Gujarat High Court
The Sandesh Limitedthro Nishit A. ... vs State Of Gujarat on 13 April, 2023
R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2710 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 2750 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 3494 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THE SANDESH LIMITEDTHRO NISHIT A. PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR JAL UNWALA SENIOR ADVOCATE FOR MR NIMIT Y SHUKLA(8338)
for the Applicant in SCR.A No.2710/2022
MR SI NANAVATI SENIOR ADVOCATE for NANAVATI AND NANAVATI for
the Applicant in SCR.A No.2750/2022
MR KRUNAL SHAHI for the Applicant in SCR.A No.3494/2022
MR PV PATADIYA(5924) for the Respondent(s) No. 2
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/04/2023
ORAL JUDGMENT
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1. Present group of petitions is arising out of the common question of law and facts. In substance, learned advocates appearing for the respective sides have requested to deal with and decide the same conjointly and as such, considering the request and the joint submission, the Court has taken up the petitions for hearing by treating Special Criminal Application No.2710 of 2022 as a lead matter and for the sake of convenience, the facts are taken from the said petition. So far as the lead matter, i.e. Special Criminal Application No.2710 of 2022, is concerned, same is arising from the following background of facts:-
1.1 It is alleged by the complainant in the complaint that he was working as watchman and tenant of Jain Boarding situated at Village: Dhrol, District: Jamnagar for more than 20 years and since the price of the land and building of the Jain Boarding increased, the owners of the land and building are threatening him to take forcible possession of the premises. It is also alleged that the accused persons have willfully and deliberately published certain news items in the daily newspaper "Fulchhab"
in Rajkot edition on 06.10.1999 and another daily newspaper Page 2 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 "Jansatta - Loksatta" edition on 03.10.1999. It is alleged by the complainant that though he has not violated any law, the reputation of the complainant was diminished by the newspapers by publication of such false news articles and thereby an offence punishable under Section 500 of the Indian Penal Code (hereinafter be referred to as "the IPC").
1.2 It is also alleged that the complainant had filed criminal complainant dated 30.01.2004 before the learned Judicial Magistrate, First Class, Dhrol and the learned Judicial Magistrate, First Class passed an order on 30.01.2004 sending the complaint to the concerned police for inquiry under Section 156(3) of the Criminal Procedure Code, 1973 (hereinafter be referred to as "the Cr.P.C.") with direction to file its report and pursuant to the same, M. Case No.1 of 2004 was registered. It is alleged that thereafter, the police had submitted "C" Summary Report before the concerned Magistrate Court since the complaint was filed after a period of limitation. On the basis of the report, the Magistrate Court rejected the criminal complaint vide order dated 05.03.2005.
Page 3 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 1.3 It is further alleged that respondent No.2 - original complainant filed Criminal Revision Application No.45 of 2005 before the Sessions Court at Jamnagar whereby the Sessions Court quashed the order dated 05.03.2005 passed by the Magistrate Court and directed to conduct the inquiry by Deputy Superintendent of Police or equivalent Police Officer and to file inquiry report. Thereafter, the inquiry was conducted by the Deputy Superintendent of Police and submitted report dated 21.04.2018 to the Court of learned Judicial Magistrate, First Class, Dhrol. In the said report, since the complainant had not produced any evidence in support of his allegation much less any evidence to the effect that his reputation was defamed or diminished by publication of such news articles, the Deputy Superintendent of Police filed "C" Summary Report dated 21.04.2013 at Exhibit 13. It is also alleged that on 19.10.2020, the complainant filed an application at Exhibit 32 before the learned Judicial Magistrate, First Class, Dhrol inter alia praying not to accept the report at Exhibit 13. That on filing of such application, the Court below passed further order below Exhibit 13 and Exhibit 32 in Criminal Inquiry Case No.14 of 2019 (old Page 4 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 Inquiry Case No.1 of 2004) and observed that "C" Summary report filed by the Deputy Superintendent of Police was not accepted being incomplete, incomprehensive and inexhaustive and directed the Superintendent of Police to investigate the case further by the officer having the rank of Deputy Superintendent of Police and the Superintendent of Police must directly supervise the investigation and should file report within 15 days. 1.4 It is alleged that in pursuance of the said order, Deputy Superintendent of Police submitted further report at Exhibit 40 dated 03.01.2021 wherein the police has reiterated its stand as taken in the earlier reports. Despite of such report at Exhibit 40, the learned Judicial Magistrate First Class passed an order dated 06.03.2021 below Exhibit 40 whereby the Court has ordered to take cognizance of offences punishable under Sections 499, 500, 501, 502, 109, 114 etc of the IPC and reject the "C" Summons filed by the Investigating Officer and issued summons against eight persons and registered the criminal complaint as Criminal Case No.108 of 2021. It is alleged that on receipt of summons, the applicant/s appeared before the concerned Court. Page 5 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 1.5 Feeling aggrieved and dissatisfied with the order registering the criminal complaint as Criminal Case No.108 of 2021 and taking cognizance of the offences and issuing summons against the applicant and other persons, the present petitions are filed. Almost similar reliefs are prayed for and as such, the relief clause contained in the lead matter is reproduced hereunder:-
"(A) This HON'BLE COURT may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction qhashing and setting aside the Criminal Complaint being Criminal Case No.108/2021 pending before the Hon'ble Judicial Magistrate, First Class, Jodiya, District Jamnagar and further be pleased to quash and set aside the impugned order dated 06.03.2021 passed below Exhibit 40 by the Hon'ble Judicial Magistrate, First Class, Jodiya, District Jamnagar in Criminal Case No.108/2021 and further be pleased to quash and set aside the summons dated 25.10.2021 issued by the Hon'ble Judicial Magistrate, First Class, Jodiya, District: Jamnagar against the present Applicant in Criminal Case No.108/2021;
(B) THIS HON'BLE COURT may be pleased to call for the record and proceedings of Criminal Case No.108/2021 pending before the Hon'ble Judicial Magistrate, First Class, Jodiya, District Jamnagar;
(C) Pending admission, hearing and final disposal of the present Application, THIS HON'BLE COURT may be pleased to stay further proceedings of Criminal Case No.108/2021 pending before the Hon'ble Judicial Magistrate, First Class, Jodiya, District Jamnagar qua the present applicant;
(D) An ex-parte ad-interim relief in terms of Prayer (C) Page 6 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 above may kindly be granted;
(E) Such other and further relief/s as may be deemed just and proper by THIS HON'BLE COURT may kindly be granted."
2. Heard Mr.Jal Unwala, learned senior advocate for Mr.Nimit Shukla, learned advocate for the applicant in Special Criminal Application No.2710 of 2022, Mr.S. I. Nanavati, learned senior advocate for Nanavati and Nanavati for the applicant in Special Criminal Application No.2750 of 2022, Mr.Krunal Shahi, learned advocate for the applicant in Special Criminal Application No.3494 of 2022, Mr.H. L. Patel, learned Additional Public Prosecutor for the respondent - State in all special criminal applications and Mr.P. V. Patadiya, learned advocate for the respondent - original complainant in all special criminal applications. I have also considered the written submissions placed on record before this Court.
3. Mr.Nanavati, learned senior advocate for Nanavati and Nanavati for the applicant in Special Criminal Application No.2750 of 2022 has submitted that the case of the complainant is working as Watchman and is a tenant of Jain Boarding situated Page 7 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 at Village: Dhrol, District: Jamnagar for about 20 years. Learned senior advocate has submitted that since the price of the land and building of the aforesaid Jain Boarding increased, the owners of the said land and building are threatening the complainant to take forcible possession of the tenanted premises by breaking law and order. Learned senior advocate has also submitted that that the complainant belongs to Scheduled Caste and accused persons (named in the complaint) belong to upper caste and the accused persons are familiar and having knowledge about these facts. Learned senior advocate has submitted that it is further the case of the complainant that the accused persons have willfully and deliberately published certain news item in the daily newspaper "Fulchhab" in Rajkot edition dated 06.10.1999 and in another daily newspaper "Jansatta Loksatta" dated 03.10.1999. It is submitted by the learned senior advocate appearing for the applicant that it is alleged by the complainant that though he has not violated any law, the reputation of him was diminished by these two newspapers by publication of such false news articles and thereby an offence punishable under Section 500 of Indian Penal Code has been committed by these two Page 8 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 newspapers. Learned senior advocate has submitted that the original complainant had filed a criminal complaint dated 30.01.2004 before the Judicial Magistrate, First class at Dhrol and the learned Judicial Magistrate vide order dated 30.01.2004 sent the said complaint to the police for Inquiry under Section 156(3) of the Cr.P.C. with a direction to file the report. Learned senior advocate has also submitted that pursuant to which, M. Case No.1 of 2004 was registered and thereafter, the police had submitted a report of "C" Summary before the Court of learned Judicial Magistrate First Class since the complaint was filed after a period of limitation. Learned senior advocate has submitted that the learned Judicial Magistrate First Class on the basis of the report dated 30.07.2004 rejected the criminal complainant vide order dated dated 05.03.2005. Learned senior advocate has submitted that against the order dated 05.03.2005, the respondent No.2 herein (original complainant) filed Criminal Revision Application No.45 of 2005 before the Sessions Court at Jamnagar which came to be rejected by the Sessions Court vide order dated 30.09.2010 quashing the order dated 05.03.2005 passed by the learned Judicial Magistrate, First Class, Dhrol Page 9 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 below M Case No.1 of 2004 and directed the Deputy Superintendent of Police, Jamnagar to conduct an inquiry by Deputy Superintendent of Police or equivalent Police Officer and file Inquiry Report and thereafter, the inquiry was conducted by Deputy Superintendent of Police and submitted his report dated 21.04.2018 to the Court of learned Judicial Magistrate, First Class at Dhrol. Learned senior advocate has submitted that in the said report, once again, the Deputy Superintendent of Police had reiterated and reaffirmed that since the complainant in the aforesaid complaint did not produce any evidence in support of his allegation made in the complaint, much less any evidence to the effect that his reputation was defamed or diminished by publication of such news articles, the Deputy Superintendent of Police once again filed "C" Summary Report dated 21.04.2018 at Exhibit 13. Learned senior advocate has submitted that on 19.10.2020, respondent No.2 filed an Application at Exhibit 32 before the learned Judicial Magistrate, First Class inter alia, praying not to accept the aforesaid report at Exhibit 13 dated 21.04.2018 submitted by Deputy Superintendent of Police. Learned senior advocate has also submitted that on the basis of Page 10 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 the said application, the concerned Court passed an order below Exhibit 13 and Exhibit 32 dated 13.11.2020 in Criminal Inquiry Case No.14 of 2019 (old Inquiry Case No.1/2004) and held that the "C" Summary Report filed by the Deputy Superintendent of Police is not accepted being incomplete, incomprehensive and inexhaustive and, therefore, the Court further directed the Superintendent of Police, Jamnagar (Rural) to get the matter investigated further by the Officer having the rank of Deputy Superintendent of Police and the Superintendent of Police must directly supervise the investigation and should file his report within 15 days. According to the learned senior advocate for the applicant, pursuant to the aforesaid order, the Deputy Superintendent of Police submitted further report dated 03.01.2021 before the learned Judicial Magistrate, First Class at Jodiya at Exhibit 40 and in the said report at Exhibit 40, the police has reiterated and reaffirmed its stand as taken in the earlier reports. Learned senior advocate has submitted that despite such report at Exhibit 40, the learned Judicial Magistrate, First Class, Jodiya passed the impugned order dated 06.03.2021 below Exhibit 40 whereby the Court below had ordered to take Page 11 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 cognizance of offences punishable under Sections 499, 500, 501, 502 read with Sections 109 and 114 of IPC and ordered to reject "C" Summons filed by Investigating Officer. Learned senior advocate has further submitted that the Court had also ordered to issue summons against the eight persons and further ordered to register the criminal complaint as Criminal Case No.108 of 2021. Learned senior advocate has submitted that on receipt of the summons dated 25.10.2021, the applicant appeared before the learned Judicial Magistrate, First Class at Jodiya on 01.11.2021.
3.1 Mr.Nanavati, learned senior advocate appearing for the applicant has referred to Section 468 of the Cr.P.C. and submitted that there is a clear bar for taking any cognizance of offence after the expiry of period of limitation. Learned senior advocate has further submitted that section 468 (2) (c) clearly provides period of limitation as 3 years for the offence punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years. Learned senior counsel has submitted that considering the date of publication of article i.e. 07.10.1999 and filing of complaint i.e. 30.01.2004 and Page 12 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 registration of impugned complaint being Criminal Case No. 108 of 2021 dated 06.03.2021 is clearly barred by Section 468 of the Cr.P.C. He has submitted that no any reason has been given by complainant for filing impugned complaint after the period of 4 years 3 months and 23 days. Learned senior advocate has submitted that the learned Magistrate has passed an order under Section 156(3) of the Cr.P.C. without application of mind and summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. Learned senior advocate has further submitted that the learned Judicial Magistrate ought to have examined the nature of allegations made in the complaint and the oral as well as documentary evidence.
3.2 Mr.Nanavati, learned senior advocate appearing for the applicant has canvassed the following the legal submissions:
(a) Bar on taking cognizance after lapse of limitation under Section 468 of the Code of Criminal Procedure, 1973.
(b) Non-application of mind while issuing order under Section 156(3) of Code of Criminal Procedure, 1973.
(c) Bar on taking cognizance as mentioned under Section 199 of Cr.P.C.Page 13 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023
R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 3.3 Learned senior advocate for the applicant has placed reliance upon the following decisions:
(1) Kishan Singh Vs. Gurpal Singh and Others reported in 2010 (8) SCC 775.
(2) Subramanian Swamy Vs. Union of India and Others reported in (2016) 7 SCC 221.
(3) M/s. Cheminova India Ltd. & Anr. Vs State of Punjab & Another reported in (2021) 8 SCC 818.
(4) Managing Director, Castrol India Limited Vs. State of Karnataka and another reported in (2018) 17 SCC 275;
(5) Sarah Mathew Vs. Institute of Cardio Vascular Diseases and Others reported in (2014) 2 SCC 62.
(6) Anupamaben Shaileshbhai Shah Vs. State of Gujarat and Another reported in 2012 (3) GLR 2382.
(7) Nestle India Limited and Anr. Vs. State of Gujarat reported in 2010 (1) GLR 516.
(8) Maneklal G. Sons and Others Vs. K.A, Patel and Another reported in 1996 (2) GLR 737.
(9) Sarlaben S. Talsania, Inspector, Octroi Department, AMC Vs. Govind Garh Steel Private Limited and Ors. reported in 2007 (4) GLR 3539.
(10) Maksud Saiyed Vs. State of Gujarat and others reported in (2008) 5 SCC 668.
3.4 Mr.Nanavati, learned senior advocate for the applicant has Page 14 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 referred Section 199 of the Cr.P.C. and submitted that after the order dated 30.09.2010 passed by learned Additional Sessions Court, Jamnagar in Criminal Revision Application No. 45 of 2005, further inquiry was conducted by Deputy Superintendent of Police, Jamnagar and submitted a report dated 21.04.2018 before learned Judicial Magistrate, First Class, Dhrol in which no evidence was found and, therefore, is being a 'C' Summary Report. Learned senior advocate has also submitted that on 19.10.2020, the complainant submitted an application to learned Judicial Magistrate, First Class, Dhrol for not accepting the report dated 21.04.2018 to which the Court passed further order on 13.11.2020 in Criminal Inquiry Case No. 14 of 2019 and further directed the Deputy Superintendent of Police to investigate the matter and Superintendent of Police to supervise the investigation. Learned senior advocate has submitted that Deputy Superintendent of Police, Jamnagar submitted a report dated 03.01.2021 before the concerned Magistrate and reiterated the stand taken as in earlier reports and despite the same the Magistrate vide order dated 06.03.2021 has ordered to take cognizance of offence. Learned senior advocate has further Page 15 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 submitted that the Court below ought not to have taken cognizance of the offences as there being a strict bar along with a fact that limitation of taking cognizance for the offences mentioned in Chapter 21 of Indian Penal Code is also specifically mentioned in Section 199 sub clause (5) of Code of Criminal Procedure, 1973. Learned senior advocate has urged to quash and set aside the impugned order passed by the learned Judicial Magistrate, First Class.
4. Mr.Jal Unwala, learned senior advocate for Mr.Shukla for the applicant in Special Criminal Application No.2710 of 2022 has supported the submissions made by Mr.S. I. Nanavati, learned senior advocate. Learned senior advocate has submitted that "C" summary report filed earlier was supported and justified by the Deputy Superintendent of Police and "C" summary report was not accepted. Learned senior advocate has submitted that on 03.01.2021, again "C" Summary report was filed by the Deputy Superintendent of Police, which was not accepted and the summons were issued against the accused. Learned senior advocate has submitted that thereafter, criminal case was instituted and summons was issued to the accused. Learned Page 16 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 senior advocate has referred to Section 156(3) of the Cr.P.C. Learned senior advocate has also submitted that the impugned order passed by the learned Judicial Magistrate deserves to be quashed and set aside and the petition may be allowed.
5. Mr.Shahi, learned advocate for the applicant in Special Criminal Application No.3494 of 2022 has submitted the same submissions which have been submitted by the learned senior advocates. Learned advocate has also submitted that the impugned order passed by the learned Judicial Magistrate deserves to be quashed and set aside and the petition may be allowed.
6. Mr.Patadiya, learned advocate for the respondent - original complainant has submitted that the question as to whether the offences punishable under Sections 499, 500, 501, 502, 109, 114 of the IPC are made out or not, cannot be decided in the present petitions as it is a pure question of fact which is required to be adjudicated by the Trial Court. Learned advocate has referred the decision of this Court in the case of Satish Menon Vs. State of Gujarat reported in 2017 (4) GLR 3385 more Page 17 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 particularly paragraph no.9. Learned advocate has submitted that the complainant has filed the complaint for the offence under Section 500 of the IPC for defamation with regard to publication of news in daily newspapers i.e. "Loksatta - Jansatta"
on 03.10.1999, "Phul Chhab" on 06.10.1999 and "Sandesh" on
07.10.1999. Learned advocate has submitted that so far as the delay in filing the complaint is concerned, the explanation / exception has been given in Section 473 of the Cr.P.C. and the Court can condone delay in the interest of justice in case of necessary so arise. Learned advocate has submitted that the concerned Court has elaborately discussed in the order about the delay and, therefore, it cannot be said that there is delay on the part of the complainant. Learned advocate has referred Section 156(3) of the Cr.P.C. and submitted that this section gives exclusive powers to the learned Magistrate to make an order of investigation. Learned advocate has submitted that once any complaint is made before the Magistrate, the Magistrate can pass an order under Section 156(3) of the Cr.P.C. to produce police report. Learned advocate has submitted that by following the procedure as envisaged under the provisions of the Cr.P.C., Page 18 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 the learned Magistrate has not committed any error by which the entire proceedings could be quashed and set aside and accused be acquitted without any trial. Learned advocate has referred Section 199(6) of the Cr.P.C and submitted that there would be no any bar in taking cognizance by the learned Magistrate on the complaint filed by the complainant. Learned advocate for the complainant has submitted that the petitions being meritless deserve to be dismissed.
7. Mr.Patel, learned Additional Public Prosecutor for the respondent - State has supported the impugned order passed by the concerned Court below and submitted that no interference is required to be called for. Learned Additional Public Prosecutor has submitted that the petitions being meritless deserve to be dismissed.
8. It is settled law that for considering the application under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the Page 19 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.
9. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The Page 20 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
10. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.
11. In the case of Kishan Singh (supra), the Hon'ble Supreme Court has held and observed in paragraphs no.21, 22 and 24 as under:-
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247].
22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be Page 21 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).
24. It is to be noted that the appellants' father Kishan Singh lodged FIR No.144/02 on 23.7.2002 through his attorney Jaswant Singh Mann under Sections 420/323/467/468/471/120-B IPC, against the respondents. The allegations made in the FIR were substantially similar to the allegations made by the appellants in Civil Suit No.1075/96, which had been decided against them. It is evident that the aforesaid FIR was filed with inordinate delay and there has been no plausible explanation for the same. The appellants lodged the aforesaid FIR only after meeting their Waterloo in the Civil Court. Thus, it is evident that the FIR was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants' father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law."
12. In the case of Subramaniam Swamy (supra), the Hon'ble Supreme Court has held and observed in paragraph no. 168 as Page 22 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 under:-
"168. For the aforesaid purpose, it is imperative to analyse in detail what constitutes the offence of "defamation" as provided under Section 499 of IPC. To constitute the offence, there has to be imputation and it must have made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasizes on the intention or harm. Section 44 of IPC defines "injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Thus, the word "injury" encapsulates harm caused to the reputation of any person. It also takes into account the harm caused to a person's body and mind. Section 499 provides for harm caused to the reputation of a person, that is, the complainant. In Jeffrey J. Diermeier and another v. State of West Bengal and another, 2010(3) R.C.R.(Criminal) 183 :
2010(3) Recent Apex Judgments (R.A.J.) 437 : (2010) 6 SCC 243, a two-Judge Bench deliberated on the aspect as to what constitutes defamation under Section 499 of IPC and in that context, it held that there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged."
13. In the case of M/s.Cheminova India Limited and Page 23 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 another (supra), the Hon'ble Supreme Court has held and observed in paragraph no. 9 as under:-
" 9. In view of the undisputed fact that after drawing the sample from the dealer on 10.02.2011 report of analysis was received from the Insecticide Testing Laboratory at Ludhiana on 14.03.2011, we are of the firm view that the complaint filed is barred by limitation. It is not in dispute that report from Insecticide Testing Laboratory, Ludhiana was received by the Inspector on 14.03.2011. Section 29 of the Act deals with the 'offences and punishment'. The appellants are sought to be prosecuted on the ground of misbranding of the insecticide, i.e., Trizophos 40% E.C. It is the allegation in the [email protected].(Crl.)No.4102 of 2020 complaint that upon analysis of the sample, same was found to contain active ingredient to the extent of 34.70% only as against the labelled declaration of 40%. Thus, it is a case of 'misbranding' within the meaning of Section 3(k)(i) of the Act and selling of such misbranded item is in violation of Sections 17, 18 and 33 punishable under Section 29 the Act. From a reading of Section 29, it is clear that the maximum punishment for such offence, if it is first offence, is imprisonment for a term which may extend to two years or with fine which shall not be less than ten thousand rupees which may extend to fifty thousand rupees, or with both. For a second and subsequent offence, the punishment is imprisonment for a term which may extend to three years or with fine which shall not be less than fifteen thousand rupees which may extend to seventy five thousand rupees, or with both. Section 468 Cr.PC prohibits taking cognizance of an offence after the lapse of period of limitation. As per sub- section (2)(c) thereof, the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Section 469 Cr.PC deals with the 'commencement of the period of limitation'. As per the said provision, the period of limitation, in relation to an offender, shall commence on the date of offence or where the commission of the offence was not [email protected].(Crl.)No.4102 of 2020 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, Page 24 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 whichever is earlier."
14. In the case of Sarah Mathew (supra), the Hon'ble Supreme Court has held and observed in paragraphs no. 24, 31, 33, 36 and 51 as under:-
"24. Read in the background of the Law Commissions Report and the Report of the JPC, it is clear that the object of Chapter XXXVI inserted in the Cr.P.C. was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences. In Sarwan Singh, this Court stated the object of Cr.P.C in putting a bar of limitation as follows: (SCC p.36, para 3) "The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions 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."
31. It is now necessary to see what the words taking cognizance mean. Cognizance is an act of the court. The term cognizance has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain provisions of the Cr.P.C. Chapter XIV of the Code deals with Conditions requisite for initiation of proceedings . Section 190 thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) upon a police report of Page 25 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 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. Chapter XV relates to Complaints to Magistrates . Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding. Chapter XVI relates to commencement of proceedings before the Magistrate. Section 204 provides for issue of process. Under this section if the Magistrate is of the opinion that there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI.
33. After referring to the provisions of the Cr.P.C. quoted by us hereinabove, in S.K. Sinha, Chief Enforcement Officer, this Court explained what is meant by the term taking cognizance . The relevant observations of this Court could be quoted: (SCC p.499, paras 19-20) "19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Page 26 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." In several judgments, this view has been reiterated. It is not necessary to refer to all of them.
36. The role of the court acting under Section 473 was aptly described by this Court in Vanka Radhamanohari (Smt.) where this Court expressed that this Section has a non-obstante clause, which means that it has an overriding effect on Section 468. This Court further observed that:
(SCC p.8, para 6)
6......There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Cr.P.C. For exercise of power under Section 5 of the Limitation Act, the onus is on the applicant to satisfy the court that there was sufficient cause for condonation of delay, whereas, Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether, it is the requirement of justice to ignore such delay."
These observations indicate the scope of Section 473 of the Cr.P.C. Examined in light of legislative intent and meaning ascribed to the term cognizance by this Court, it is clear that Section 473 of the Cr.P.C. postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material.
51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Cr.P.C."
15. In the case of Anupamaben Shaileshbhai Shah (supra), Page 27 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 the Hon'ble Supreme Court has held and observed in paragraph no.6.4 as under:-
"6.4 Now considering the provisions of Sec. 473 of the Code, the powers are vested with the Court to extend the period of limitation to take cognizance of offence after the expiry of the period of limitation which is prescribed under the Code. Sec. 473 empowers the Court to extend 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 or that it is necessary so to do in the interests of justice. Now if the complaint is perused, the respondent No.2 - original complainant has not whispered a word about the reason for filing his complaint after a period of one year which is prescribed under the Code. Even he has not stated that there is delay in filing the complaint. When the complainant was examined by the learned Magistrate before passing the impugned order on oath, the complainant has not stated anything which now he wants to explain by way of filing affidavit in the present proceedings. In absence of any explanation for delay, it cannot be accepted, as suggested by learned Advocate Mr.Gandhi that, it can be presumed that the learned Magistrate has considered the delay and thereafter only summons was issued. If we peruse the affidavit, he has stated that his Advocate, who had appeared in his Income- Tax matters, informed him somewhere in Jan. 2007 that the payment of premium made to the tenant was not according to law and, therefore, he filed complaint in question in Jul. 2007 which is not believable in absence of any material. To support the same, he has stated in his affidavit that, when his statement was recorded by the learned Magistrate on 6.3.2007, a written explanation was offered for delay in filing the complaint, but, the learned Magistrate, after reading the explanation for delay, asked his Advocate not to file such application. He has further stated in his affidavit that he had requested his Advocate to give his file along with the explanation but the same was not available and it was misplaced by his Advocate. In support of this, he has filed affidavit of his Advocate who had appeared for the respondent No.2 before the trial Court. He has reiterated the same and has stated that the explanation is not traceable. Even if the say of learned Page 28 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 Advocate is accepted, I am of the opinion that, in absence of any explanation in the complaint itself, and in absence of recording of satisfaction by learned Magistrate and after perusing the facts and circumstances of the case, it cannot be said that the learned Magistrate had extended the period of limitation prescribed under the Code. Hence, I am of the opinion that the respondent - complainant has come out with a totally new case before this Court by filing affidavit which are not acceptable. In case of M. S. Upadhyaya (supra), this Court has categorically held that, the learned Magistrate, before issuing process, must verify whether the complaint is barred by limitation or not, and whether the facts are justifying to condone the delay if any.
16. In the case of Nestle India Limited and another (supra), the Hon'ble Supreme Court has held and observed in paragraph no.11 as under:-
"11. However, I fully agree with the submission made by the learned Additional Public Prosecutor Mr. Kodekar that the provisions contained under Sec. 5 of the Limitation Act for condonation of delay and the provisions contained under Sec. 473 of the Cr.P.C. for condonation of delay stand on different footing. I also agree with the submission made by the learned Additional Public Prosecutor Mr. Kodekar that in this revision application, the moot question, which is required to be decided is as to whether the delay on the part of the Food Inspector was intentional or essential. However, in that background, it is necessary to consider relevant observation made by Hon'ble the Apex Court in para-3 in the case of the State of Punjab Vs. Sarwan Singh (supra) ;
"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 Page 29 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 the offence."
17. In the case of M/s. Maneklal G. Sons and others (supra), the Hon'ble Supreme Court has held and observed in paragraph no.4 as under:-
"4. In my opinion, this application is required to be allowed on the ground that issuance of process, no doubt presumes that the delay is condoned, but the delay is condoned without hearing the accused. No delay can be condoned without hearing the other side or the person who is to be adversely affected thereby. In the instant case, offence took place on 27-10-1983. The complaint is filed on 4-4-1985. No doubt, necessary sanction to file a complaint was required to be obtained and that has been obtained and that sanction is accorded on 15-3-1985. If from the date of the sanction the period of limitation to file the complaint is to be counted, then the complaint can be said to have been filed within the period of limitation, but the period of limitation is required to be counted from the date of offence and not from the date of according sanction. However, the complainant may be entitled to exclusion of time spent in obtaining the necessary sanction in view of sub-sec. (3) of Sec. 470 of the Code. What is the time spent in obtaining sanction and whether on exclusion of time spent in obtaining sanction the complaint is filed within the period of limitation are the questions of fact, which can be considered by the trial court. In view of this fact, to decide the question whether the complaint is filed within the period of limitation on exclusion of period spent in obtaining sanction, some evidence is required to be led, as the complaint itself is not that eloquent. In view of this fact, the process issued by the court is required to be quashed and set aside. However, the matter is required to be remanded back to the learned Magistrate, who shall first consider the question of limitation and if the complaint is found to have been filed within the period of limitation after exclusion of the period spent in obtaining sanction and if a sufficient cause is shown for the delay, if any, the learned Magistrate may proceed further in the matter in Page 30 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 accordance with law."
18. In the case of Sarlaben S. Talsania (supra), the Hon'ble Supreme Court has held and observed in paragraph no.4 as under:-
"4. Learned Advocate Mr. Manav Mehta, appearing for the respondent - accused, pointed out from the provisions of Sec. 398 that the offence was constituted by importing into the limits of the city any vehicle, animal or goods liable to payment of toll or octroi and introduction or attempt to introduce the same without making or tendering payment of the toll or octroi. According to the provisions of Sec. 428 of the Act, no Magistrate can take cognizance of such offence unless the complaint was made within six months of the commission of such offence, or if such date was not known or even if the offence was a continuing one, within six months of the discovery of such offence. He argued on that basis that, since the date of the raid at the premises of the respondent, the alleged offence was discovered and upon a plain reading of the provisions, period of limitation would start from that date. He further submitted that the provisions of Sec. 473 of the Code cannot be pressed into service in view of the following clear view expressed by the Hon'ble Supreme Court in P. P. Unnikrishnan & Anr. v. Puttiyottil Alikutty & Anr., 2000 (8) SCC 131:
"10. The extension of period contemplated in the said Section is only by way of an exception to the period fixed as per provisions of Chapter XXXVI of the Code. Section 473 of the code, therefore, cannot operate in respect of any period of limitation prescribed under any other enactment........."
Mr.Mehta submitted that since an inflexible period of limitation was prescribed in the provisions of Sec. 428 of the Act long before the later provisions of the Code of 1973 came on the statute book, the provisions of Sec. 473 can, by no stretch, be said to have been intended to apply to Page 31 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 the period of limitation prescribed under Act. As for the argument of the due amount being determined and he enquiry, therefore, taking a reasonable time, he submitted that the proceedings for fixing liability or determining the dues after disposing the objections of the respondent, were totally irrelevant considerations and neither such proceedings nor the proceedings before this Court, in fact, prevented the petitioner from filing a complaint within the period of limitation."
19. Section 190 of the Criminal Procedure Code reads as under:-
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.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
20. Section 199 of the Criminal Procedure Code reads as under:-
"199. Prosecution for defamation. (1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860 ) except upon a complaint made by some person aggrieved by the offence:Page 32 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023
R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or ls from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice -President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction -
(a) of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
(c) of the Central Government, in any other case, (5) No Court of Sessions shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed. (6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take Page 33 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 cognizance of the offence upon such complaint.
(6) Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint."
21. Section 499 of the Indian Penal Code reads as under:-
"499. Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."
22. Section 500 of the Indian Penal Code reads as under:-
"500. Punishment for defamation. - Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine, or with both.
Classification of offence: Defamation against the President or the Vice-president or the Governor of a State or Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the Public Prosecutor. - Non-cognizable - Bailable - Triable by Court of Session - Punishment: Simple imprisonment for 2 years, or fine, or both - Compoundable (By the person defamed with the permission of the Court).
Defamation in any other case. - Non-cognizable - Bailable - Triable by Magistrate of the first class - Punishment: Simple imprisonment for 2 years, or fine, or both - Compoundable (By the person defamed)."Page 34 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023
R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023
23. The classification of Section 500 of the Indian Penal Code reads as under:-
500 Defamation Simple Non - Bailable Court of against the imprisonment cognizable Sessions President or the for 2 years or Vice - President fine, or both.
or the Governor of a State or Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public functions when institute upon a complaint made by the Public Prosecutor.
Defamation in Simple Non - Bailable Magistrate
any other case. imprisonment cognizable of the first
for 2 years or class.
fine, or both
24. Section 156(3) of the Criminal Procedure Code reads as under:-
"156. Police officer's power to investigate cognizable case.
(1) xxxx xxxx xxxx
(2) xxxx xxxx xxxx
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."Page 35 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023
R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023
25. Considering the provision of Section 156(3) of the Cr.P.C. clearly provides that any Magistrate empowered under section 190 may issue such order for investigation.
26. Considering the submissions made by the learned advocate for the applicant, it clearly reveals that the learned Magistrate has no right to issue process under Section 156(3) of the Cr.P.C. Learned advocate for the respondent has drawn attention of this Court by making statement to the fact that earlier at the first instance, the Investigating Officer has filed "C" Summary Report, which came to be accepted by the concerned Magistrate and the same was challenged by the complainant by filing Criminal Revision Application. The concerned Sessions Court has allowed the Criminal Revision Application and as the order is remained in forced the applicant has not challenged the same and, thereafter, the proceedings is continued. As against that learned advocate for the applicant has submitted that though after passing of the order by the Sessions Court in favour of the respondent, again Deputy Superintendent of Police has filed summary report before the concerned Magistrate Court, which was not considered by the Magistrate, but the main contention Page 36 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 raised by the applicant before this Court is with regard to maintainability of the proceedings as stipulated under the above referred provisions of law. As per Section 468 of the Cr.P.C., the Magistrate is not authorized or empowered to take cognizance of an offence beyond the limitation period and the concerned Magistrate exceeded its jurisdiction while ordering to take cognizance of the alleged offence beyond limitation period and also ordering to register the criminal complaint and to issue summons to the applicant and other persons. In the case of Kishan Singh (supra) as relied upon by the learned senior advocate for the applicant, it has been held that in cases where there is delay in filing the FIR, the complainant must give explanation for the same and the concerned Court has to look for plausible explanation for such delay. In absence of such explanation, the delay may be inevitable. Considering the provisions of Section 499 of the IPC, it appears that the present case is squarely covered under exception of the said section. A reliance is placed upon the various decisions by the learned senior advocate for the applicant is applicable to the facts of the present case. The Court below has committed an error while Page 37 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023 R/SCR.A/2710/2022 JUDGMENT DATED: 13/04/2023 passing the impugned order and, therefore, the interference is required to be called for.
27. Now, on perusal of the aforesaid legal preposition and the materials placed on record and considering the peculiar facts of the case, this Court is of the considered opinion that the present petitions deserve consideration.
28. For the foregoing reasons, these petitions succeed. The Criminal Complaint No.108 of 2021 as well as impugned order dated 06.03.2021 passed below Exhibit 40 by the learned Judicial Magistrate, First Class, Jodiya Criminal Complaint No.108 of 2021 and the summons dated 25.10.2021 issued by the by the learned Judicial Magistrate, First Class, Jodiya are hereby quashed and set aside. Rule made absolute accordingly.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 38 of 38 Downloaded on : Sat Apr 15 20:43:15 IST 2023