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[Cites 8, Cited by 0]

Himachal Pradesh High Court

Dinesh Chander Sharma vs Joginder Singh on 3 January, 2020

Author: Anoop Chitkara

Bench: Anoop Chitkara

-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 331 of 2017 Reserved on: 29­11­2019 Date of Decision: Jan 3, 2020 . 

    Dinesh Chander Sharma                                ...Petitioner.





                             Versus
    Joginder Singh                                     ...Respondent.





    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting? YES Petitioner in person.

For the respondent :Mr. Dheeraj K. Vashisht, Advocate.

Anoop Chitkara, Judge Challenging the order of dismissal of criminal revision by the Court of Sessions, upholding the order of the dismissal of the complaint of the petitioner, passed by Judicial Magistrate, Una, HP, under Section 203 CrPC, the complainant has come up before this Court seeking the directions to the Judicial Magistrate to proceed under Section 204 CrPC and launch prosecution in his second complaint, on the same facts, for criminal defamation.

2. The gist of the facts apposite to decide the present petition traces its history to a complaint filed by Joginder Singh, respondent herein, who at that point of time worked as a Peon, in ::: Downloaded on - 04/01/2020 20:30:18 :::HCHP -2- the office of the Deputy Commissioner, Una, HP. On Apr 29, 2000, Joginder Singh had filed a complaint to SHO, Police Station, Sadar, Una, H.P. against the present petitioner Shri Dinesh Chander .

Sharma.

3. The said complaint summarizes that Shri Dinesh Chander Sharma wanted an appointment from the Deputy Commissioner, but due to some miscommunication, a scuffle took place. The complainant Joginder Singh alleged that Shri Dinesh and intimidated him.

r to Chander Sharma slapped him, gave fist blows, torn his official shirt,

4. Aggrieved by the filing of this complaint, on May 25, 2005, the petitioner Shri Dinesh Chander Sharma filed a complaint No. 70­II­2005, under Section 190 (1)(a) of CrPC, seeking prosecution of Joginder Singh, for defamation.

5. Vide order dated Jun 7, 2006, passed in complaint No. 70­ II­05, titled Dinesh Chander Sharma v. Joginder Singh, learned Additional Chief Judicial Magistrate, Court No.1, Una, District­ Una, HP, did not find a prima facie case and dismissed the complaint under Section 203 of CrPC. Ld. Judicial Magistrate did not proceed under Section 204 CrPC on the reasoning that the ::: Downloaded on - 04/01/2020 20:30:18 :::HCHP -3- complainant did not examine any person to prove the loss of reputation in the eyes of the public.

6. The petitioner challenged the said order of dismissal by .

filing a Criminal Revision Petition in Sessions Court, Una, HP. Vide order dated Oct 12, 2006, passed in Criminal Revision Petition No. 4 of 2006, learned Additional Sessions Judge (Fast Track Court), District­Una, HP, did not find any error in the impugned order and upheld the same. Consequently, the Court dismissed the Revision Petition.

7. to After that, on Sep 21, 2007, the petitioner filed a fresh complaint on the same facts and by explaining that the dismissal of the complaint was on account of non­examination of relevant witnesses, and non­filing of certified copies, and claiming that because of this, his second complaint was maintainable.

8. The order sheets of the Court reflect that the learned Additional Chief Judicial Magistrate, Una, vide order dated Oct 8, 2007, directed the officer to register the complaint. Vide order dated Mar 12, 2008, the learned Additional Chief Judicial Magistrate took cognizance of the offence and asked the complainant to produce preliminary evidence.

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9. In the inquiry, after recording the evidence and considering the documentary evidence, Ld. Judicial Magistrate did not find prima facie case to proceed further under Section 204 .

CrPC. Vide order dated Feb 13, 2009, passed in this Criminal Complaint No. 207­I­07/138­II­07, Judicial Magistrate 1st Class, Court No.1, Una, HP, dismissed the complaint under Section 203 CrPC.

10. Ld. Judicial Magistrate believed that although the complainant had filed complaint by explaining that he could not tender in evidence the certified copies of some documents in the previous complaint. Even in the present inquiry, the complainant did not tender such documents. The Judicial Magistrate further held that complaint was barred by limitation, and there was no application filed under Section 473 of CrPC, seeking an extension of time.

11. Challenging the dismissal of the complaint, the petitioner filed a Criminal Revision Petition in Sessions Court, Una. Vide order dated Aug 3, 2010, passed in Criminal Revision No. 11 of 2009, the learned Additional Sessions Judge, Fast Track Court, Una, HP, set­aside the order of dismissal and remanded the case to the Judicial Magistrate.

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12. After the remand, on Aug 3, 2010, Ld. Judicial Magistrate resumed inquiry. While inquiring further, Ld. Magistrate afforded ample opportunities to the complainant. Vide .

order dated Aug 9, 2012, passed in this Criminal Complaint No. 207­I­07 and 138­II­07, Judicial Magistrate, Ist Class, Court No.1, Una, HP, did not find prima facie case to proceed under Section 204 of CrPC, and accordingly dismissed the complaint under Section 203 of CrPC.

13. Challenging the order dated Aug 9, 2012, the petitioner again filed a Criminal Revision Petition in the Sessions Court, Una. Vide order dated Jul 21, 2016, passed in Criminal Revision No.21 of 2012, learned Additional Sessions Judge­I, Una, District­Una, HP, dismissed the Criminal Revision. Learned Sessions Judge upheld the impugned order passed by Judicial Magistrate because the complaint was barred by limitation, and also that second complaint on the same facts was not maintainable.

14. Challenging the dismissal of his Criminal Revision as well as the complaint, the petitioner has come up before this Court seeking direction for the prosecution of the accused, by setting aside the impugned verdicts.

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15. I have heard Mr. Dinesh Chander Sharma, who appeared in person, and the counsel appearing for the respondent. I have also waded through the entire record.

.

ANALYSIS AND REASONING:

16. The issues to decide are that whether the petitioner had filed the second complaint within the period prescribed under Section 468 CrPC, and whether the dismissal of the first complaint had attained finality or not.

17. The incident pertains to Apr 29, 2000. Consequently, the limitation to file the complaint would commence from the day when Joginder Singh had informed the Police against Shri Dinesh Chander Sharma.

18. The limitation to file the complaint, seeking prosecution for defamation under Section 491 of CrPC, was three years. Consequently, the limitation to file said complaint expired after three years, i.e., somewhere at the beginning of May 2003.

19. As per the petitioner, he filed even the first complaint on Jul 15, 2004, seeking prosecution for defamation. Also, the said complaint did not contain any application for extension of time under Section 473 of CrPC. Given this, Ld. Judicial Magistrate did ::: Downloaded on - 04/01/2020 20:30:19 :::HCHP -7- not proceed further under Section 204 CrPC and dismissed the complaint under Section 203 CrPC.

SCOPE OF SECOND COMPLAINT:

.

20. After the dismissal of the first complaint under Section 203 CrPC, the petitioner filed the second complaint, without offering any reasonable explanation.

21. After the dismissal of the first complaint under Section 203 CrPC, the second complaint is maintainable only when the complainant offers a trustworthy and reasonable explanation, which is acceptable to the Judicial Magistrate.

22. The petitioner filed the second complaint on Sep 21, 2007, i.e., after a gap of more than four years, from the expiry of limitation. Furthermore, even in this complaint, the petitioner did not file any application under Section 473 of CrPC, seeking an extension of time by condoning the delay.

23. Through this complaint, the petitioner sought prosecution for defamation for an offence which had taken place on Apr 29, 2000. As already stated above, the limitation to file the complaint was three years, and it expired sometime in early May 2003. Given the specific bar contained under Section 468 CrPC, without any application under Section 473 of CrPC, seeking an ::: Downloaded on - 04/01/2020 20:30:19 :::HCHP -8- extension of time. Based on a time­barred complaint, the Judicial Magistrate had no jurisdiction to take cognizance of an offence.

ABSENCE OF PRIMA FACIE CASE:

.

24. The fact that the allegations made in FIR lowered, harmed, and impacted the reputation of the complainant in the eyes of society, or State, the primary and initial burden was upon the complainant.

25. The Judicial Magistrate shall conduct an inquiry to ascertain that there are some allegations of defamation. On finding substance in the complaint, she will take cognizance of the offence.

After taking cognizance of the offence, she is to conduct an inquiry, commencing with the examination of the Complainant under Section 200 CrPC. After the completion of the inquiry, if the Judicial Magistrate is satisfied that she should proceed further under Section 204 CrPC, then she would issue summons to the accused; otherwise, she will dismiss the complaint under Section 203 CrPC.

CONCLUSION:

26. Even in the second complaint, the Judicial Magistrate initiated an inquiry. Despite such a prolonged inquiry, the petitioner did not lead evidence which the Courts could rely upon ::: Downloaded on - 04/01/2020 20:30:19 :::HCHP -9- and proceed further. The solitary statement of the complainant, in the absence of other material, would not prove that because of the defamatory statement, his image in the eyes of society lowered or .

reduced. Thus, even this ground, the complainant could not establish a prima facie case to satisfy the Judicial magistrate to issue the process.

27. I have gone through both the impugned orders, which are well reasoned, and I do not find any illegality or infirmity in them. Given the above, I find no merits in this petition, and the same is dismissed. The pending application, if any, stands closed.

(Anoop Chitkara) Judge.

Jan 3, 2020 (NK) ::: Downloaded on - 04/01/2020 20:30:19 :::HCHP