Delay In Taking Cognizance Of Private Complaint Without Malafides By Complainant To Be Excluded From Limitation Period: Karnataka HC

The Karnataka High Court has held that the delay caused in taking cognizance by the magistrate court after a private complaint is filed when there is no malafide on part of the complainant is required to be excluded for the purpose of the computation of the period of limitation as prescribed under Section 468 of the Code of Criminal Procedure.

A single-judge bench of Justice Suraj Govindaraj dismissed a petition filed by one Jagan Chandy seeking to quash proceedings initiated against him under section 499 IPC by Jagadish K A.

One of the grounds raised by the petitioners seeking relief was that the private complaint having been filed in the year 2011, cognisance was taken only on 17.12.2016, cognizance not having been taken within three years from that date, and no cognizance could be taken thereafter.

The complainant opposed the plea saying his statement was recorded on 01.03.2012, and Ex.P1 and Ex.P2 were marked. The matter having been adjourned to 10.04.2012, he stated that he was further examined and his side closed and the matter adjourned to hear on process. Thereafter, the matter was adjourned from time to time since the sworn statement recorded was found missing in the file.

It was stated that only after a long time when the sworn statement was traced out, the matter was taken up for hearing and after arguments were heard, cognizance was taken and a summons was issued on 17.12.2016.

Thus it was stated that he is not to blame for the said delay. The respondent did not seek any adjournment but led his evidence and marked the documents on the first two days.

The bench referring to Section 468 of the Criminal Procedure Code said, “A perusal of the said provision would indicate that for an offence which is punishable with imprisonment for a term exceeding one year but not exceeding three years the period of limitations is three years.”

Referring to sub-Section (1) of Section 470 wherein it said that 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 shall be excluded, it said.

The court said that this would have to be read from the right perspective in as much as when the time spent prosecuting another prosecution is excluded, the time spent in the prosecution of the same complaint would also have to be excluded.

Perusing the order sheet which indicated that the complainant has not sought for any time, complainant has diligently prosecuted the complaint. The court said “The cognizance was taken by the Court only on 17.12.2016 as regards which no fault can be found with the complainant. Thus, the exclusionary period prescribed under sub-Section (1) Section 470 of the Code of Criminal Procedure in my considered opinion would also have to extend to the delay caused in taking cognizance after the complaint has been filed.”

Further, rejecting the contention of the petitioner that in terms of Rule 1 of Chapter VII of the Criminal Rules of Practice, it said that a Magistrate is required to record the order sheet in his own handwriting. In the present case, the same having been typed, the order of cognizance is bad in law and is required to be quashed, it said.

It held that in Rule 1 of the Karnataka Criminal Rules of Practice, 1968 read in conjunction with sub-Section (65) of Section 3 of the General Clauses Act, 1897, the word “writing” would not only include handwriting but would also include printing, photography, lithography and other modes.

It added that the other modes in the present time and context would also include the use of computers and printers for the purposes of typing and printing the order sheet and/or the orders which is a method and manner of reproducing the words in a visible form, and was required to be signed by the concerned Magistrate.

Holding that the order of cognizance is proper and correct, the court said that at the time of filing of a complaint under Section 499 of the IPC, the statement of the witnesses is not required to be recorded before issuance of the process.

"The complaint indicating the names of the persons who were present when the act of defamation occurred as done in the present case is sufficient,” it concluded.

Accordingly it dismissed the petition and directed the trial court to expeditiously dispose of the matter.

Appearance: Advocate S.G.Bhagavan for Petitioner.

Advocate S.V.Giridhar for Respondent.

Citation No: 2024 LiveLaw (Kar) 163

Case Title: Jagan Chandy AND Jagadish K A

Case No: CRIMINAL PETITION NO. 1987 OF 2017

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