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Sanjib Bose, Mohan Bose v/s Tanik Kumar Bose, Ram Mohan Bosse @ Ram Babu

    Criminal Miscellaneous No.25508 OF 1998

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Ramakant Sharma, Narendra Kumar Singh, Laxmikant Sharma, Amish Kumar, Advocates.



Judgment Text

RAKESH KUMAR, J.

(1.) Two petitioners, who are Owner-cum-Publishers of Bharti Bhawan Publishers and Distributors (hereinafter referred to as Bharti Bhawan, have approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, for quashing of the order dated 10.2.1998 passed in Complaint Case No.725 of 1994, Trial No.141 of 1998/1211 of 1998 passed by Chief Judicial Magistrate, Madhubani. Petitioners have also prayed for quashing of the entire criminal prosecution arising out of the aforesaid complaint case. By the order dated 10.2.1998, learned Chief Judicial Magistrate, Madhubani had taken cognizance for the offence under Section 500 of the Indian Penal Code and transferred the case to Shri A.K. Mishra, Judicial Magistrate, Ist Class, Madhubani for its disposal. He also passed an order for issuance of summons for securing attendance of the accused persons.

(2.) In the complaint petition, it was alleged that with a view to defame the complainant, without conducting any enquiry, an information was given to the Officer-in-charge, Madhubani Police Station through the agent of the Bharti Bhawan. It was alleged in the report given to the police that Sajjan Pustak Bhandar, Madhubani was indulged in selling forged and fictitious books in the name of Bharti Bhawan. The complainant claims to be Proprietor of the aforesaid books shop na

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mely Sajjan Pustak Bhandar. It was further alleged in the complaint petition that after receiving the information, the police conducted raid in the shop of the complainant. However, during search, no incriminating books/articles were recovered. On these grounds, it was alleged by the complainant that the reputation of the complainant and his shop was denigrated due to illegal action taken on behalf of the petitioners/Bharti Bhawan.

(3.) The alleged occurrence had taken place some time in the month of September,1994 and immediately thereafter, the complainant filed the complaint case vide Complaint Petition No.725 of 1994 on 3.10.1994. Thereafter, on 5.10.1994, the complainant was examined on solemn affirmation and finally the learned Chief Judicial Magistrate by its order dated 10.2.1998 took cognizance for the offence under Section 500 of the Indian Penal Code.

(4.) Shri Ramakant Sharma, learned Senior Counsel appearing on behalf of the petitioners has challenged the order of cognizance and proceeding pursuant to the said complaint petition mainly on the ground that even on the face of the complaint petition, the offence under Section 500 of the Indian Penal Code is not attracted. He submits that under Eighth and Ninth Exception to Section 499 of Indian Penal Code, the petitioners case are covered and petitioners are protected from being prosecuted for the alleged offence. He submits that on bonafide believe that several shop owners were indulged in selling forged and fabricated books in the name of the Bharti Bhawan informations were given to different police stations that such books were being sold by the complainant through his shop, namely, Sajjan Pustak Bhandar, Madhubani. The Officer-in-charge of Madhubani Police Station was informed through the agent of the Bharti Bhawan.

(5.) Learned Senior Counsel has relied upon a judgment reported in A.I.R. 1923 Allahabad 167 (Lala Lachman Prasad Vs. Majju and others) and submitted that in which it was held that report to police amounts to an information given in a judicial proceeding. Accordingly, he submits that the petitioners with reasonable belief had given an information to the police and such information cannot be termed as defamation as contemplated under the provisions of the Indian Penal Code.

(6.) Learned Senior Counsel has further argued that the order of cognizance was passed after the expiry of the period of limitation as prescribed under Section 468 (2)(C) of the Code of Criminal Procedure,1973 (hereinafter referred to as Cr.P.C.). He submits that for the offence under Section 500 of the Indian Penal Code, maximum punishment is simple imprisonment for a term which may extend to two years. He further submits that even on the face of the complaint petition, no offence is made out against these petitioners. On those grounds, learned counsel for the petitioners has prayed for quashing of the order of cognizance as well as for quashing of the entire proceeding in Complaint Case No.725 of 1994.

(7.) Shri Amish Kumar has appeared on behalf of opposite party no.2. He has vehemently opposed the prayer of learned counsel for the petitioners. He has firstly referred to a judgment of Honble Supreme Court reported in 1971 SC 1567 (Sukra Mahto Vrs. Basudeo Kumar). By referring to paragraphs 7, 8 and 9 of the judgment in Sukra Mahtos case (Supra), learned counsel for opposite party no.2 submits that on perusal of Annexure-2 to the petition i.e. the information given on behalf of Bharti Bhawan to the Officer-in-charge of Madhubani Police Station, it is evident that in a mechanical manner, the information was given whereby the image of the complainants shop was denigrated and this is clear cut case of defamation. On the reading of Annexure-2, according to learned counsel appearing on behalf of the opposite party no.2, it is evident that no due care was taken before sending such information to the police station nor any satisfactory enquiry was conducted before lodging such information and as such the claim of petitioners that their case are covered by exception Eighth and Ninth to Section 499 of the Indian Penal Code is not sustainable. So far as the claim of petitioners for quashing the order of cognizance on the claim that it was barred under Section 468 of the Cr.P.C. is concerned, learned counsel for opposite party no.2 has referred to the judgment of Honble Supreme Court reported in 2003(8) SCC 559 (Bharat Damodar Kale and another Vrs. State of A.P.). Learned counsel has referred paragraph-10 of the judgment. I cannot do better, than to quote paragraph-10 of the judgment, which is as under : 10. On facts of this case and based on the arguments advanced before us, we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned counsel for the appellants, the limitation prescribed under the above Chapter applies to taking of cognizance by the court concerned, therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be inspired by the chapter heading of Chapter XXXVI of the Code which reads thus: Limitation for taking cognizance of certain offences. It is primarily based on the above language of the heading of the Chapter, the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 470 indicates that while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded. The said section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase actus curiae neminem gravabit which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the earlier decision of this Court in the case of Rashmi Kumar.

(8.) On these grounds, learned counsel appearing on behalf of opposite party no.2 has prayed for rejection of the petition filed by the petitioners.

(9.) I have also examined the complaint petition, Annexure-2 i.e. information given to the police, impugned order as well as certified copy of the entire order sheet, which was produced by the learned counsel for the petitioners. It is true that on reading of Annexure-2, one can come to the conclusion that the same was sent to the police in a mechanical manner. For the purpose of filing a complaint against any one, it is expected that a due enquiry will be conducted before sending such report. However, since, as submitted by the learned counsel for the petitioners, the Bharti Bhawan was apprehensive that forged and fictitious books in the name of Publishers Bharti Bhawan were sold at several places it appears that a performa was prepared by the Publisher for sending information to the police so that such type of action may be prevented and in that view of the matter, in the present case, the Publisher had sent information to the police. It appears that the Publisher had no intention to malign the image of Sajjan Pustak Bhandar, but only with a view to prevent the interest of the Publisher, such information was given to the police.

(10.) So far as application of bar of limitation as prescribed under Section 468 of the Cr.P.C. is concerned, from the conduct of the complainant, it appears that he was not very serious to initiate prosecution against petitioners. It was submitted on behalf of the petitioners that though the complaint petition was filed immediately after the alleged occurrence and complainant was also examined on S.A. immediately thereafter, from the order sheet of the complaint case, it is evident that the complainant had not diligently pursued his complaint petition and due to that reason when complainant was examined on S.A. on 5.10.1994 after expiry of more than a year i.e. on 4.1.1996, one of the witnesses, namely, Madan Mishra was examined as P.W.1 in favour of the complainant and thereafter, again on several dates, the enquiry was adjourned and finally on 2.11.1997, one another witness, namely, Radhey Shyam Sharma was examined as P.W.2. Learned counsel for the petitioners submits that the last witness was examined after the expiry of three years i.e. the prescribed period of limitation. Taking the clue from the wording of Supreme Court in Bharat Damodar Kales case (Supra), learned counsel for the petitioners submits that even Supreme Court in the case was of the view that due diligence on the part of complainant is must and in the present case, it is evident from the record that the complainant has not pursued his complaint petition with due diligence.

(11.) In view of the peculiar facts and circumstances of the case, though, I am recording my opinion definitely on the point of limitation but in the facts and circumstances of the present case particularly in view of the fact that the Publisher was apprehensive regarding sale of forged and fictitious books in the name of Publisher he has not committed an offence of defamation by way of sending an information to the police for preventing such illegal sale.

(12.) Aggrieved with the order of cognizance i.e. order dated 10.2.1998, the petitioners approached this Court by filing the present petition. By order dated 16.12.1998, while issuing notice to opposite party no.2, this Court ordered that till further orders, further proceedings in Complaint Case No.725 of 1994 Tr. No.141 of 1998 in the court below shall remain stayed. Subsequently, on 13.7.1999, the case was admitted for hearing and this Court further directed that till final disposal of the case, interim order dated 16.12.1998 will continue. The stay order is still continuing. It is not in dispute that in the present case, alleged occurrence had taken place in the month of September,1994 and after lapse of such a long period, I am of the view, it is not advisable to direct the Publisher/petitioners to appear and face a trial for an offence of defamation.

(13.) In view of the facts and circumstances as discussed above, order dated 10.2.1998 passed by learned Chief Judicial Magistrate, Madhubani is hereby set aside and consequently, the entire proceeding in respect of petitioners in Complaint Case No.725 of 1994 is quashed.

(14.) The petition stands allowed
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