial of the case taken in C.C. 570/91, now pending on the file of the learned Judicial Magistrate No. 1, Madurai, has become legally incompetent and not in consonance with the legal mandate and the procedural law and that, therefore, it deserves to be dismissed and quashed. No other points were argued before me by the Bar for the respective parties.

20. In the result, the proceedings in C.C. No. 570 of 1991 now pending on the file of the learned Judicial Magistrate No. 1, Madurai, for the discussions and findings given above, is hereby quashed, petition is allowed. No order as to costs.

Petition allowed.

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