IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.3 of 1993. CRIMINAL REVISION APPLICATION NO.3 of 1993. CRIMINAL REVISION APPLICATION NO.3 of 1993. Shri Satprakash Dutt ..Applicant versus V.K.Pujari & 9 Others ..Respondents Mr.Sharvari Shailendra for the Applicant None for the respondent Nos.1 to 9 Mr.Saste for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 3rd June, 2008. DATED : 3rd June, 2008. DATED : 3rd June, 2008. JUDGMENT. 1. The petitioner filed complaint in the Court of learned Addl. Chief Metropolitan Magistrate, 11th Court, Kurla against the respondent Nos.1 to 9, which case was numbered as Case No.35/S/1991 under Section 500 r/w. Section 34 of the I.P.C. After issuance of process respondent Nos.1 to 9 filed an application contending that the filing of the complaint was beyond the period of limitation and that is how the complaint is time barred and cannot be entertained. They had applied for discharge of the accused. It was also contended in the said application that the court had no jurisdiction. The learned Addl. Chief Metropolitan Magistrate 11th Court, Kurla, hereinafter referred to as the learned trial Judge -2- entertained the said application and after hearing the learned advocates on both the sides, discharged the respondent Nos.1 to 9. 2. The original complainant, i.e. the present applicant was aggrieved by the order of discharge dated 21.8.1992 and that is how this revision has been filed challenging the said order dated 21.8.1992. 3. Before this Court, the revision came to be dismissed for want of prosecution so far as the respondent Nos.8 and 9, other respondents were duly served and they are absent. 4. I have heard learned Advocate Mrs. Sharvari Shailendra for the applicant and Mr.Saste for the State. Learned Advocate Mrs. Sharvari Shailendra informed the court that the defamatory material was published by the respondent Nos.1 to 9 on 14.3.1986 and the said fact of publication of the defamatory material had come to the knowledge of the applicant on 16.3.1986. The present complaint was filed on 4.3.1991 i.e. practically after five years. -3- 5. The learned trial Judge considered the provisions of Section 469 of Cr.P.C. as regards the limitation to file complaint and came to the conclusion that as the offence under Section 500 of IPC was punishable with imprisonment for two years the period of limitation provided by the relevant Section was three years and therefore the complaint was required to be filed within a period of three years from the date of the offence or from the date when the commission of the offence came to the knowledge of the person aggrieved. 6. The learned advocate for the applicant contended that the procedure adopted by the learned trial judge was erroneous and that the learned trial Judge ought to have permitted the applicant to lead evidence and the respondent Nos.1 to 9 could have then pleaded the question of limitation by way of defence , and it was not open for the respondent Nos.1 to 9 to file application as it was done and it was erroneous on the part of the learned trial judge to entertain the application. 7. In so far as this contention is concerned, -4- it is required to be mentioned that the said application filed by the respondent Nos.1 to 9 was in the nature of application for discharge because the respondent Nos.1 to 9 raised point that the process could not have been issued as the institution of the complaint was beyond the period of limitation. Hence entertaining of the application filed by the respondent Nos.1 to 9 was proper and no fault can be found in the procedure followed by the learned trial Judge. The argument advanced by the learned advocate for the applicant that the learned trial judge should have waited till the recording of the evidence cannot be accepted. It was right on the part of the respondent Nos.1 to 9 to point out to the learned trial Judge that the process could not have been issued and in any case respondent Nos.1 to 9 were required to be discharged on the question of period of limitation. 8. The learned advocate for the applicant submitted that the question of limitation could not have been decided by the learned trial Judge in a mechanical way, namely by calculating the number of years from the date when the offence was said to -5- have been committed and the day when the complaint was filed. According to the learned Advocate for the applicant the provisions of Section 473 of Cr.P.C. permit the judge to condone the delay and entertain the complaint if the delay has been properly explained or it is necessary to condone the delay in the interest of justice. In so far this aspect is concerned, I am inclined to observe that in order to have the benefit of provisions of Section 473 of Cr.P.C. it was necessary for the applicant, original complainant to plead in the main complaint that for certain reasons the delay has occasioned and the court should condone the delay and entertain the application. In my view, the ground on which the learned trial Judge would have entertained the application despite the delay ought to have been specifically pleaded in the complaint so that the learned trial Judge as well as the respondent Nos.1 to 9 could have got a chance to deal with those grounds The text of the complaint does not show any ground as to why the complaint should have been entertained despite the delay. Hence, the learned trial Judge could not use the provisions of Section 473 of Cr.P.C. in favour of the applicant. It is not expected on the -6- part of the learned trial Judge to invoke the provisions of Section 473 of Cr.P.C. on his own particularly when there were no proper averments explaining the delay and need to condone the same. 9. It is seen that the present applicant waited for decision in the criminal case No.841/P/1985 which was launched against him and it is only when this applicant was acquitted in the said case he proceeded to file this complaint. In my view, it was not necessary for the applicant to wait for the trial of the said criminal case once he was aware that the defamatory material was published against him by respondent Nos.1 to 9. Once it is the stand of the applicant that the applicant came to know about the publication of defamatory material on 16.3.1986, the complaint ought to have been filed within a period of three years from 16.3.1986 and as such there has been delay and the complaint has been filed beyond the period of limitation. In view of the above, the impugned order dated 21.8.1992 has been properly passed by the learned trial Judge and no interference is required in the revisional jurisdiction because the institution of the -7- complaint in March 1991 was patently beyond the period of limitation and no case was made out by the applicant by resorting to the provisions of Section 473 of Cr.P.C. In view of the above, the revision is required to be dismissed. Hence the order. ORDER . Rule is discharged. . Revision is dismissed. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) -8- -9- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.3 of 1993. CRIMINAL REVISION APPLICATION NO.3 of 1993. CRIMINAL REVISION APPLICATION NO.3 of 1993. Shri Satprakash Dutt ..Applicant versus V.K.Pujari & 9 Others ..Respondents Mr.Sharvari Shailendra for the Applicant None for the respondent Nos.1 to 9 Mr.Saste for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 3rd June, 2008. DATED : 3rd June, 2008. DATED : 3rd June, 2008. FINAL ORDER . For the reasons separately recorded, Court has passed following Order: . Rule is discharged. . Revision is dismissed. -10- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION N0.3 OF 1993. CRIMINAL REVISION APPLICATION N0.3 OF 1993. CRIMINAL REVISION APPLICATION N0.3 OF 1993. Date of Decision : 3rd June, 2008 For Approval and signature The Honourable Shri Justice R.Y. GANOO J. 1. Whether Reporters of Local Papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the Judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any other made thereunder? -11- 5. Whether it is to be circulated to the Civil Judges? 6. Whether the case involves as important question of law and whether a copy of the judgment should be sent to Nagpur, Aurangabad & Goa Offices?