Himachal Pradesh High Court
Dinesh Chander Sharma vs K.K. Pant on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No. 333 of 2017
Reserved on : November 29 , 2019
Date of Decision: January 3 , 2020
Dinesh Chander Sharma ...Petitioner.
Versus
K.K. Pant ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : In person.
For the respondent : Mr. Dheeraj K. Vashist, Advocate, for the
respondent.
Anoop Chitkara, Judge.
Challenging the order passed by Sessions Court, Una, upholding the dismissal of the complaint by the Judicial Magistrate, under Section 203 CrPC, the complainant, who is a practicing Advocate, has come up before this Court seeking prosecution for defamation.
2. The gist of the case, apposite to adjudicate the present petition relates to a criminal complaint, filed under Section 190(1)(a) Code of Criminal Procedure, 1973, after now called as CrPC, dated 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 2Dec 7, 2010, by the complainant, who is a practicing Advocate, against Sh. K.K. Pant, the then Deputy Commissioner, Una, HP.
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3. The complainant alleged that there was criminal litigation between him and one Baldev Chand. In the said matter, Baldev Chand filed a quashing petition before this Court, wherein the present complainant was made a party. Consequently, he received notice from the High Court of Himachal Pradesh and appeared therein. The said case was registered as Cr.MMO No. 143 of 2008.
Perusing the documents annexed in the pleadings, the complainant came to know that the accused/respondent, who was posted as Deputy Commissioner, Una, had written letter No. PA/DCU/CF/2000, dated May 1, 2000, to the Commissioner-cum-Secretary (Personnel) to the Government of Himachal Pradesh, wherein he had imputed allegations against the complainant, which amounted to harming his reputation.
4. This letter pertained to a dispute between the complainant who, being an Advocate, wanted to meet the Deputy Commissioner, Una, was not only denied entry but once he was permitted to come in, then he was forcibly pushed out. It led to multiple litigations between the parties, including some of the members of the Employees Union.
::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 35. The complainant sought prosecution of Sh. K.K. Pant, the then Deputy Commissioner, Una, on the ground that the letter (Mark-X .
and Annexure/P-5 in Cr.MMO No. 143 of 2008), which the Deputy Commissioner wrote to the Commissioner-cum-Secretary (Personnel), Government of Himachal Pradesh, defamed him.
6. The complainant presented the complaint before the Chief Judicial Magistrate, Una, Distt. Una, HP, and assigned to the Judicial Magistrate, Ist Class, Court No. II, Una, HP.
7. Vide order dated Dec 9, 2010, the Judicial Magistrate Ist Class, took cognizance of the offence, and on subsequent dates, recorded the preliminary evidence, and also took on record the documents produced by the complainant.
8. Vide order dated Feb 2, 2012, passed in Cr. Complaint No. 204-I of 2010, titled Dinesh Chander Sharma vs. K.K. Pant, the Judicial Magistrate, Ist Class, Court No. II, Una, did not find any prima facie case against the accused, or to proceed under Section 204 CrPC, and accordingly dismissed the complaint under Section 203 CrPC.
9. Feeling aggrieved, the complainant challenged the said order by filing a Criminal Revision Petition before the Sessions Court, Una.
Vide order dated Jul. 21, 2016, passed in Criminal Revision No. 06/2012, 39/13, the Additional Sessions Judge (I), Una, Distt. Una, ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 4 HP, upheld the order passed by the Judicial Magistrate, Ist Class, Court No. II, Una, and dismissed the Revision Petition.
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10. Again, challenging these orders, the petitioner has come up before this Court by filing the present petition under Article 227 of the Constitution of India read with Section 482 CrPC, seeking directions to issue process and proceed under Section 204 CrPC, by setting aside of the impugned orders.
11. I have heard petitioner Sh. Dinesh Chander Sharma, Advocate, who argued in person, and learned counsel appearing for the respondent. I have also waded through the entire record.
ANALYSIS AND REASONING
12. The allegations of the imputation of reputation of the complainant relate to the letter dated May 1, 2000. The Petitioner had filed the complaint on Dec 7, 2000, seeking prosecution of the Deputy Commissioner, for defamation, after a decade of the incident, that allegedly led to such defamation. Section 468 CrPC mandates that no Court shall take cognizance after the lapse of the period of limitation and specified in Section 468 (2)(c) that the limitation period is three years for the offence where the maximum sentence does not exceed three years. In the present case, the offence attributed is punishable under Section 500 IPC, which prescribes the maximum sentence of two years. Given the above ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 5 limitation for filing of the complaint was three years from the date of the commission of the offence. Resultantly, the limitation would have .
expired sometime in the middle of the year 2003, whereas, it was filed in Dec 2010.
13. Section 473 CrPC provides for an extension of the period of limitation in some instances. However, the complainant, instead of invoking the provisions of Section 473 CrPC, in his complaint tried to justify the delay because, for the first time, he was aware of the complaint when he received notice from the High Court in Cr.MMO No. 143 of 2008 and then for the first time he came to know about the said offence on Mar 27, 2009.
14. The petitioner faulted on two counts:
Firstly, if the complaint was barred by limitation, then it was incumbent upon him to seek an extension of time by filing a separate application under Section 473 CrPC, which he did not; and Secondly, the explanation he has offered is that for the first time he came to know about the offence on Mar 27, 2009, he is misreading the provisions of Section 468 CrPC.
15. Under Section 468 CrPC, the limitation to take cognizance of an offence does not start from the date of knowledge of such offence to the complainant or the informant, but from the time the offence ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 6 took place. Sub-clause (2) of Section 468 is very specific that the period of limitation shall be for six months, one year or three years, .
depending upon the offence. There is no exception that the period of limitation shall extend until the date of the knowledge of such offence. If the Legislature intended to extend the period of limitation in Section 468 CrPC itself, then it would have specifically mentioned the limitation period from the date of knowledge. However, instead of specifying the words "from the date of knowledge," the Legislature chose to incorporate a separate provision in the shape of Section 473 CrPC, providing for a period of limitation. Given above, the period of limitation would commence not from the date of knowledge of an offence but from the time of the commission of the offence.
16. In State of Punjab v. Sarwan Singh, (1981) 3 SCC 34, Supreme Court holds, "The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statutes seek to sub serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 7 as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein become non est."
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17. In State of Himachal Pradesh v. Tara Dutt, (2000) 1 SCC 230, a three-member bench of Supreme Court holds, "7. Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence."
18. In the light of the above discussion, the complaint is barred by limitation, and there is no separate application under Section 473 CrPC seeking an extension of time. Therefore, on this ground alone, ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 8 the complaint is barred by limitation, and the Court could not even have taken cognizance of the same.
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19. Resultantly, even the order dated Dec. 9, 2010, vide which the Judicial Magistrate, Ist Class, Court No. II, Una took cognizance in the matter was an illegal order being barred by limitation because, after the period of limitation, the Court had no jurisdiction to take cognizance.
20. On the facts of the petition, the alleged letter dated May 1, 200l, sent by the Deputy Commissioner, Una, Distt. Una, to the Commissioner-cum-Secretary (Personnel), the Government of Himachal Pradesh, which is attached on page-35 of the petition, does not attribute any allegation, to fall within the provisions of Section 499 IPC. The Deputy Commissioner narrated the facts and that too by writing a confidential letter to the concerned Secretary, apprising him of what had happened. On top of the said letter, the word "Confidential" is underlined. It shows that the Deputy Commissioner never intended to let the public know about the contents of the letter, which was like apprising the concerned Secretary of the events. It was a part of his administrative duty and something done while discharging the same and that too in a confidential manner, and would not fall as an offence under Section ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP 9 499 IPC punishable under Section 500 IPC. Given above, even on merits, the complaint has no substance, and it accordingly fails.
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21. I have gone through both the impugned orders, which are well reasoned. Even though the Judicial Magistrate had no jurisdiction to take cognizance, still, he had recorded the preliminary evidence of the complainant and taken on record the documents. Both the impugned orders are self-explanatory and well-reasoned.
22. Given the above, there is no merit in the present petition, and the same is dismissed. All pending application(s), if any, are closed.
Registry is directed to return the records forthwith.
(Anoop Chitkara), Judge.
January 3 , 2020 (PK) ::: Downloaded on - 03/01/2020 20:37:19 :::HCHP