When Punishment For Offense Is Upto 3 Yrs, Cognizance Of Complaint Must Be Taken Within 3 Yrs Of Filing To Not Be Bad In Law: Karnataka High Court

The Karnataka High Court has acquitted an Editor/Publisher of a local magazine who was convicted on charges of defamation holding that cognizance of the offence was taken after 8 years of filing the complaint by the trial court.

A single-judge bench of Justice S Rachaiah acquitted Ando Paul, who was convicted of offences under Sections 500, 501 and 502 of the Indian Penal Code.

The bench relied on Section 468 of the Code of Criminal Procedure which pertains to the bar on taking cognizance after lapse of the period of limitation. It said, “On careful reading of the above said provision, it makes it clear that cognizance should be taken within 3 years if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding 3 years.”

It added “In the present case a complaint is filed on 21.04.2001, cognizance is taken on 12.08.2008. Therefore, the order of taking cognizance is bad in law and the Trial Court and Appellate Court should have considered the said aspect and recorded the acquittal. In my considered opinion, taking cognizance is bad in law.”

The prosecution alleged that the complainant G Ismail Musliyar was an Arabic Teacher at various madarasas, he was working as a Qatib of various Jumma Masjids. The complainant hailed from a very respectable family and he did not have any criminal background and did not have any personal blemish in his life.

However, the accused being the Editor of a fortnightly magazine namely 'Pattanga' published a defamatory article against the complainant. The statement published in the magazine defamed the dignity of the complainant and his family members in public view and people started enquiring him about the article published in the magazine which became ridiculous. Therefore, a complaint came to be registered by the complainant.

The Trial Court after taking cognizance, recorded the evidence and convicted the accused for the offences charged. The Appellate Court on appeal being filed, after having reappreciated the facts and evidence dismissed the appeal by confirming the judgment of conviction.

The petitioner argued that there is an inordinate delay in filing the PCR i.e, delay of 2 years 9 months which is fatal to the case of the complainant. Further, the cognizance taken after seven years from the date of institution of complaint which is contrary to the facts and also contrary to the settled principles of law declared by the Hon'ble Supreme Court in the case of PRADEED S WODEYAR v. STATE OF KARNATAKA, (2021) 19 SCC 62.

Finally, it was argued that evidence of PWs.1 to 3 ought not to have been considered for the reason that they are not only the interested witnesses, but also their statements are contrary to the documents on record.

The respondent supported the conviction order submitting that the findings of the Courts below regarding defamation are appropriate. The respondent/complainant stated that he is a reputed person in the locality, and without verifying the said aspect, the petitioner published the defamatory article in his magazine which defamed the dignity of the respondent in the locality.

The bench on going through the records noted that as per evidence of PW.1 (complaint) on 31.05.1998, the accused published a defamatory article. On 18.07.1998, a letter was written to the accused asking him to publish an apology in his magazine. However, again on 31.07.1998, the accused published a defamatory article against the complainant. Being aggrieved by the said article, the complainant approached the Press Council of India on 10.08.1999 and sought for action to be initiated against the accused. The Press Council of India directed the accused to publish a version of refuting the allegations made in the magazine.

Thereafter, it was stated that the accused published an article which also did not refute the defamatory article published against the accused. Therefore, on 21.04.2001, the complainant approached the Jurisdictional Magistrate by filing a private complaint.

The court said, “Since there is a clear explanation by PW.1 regarding delay in lodging the complaint, the said contention of the learned counsel for the accused cannot be accepted.”

Accordingly, it allowed the petition and acquitted the accused.

Appearance: Advocate Nithin R for Petitioner.

Advocate Sachin B S for Respondent

Citation No: 2024 LiveLaw (Kar) 231

Case Title: Ando Paul AND G Ismail Musliyar

Case No: CRIMINAL REVISION PETITION NO. 2 OF 2018

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