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2010 DIGILAW 462 (GUJ)

Mukesh Thakorlal Desai v. Kalyan Banerjee

2010-09-28

AKIL KURESHI

body2010
JUDGMENT (1) Petitioner is original accused No.1. He seeks quashing of the complaint Annexure-A, namely, Criminal Case No.7136 of 2008 filed by respondent No.1 on 29.03.2008 pending with the court of learned Judicial Magistrate First Class, Vapi. Petition was argued only on the ground that the complaint was lodged after period of limitation prescribed under the law. Learned Magistrate took cognizance on such complaint and issued process to the accused without considering the question of limitation. (2) On 02.12.2004, an article titled as Vapi Rotary Clubni Antarik Yadavasthadi Ugra Banavana Iydhan : Sthapit Tatvoma Ghabrahat was published in Sandesh newspaper, Surat. Petitioner is author of this article. On the premise that the article contained defamatory statements, the said complaint has been lodged. 3.1 Previously, on these very facts, the complainant had approached the learned Magistrate Bandra at Bombay by filing the complaint on 08.08.2005. Petitioner, thereupon, approached the Bombay High Court by filing Criminal Writ Petition No.2500 of 2006 contending inter alia that the cause of action has arisen entirely within the territorial jurisdiction of Vapi Court and therefore, complaint filed before the learned Magistrate at Bandra was not maintainable. Bombay High Court in order dated 16.08.2007 held as follows: Having regards to this documentary evidence, the learned counsel for the respondent No. 1 states that the complaint filed before the Metropolitan Magistrate will be withdrawn and a fresh complaint before the Court at Vapi will be filed. Hence, the process issued by the learned Metropolitan Magistrate in Criminal Case No.2133/SS/2005 is hereby quashed and set aside with liberty to the respondent No. 1 to institute a fresh complaint before the Court at Vapi. It is also made clear that the complaint that the respondent No.1 may file at Vapi will have to be considered on its own merits. Petition is disposed off accordingly. Thereupon, the petitioner filed fresh complaint before the Court at Vapi on 29.03.2008. 3.2 In the complaint with respect to limitation, following averments have been made. 20. Jurisdiction clause: It is pertinent to note here that the complainant filed the complaint before Addl. Chief Metropolitan Magistrate, 9th Court at Bandra, Mumbai on 8th August, 2005 which was numbered as C.C.No.445/Misc of 2005. The Hon'ble Magistrate ordered and adjourned the matter for consideration and argument to 31st August, 2005. On 31st August, 2005 on satisfaction of the compliance of the procedure etc. Chief Metropolitan Magistrate, 9th Court at Bandra, Mumbai on 8th August, 2005 which was numbered as C.C.No.445/Misc of 2005. The Hon'ble Magistrate ordered and adjourned the matter for consideration and argument to 31st August, 2005. On 31st August, 2005 on satisfaction of the compliance of the procedure etc. the Hon'ble Court recorded the verification statement of the complainant Mr.Kalyan Banerjee and issued the process against both the accused, (hereto annexed and marked as Mark-'N' is the copy of the complaint, which also contains the noting and order passed by the Hon'ble Magistrate) Accused No. 1 appeared in response to the summons and challenged the order of Hon'ble Magistrate before the Sessions Court, Mumbai and prayed for quashing the summons issued against him. After detailed arguments and records before it the Hon'ble Sessions Court, Mumbai refused the prayer of Accused i.e. Mr.Mukesh Desai. Accused No.1/Mr.Mukesh Desai then approached the Hon'ble High Court. Mumbai vide his criminal writ petition bearing No.2500 of 2006. On hearing Shri B.H.Marlapalle J. of the Hon'ble High Court, Bombay directed the complainant to file the complaint in Vapi Court vide his order dated 16th August, 2007. (hereto annexed and marked as Mark 'O' is the copy of the order dated 16.08.2007). As such, the complainant is filing this complaint before this Hon'ble Court. It is submitted that the author of the defamatory article is resident of Vapi. The defamatory article contained in the newspaper was widely circulated within the jurisdiction of this Hon'ble Court and was read here as such the offence is committed at the said place. The complainant faced huge consequences due to the defamatory article written, printed and published by the accused. The factory of the complainant of which he is a Director is situated within the jurisdiction of this Hon'ble Court, wherein the people working formed a opinion against the complainant and his family, which lowered the reputation and character. Therefore, this Hon'ble Court is competent to entertain and try this complaint independently. 21. Accused have committed an offence of defamation first on 2nd December 2004, the date on which the defamatory article was published. Complainant is facing continuous problems due to the said article. This complaint is filed within the limitation period as required by law and not void by the act of limitation. 21. Accused have committed an offence of defamation first on 2nd December 2004, the date on which the defamatory article was published. Complainant is facing continuous problems due to the said article. This complaint is filed within the limitation period as required by law and not void by the act of limitation. The cause of action arose first on 2nd December 2004 when the article was written, edited, printed and published by the Accused in collusion and connivance with each other and thereafter directed by the Hon'ble High Court Dated 16.08.2007, to file the complaint at Vapi. 3.3 Learned Magistrate examined the complainant on oath on 29.03.2008 and passed order dated 25.07.2008 which reads as follows: Read the complaint, verification and documents produced. Considering the facts on record, since offence punishable under Sections 500, 501 and 502 read with Section 34 of IPC are disclosed, after taking cognizance, issue process. Upon complainants paying process fee, process be issued to the accused. Adjourned to 30th August 2008. (3) Counsel for the petitioner submitted that the complaint lodged before the learned Magistrate at Vapi was clearly beyond the period of limitation. He pointed out that the maximum punishment prescribed under the Penal Code for offences mentioned in the complaint is imprisonment for two years. The complaint lodged nearly three and half years after the alleged incident was, thus, clearly barred by the limitation prescribed under the Code of Criminal Procedure (for short Cr.P.C.). 4.1 He further contended that before excluding the period during which the complainant was prosecuting the complaint before the learned Magistrate, Bandra, the petitioner must be heard. Relying on Sections 468 and 470 of the Cr.P.C. he contended that the Magistrate was debarred from taking cognizance of any complaint which was filed beyond the period of limitation. He also relied on the provision of sub-section (1) of Section 470 of the Cr.P.C. to contend that before excluding any period under sub-section (1) of Section 470, application of judicial mind would be necessary. 4.2 He also referred to Section 473 of Cr.P.C. which pertains to the circumstances in which extension of period of limitation can be granted by the Court. Reliance was placed on the decision of the learned single Judge of Bombay High Court in the case of R.C.Trivedi and another v. A. H. Paranjape and another reported at 1982 Cri LJ 869 in support of his contention. Reliance was placed on the decision of the learned single Judge of Bombay High Court in the case of R.C.Trivedi and another v. A. H. Paranjape and another reported at 1982 Cri LJ 869 in support of his contention. (4) On the other hand, learned counsel for the complainant opposed the petition contending that the complainant was bona fide pursuing the complaint before the Bandra Court. Section 470 of Cr.P.C. would therefore exclude such period from computation of limitation. He contended that in any case, the learned Magistrate has merely issued process and all the issues are yet to be adjudicated. I have also heard learned APP for the State. (5) HAVING, thus, heard learned counsel for the parties, following aspects of the matter emerge from record. 7.1 An article came to be published on 2nd December 2004 containing alleged defamatory materials. Respondent No.1 firstly filed a complaint before the learned Magistrate at Bandra (Bombay) on 08.08.2005. Petitioner thereupon approached the Bombay High Court praying for quashing of the said complaint on the ground of lack of territorial jurisdiction. Such request was accepted by the Bombay High Court and the complaint was quashed by the order dated 16.08.2007. Thereupon, the complainant filed a fresh complaint before the learned Magistrate at Vapi on 29.03.2008. 7.2 In the said complaint filed before Vapi Court, the complainant disclosed that he had previously filed a complaint before another Court and he was, thereafter, directed by the Bombay High Court on 16.08.2007 to file complaint at Vapi. In detail in paras-20 and 21 of the complaint, the complainant had narrated as to how he had previously approached the Learned Magistrate at Bandra and thereupon the Bombay High Court passed order on 16.08.2007. 7.3 Complainant was examined on oath by the learned Magistrate on 25.07.2008. In his statement also, he stated that complaint was previously filed before the learned Magistrate at Bandra, in which cognizance was taken and the summons were issued but thereafter the petitioner had approached the Bombay High Court in which it was ordered on 16.08.2007 that the complaint is not maintainable since the complainant is residing at Vapi and that such complaint should be filed at Vapi. 7.4 On perusal of the complaint, accompanying documents and verification of the complainant, learned Magistrate decided to issue process by order dated 25.07.2008. 7.4 On perusal of the complaint, accompanying documents and verification of the complainant, learned Magistrate decided to issue process by order dated 25.07.2008. (6) It is, thus, clear that the learned Magistrate was alive to the question of limitation prescribed under the law and the prima facie explanation of the petitioner to such question. His explanation was that he was bona fide prosecuting prosecution before the another Court and such period, therefore, should be excluded from computation of period of limitation. In that view of the matter, I do not see any,illegality in the order of the learned Magistrate in issuing process against the accused. (7) Contention of the Counsel for the petitioner, however, as noted earlier, was that such exclusion of time cannot be without judicial order and without hearing the accused. 10.1 Section 468 of Cr.P.C. bars the Magistrate from taking cognizance of offence after lapse of period of limitation which reads as under : 468. Bar to taking cognizance after lapse of the period of limitation :- (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be,- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Section 469 pertains to commencement of the period of limitation reads as under: 469. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Section 469 pertains to commencement of the period of limitation reads as under: 469. Commencement of the period of limitation :- (1) The period of limitation, in relation to an offender, shall commence,- (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. Section 470 of Cr.P.C. pertains to exclusion of time in certain cases. Relevant portion thereof reads as under : (1) In computing the period of limitation the time during which any person has been prosecuting with due diligence another prosecution, whether in a court of first instance or in a Court of appeal or revision, against the offender, shall be excluded : Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (8) From the above, statutory provisions, it can be seen that Section 468 of Cr.P.C. debars any Court from taking cognizance of offence specified under sub-section (2) thereof after expiry of period of limitation. Section 470 of Cr.P.C. provides for exclusion of time in computing period of limitation in certain cases. In, comparison one may access, Section 473 pertains to extension of period of limitation in certain cases. Section 470 of Cr.P.C. provides for exclusion of time in computing period of limitation in certain cases. In, comparison one may access, Section 473 pertains to extension of period of limitation in certain cases. It is true that Section 468 provides that except otherwise provided in Criminal Procedure Code, no Court shall take cognizance of offence of the categories specified in subsection (2) after expiry of the period of limitation where such limitation is prescribed. Therefore, any Court while taking cognizance of the offence has to be satisfied that period of limitation has not expired. However, when the learned Magistrate on a private complaint taking cognizance and upon examination of the complainant of verification or upon such other inquiry as may be found necessary, decides to issue process to the accused, till that stage, the accused have no right to be heard. Under the circumstances, contention that the Magistrate must insist for an application for exclusion of certain period to bring the complaint within period of limitation in terms of sub-section (1) of Section 470 of Cr.P.C. and hear the accused before coming to final conclusion on such aspect, cannot be accepted. This, however, is not meant to suggest that when the learned Magistrate takes cognizance of offence and issues process to the accused on a private complaint, he should be deemed to have decided to exclude certain period for computing the period of limitation in terms of subsection (1) of section 470. In other words, the interpretation of combined reading of Sections 468 and 470 of Cr.P.C. would be that in case where the complainant seeks exclusion of certain period from computation of limitation under sub-section (1) of Section 470 of Cr.P.C., learned Magistrate before taking cognizance on such complaint and issuing process must, prima facie, be satisfied that the grounds mentioned in sub-section (1) of Section 470 are made out on the basis of averments made in the complaint, of the examination" of the complainant and other witnesses on bath: and the accompanying documents. This view of the learned Magistrate would neither be final nor binding on the accused and it would always be open for the accused at. the time of trial to contend before the learned Magistrate that such period should not be excluded from computing the limitation or that even after exclusion of such period, the complaint is still beyond the period of limitation prescribed. the time of trial to contend before the learned Magistrate that such period should not be excluded from computing the limitation or that even after exclusion of such period, the complaint is still beyond the period of limitation prescribed. It would always be open to the learned Magistrate to examine and to take into account such opposition of the accused like all other defences. (9) I may refer to Section 473 of Cr.P.C. only for the purpose of noting the difference between the said provision and the provision contained in sub-section (1) of Section 470. Section 470 pertains to exclusion of time in computing period of limitation in certain cases, whereas Section 473 pertains to extension of period of limitation in certain cases. The expression extension of limitation would indicate that the period of limitation has already expired. It is being extended by judicial order. Language used in Section 473 itself would indicate that the competent court can grant such extension of period of limitation on the grounds being made out by the complainant and upon application of judicial mind to such grounds urged by the complainant. We are not concerned with the question whether such extension can be prayed without filing a separate application for this purpose. In the present case, Court is not dealing with the question of extension of period of limitation but with the question of exclusion of time in computing the period of limitation. (10) Reverting back to the facts of the present case, the complainant in the complaint in detail set out the grounds and reasons for exclusion of period during which he was bona fide prosecuting the complaint before the Bandra Court. For the purpose of computing the period of limitation in the present case filed at Vapi, learned Magistrate had perused the complaint and as is apparent from the impugned order, had also recorded the statement of the complainant on oath, in which, such explanation for exclusion of period was given. I do not see any illegality committed by the learned Magistrate in issuing process, for the time being having been satisfied prima facie that the case for exclusion of period spent in prosecuting the complaint in the court of learned Magistrate, Bandra was made out and if such period is excluded, the complaint would be within the period of limitation prescribed under the law. Though it is not stated in so many words in the order of the learned Magistrate issuing process, but it certainly refers to the contents of the complaint and the statement of the complainant recorded by him which as already noted contained detail reference to the time spent by the complainant in prosecuting the complaint before the learned Magistrate at Bandra. (11) Counsel for the petitioner, however, submitted that the complainant was conscious that the complaint filed before the learned Magistrate, Bandra was not maintainable, therefore, the complaint cannot be said to be pursuing the remedy in good faith. It is clarified that above tentative view of the learned Magistrate is neither final nor would preclude the petitioner and the co-accused from contending before the learned Magistrate while conducting trial that the complaint is barred by limitation. Learned Magistrate shall while dealing with the case shall consider all the defences of the accused including the question of limitation if so raised and all other grounds including the ground that filing of the complaint before the learned Magistrate at Bandra was not bona fide. With the above observations and direction, the petition is disposed of. Order accordingly.