Punjab-Haryana High Court
Sohan Singh vs Sapinder Singh on 4 December, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRM-M-12677-2008(O&M) 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CRM-M-12677-2008(O&M)
Date of decision : 04.12.2014
Sohan Singh
... Petitioner
Versus
Sapinder Singh
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Ashish Gupta, Advocate
for the petitioner.
Mr.Munish Jolly, Advocate
for the respondent.
REKHA MITTAL, J.
The present petition has been filed under Section 482 the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') seeking quashing of complaint No.65 dated 13.12.2005 captioned 'Sapinder Singh Vs. Sohan Singh and another' (Annexure P4), summoning order dated 16.02.2008 (Annexure P5) and proceedings emanating therefrom pending in the Court of Judicial Magistrate, Rajpura.
The facts, in brief, are that Sapinder Singh filed a private complaint on the allegations that he had land dispute with Sohan Singh and due to this reason, relations between them were not good for the last many years. He made a complaint dated 27.11.1993 to the Additional Collector, Central Excise, Chandigarh with regard to acquisition of assets disproportionate to non sources of income and against activities of Sohan Singh. With a view to take revenge, Sohan Singh in connivance with DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 2 Tarsem Singh(accused) got registered a false case against him (complainant) in Police Station City Gurdaspur under Sections 323, 325, 148, 149 of the Indian Penal Code (in short 'IPC') vide FIR No.98 dated 21.12.1993. Due to registration of false case, the complainant was arrested, humiliated and was not released on bail by the police of Police Station Gurdaspur due to influence of Sohan Singh accused. The criminal case was lodged by Sohan Singh with an intent to cause harm to reputation of the complainant in the eyes of public, his relatives, family members. The complainant actually suffered loss to his reputation. He had to file petitions (Criminal Misc. No.7873 of 1995 and 54693-M of 2003) in the Punjab and Haryana High Court for quashing of said FIR. The State filed cancellation report and application for prosecution of the accused under Section 182 Cr.P.C. before the Court at Gurdaspur but the case was sent for reinvestigation on 12.06.1996.
After recording evidence during preliminary inquiry, the petitioner has been summoned to face trial for commission of offence punishable under Section 500 IPC.
Counsel for the petitioner would submit that the petitioner approached the police authorities of Police Station City Gurdaspur for initiating action against the complainant, he cannot be prosecuted for commission of offence punishable under Section 500 IPC as he is protected under Eighth Exception appended to Section 499 IPC. In support of his contention, he has relied upon judgment of this Court Kamlesh Kaur Vs. Lakhwinder Singh and another, 2009(4) R.C.R. (Criminal) 663.
Another submission made by counsel is that the criminal DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 3 proceedings were initiated by the petitioner against the respondent in December 1993 and the first cancellation report was submitted before the Chief Judicial Magistrate on 12.06.1996, though it was not accepted and the matter was remitted for reconsideration. Finally, the investigating agency submitted cancellation report dated 17.06.1998 which was eventually accepted by the Chief Judicial Magistrate, Gurdaspur vide order dated 11.05.2001 (Annexure P2). It is argued with vehemence that the respondent- complainant could file a complaint for commission of offence under Section 499 IPC punishable under Section 500 thereof within a period of 3 years from the date of registration of the FIR or at the latest with effect from 11.05.2001 but the complaint filed in the year 2005 is clearly barred by limitation keeping in view the provisions of Section 468 Cr.P.C. For this purpose, he has relied upon judgment of Hon'ble the Supreme Court of India in M/s. Zandu Pharmaceutical Works Ltd. Vs. Md.Sharaful Haque, 2005 (1) Criminal Court Cases 541 (S.C.). Counsel has urged that there is no bar against the accused raising issue of limitation in the High Court in proceedings under Section 482 Cr.P.C. In this context, reference has been made to judgment of the Madras High Court in P.M.Kathiresan Vs. Shanmugham, Retired Captain, 1995(3) Recent Criminal Reports, 369. He has also referred to judgment of Hon'ble the Supreme Court of India in Surinder Mohan Vikal Vs. Ascharj Lal Chopra, AIR 1978 Supreme Court
986. Counsel for the respondent, on the other hand, while refuting contentions of counsel for the petitioner contends that good faith envisaged in aforereferred Eighth Exception of Section 499 IPC has to be established DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 4 by leading evidence and therefore, the said exception would not be applicable at this stage. In addition, it is submitted that as there was land dispute between the parties and the complainant had filed a complaint against Sohan Singh in regard to his acquiring assets disproportionate to his known sources of income and his activities and the instant FIR was lodged within one month of filing of the said complaint, the plea of the accused- petitioner that he lodged the FIR in good faith is not tenable.
So far as the plea with regard to proceedings being barred by limitation, he submitted that under Section 473 Cr.P.C. the Court is competent to take cognizance of an offence after expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. It is argued that in the circumstances of the present case, the summoning order may be set aside and the matter may be remitted to the trial Court for decision on the question of extension of period of limitation as there are sufficient grounds to justify such extension.
I have heard counsel for the parties and perused the records. The first question which arises for consideration is whether the petitioner is protected under Exception Eighth appended to Section 499 IPC. A relevant extract from Section 499 IPC and Eighth Exception, reads as follows:-
"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, DAVINDER KUMAR the reputation of such person, is said, except in the cases 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 5 hereinafter expected, to defame that person. Explanations xx xx xx xx First Exception --xx xx xx Second Exception--xx xx xx Third Exception -- xx xx xx Fourth Exception- xx xx xx Fifth Exception --xx xx xx Sixth Exception-- xx xx xx Seventh Exception --xx xx xx Eighth Exception --Accusation preferred in good faith to authorized person.--It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation."
A perusal of Eighth Exception would make it manifest and it is not defamation to prefer in good faith an accusation against any person to lawful authority over that person with respect to the subject matter of accusation. 'Good faith' has been defined in Section 52 IPC and says that nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
In Kamlesh Kaur's case (supra), the petitioner made allegations to the police against the respondent for committing an offence and those allegations were found to be false. This Court, dealing with Eighth Exception to Section 499 IPC held that the allegations made to the police regarding commission of offence would be covered in Eighth Exception and would not constitute defamation even if the allegations levelled are taken on their face value. It was further held that the petitioner has neither published nor defamed the complainant in public eyes but he made a complaint to the police and the complainant would be protected DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 6 under Eighth Exception appended to Section 499 IPC. In this case also, it was one of the contentions raised by counsel for respondent No.1 that good faith has to be established by leading evidence and therefore, Exception Eight would not be applicable at this stage. Keeping in view the ratio in Kamlesh Kaur's case (supra), I find merit in the contentions of the petitioner that report made to the police alleging commission of offence would not constitute defamation. This apart, if the petitioner had made a false statement before the police, a specific remedy has been provided under Section 182 IPC and it appears from the averments in the complaint that at one point of time, the investigating agency intended to initiate proceedings under Section 182 IPC against the petitioner but it is not clear as to what happened to those proceedings. Furthermore, there is no dispute that the petitioner was medico legally examined in respect of the injuries sustained by him, the police initially recorded DDR No.23/24 dated 24.12.1993 and later registered FIR No.98 of 1993 after obtaining copy of MLR 80/HR/93, sought opinion of the doctor in regard to fitness of injured Sohan Singh and thereafter recorded his statement while he was lying admitted in the hospital. Keeping in view the facts and circumstances of the present case when examined in the light of observations made in Kamlesh Kaur's case (supra), I find force in the contentions of the petitioner that the petitioner is entitled to protection of Eighth Exception appended to Section 499 IPC.
The petitioner lodged the FIR against the respondent-accused in the year 1993. It is not clear as to when he was arrested in the case and released on bail by the Court. However, it can be safely inferred that since the first cancellation report was submitted in the year 1996, he must be DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 7 arrested and released on bail prior to 1996. The respondent filed Criminal Misc. Petition No.7873 of 1995 for quashing of FIR and in the meantime, the State filed cancellation report and the aforesaid petition was withdrawn on 05.11.1996. The petitioner learnt about submission of cancellation report in the year 1996 but did not choose to initiate the criminal proceedings against the petitioner either within 3 years from the date of his arrest by the police or within 3 years from the date he learnt about submission of cancellation report in the Court. Not only this, the complaint was not filed even within three years from the date the cancellation report was accepted by the Court in the year 2001. Counsel for the respondent has fairly conceded that the respondent has not initiated the proceeding within the prescribed period of limitation keeping in view what has been envisaged in Section 468 Cr.P.C. which provides for bar to taking cognizance after expiry of the period of limitation. As per Section 468 Cr.P.C., except as otherwise provided elsewhere in the Court, no Court shall take cognizance of an offence of the categories specified in Sub Section (2) after the expiry of the period of limitation and the period of limitation shall be 3 years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. There is no dispute between the parties that keeping in view the punishment provided for offence of defamation, the said period of limitation would be 3 years. No doubt, Section 473 empowers the Court to take cognizance of an offence after the expiry of period of limitation if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. The question now arises, whether it would be proper to set aside the DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 8 summoning order and remit the matter to the Judicial Magistrate for adverting to the provisions of Section 468 read with Section 473 Cr.P.C. Keeping in view the discussion made hereinabove, there is no question of remitting the matter for fresh consideration. This apart, Hon'ble the Supreme Court of India in M/s. Zandu Pharmaceutical Works Ltd.'s case (supra) has held that the learned Magistrate has issued process in respect of offence under Section 418 IPC. The period of limitation in terms of Section 468(2)(c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 Cr.P.C. provides for extension of period in certain cases. Order of learned Magistrate does not even refer to either Section 468 or Section 473 Cr.P.C. High Court clearly erred in holding that the complaint was not hit by limitation and ultimately the judgment of the High Court was set aside and proceedings initiated by the complainant were quashed in view of the facts and circumstances obtaining in the case. Keeping in view the facts and in the circumstances of the present case, I do not think it to be a fit case wherein the matter requires to be remitted to the trial Magistrate for fresh consideration. It appears to me that as there is land dispute between the parties, the respondent is hellbent to entangle the petitioner one way or the other so that he can succumb to the pressure and settle the dispute in accordance with the terms and conditions to be fixed by the respondent.
For the reasons aforesaid, it is expedient in the interest of justice that criminal proceedings initiated by the respondent are given a burial. As a natural consequence, criminal complaint No.65 dated 13.12.2005 captioned 'Sapinder Singh Vs. Sohan Singh and another' (Annexure P4), DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document CRM-M-12677-2008(O&M) 9 summoning order dated 16.02.2008 (Annexure P5) and proceedings emanating therefrom are ordered to be quashed.
(REKHA MITTAL) JUDGE December 04, 2014.
Davinder Kumar DAVINDER KUMAR 2014.12.15 12:35 I attest to the accuracy and integrity of this document