Jammu & Kashmir High Court
Om Parkash Ball vs Balraj Kapoor on 28 November, 2007
Equivalent citations: 2008(1)JKJ95
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This appeal is directed against the judgment and order dated 24.10.2002, passed by the learned Chief Judicial Magistrate Poonch, in File No: 46/Com-plaint, whereby the respondent has been discharged from the offence under Section 500 RPC on the ground that after the period of three years, no cognizance can be taken with regard to any offence committed before that. Relevant facts for disposal of the present appeal be noticed as under:
2. Appellant/complainant filed a complaint under Section 500 RPC before the learned Chief Judicial Magistrate, Poonch, against the respondent alleging therein that he is a respectable citizen and engaged in business at Poonch where he is permanently residing. He is enjoying good reputation in his native village Bhench and Poonch city besides other places in Jammu province. His community members, social, political and business circles always held him in high esteem due to his honest, fair and principled dealings with his customers, business dealers, associates and all members of the society. Respondent in order to defame him, filed a complaint before Senior Superintendent of Police, Poonch, on 6.3.1998 for taking action against the appellant/complainant under the Police Rules and declare him as history sheeter by recording his name in surveillance register No: 10 of Police Station Poonch and impose all consequential restrictions on his freedom to which he is entitled to under the Constitution of India.
3. On the basis of the complaint dated 6.03.1998, filed by the respondent before Sr. Superintendent of Police, Police Station Poonch, entered the name of the appellant in Surveillance Register No: 10 and declared him as history sheeter.
4. Appellant challenged the action of the concerned Police authority before the learned District Magistrate Poonchby filing an appeal but same was rejected vide order dated 25.09.2000. Appellant further challenged the order dated 25.09.2000, passed by the learned District Magistrate Poonch and police proceedings before the High Court of J & K At Jammu by filing Cr. Revision No: 78/2000. Vide judgment and order dated 12.04.2001, the learned Single Judge, set aside the impugned order dated 25.09.2000 passed by the District Magistrate Poonch and entry made in Surveillance Register No: 10 as same was found to be without jurisdiction.
5. Thereafter, the appellant filed a complaint under Section 500 RPC before the Chief Judicial Magistrate Poonch, on 9.10.2001. In the said complaint it was alleged that the reputation of the appellant/complainant has been lowered down whereas the appellant/complainant is honest and enjoying good reputation. Learned Chief Judicial Magistrate, Poonch, after taking cognizance of the complaint, issued process. In response to the process so issued, the respondent appeared before the Court of Chief Judicial Magistrate Poonch. He moved an application for his discharge. Appellant/complainant opposed the prayer of the respondent. Learned Chief Judicial Magistrate Poonch, after hearing both the parties, dismissed the complaint aforesaid on the ground of limitation and observed as under:
For the foregoing reasons, the accused herein is discharged as no offence is made out against him under Section 500 RPC because after the period of three years, no cognizance can be taken with regard to any offence committed before that. Bail bonds executed by the accused shall stand withdrawn and surety discharged.
6. Aggrieved of the order dated 24.10.2002, passed by the Chief Judicial Magistrate, Poonch, the appellant preferred the present appeal. Mr. Sharma, learned Counsel for the appellant, submitted that once a cognizance has been taken and the process issued, the learned Chief Judicial Magistrate, Poonch, has no power to recall or review earlier order as there is bar under the Code of Criminal Procedure.
7. On the other hand, Mr. Surinder Singh, learned Counsel for the respondent submitted that the respondent was discharged vide order dated 24.10.2002 passed by the learned Chief Judicial Magistrate, Poonch, on the ground that after the period of three years, no cognizance can be taken with regard to any offence committed before that. He further submitted that limitation is commenced from the date of the filing of the complainant and not from the date of discharge. He also pointed out that the complaint before the Sr. Superintendent of Police, Poonch was filed by the respondent on 6.03.1998, so the learned Chief Judicial Magistrate, Poonch has discharged the respondent vide order dated 24.10.2002.
8. In order to appreciate the rival contention, it is appropriate to notice provisions of Sections 538-B, 538-C and 500 RPC which reads as under:
538-B. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in the 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.
538-C. Commencement of the period of limitation (1) The period of limitation, in relation of 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 not known by whom the offence was committed, the first day on which; the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
(3) In computing the said period, the day from which such person is to be computed shall be excluded.
500. Discharge from custody (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer-in-charge of the jail, and such officer on receipt of the order shall release him.
(2) Nothing in this section, Section 496 or Section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.
9. Perusal of Section 538-B referred to above, makes it clear that the period of limitation will be six months, if the offence is punishable with fine only; or one year, if the offence is punishable with imprisonment for a term not exceeding one year: or three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. As per Section 538-C of Cr.PC., the period of limitation commences from the date when the complaint was filed before the Police Officer and not from the date of discharge of the accused. Under Section 500B of Cr.PC., punishment prescribes for defamatory complaint is simple imprisonment for two years or fine or both and triable by the Judicial Magistrate. Apex Court while interpreting Section 468 Cr.PC., which is perimateria to Section 500 of Penal Code, in case reported as Surinder Mohan Vikal v. Ascharj Lal Chopra has held as under:
A complaint under Section 500 Penal Code for defamation will be barred if filed three years after the commission of the offence. Where in a complaint under Section 500 it is alleged that the defamatory matter was contained in a complaint under Section 406/420 Penal Code against the complainant, the period of limitation for filing complaint under Section 500, Penal Code would commence from the date of the complaint under Section 406/420 Penal Code and not from the date of the complainant was finally acquitted of offences under Sections 406/420 Penal Code. Sub-section (1) of Section 469 of Cr.PC. specially provides that the period of limitation prescribed in Section 468 in relation to an offender, shall commence (inter alia) on the date of the offence and the question of cause of action would not arise in such case as the controversy relates to the commission of an offence. The exclusion of time for computing the period of limitation could not also be claimed under Section 470(1) as it could not be said the complainant was prosecuting another prosecution.
10. Contention of the learned Counsel for the appellant that once process is issued, the Judicial Magistrate has no power to recall or review it. In support of his contention, the learned Counsel for the appellant has relied upon a case reported as Dinesh Supari Traders v. Agricultural Produce Marketing (Regulations) Committee Kadur 2006 CRI. L.J. 255. Aforesaid case is, however, not applicable to the present one because in the said case offence was in continuation. Therefore, the contention raised by the learned Counsel for the appellant is not sustainable.
11. Respondent has been discharged under Section 253 Cr.PC. which reads as under:
253. Discharge of accused (1) If upon taking all the evidence referred to in Section 252 and making such examination (if any) of the accused as the Magistrate thinks necessary he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
12. Perusal of Sub-section 2 of Section 253 Cr.PC. makes it clear that the Judicial Magistrate has the power to discharge the accused at any stage but before discharging the accused, the Magistrate has to record the reasons to the effect that the charge is groundless.
13. The view of the clear bar created under Section 538-B Cr.PC., the Magistrate has been empowered not to take cognizance of the complaint in case the same is barred by time. The learned Magistrate, after considering this aspect that the complaint is barred by time, has rightly discharged the respondent For the reasons indicated above, I am of the considered opinion that the learned Magistrate has not committed any illegality or irregularity in discharging the respondent. This appeal is as such found to be without merit and is dismissed.