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1989 DIGILAW 163 (MAD)

R. Shantilal v. A. Parasmal Jain

1989-03-02

ARUNACHALAM

body1989
Judgment The petitioners are accused C.C.No.502 of 1988 on the file of the S.D.J.M., Ponnamallee. On a private complaint preferred by the respondent, the trial Court had taken the case on file against: the petitioners and one B.N.Chinnappan, arrayed as A2 in the complaint, an erstwhile Inspector of Police, Crimes, Pallavaram, for offences under Secs.211, 412 and 500 read with Sec.34, I.P.C. B.N. Chinnappan, the second accused in the case, is not a party before me. 2. The facts which led to the filing of this private complaint can now be stated. On a complaint from the first petitioner R.Shantilal Jain, against the respondent and others alleging offences under Secs.406 and 342, I.P.C. on 18.1.1983, the second accused B.N.Chinnappan registered it as Crime No.45 of 1983 and took up investigation. The allegations in the complaint preferred by Shantilal were that on 15.12.1982 he had entrusted to the respondent, jewels worth Rs.7 lakhs and Cash Rs.15, 000 kept in a box. In between the date of complaint and 15.12.1982, it is the case of the first petitioner Shanthilal that he had been redeeming jewels by taking out of the box in the custody of the respondent However, on 18.1.1983, it is stated in the F.I.R. that the respondent claimed that the box with its contents was missing and when the first petitioner expressed his intention to prefer a police complaint, he was locked inside a room by the first respondent and three others, who threatened him as well. 3. On the complaint of the first petitioner, the respondent and three others were arrested by the second accused and were later enlarged on bail. No property was recovered during investigation and ultimately three years later, on 30.6.1986, the Investigating Agency filed a report under Sec.173, Crl.P.C. before the S.D.J.M. Poonamallee, stating that the offence in Crime No.45 of 1983 was not detected. The Magistrate accepted the report aforementioned. 4. The respondent has now filed a private complaint on the ground that during investigation, A2 Chinnappan, in the presence of the first petitioner (A1), took the respondent and conducted house search on the false pretext of recovery of property. The Magistrate accepted the report aforementioned. 4. The respondent has now filed a private complaint on the ground that during investigation, A2 Chinnappan, in the presence of the first petitioner (A1), took the respondent and conducted house search on the false pretext of recovery of property. This act is said constitute defamation punishable under Sec.500, I.P.C., on the ground that a false charge of an offence with intent to injure was made by the first petitioner, by preferring the complaint in Crime No.45 of 1983, the allegation is that an offence under Sec.211, I.P.C. has been committed. The detaining of the respondent and others during the investigation of the crime by B.N.Chinnappan (A2), when the petitioners were also present at the police station, is stated to constitute an offence punishable under Sec.342, I.P.C. 5. Mr.K.Rangavajjula, learned counsel for the petitioners, seeks to have the proceedings in the trial Court quasfied, on the following grounds: (i) The respondent cannot file a complaint for an offence under Sec.211, I.P.C., since Sec.195, Crl.P.C. bars cognizance when such an offence is alleged to have been committed in or in relation to any proceeding in any Court, except on the complaint in writing by that Court or of some other Court to which that Court is subordinate. (ii) The averments in the complaint do not discloseany fact or refer to any act of the petitioners constituting defamation or wrongful confinement. (iii) The complaint is barred by limitation and the trial Magistrate could not have taken cognizance due to the bar contained in Sec.468, Crl.P.C. 6. Mr.N.Natarajan, learned Senior Counsel appearing for the respondent, has conceded that the complaint of the respondent for an offence under Sec.211, I .P.C., will not be maintainable in view of the bar contained under Sec.195, Crl.P.C. However, he would contend that the imputation made by the first petitioner in Crime No.45 of 1983, of the commission of offences, coupled with the fact that a house search was made by A2 in the presence of A1, would be sufficient prima facie for this prosecution to be maintained for the purpose of letting in evidence. As far as the offence under Sec.342, I.P.C. is concerned, he would submit that, on facts, the confinement was there in the police station and the trial Court may have to decide on the evidence to be adduced about the feasiblity of a conviction. As far as the offence under Sec.342, I.P.C. is concerned, he would submit that, on facts, the confinement was there in the police station and the trial Court may have to decide on the evidence to be adduced about the feasiblity of a conviction. On the question of limitation, he would contend that the limitation will have to be calculated from the date of the report submitted by the Investigating Agency on 30.6.1986 and if that were to be so, this prosecution will be saved. 7. Let me consider the rival contentions put forth by either counsel. In view of the authoritative enunciation of law by the Supreme Court, there cannot be any dispute that this prosecution for an offence under Sec.211, I.P.C., will not be maintainable. It is admitted that the respondent and others were produced before the trial Court, which had passed orders enlarging them on bail and further accepted the final report made by the Investigating Agency. It is, therefore, apparent that the complaint against the petitioners in respect of an offence, said to have been committed in relation to a proceeding in Court. In taking cognizance of this offence, the trial Magistrate has acted in contravention of the bar contained in Sec.195 (1)(b), Crl.P.C. since there was no complaint in writing either of the Magistrate or his superior. All orders passed by the Magistrate acting judicially, such as orders of bail and those passed under Sec.l73(3), Crl.P.C. discharging of the accused or taking cognizance of the offence complained of, are parts of an integral whole and they cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. Thus, the complaint for offence under Sec.211, I.P.C. has to be necessarily quashed, as without jurisdiction. 8. Before considering the submission of the learned counsel for the petitioner, it is better to dispose of the third submission regarding limitation bar. The complaint Was preferred by the first petitioner to the Inspector of Police, Pallavaram, against the respondent and others on 18.1.1983. The respondent and others were arrested in pursuance thereof on 18.1.1983 and were in police custody till 221.1983 when they were enlarged on bail on the orders of the trial Magistrate. It is during this period of police custody that the house search is said to have been made. The respondent and others were arrested in pursuance thereof on 18.1.1983 and were in police custody till 221.1983 when they were enlarged on bail on the orders of the trial Magistrate. It is during this period of police custody that the house search is said to have been made. This private complaint has been preferred by the respondent before the trial Court on 13.11.1986. The offence under Sec.342, I.P.C. is punishable with imprisonment which may extend to one year or with fine which may extend to Rs.1, 000 or with both. The offence under Sec.500, I.P.C., is punishable with simple imprisonment for a term which may extend to two years or with fine or with both. Sec.468(2)(c), Crl.P.C, prescribes the period of limitation to take cognizance of these offences as three years. The provision in Sec.469, Crl.P.C., dealing with the commencement of the period of limitation states that the period shall commence from the date of the commission of the offence. Sub-clauses (b) and (c) of Sec.469(1), Crl.P.C. may not be applicable to the facts of this case. It is, therefore obvious that the period of limitation must commence on the date of the commission of the offence, which on the facts must be deemed to have been committed between 18.1.1983 and 22.1.1983. To avoid limitation bar, the complaint must have been preferred before 22.1.1986. Obviously, the complaint on 13.11.1986 is hopelessly time-barred. However, the submission of the learned counsel for the respondent, about the commencement of the period of limitation from 30.6.1986 on the facts unfurled may still have to be determined. Once it is concluded that the offence had been committed between 18.1.1986 and 22.1.1983, there appears to be no need to wait for the final report of the Investigating Agency on 30.6.1986 to institute this prosecution. Sec.468, Crl.P.C, not only raises the bar of limitation but also prescribes the period thereof. The question when the period of limitation, would be said to commence lies within the purview of Sec.469, Crl.P.C. which specifically provides that the period of limitation prescribed in Sec.468, Crl.P.C. in relation to an offence, shall commence inter alia on the date of the offence. The exclusion of the period of limitation contemplated under Sec.470, Crl.P.C. does not get attracted on the facts of this case. The exclusion of the period of limitation contemplated under Sec.470, Crl.P.C. does not get attracted on the facts of this case. The claim of the benefit under Sec.473, Crl.P.C, cannot be availed of by the respondent, since no such step had been taken in that direction and in any event, the provisions of Sec.473, Crl.P.C. must have been applied, if at all, before taking cognizance of the offence. The argument that the cause of action for proceeding for defamation would not arise before the final report was filed by the police, cannot really arise, since the controversy relates to the commission of an offence and it shall commence on the date of the offence, which was the starting point for the purpose of calculating the three years period of limitation. There appears to be no substance in this submission. 9. The other ground relates to the averments in the complaint not disclosing the offences alleged. It appears to my mind that this argument will also have to be upheld. As far as petitioners 2 to 8 are concerned, except that they were found sitting in the room of the Inspector of Police, Pallavaram, on 18.1.1983, when the respondent and others were arrested and brought to the police station, gave instructions to A2 Chinnappan and further colluded with the first petitioner in initiating a false complaint sharing the common intention, nothing further alleged. These allegations do not appear to make the petitioners guilty of any offence, if the ingredients of the offences alleged are carefully scanned through. Even in respect of the first petitioner, I am not satisfied that the complaint discloses any fact or any act which would make this petitioner liable for the offences under Secs.342 and 500, I.P.C. An in depth discussion on this aspect will be redundant in view of my finding that prosecution is barred by limitation. 10. For the reasons mentioned above, the further continuation of the proceedings will neither have the sanction of law, nor will it be expedient in the interests of justice. Accordingly, the petition is allowed and the proceedings in C.C. No.502 of 1988 on the file of the S.D.J.M. Ponnamallee, are quashed.