Janardan Vs. Government Pleader. Durg
Citation: ILR[1971]MP1070, 1972()JLJ201, 1972JLJ201, 1971MPLJ1046
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cri. Appeal No. 301 of 1969
Decided On: 28.04.1969
Appellants: Janardan
Vs.
Respondent: Government Pleader (Public Prosecutor) Durg
Judges/Coram:
P.K. Tare, J.
JUDGMENT
P.K. Tare, J.
This is a revision by the accused against his conviction under Section 500, Indian Penal Code and the sentence of a fine of Rs. 200, or in default simple imprisonment for three months, passed by the Additional Sessions Judge, Narsimhapur, at Camp Durg, in Criminal Case No. 1 of 1964, dated 27-12-1968.
The learned Government Advocate raised a preliminary objection to the effect that the judgment of the trial Court is appealable and consequently this Court ought not to entertain a revision. Attention was invited to Section 413, Criminal Procedure Code, which lays down that 'Notwithstanding anything contained, there shall be no appeal by a convicted person in cases in which......a Court of session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or District Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only'. As the fine imposed was Rs. 200, an appeal will lie under Section 410, Criminal Procedure Code. Where an appeal lies, a revision would be barred, as provided by Section 439(5), Criminal Procedure Code. For this reason, I am of opinion that the present revision cannot be entertained, especially when the remedy of an appeal is open to the Petitioner. However, the present revision can as well be treated as an appeal, especially when no question of court-fees is involved, nor is the question of limitation involved. The Petitioner affixed more court-fees than what might be required for an appeal and the revision was filed even before a fortnight of the impugned judgment. For these reasons I treat the present revision as an appeal and direct that the same shall be registered as a memorandum of appeal and numbered accordingly.
Further, there can be no doubt that by publishing the impugned article, the Appellant was undoubtedly guilty of the offence of defamation. The very heading indicates the Appellant's malice and in the body of the article, irresponsible and baseless allegations are made to the effect that the blackmarketeers have purchased the Collector and the Superintendent of Police of Bhilai. Therefore, on merits the view of the learned Additional Sessions Judge is correct and further I feel that in a case of this type, the sentence of mere fine might as well be considered to be a lenient one, where persons maliciously make such unfounded and baseless allegations against public servants out of a sense of bravado. Thus, if the complaint filed by the Respondent be found to be within limitation, the Appellant cannot escape his liability for conviction.
However, Section 198-B, Code of Criminal Procedure provides as under:
Sub-section (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (other than the offence of defamation by spoken words) is alleged to have been committed against the President, or the Vice-President, or the Governor or Rajpramukh of a State, or a Minister, or any other public servant employed in connection with the affairs of the Union or of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
Sub-section (2)...............
Sub-section (3)............
Sub-section (4)-No Court of session shall take cognizance of an offence under Sub-section (1), unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
Thus, Sub-section (4) of the section not only provides for a period of limitation of six months for filing of such a complaint, but also it prohibits the Court from taking cognizance of an offence unless the complaint is filed within six months of the commission of the offence. In the instant case the offence was committed on 9-3-1964 by publishing an article in a local newspaper, known as 'BhilaiSamachar', of which the Petitioner is the Editor, Publisher and Printer. Although the prosecution wanted his conviction under Sections 500, 501 and 502, Indian Penal Code, the trial Judge found him guilty under Section 500, Indian Penal Code only holding that punishing him under Sections 501 and 502, Indian Penal Code would be unnecessary in view of his conviction under Section 500, Indian Penal Code. Sanction for the prosecution was obtained on 5-9-1964 and the complaint itself was filed by the Public Prosecutor on 17-9-1964. As such, the last date for filing of the complaint according to the Sub-section (4) of Section 198-B, Criminal Procedure Code, was 9-9-1964. The complaint having been filed on 17-9-1964, would be barred by 8 days. However, the trial Judge held that Section 5 of the Indian Limitation Act was applicable and as the order-sheet of the trial Judge, dated 15-12-1964, indicates, he thought a sufficient cause was made out and in that view, he extended the time under Section 5 of the Indian Limitation Act. No grievance of this was made in the Trial Court. But for the first time, the question has been raised in the present revision, now ordered to be registered as an appeal, that Section 5 of the Limitation Act was not applicable to a complaint. In this connection, attention was invited to Section 29(2) of the Limitation Act, which speaks of a suit or an appeal or an application. It does not include the word 'complaint'. It may be relevant to reproduce Section 29(2) of the Indian Limitation Act, 1963, which is the relevant provision applicable to the present case, as, follows:
"Sub-section (2)-Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
Section 29(2) of the Indian Limitation Act, 1908, did not make Section 5 and some other sections applicable to suits, appeals or applications. But the 1963 Act makes Sections 4 to 24 applicable to all the three categories. The question, therefore, arises whether Section 29(2) of the 1963 Act applies to a complaint, which has been defined by Section 4(h) of the Code of Criminal Procedure, as follows:
'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer.
The Limitation Act mentions applications of various kinds, such as, an application for leave to appeal, or in Civil matters, Interlocutory applications, or in Criminal matters, Interlocutory applications seeking some temporary relief or direction. As such, the entire Code of Criminal Procedure draws a distinction between an application and a complaint. A complaint is also distinguished from the report of a police-officer, which is termed as a challan. In view of this scheme of the Code of Criminal Procedure, the Code of Civil Procedure and the Limitation Act, 1963, a complaint, in my opinion, will not fall under the category of a suit, an appeal or an application. The learned Counsel for the Respondent, however, invited attention to the observations of a Division Bench of the Madras High Court, presided over by Leach C. J. and Madhavan Nair J. in Govindaraja Pillai v. Vanchinatham Pillai MANU/TN/0085/1938 : AIR 1939 Mad. 492, wherein the learned Judges had referred to a complaint as petition. In that case the Defendant had made an application to the Magistrate against the Plaintiff that the Plaintiff and some other persons mentioned in the application had suppressed the fact that they had found a treasure-trove. That application was made with a view to action being taken against the Plaintiff and others for a Criminal offence. The Division Bench laid down that the machinary of the Criminal Court had been moved. But, even so, that was clearly a complaint made by the Defendant against the Plaintiff in order, to set in motion the machinery of the Criminal Court. It might be made by way of an application. But all the same, a complaint would be a complaint as defined by Section 4(h) of the Code of Criminal Procedure and the same will have to be distinguished from applications contemplated either under the Code of Criminal Procedure or under the Code of Civil Procedure or under the Limitation Act, 1963. The mere fact that the learned Judges constituting the Division Bench just mentioned the word 'petition', which the Defendant had sent to the Magistrate, will not mean that the Division Bench laid down the law that a complaint is equivalent to a petition or in other words an application.
The learned Counsel for the Respondent invited attention to the pronouncement of their Lordships of the Supreme Court in Kaushalya Rani v. Gopal Singh MANU/SC/0090/1963 : A I R 1964 SC 260, wherein their Lordships laid down that Section 5 of the Limitation Act will not be applicable to an application under Section 417(3), Code of Criminal Procedure as it was the Code of Criminal Procedure alone which provided a special period of limitation for such an application seeking leave by a private complainant to file an appeal against acquittal. I may observe that if an application for leave to appeal against acquittal be contemplated under both the provisions, namely, under the Limitation Act, 1963 as also under any special enactment, such as, the Code of Criminal Procedure, in that event Section 29(2) of the Limitation Act would provide for the fact that the shorter period of limitation would be effective. But, in my opinion, Section 29(2) of the Limitation Act, 1963 would be wholly out of question if the matter does not fall under any of the three categories, namely, a suit, an appeal or an application and by no stretch of imagination I feel that the word 'complaint' could be equated with an application or a petition. The matter might be different if a complaint could be considered to be an application. But, even so, the conditions mentioned in the earlier part of Sub-section (2) of Section 29 of the Limitation Act ought to be fulfilled, namely, that different periods of limitation should be provided for in the Limitation Act and in the special enactments. Evidently, the Limitation Act does not provide for any limitation in the matter of filing of a complaint. Therefore, I feel that for these two reasons, Section 5 of the Limitation Act would be wholly out of question so far as the filing of a complaint as per-Sub-section (4) to Section 198-B, Code of Criminal Procedure is concerned.
It is true that the Appellant did not raise the question of limitation in the trial Court, but as Sub-section (4) of Section 198-B, Code of Criminal Procedure prescribes a bar against the cognizance of a case by a Court of Session after the period of six months, the Appellant, in my opinion, can be allowed to raise this question for the first time at the appellate stage, especially as the action of the trial Judge in entertaining a complaint after the period of six months upon a misapprehension as to the applicability of Section 5 of the Limitation Act, would be not only illegal, but without jurisdiction, as he would be taking cognizance inspite of the specific prohibition. In my opinion, this is a fit case where the question of limitation should be allowed to be raised as it affects the question of jurisdiction as well.
Further I feel that the Legislature has provided for a period of six months for the filing of such a complaint having in view the delays that might be caused in administrative matters. But, even so, as Section 5 of the Limitation Act would altogether be inapplicable, it is incumbent on the prosecution to present the complaint within the prescribed period and that not having been done, the Appellant's conviction can evidently not be sustained in law, although it may be that he is guilty of a flagrant act of scandalous defamation of public servants.
As a result, this appeal succeeds and is accordingly allowed. The Appellant's conviction is set aside and the sentence passed on him is quashed. It is further directed that fine, if recovered, be refunded to him.