Delhi District Court
Sh. Salekh Chand vs Sh. Deepak Sharma on 6 October, 2015
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS
JUDGE; FTC : E COURT: SHAHDARA: KARKARDOOMA COURT: DELHI.
Criminal Revision No. 10/2014
P.S: Vivek Vihar
Sh. Salekh Chand,
S/o Sh. Chandan Singh,
R/o H. No. 85, 3rd Floor,
Gali No. 10, LIG Flats,
GTB Enclave,
Delhi-110093
........ Revisionist
Versus
Sh. Deepak Sharma,
S/o Sh. K.C. Sharma,
R/o 185/31C, Krishna Gali No. 7,
Maujpur, Delhi-110053 ........ Respondent
JUDGMENT
1. This is a revision petition under Section 397/401 Cr. PC against the order dated 16.08.2013 passed by the court of learned Chief Metropolitan Magistrate, Shahdara in Complaint Case No. 3/11 titled Deepak Sharma Vs. Salekh Chand. Notice of the revision was served to the respondent. Trial Court Record has been requisitioned and perused. During the pendency of the revision petition, an application was filed under Section 5 of Limitation Act by the revisionist. Respondent has filed reply to the application. Arguments have been heard on the application as also the revision petition from the respective learned counsels.
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2. With respect to the application under Section 5 of the Limitation Act, the learned counsel of revisionist has submitted that revisionist came to know of the impugned order only on receipt of summons on 08.11.2013. Revision was filed on 24.01.2014 and therefore from the date of knowledge of the order, the revision is within the period of limitation. The learned counsel of respondent has submitted that under Article 115 of the Limitation Act, period prescribed for filing the revision is 30 days. It is stated that summons were served to the revisionist on 08.11.2013 and therefore there is a delay of 47 days in filing the revision petition for which, there is no explanation and hence application under Section 5 of the Limitation Act is liable to be dismissed and the revision is also liable to be dismissed being time barred.
3. Article 131 of the Schedule of Limitation Act provides limitation period of 90 days for filing the revision under the Code of Civil Procedure and the Code of Criminal Procedure from the date of decree or order or sentence sought to be revised. Thus, the limitation period prescribed for filing the revision against the impugned order is 90 days and not 30 days, as argued by the learned counsel of respondent. The impugned order is dated 16.08.2013. The revisionist got the knowledge of impugned order on receipt of summons on 08.11.2013. The period of limitation shall therefore commence from the date of knowledge i.e. 08.11.2013. The revision petition was filed before the court on 23.01.2014. That being so, revision petition has been filed within the stipulated period of 90 days and is not barred by limitation.
4. On the merits of the revision, the learned counsel of revisionist has argued that the complaint filed by the respondent was barred by limitation having been filed after three years of lodging the FIR and it is argued that the learned Chief Metropolitan Magistrate ought to have satisfied himself on the point of limitation at pre-cognizance stage. Since the complaint has been filed 2 of 10 beyond the period of limitation, the court was precluded from taking cognizance thereof, thus the summoning order is without any jurisdiction.
5. The learned counsel of the respondent has argued that the revision is not maintainable as it is not open to the revisionist to seek recall of summons or seek discharge by filing the revision petition and that the only remedy available to him is by way of petition under Section 482 Cr. PC. In this regard, the learned counsel has placed reliance on the judgment of Subramanium Sethuraman Vs. State of Maharashtra & Anr. AIR 2004 Supreme Court 4711 and Adalat Prasad Vs. Rooplal Jindal & Anr. 2004 Supreme Court Cases (Cri) 1927.
6. The facts as stated in the complaint, insofar as they are relevant for the purpose of disposal of the revision are that respondent was employed as an instructor in ITI. On 24.09.2007, one Virender Sharma made a complaint to Principal, ITI, Vivek Vihar against the present revisionist Salekh Chand, who was also posted as an instructor in the said institute. Virender Sharma sought the transfer of his son Keshav Sharma on the ground that his son was being harassed by Salekh Chand. It was complained to the Principal that Salekh Chand was forcing his son to do individual work like preparation of tea, washing of utensils etc. The Principal called Virender Sharma to explain the allegations vide letter dated 26.09.2007. On 25.09.2007, Salekh Chand, as a counter-blast, made a complaint to the Principal alleging that he had called Virender Sharma on 25.09.2007 and he abused and insulted him and also made castiest remarks. Salekh Chand also alleged that the incident happened due to instigation of one instructor belonging to upper caste. On 11.10.2007, a departmental enquiry was initiated against Salekh Chand. Salekh Chand gave another complaint on 06.10.2007 to ACP, Vivek Vihar 3 of 10 alleging that Virender Sharma was in conspiracy with Deepak Sharma. Due to the pressure of Salekh Chand, FIR No. 23/08 was registered at PS Vivek Vihar under Section 3 (i) (x) of SC/ST Act. Departmental Enquiry was also initiated against Deepak Sharma but nothing incriminating was found against him and he was given clean chit vide order dated 04.07.2008 by the Enquiry Committee.
7. Deepak Sharma was discharged by the court in case FIR No. 23/08. He thus alleged that he was roped in the case by Salekh Chand just to harass and defame him. He alleged that Salekh Chand maliciously prosecuted him and even after discharge from the case, he has been threatening him of dire consequences and threatened to rope him in another case. Deepak Sharma thus filed a complaint under Section 500 and 506 IPC against Salekh Chand.
8. The learned CMM vide order dated 16.08.2013, summoned the revisionist Salekh Chand for the offence punishable under Section 500 IPC. It is this order, which has been challenged in revision. In the case of Adalat Prasad Vs. Roop Lal Jindal (supra), the Hon'ble Supreme Court held that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused of any material implicating the accused or in contravention of Section 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code. This position was reiterated by the Hon'ble Supreme Court in the case of 4 of 10 Subramanium Sethuraman Vs. State of Maharashtra & Anr. (supra). In Para No. 17 of the judgment, the Hon'ble Apex Court observed as under:-
"17. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case."
9. Relying upon the aforesaid two judgments, the learned counsel of respondent has argued that there is no jurisdiction with this court to entertain the revision under Section 397 Cr. PC and that if the revisionist was aggrieved by the order dated 16.08.2013, the only remedy available to him is to approach the Hon'ble High Court under Section 482 Cr. PC.
10. Similar question came up for consideration before the Hon'ble Supreme Court in the case of Urmila Devi Vs. Yudhvir Singh Criminal Appeal No. 1822 of 2013 dated 23.10.2013. In that case also, the summoning order passed by the learned Chief Judicial Magistrate was challenged in revision before learned ASJ, who accepted the revision and set aside the summoning order. The Hon'ble High Court declined to interfere with the orders passed by the learned ASJ. The matter then came up before the Hon'ble Supreme Court. The learned counsel of the appellant relied upon the decisions in the cases of Subramanium Sethuraman Vs. State of Maharashtra & Anr. and Adalat Prasad Vs. Rooplal Jindal & Anr.(supra) contending that the jurisdiction of the Hon'ble High Court under Section 482 Cr. PC alone could have been invoked as against the orders of learned CJM 5 of 10 deciding to issue summons against the respondent and not by way of revision under Section 397 Cr. PC. Having regard to the position stated by the Hon'ble Supreme Court in innumerable decisions, the Hon'ble Court declared the legal position in Para No. 22 as under:-
"(i) The order issued by the Magistrate deciding to summon an accused in exercise of his power under Section 200 to 204 Code of Criminal Procedure would be an order of intermediary or quasi-final in nature and not interlocutory in nature.
(ii) Since the said position viz., such an order is intermediary order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party.
(iii) Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Section 200 to 204 Code of Criminal Procedure, can always be subject matter of challenge under the inherent jurisdiction of the High Court under Section 482 Code of Criminal Procedure."
In Para No. 23 & 24, the Hon'ble Court observed as under:-
"23. When we declare the above legal position without any ambiguity, we also wish to draw support to our above conclusion by referring to some of the subsequent decisions. In a recent decision of this Court in Om Kumar Dhankar Vs. State of Haryana and Anr. reported in, (2012) 11 SCC 252,
6 of 10 the decisions in Madhu Limaye (supra), V.C. Shukla (supra), K.M. Mathew (supra), Rakesh Kumar Mishra Vs. State of Bihar & Ors reported in, 2006 (1) RCR (Criminal) 456: (2006) 1 SCC 557 ending with Rajendra Kumar Sitaram Pande (supra), was considered and by making specific reference to paragraph 6 of the judgment in Rajendra Kumar Sitaram Pande, this Court has held as under in Paragraph 10;
"10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Code of Criminal Procedure, was available to the Respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the Appellant accordingly."
24. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under Section 397 Code of Criminal Procedure is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons."
11. In view of the latest position of law as laid down in the case of Urmila Devi (supra), I am of the view that the order passed by the learned CMM issuing process to the revisionist can be challenged by way of revision under Section 397 Cr. PC before the Sessions Court and therefore the revision petition filed in this case is maintainable.
12. Section 468 Cr. PC lays emphasis on the period of limitation for taking cognizance of certain offences and reads as under:-
7 of 10 "468.Bar to taking cognizance after lapse of the period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-
section (2), after 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 terms not exceeding one year;
c) three years, if the offence is punishable with imprisonment for a terms exceeding one year but not exceeding three years.
3) For the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment].
13. A perusal of the above provision clearly shows that Section 468 (2) (c), in no uncertain term specifies a period of three years for taking cognizance of an offence which is punishable with imprisonment for a term exceeding one year but not exceeding three years. Section 500 IPC envisages that whoever defames another, shall be punished with simple imprisonment for a period which may extent to two years or with fine or with both, meaning thereby, the period of limitation applicable to complainants under Section 500 IPC would be governed by Section 468 (2) (c) Cr. PC. Section 469 Cr. PC specifies the commencement of period of limitation. Section 469 (1) (a) provides the period of limitation in relation to offence, shall commence (a) on the date of the offence. It is not the case of the respondent 8 of 10 that clauses (b) and (c) get attracted in this case. In the case of Ms. Romy Khanna Vs. State & Ors. 2011 (4) RCR (Criminal) 735, the facts were similar to the facts of the present case. The question for consideration before the court was as to when the limitation to file complaint under Section 500 IPC shall begin? In that case, the petitioner lodged an FIR ON 03.02.2000 against the respondent under Section 376/342 and 506 IPC containing defamatory allegations. The complaint was found to be false and was quashed by the Hon'ble High Court on 30.05.2001. Respondent filed a complaint under Section 500 IPC against the petitioner on 22.02.2003. The Hon'ble High Court quashed the complaint holding that the complaint was filed beyond the period of limitation which is three years under Section 468 Cr. PC. It was held that limitation shall start from 03.02.2000 when the FIR was lodged and not from 22.03.2003 when the FIR was quashed. In the case of Surinder Mohan Vikal Vs. Ascharj Lal Chopra AIR 1978 SC 986, the Hon'ble Supreme Court in the similar facts held that complaint under Section 500 IPC for defamation will be barred if filed three years after the commission of the offence.
14. As per Para No. 8 of the complaint, FIR No. 23/08 under Section 3 (i) (x) SC/ST Act PS Vivek Vihar against respondent Deepak Sharma was lodged on 29.01.2008. The FIR allegedly contained defamatory content. Therefore, in my view, the date of offence within the meaning of Section 469 (1) (a) and period of limitation of three year will commence with reference to that date for the purpose of Section 468 Cr. PC. The complaint was filed before the court on 17.02.2011. The complaint thus having been filed beyond the stipulated period of limitation of three years is barred by Section 468 Cr. PC. Hence, it was not permissible for the learned MM to take cognizance of offence after the expiry of period of limitation and by doing so, he has acted beyond his jurisdiction.
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15. In view of my aforesaid discussion, the revision petition is allowed and the impugned order dated 16.08.2013 is set aside. TCR be sent back with the copy of the judgment. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN (RAVINDER DUDEJA)
COURT ON 06.10.2015 ASJ/FTC/E-COURT/KKD/DELHI.
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