Research › Search › Judgment

Karnataka High Court · body

2009 DIGILAW 508 (KAR)

Gangadhar Kustagi v. S. K. Kantha

2009-07-14

V.JAGANNATHAN

body2009
Judgment :- Jagannathan, J. A private complaint is filed under Section 200 of the Cr.P.C. on 13.10.97 alleging offences under Sections 500 and 501 of IPC which offences are not punishable with not more than two years of imprisonment. But the cognizance is taken by the Learned Magistrate after nine years and on 18.01.2006 summons is ordered to be issued against the accused persons. Aggrieved by the said order A-2 has come up in this revision under Section 482 of the Cr.P.C. 2. The complaint allegations centre around a publication in Lankesh Patrike dated 21.6.95 alleging that the report published amounted to making malicious allegations against the complainant and therefore, offence under Section 500 and 501 of the IPC are attracted, the complainant presented the complaint before the Trial Court for taking cognizance and to issue the process against the accused persons. The Trial Court by its order dated 18.1.2006 held that a case is made out for taking cognizance against the accused persons No.1 to 3 and ordered issuance of summons accordingly. The Court also observed that the complaint is presented within time. 3. Learned Counsel Sri Sanjay Patil for the petitioner (A-2) submitted at the outset that, in respect of a complaint said to have been filed in the year 1997, Trial Court issued summons to this petitioner and two others only after nine long years in the year 2006 and apart from that a perusal of the order sheet of the Trial Court would also indicate that even the statement of the complainant was not recorded in full, but on the other hand, recording of the sworn statement of the complainant was spread over a period of nine long years and on most of the dates of hearing the complainant was absent. The Court instead of dismissing the complaint went on adjourning the case from year to year, and only on 18.1.06 that too when the sworn statement of the complainant was not even fully recorded, the Court ordered issuance of summons to the accused persons. As such, the entire proceedings of the Trial Court is nothing but an abuse of the process of law and the petitioner cannot be put to mental agony and continuous threat of prosecution even after nine years of filing of the complaint. As such, the entire proceedings of the Trial Court is nothing but an abuse of the process of law and the petitioner cannot be put to mental agony and continuous threat of prosecution even after nine years of filing of the complaint. The very purpose of prescribing the period of limitation under Section 468 of the Cr.P.C. is to prevent such incidents and therefore, this Court by exercising its power under Section 482 of Cr.P.C has to quash the entire proceedings on the ground that the proceedings being abuse of process of law. 4. On the other hand, Learned Counsel Sri R.K. Hiremath for the respondent-complainant supported the order of the Trail Court and argued that the cognizance was taken by the Trial Judge within the period of limitation, as it is clear from the proceedings that the alleged incident is said to have been taken place on 21.6.1995 and complaint was presented on 13.10.97 and therefore, the question of the cognizance being taken beyond the period of limitation does not arise. As far the procedure followed by the Trial court is concerned, Learned Counsel argued that statement of the complainant was recorded and the delay was not on account of the Court, but because the complainant was absent. As such, the impugned order is not liable to be interfered with. 5. Having thus heard both sides, I am of the view that this is a case which clearly reveals the non-application of mind on the part of the Learned Trial Judge and the entire proceedings is nothing but abuse of process of law and this is clear from the following facts in regard to which there is no controversy between the parties. 6. The complaint was lodged on 13.10.97 in respect of alleged publication taken out on 21.6.95. A perusal of the order sheet of the Trial Court right from the date of presentation of complaint i.e., on 13.10.97 till last date of taking cognizance i.e., 18.1.06, goes to show that the complainant was absent on most of the hearing dates during the course of a long period of nine years. The Trial Judge neither dismissed the complaint nor made any effort to record the statement of the complainant at the earlier. The Trial Judge neither dismissed the complaint nor made any effort to record the statement of the complainant at the earlier. But unfortunately, the matter went on being adjourned only for the sworn statement of the complainant for a long period of nine years and even after such a long period of time the sworn statement of the complainant was not recorded in full. The complainant’s statement was recorded only in part and even this was spread over a long period of time. In other words the recording of the sworn statement of the complainant was very sketchy and the sworn statement was not recorded immediately after presentation of the complaint. 7. A plain reading of Section 200 of Cr.P.C. will make it clear that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. The very mention of the witnesses also along with the complaint itself shows the need for recording of the sworn statement of the complainant and other witnesses at the earliest without loss of further time. Therefore, it is imperative the part of the Magistrate recording sworn statement of the complainant and witnesses to ensure that no delay occurs in recording the sworn statement of the complainant. The long delay of nine years and not even completing the recording of sworn statement of the complainant even after such a long lapse of time has its effect on the person who is deemed as accused in the complaint. 8. There is a great object behind prescribing the period of limitation under Section 468 of Cr.P.C. Merely because a complaint is presented within two years of alleged incident or the offence taking place, that itself is not a ground to prolong the recording of the sworn statement of the complainant for an indefinite period and if such a course of action is allowed to be permitted, it will have serious impact not only on the persons who are accused, but the said delay will also have other adverse effect. 9. 9. The grounds for prescribing a period of limitation have been stated by the Learned Author Sarkar in his Code of Criminal Procedure (9th edition 2007) at page 899, and following are the grounds mentioned by the Learned author as regards necessity for prescribing period of limitation; “Examination should be on one day instead of a sketchy examination first and a fuller examination on a later date (Makhan, 37 CWN 319). It should be on oath or affirmation (S.6, Oaths Act). Examination of the witnesses present at the time of examining the complainant has also been made obligatory possibly to test the veracity of the complainant as also to fix to one version at the first opportunity.” 10. Having regard to the aforementioned grounds, in the instant case, the defects noticed are of such in nature that the entire proceedings will have to be termless nothing but an abuse of process of law. The sworn statement of the complainant was never recorded in full at the earliest opportunity, but the Trial Judge went on recording his sworn statement in piece meal over a long period of nine years and even after such a long period the sworn statement of the complainant was not fully recorded. Secondly, as more than nine years have passed since the time of the alleged offences committed by the accused persons, it is very difficult to expect the witnesses to remember the facts and as has been observed by the Learned Author Sarkar above, due to the lapse of time there is likelihood of lapse of memory in recalling the incident. 11. 11. Thirdly, the accused persons should not be kept under continuous threat of prosecution at any time and therefore, taking all these factors into account, in the instant case, the entire procedure followed by the Learned Trial Judge will have to be termless, nothing but an abuse of process of the Court and a complainant who goes before the Trial Court by filing a private complaint under Section 200 of Cr.P.C. cannot be permitted to give his sworn statement in piece meal spread over a period of nine long years and as already referred to by me, a plain reading of Section 200 of Cr.P.C. does not permit recording of sworn statement of the complainant in a sketchy manner and spread over a period of nine long years and during said long period even if the complainant is absent on most of the occasions, the Trial Court is not expected to adjourn the case year after year and wait for the complainant to come and complete his sworn statement after nine long years of filing of the complaint. 12. The Trial Court should ensure that criminal cases are not allowed to be continued for indefinite period, but on the other hand, every effort should be made by the Trial Court to ensure that in private complaint cases, the complainant and his witness if any are examined soon after the filing of the complaint or at the earliest. 13. For the aforementioned reasons the impugned order of the Trial Court in issuing summons to the petitioner cannot be sustained in law, as the said procedure followed by the Trial Court is nothing but an abuse of the process of the Court. As such, the petition is allowed and impugned order is set aside in so far as this petitioner is concerned.