1 SB CRIMINAL MISC. PETITION NO.254/2005. Satya Narain Gupta Vs. The State of Raj& Anr. Date of order:- 4.2.2008 HON'BLE MR. JUSTICE RAGHUVENDRA S.RATHORE. Mr. Lokesh Sharma, for the petitioner. Mr. B.K.Sharma, Public Prosecutor, for the State. Mr. S.K. Panwar, for the respondent No.2. 1. This Criminal Misc. Petition under Section 482 Cr.P.C. has been filed against the order of cognizance dated 5.5.2001 passed by the learned Chief Judicial Magistrate, Jhalawar, in Criminal Case No.222/2001, under Section 500 read with Section 34 IPC. The said order was challenged by the petitioner before the revisional Court, by filing a revision petition, but the same was also dismissed by the learned Special Judge, Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Cases, Jhalawar, vide his order dated 23.2.2005 confirming the order passed by the learned Magistrate. Hence, this petition has been filed before this Court. 2. This petition had came up for 2 consideration of the High Court on 7.6.2005. The learned counsel for the petitioner had submitted that the alleged offence is of 1.11.1996 and the cognizance had been taken after expiry of the period of limitation i.e. three years, as provided under Section 468 Cr.P.C. Some other grounds were also raised. In view of the said submissions, the High Court had admitted the petition, issued notices to the respondents and stayed the proceedings before the trial court. Ultimately, the same Bench, on 6.12.2007 had ordered that the learned counsel for the parties are directed to come prepared for final hearing of the case on 3.1.2008. Accordingly, the matter was finally heard by this Court on 4.1.2008. 3. The brief facts of the case are that the complainant respondent No.2 filed a complaint before the learned Magistrate on 15.2.1997 against the petitioner and other persons before the learned Magistrate. It is stated in the said complaint that the respondent NO.2 is serving as Development Officer in Life Insurance Corporation 3 of India, at Jhalawar, and he holds a good reputation in the Society. It was also stated in the complaint that the petitioner, in order to defame the complainant and his family members, arranged a Press Conference and levelled allegations against them. Further more, it is stated that such allegations were got arranged for publication by two different press notes which were published in the daily News Paper “Rajasthan Patrika” on 1.11.1996 and 6.11.1996. The said news was circulated, due to publication in the News Paper, through-out the State. It is also stated in the complaint that on account of said publication, the complainant suffered defamation and, as such, the persons who committed the offence are liable for prosecution and he is entitled for compensation. 4. Thereafter, the learned Magistrate, decided to proceed further by recording the statement of the complainant under section 200 of the Code of Criminal Procedure and also that of one witness namely; Rajendra Singh Jhala, under Section 4 202 of the Code of Criminal Procedure, which was so done on 30.7.1999. The learned Magistrate, after hearing the complainant and considering the statements recorded, had ordered for taking cognizance against the accused petitioner and one Jethanand Chanchal on 5.5.2001 for offences under section 500 read with Section 34 IPC and process was ordered to be issued to the said persons. 5. The petitioner then preferred a revision petition before the revisional Court, seeking to challenge the order dated 5.5.2001 and the same came to be heard and decided by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jhalawar, on 23.02.2005, whereby he rejected the revision petition and confirmed the afore-order passed by the learned Magistrate. The petitioner, thereafter, filed this petition seeking to challenge the aforesaid orders, passed by the two Courts-below. 6. The counsel for the petitioner has pleaded that the learned trial Court has failed to 5 appreciate important aspects of the matter. According to him, a perusal of the complaint shows that no offence has been committed by the petitioner. He has further submitted that the complainant has failed to controvert the contents of the news published in the News Paper which was said to be against him. It has also been submitted that even in the statements recorded by the trial Court under sections 200 Cr.P.C., nothing has been disclosed by the complainant with regard to the basis of the Press Conference, which was got arranged by the petitioner. Consequently, it has been submitted that the allegations levelled against the petitioner are false and the learned trial Court as well as the revisional Court have failed to appreciate the matter in the perspective. 7. It has also been pleaded by the petitioner that both the Courts below have committed an error and acted without jurisdiction as the new items in the News Paper were published on 1.11.1996 as also on 6.11.1996 and the cognizance could have been 6 taken only within three years. He has further submitted that the learned trial Court, without any application or prayer made by the complainant, invoked Section 473 Cr.P.C. and took cognizance against both the accused persons for the offences under section 500 read with Section 34 IPC. It has also been submitted that neither from the complaint nor from the statements recorded by the trial Court any offence under Sections 500/34 IPC is made out. The necessary ingredients for defamation are defined under Section 499 IPC and neither the complainant nor his witnesses have prima-facie proved the facts that the complainant tried to defame the petitioner. According to the learned counsel for the petitioner neither the Publisher nor the Reporter of the News Paper were examined by the trial Court before taking the cognizance. Therefore, the order of cognizance is bad in law. He has also submitted that the respondent No.2 is a habitual offender and there are many cases pending against him. Learned counsel for the petitioner has emphasized on the fact that the complaint was against five persons but cognizance had been taken 7 only against the petitioner and the reporter. 8. Learned counsel for the respondent No.2 has supported the orders passed by the two Courts below. He has submitted that there is no infirmity whatsoever in the order of cognizance dated 5.5.2001 passed by the learned Magistrate and the same is very much in accordance with law. He has further submitted that the complaint in the instant case was filed on 5.2.1997 and soon thereafter, the learned Magistrate had decided to proceed with the complaint and recorded the statements of the witnesses under Sections 200 and 202 Cr.P.C., which was done by 30.7.1999. Therefore, he has submitted that the order of cognizance passed on 5.5.2001 was very much within the prescribed time. 9. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. I have also perused the complaint, the statements recorded by the trial Court under section 200 and 202 Cr.P.C. and also the two orders, which are under challenge before 8 this Court. The order of cognizance passed by the learned Magistrate is sustainable in law but for the reasons other than the one given by him in the order dated 5.5.2001. He has mentioned that by exercising the powers under Section 473 Cr.P.C. for granting extension of time, while passing the order of cognizance, which he deems just and proper in the facts and circumstances of the case. This Court is of the view, that the undisputed facts of the case are that the publication of the new item in the News Paper had taken place in the month of November, 1996, therefore the complaint was filed within limitation. Apart from it, the complaint was filed on 5.2.1997 and the trial Court had decided to proceed to inquire in the matter and ordered to record the statements of the complainant and his witness under sections 200 and 202 Cr.P.C. The said statements were recorded in the month of July,1999. Thereafter, the learned Magistrate had passed the order of taking cognizance against the accused petitioner and the process was issued to the accused persons under Section 204 Cr.P.C. In such view of the matter, the 9 order of taking cognizance was very much within the prescribed time and there was no need for granting extension of time, under Section 473 Cr.P.C. 10. It is a settled principle of law, since quite a long time, that the relevant date for computing the period of limitation in a criminal case is the date of filing of the complaint or initiating the criminal proceedings and not the date of taking cognizance or issuance of process by a Court. The Apex Court, as back as in the year 1978 in the Case of Surinder Mohan Vikal vs. Ascharaj Lal Chopra 1978 (2) SCC 403, which was also a case under Section 500 I.P.C. wherein the complaint was filed on 11.02.1976 and the alleged defamation was committed by the accused on 15.3.1972, held that the complaint was time barred and observed as under:- “But as has been stated, the complaint under section 500 IPC was filed on February 11, 1977, much after the expiry of that period, it was therefore not permissible for the Court of the Magistrate to take cognizance of the offence after the expiry of the period of limitation.” 11. Another decision on the point involved 10 here in is that of Kamal H.Javeri and another Vs. Chandulal Gulabchand Kothari and Another 1985 CR.L.J. 1215, while examining the case of the offence under Section 500 IPC in which the process was issued by the Magistrate after the prescribed period of limitation, it was held as under:- “ The Limitation Act prescribes the limitation for taking action in the Court of law and if the action is taken after the expiry of the period prescribed under the Limitation Act, the remedy is said to be barred. The same principle would also apply while considering the question of limitation provided under S. 468 of the Cr.P.C. I may give an illustration to demonstrate how the submission of Shri Vashi in connection with the interpretation of S. 468, will lead to illogical situation and disastrous result. It is also well settled that a party can take action on the last date of the limitation prescribed under the Act. (1) Suppose a complaint is filed on the last day of limitation prescribed under the Act and if on that date the Magistrate is on leave and/or otherwise unable to hear the party and/or apply his mind to the complaint on that date then naturally his complaint will have to be held barred by limitation if arguments of Shri Vashi are to be accepted. (2). Suppose a complaint 11 is filed quite in advance before the expiry of the period of limitation and if the Magistrate in his discretion postpones the issue of process by directing an investigation under Section 202 Cr.P.C. and if that investigation is not completed within the prescribed period of limitation, naturally the Magistrate shall not be able to apply his mind and take cognizance and/or issue the process until report u/s 202 of the Code is received and in that event the complaint will have to be dismissed on the ground that the Court cannot take cognizance of an offence after the expiry of the period of limitation from the date of offence. There could be several such situations. The complaint although filed within limitation but the Magistrate due to some or other reasons beyond his control could not apply his mind and take cognizance of the complaint and/or could not issue the process within the prescribed period of limitation as provided under Section 468 of the Code, then the complaint will have to be dismissed in limine. So also if the Magistrate takes cognizance after the period prescribed under Section 468 of the Code the said order of taking cognizance would render illegal and without jurisdiction.In such contingencies can the complainant be blamed who has approached the Court quite within limitation prescribed under the Act but no cognizance could be taken for the valid and good reasons on the part of the Magistrate and should the complainant suffer for no fault 12 on his part. This could be the object of the framers of the provisions of Section 468.” 12. Later on the Apex Court in the Case of Rashmi Kumar (Smt.) Vs. Mahesh Kumar Bhada (1997) 2SCC 397, while considering a case in respect of 'Stridhan' on a complaint for offence under Section 406 IPC, had held that the complaint was admittedly within the period of limitation from the date of demand and refusal of 'Stridhan' by the husband. The Hon'ble Court had observed as under:- “The complaint was admittedly filed on 10.9.1990 meaning within three years from the date of the demand and refusal by the respondent.” 13. Subsequently, in the Case of Bharat Damodar Kale Vs. State of A.P. (2003) 8 SCC 559, the Supreme Court after considering the Scheme of the Code and also Section 468 Cr.P.C. had held that the crucial date for computing the period of limitation is the date of filing of complaint and not the date when the Magistrate takes cognizance of an offence. In that case, a complaint was filed 13 by the Drug Inspector on 3.3.2000 in respect of the offence detected on 5.3.1999. The period of limitation in the offence alleged in that case was one year. The Magistrate took cognizance on 25.3.2000. Therefore, from the date of complaint, the case was within time, but if the date of cognizance by a Magistrate was to be considered then it was barred by time. The Hon'ble Supreme Court, considering the relevant provisions of the Code and also considering the material dates, decided that the crucial date was the filing of the complaint and not the date taking cognizance by the Magistrate and in doing so, it has held as under:- “On facts of this case and based on the arguments advanced before us, we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to delay in instituting the prosecution or to delay in taking cognizance. As noted above according to learned counsel for the appellants the limitation prescribed under the above Chapter applies to taking of cognizance by the concerned court therefore, even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This 14 argument seems to be inspired by the Chapter -Heading of Chapter XXXVI of the Code which reads thus:” Limitation for taking cognizance of certain offences”. It is primarily based on the above language of the Heading of the Chapter the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking cognizance and not filing of complaint initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or limitation of the prosecution and not for taking cognizance. It of-course, prohibits the Court from taking cognizance of an offence where the complaint is filed before the Court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation time taken during which the case was being diligently prosecuted in another court or in appeal oar in revision against the offender should be executed. The said Section also provides in the Explanation that in computing the time required for obtaining the consent oar sanction of the 15 Government or any other authority should be excluded. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion, clearly indicates a that the limitation prescribed is not for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructous by an act of Court. The legal phrase “actus curiac neminem gravabit” which means an act of the Court shall prejudice no man or by a delay on the part of the Court neither party should suffer, also support the view that the legislature could not have intended to put a period of limitation on the act of the Code of taking cognizance of an offence so as to defeat the case of the complainant. “ 14. Lately, the Apex Court has again re- 16 iterated the principle of law while deciding the case of Japani Sahoo Vs. Chandra Shekhar Mohanti 2007 Cr.L.J. 4068, by observing as under:- “ So far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings. Because of several reasons, (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the Court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalized for such delay on the part of the court nor he can be non suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such case, the doctrine “actus curiae neminem gravavit” ) an act of court shall prejudice none would indeed apply. ( Vide Alexander Rodger Vs. Comptoir DESCOMPTE ,(1871) 3 LRPC 465). One of the first and highest duties of 17 all courts is to take care that an act of Court does no harm to suitors. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and unequitable if he is told that his grievance would not be ventilated as the Court has not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law. “ 15. The matter can be looked into and considered from another angle. The cognizance in this case was taken by the Magistrate as soon as he found that the complaint discloses the commission of an offence and he proceeded to make an inquiry under Section 200 of the Cr.P.C. Section 190 Cr.P.C. provides for taking cognizance of offence, which reads as under:-` “S.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- 18 (a) upon receiving a complaint of facts which constituted the 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.” 16. In view of the aforesaid provisions, a cognizance is taken by the Magistrate of the offence disclosed in the complaint or police report or the information received from another person or the knowledge of the Magistrate himself. The question as to when cognizance had taken place was subject matter in various decisions of the Supreme Court. In the present case, also it is to be seen, as to when it can be said that the Magistrate took cognizance of the offence. 17. As back as in the year 1951 the Supreme Court had considered this question in the Case of R.R. Chari Vs. The State of Uttar Pradesh (AIR 1951 19 SC 207). After taking into consideration the facts and circumstances of that case, the Supreme Court while considering the provisions of Section 190 Cr.P.C. approved the observations of Calcutta High Court in the Case of Supdt. & Remembrancer of Legal Affairs,W.B. V. Abani Kumar AIR (37) 1950 Cal. 437 and held as follows:- “What is taking cognizance has not been defined in the Cri. P.C. & I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. Has taken cognizance of any offence u/S. 190 (1) (a), Cr. P.C. he must not only have applied his mind to the contents of the petn. But he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this chap., proceeding under Section 200 & thereafter sending it for inquiry & report under Section 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap. but for taking action of some other kind e.g. Ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.” 18. In the case of, Naraindas, Bhagwandas, 20 Madhavdas versus The State of West Bengal, (AIR) 1959 SC 1110,it was held as under:- “As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate, applies his mind for the purpose of proceeding under S.200 and subsequent section of Ch. XVI of the Code of Criminal Procedure or under S. 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.” 19. Subsequently, in the case of, Ajit Kumar Palit versus State of West Bengal(AIR) 1963 SC 765, it was observed as under:- “The word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially.” “taking cognizance does not involve any formal action; or indeed action of any kind, but 21 occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken,