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2012 DIGILAW 272 (HP)

Mam Chand v. Kesho Ram

2012-05-11

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This petition under Article 227 read with Section 482 Cr.P.C. has been filed against the order dated 8.4.2011 passed by learned Sessions Judge, Sirmaur District at Nahan in Criminal Revision No. 18-Cr.R./10 of 2009 reversing the order dated 17.9.2009 passed by learned Chief Judicial Magistrate, Sirmaur District at Nahan in Cr. Complaint No. 61/1 of 2007. The facts, in brief, are that petitioner had filed a complaint u/s 500 IPC against the respondent No. 1. The learned Chief Judicial Magistrate on 6.3.2007 issued process to respondent No. 1 u/s 500 IPC. The notice of accusation was put on 12.9.2007. On 7.11.2007 the respondent No. 1 filed an application u/s 258 Cr.P.C. for dropping the proceedings against respondent No. 1 as no cognizance of the offence could have been taken by the Court after the expiry of three years w.e.f. 5.8.2002. The learned Chief Judicial Magistrate on 17.9.2009 dismissed the application u/s 258 Cr.P.C., on the ground that Section 258 Cr.P.C. is applicable to a summons case instituted otherwise than upon a complaint. The case does not fall within the purview of Section 258 Cr.P.C. The order dated 17.9.2009 was challenged before the learned Sessions Judge in revision, who on 8.4.2011 allowed the revision and set-aside the order dated 17.9.2009, hence petition under Article 227 read with Section 482 Cr.P.C. 2. Heard and perused the record. It has been submitted by the learned Counsel for respondent No. 1 that the learned Sessions Judge has rightly appreciated the material on record. The scandalous news item was published on 13.8.2002. The complaint was filed on 11.1.2007 after the expiry of three years. The learned Chief Judicial Magistrate erred in issuing the process to respondent No. 1, hence no fault can be found with the impugned order. The learned Counsel for respondent No. 1 has relied Ramesh Chandra Sinha and Others Vs. State of Bihar and Others, (2003) 7 SCC 254 , and Bharat Damodar Kale and Another Vs. State of A.P., (2003) 8 SCC 559 , 3. The learned Chief Judicial Magistrate issued the process to respondent No. 1 on 6.3.2007 and thereafter notice of accusation was also put to respondent No. 1 on 12.9.2007. The respondent No. 1 on 7.11.2007 filed an application u/s 258 Cr.P.C. for stopping further proceedings in the case with the prayer to discharge the respondent No. 1. The learned Chief Judicial Magistrate issued the process to respondent No. 1 on 6.3.2007 and thereafter notice of accusation was also put to respondent No. 1 on 12.9.2007. The respondent No. 1 on 7.11.2007 filed an application u/s 258 Cr.P.C. for stopping further proceedings in the case with the prayer to discharge the respondent No. 1. The order dated 6.3.2007 passed by learned Chief Judicial Magistrate has not been specifically prayed to be recalled in the application u/s 258 Cr.P.C. nor there is any reference to order dated 12.9.2007 in the said application. 4. The Section 258 Cr.P.C. provides that in any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. The case was instituted by the petitioner by filing complaint. 5. The learned Chief Judicial Magistrate has relied Adalat Prashad Gupta v. Roop Lal Jindal, 2004 Cr.L.J. 4875, Bholu Ram Vs. State of Punjab and Another, (2008) 9 SCC 140 , and has held that once the Magistrate has issued the summons he has no power to recall the said order. In other words, the learned Chief Judicial Magistrate has held in the order dated 17.9.2009 that since he has issued the process, Section 258 Cr.P.C. is not applicable, therefore, nothing could be done at his level. In the teeth of these observations of the learned Chief Judicial Magistrate, the respondent No. 1 did not assail the order dated 6.3.2007 issuing process against, him or the order dated 12.9.2007 putting notice of accusation. The respondent No. 1 challenged the order dated 17.9.2009 passed by learned Chief Judicial Magistrate before the learned Sessions Judge in the revision. The learned Sessions Judge has also not set-aside the order dated 6.3.2007 or 12.9.2007 passed by learned Chief Judicial Magistrate. The learned Sessions Judge has however, set-aside the order dated 17.9.2009 in the revision on 8.4.2011. 6. It has been contended by Mr. The learned Sessions Judge has also not set-aside the order dated 6.3.2007 or 12.9.2007 passed by learned Chief Judicial Magistrate. The learned Sessions Judge has however, set-aside the order dated 17.9.2009 in the revision on 8.4.2011. 6. It has been contended by Mr. N.K. Thakur, Senior Advocate that substance of application u/s 258 Cr.P.C. was to challenge the order dated 6.3.2007 issuing process. But fact remains the order dated 6.3.2007 was not challenged by respondent No. 1 in appropriate proceedings nor learned Sessions Judge has set-aside the order dated 6.3.2007. The Section 473 Cr.P.C. provides notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. The question of taking cognizance after the alleged period of limitation was not in issue in absence of challenge to order dated 6.3.2007 nor in collateral proceedings, the petitioner could have been taken by surprise. Ramesh Chandra Sinha (supra) and Bharat Damodar Kale (supra) are not on the point in issue, therefore, respondent No. 1 cannot take any help from them. 7. Mr. Thakur learned Counsel for the respondent No. 1 at the time of dictating the judgment has also referred Surinder Mohan Vikal Vs. Ascharaj Lal Chopra, (1978) 2 SCC 403 , on the point that complaint u/s 500 IPC for defamation will be barred if filed three years after the commission of the offence. The respondent No. 1 has not challenged the order dated 6.3.2007 issuing process u/s 500. There was delay or it was explained was not in issue. The case was decided on the basis of Section 258 Cr.P.C. application which was rejected by the learned Chief Judicial Magistrate but allowed by the learned Sessions Judge. The order dated 6.3.2007 issuing process was not questioned by respondent No. 1 by challenging that order in appropriate proceedings. The impugned order is not sustainable. In view of above, the petition is allowed. The order dated 8.4.2011 passed by the learned Sessions Judge, Sirmaur District at Nahan in Criminal Revision No. 61/1 of 2007 is set-aside. The order dated 6.3.2007 issuing process was not questioned by respondent No. 1 by challenging that order in appropriate proceedings. The impugned order is not sustainable. In view of above, the petition is allowed. The order dated 8.4.2011 passed by the learned Sessions Judge, Sirmaur District at Nahan in Criminal Revision No. 61/1 of 2007 is set-aside. The parties through their Counsel are directed to appear before the learned Chief Judicial Magistrate, Sirmaur District at Nahan on 29.5.2012. The record of the case be sent back immediately, so as to reach before the date fixed.