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2005 Supreme(Bom) 1198
HIGH COURT OF BOMBAY
Coram : K. J. Rohee, J.
RAJKUMAR AGRAWAL
Versus
STATE OF MAHARASHTRA
Cri. W. P. 69 Of 2005
Decided on : SEPTEMBER 6, 2005
Headnote:Criminal Procedure Code, 1973 - Sections 195(1)(b) and 482 - Penal Code, Sections 193 and 211 - Power of Magistrate to take cognizance of offence. - Magistrate has no jurisdiction to take cognizance on private complaint for offence under Sections 193 and 211, IPC. - Complainant, a private person, filed complaint against the accused for offence punishable under Sections 193 and 211 of the Indian Penal Code and the Judicial Magistrate took cognizance of the same. In Criminal Writ Petition seeking quashing of the proceedings in view of the bar of Section 195(1)(b) of the Criminal Procedure Code.
Held, that the concerned Court had not filed the complaint against the petitioners and that it was the complainant who had filed the same. In view of the Provisions of Section 195(1)(b) of the Code, the Court could not have taken cognizance thereof nor could it have proceeded with the complaint by calling for the report under Section 202 of the Code. As the Magistrate had no jurisdiction to take cognizance of the offence, it was a fit case in which inherent powers could be invoked for quashing the proceedings. Criminal complaint quashed. 2001 (1) Mh LJ 225 and 2003(3) Mh LJ 810, Rel.
[Indian] Penal Code, 1860 - Sections 468(2)(c) and 482 - Limitation for complaint under Section 500, IPC. - Limitation for complaint under Section 500, IPC would commence from date of filing of earlier complaint and not from date of acquittal. - On 25.8.1998 "A" had filed the criminal complaint against "B", which complaint was ultimately withdrawn on 1.1.2003 thereby resulting in acquittal of "B". Thereafter on 2.8.2004 "B" filed criminal complaint in respect of offence under Section 400 of the Indian Penal Code. In proceedings seeking quashing of the complaint having been barred by limitation.
Held, that in view of the decision of Apex Court in Surinder Mohan v. Ascharaj Lal Chopra, AIR 1978 SC 986, the limitation for complaint under Section 500 of the Indian Penal Code would commence from the date of filing of the earlier complaint and not from the date of acquittal. Therefore "B" ought to have instituted complaint within three years from 25.8.1998, which was the date of filing of the earlier complaint and not from the date when the earlier complaint was withdrawn i.e. 1.1.2003. Therefore, the Division Bench could not have taken cognizance of the complaint and in absence of any application by "B" for extension of time of period of limitation, the complaint was liable to be dismissed. It was a fit case in which inherent powers could be invoked for quashing the proceedings of the criminal complaint AIR 1985 SC 986 - Relied on.
( 1 ) BY this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure the petitioners seek to quash the proceedings in Criminal Complaint Case No. 515 of 2004 pending before Magistrate, First Class, Karaptee and to set aside of order dated 6th January, 2005 passed by the Judicial Magistrate, First class, Kamptee below Exh. 1.
( 2 ) IN order to appreciate the controversy it would be worthwhile to briefly see the background. It seems that on 1-8-1989 respondent No. 2 had filed Criminal Case No. 163 of 1989 against some persons including petitioner No. 1. In the said complaint case the accused therein including petitioner No. 1 were acquitted after full trial by judgment dated 28-8-1995. Thereafter on 25-8-1998 petitioner No. 1 filed Criminal Complaint Case No. 141 of 1998 against respondent No. 2 alleging offences under sections 193, 211 and 500 of the Indian Penal code on the basis of his acquittal in the earlier complaint case. By order dated 11-1-1999 process under Section 500 of the Indian Penal code was issued against respondent No. 2. Respondent No. 2 appeared and contested that complaint case. Ultimately on 1-1-2003 petitioner No. 1 withdrew the complaint by filing a pursis (Exh. 32 ). On the basis of the said pursis the complaint was dismissed as withdrawn and respondent No. 2 (accused therein) was discharged. The matter did not rest there. On 2-8-2004 respondent No. 2 filed Criminal Case no. 515 of 2004 against the present petitioner for the offences punishable under sections 193, 211 and 500 read with 34 of the Indian penal Code by alleging that in the earlier complaint petitioner No. 1 gave false evidence and made false charge with intent to injure him. It was also alleged that because of the false allegations respondent No. 2 was defamed. On 16-8-2004 the learned Magistrate verified the complaint by recording the statement of respondent No. 2 (the complainant therein ). On the same day the petitioners filed written submission praying for dismissal of the complaint on the ground that complaint under sections 193 and 211 of the Indian Penal Code was barred under Section 195 (1) (b) of the Code of Criminal Procedure and that so far as the complaint relating to the offence under Section 500 of the Indian Penal Code it was barred by limitation. Respondent No. 2 filed reply to the said written statement. After hearing the parties the learned Magistrate called for the report under Section 202 of the criminal Procedure Code by order dated 6-1-2005. The petitioners have challenged the said order and the
complaint filed against them.
( 3 ) I have heard Shri A. S. Chandurkar, Advocate for the petitioners and Shri A. S. Fulzele, APP for respondent No. I/state. Nobody appeared for respondent No. 2 though served.
( 4 ) SHRI Chandurkar, submitted that no cognizance of the complaint for the offences punishable under sections 193 and 211 of the Indian Penal code could be taken by the Magistrate without there being a complaint by the concerned judicial officer as required under Section 195 (1) (b) of the Criminal Procedure Code. Shri Chandurkar pointed out that the complaint has been filed by respondent No. 2 and not by the concerned Judicial Officer. As such the complaint could not have proceeded with. In support of his submission Shri Chandurkar relied on the following cases: i) Subhash Ramchandra Durge v. Deepak Annasaheb Gat and anr. , 2001 (1) Mh. LJ. 225, wherein it is held as under :
"as per the provisions of Section 195 (1) (b) (i) of the Code of Criminal Procedure, 1973, if the complaint is filed under Section 211 of the Indian Penal Code, the complaint has to be in writing and it has to be filed by none else but by the relevant Court. It means that if the complaint under Section 211 of the Indian Penal code is to be filed, it cannot be filed by a private complainant. The Judicial Magistrate, First Class committed obvious error in taking cognizance of
