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2003 DIGILAW 43 (MAD)

Selvaraj v. D. Prathap

2003-01-13

A.PACKIARAJ

body2003
Judgment :- The petitioner has filed the above revision against the orders passed by the learned Judicial Magistrate, Manamadurai in Criminal M.P. No. 3031 of 2001 in C.C. NO.630/2000 dismissing the petition filed by the petitioner herein in dropping proceedings against him. 2. The facts of the prosecution case is that the petitioner had given a complaint on 21.3.1993 to the Sub Inspector of Police, Manamadurai Police Station against the respondent and other persons for having committed offences under Sections 147, 148, 427, 447, 452 read with 149 IPC (the details of which may not be necessary for the purpose of disposing of this petition). The said report was registered as Crime No.136 of 1993 by the Sub Inspector of Police, Manamadurai Police Station. After investigation, charge sheet was laid against the accused viz., the respondent herein in C.C. No.1008/1997 before the Judicial Magistrate-I, Sivagangai. The matter was taken on file. The petitioner herein was examined as PW.1 and he turned hostile. The other witnesses were not examined and the learned Magistrate pronounced an order of acquittal on 17.7.1998. After the acquittal, the respondent herein filed a private complaint before the Additional District Munsif Cum Judicial Magistrate, Manamadurai in C.C. No.630/2000 against the petitioner and others for offences under Sections 499 and 500 IPC. The said complaint was taken on file on 31.3.2000. 3. The petitioner filed a petition to drop proceedings holding that the prosecution has not made a prima facie case though the allegation in the complaint constituted an offence. The learned Judicial Magistrate on going through the petition found that there were no materials available as against the other accused but in respect of this petitioner alone, the petition had been taken on file stating that there are materials and held that since cognizance had already been taken, he would not drop the proceedings. It is as against the said order, the present petition has been filed. 4. The learned counsel for the petitioner has reiterated his argument insofar as the contention that there are prima facie case against him and would further urge before this Court that the cause of action for the said case of defamation has arisen on 21.3.1993 itself. It is as against the said order, the present petition has been filed. 4. The learned counsel for the petitioner has reiterated his argument insofar as the contention that there are prima facie case against him and would further urge before this Court that the cause of action for the said case of defamation has arisen on 21.3.1993 itself. When the respondent knew that false complaint has been filed against him and consequently, the period of limitation prescribed for offences under Section 500 is only three years and at any rate, the respondent ought to have filed a complaint within March, 1996 and if any complaint filed subsequently, is barred by limitation. He would further reiterate stating that it is not because of the acquittal that the respondent comes to know that he is innocent but to his knowledge if it has been known that a false complaint has been filed he would have pursued the matter forthwith. In support of his argument, he relied on a decision of the Supreme Court viz. S.M.Vikal v. A.L. Chopra reported in AIR 1978 SC 986 where the facts are more or less identical. Their Lordships of the Supreme Court have held as follows: "A complaint under Section 500, Penal Code for defamation will be barred if filed three years after the commission of the offence. There in a complaint under Section 500 was contained in a complaint under Sections 406/420 Penal Code against the complainant, plaint under S. 500, Penal Code would commence from the date of the complaint under S.406/420 Penal Code and not from the date the complainant was finally acquitted of offences under Ss. 406/420 Penal Code. Sub-s. (1) of S. 469 of Cr.P.C. Specifically provides that the period of limitation prescribed in S. 468 of Cr. P.C. Specifically provides that the period of limitation prescribed in S. 468, in relation to an offender, shall commence (inter alia) on the date of the offence and the question of cause of action would not arise in such case as the controversy relates to the commission of an offence. The exclusion of time for computing the period of limitation could not also be claimed under S. 470(1) as it could not be said the complainant was prosecuting another prosecution". 5. The exclusion of time for computing the period of limitation could not also be claimed under S. 470(1) as it could not be said the complainant was prosecuting another prosecution". 5. On the contrary, the learned counsel for the respondent would argue that this point was not taken in the lower Court and hence, the petitioner should not be permitted to raise again. 6. I am of the view that this contention cannot be upheld since then the point of law goes to the root of the case and therefore, this can be taken as a preliminary issue at any time. Even assuming that the dropping proceedings in the Court below has not been filed by the petitioner, the petitioner is entitled to file an application before this Court under Section 482 IPC to set aside the Order on this score. This is being purely a question of law and when the illegality committed by the Court has been brought to the notice of this Court, it is the bounden duty of this Court to go into that aspect and set things right. 7. Accordingly, I see that the contention put forwarded by the petitioner is well founded and following the decision of the Supreme Court, I am bound to set aside the orders passed by the learned Judicial Magistrate taking cognizance of the said findings. 8. In result, the proceedings against the petitioner in C.C. No.630 of 2000 before the Additional District Munsif cum Judicial Magistrate, Manamadurai is dropped. This revision is allowed. Consequently, Cri. M.P. No.5861 of 2001 is closed.