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KARNATAKA HIGH COURT
A.S. Pachhapure, J.
H.N. Dinesh and Anr. —Petitioners
versus
Malendau Abhivrudhdhi Prathisthana (R), Sagar, Shimoga District —Respondent
Cri Petition No. 3905 of 2009
Decided on : 23.7.2013
Held: So, once the learned Magistrate has taken cognizance on 20.10.2005, there was no necessity for him to take the cognizance again and it appears that after recording the statement under Section 200 of Cr.P.C. before passing the order dated 26.7.2008, learned Magistrate has not looked into the order sheet dated 20.10.2005, which reveals that cognizance was taken by him on the said date. It is well-established principle that the Magistrate cannot take cognizance on a complaint on two occasions. Therefore, the subsequent order dated 26.7.2008 taking cognizance of the offence once again is both erroneous and illegal and the extent of order passed by the learned Magistrate on 26.7.2008 taking cognizance of offence under Sections 500 and 501 of IPC for the second time will have to be quashed. Once the order taking cognizance dated 26.7.2008 is quashed, then from the date of offence i.e., publication of defamatory article in the newspaper and the order passed by the learned Magistrate on 20.10.2005 taking cognizance of the offence is well-within the time and therefore, there is no bar of limitation under Section 468 of Cr.P.C. as contended by the learned Counsel for petitioners.
Adjourning a case without assigning any reason may be improper, but that itself is not a ground to quash the proceedings. After taking cognizance on 20.10.2005 till 26.7.2008 for a period of about 3 years, except on two occasions, the complainant was absent on all other dates. If for any insufficient cause, the complainant is absent, the Court has discretion to dismiss the complaint, but in fact he did not do so and granted adjournment again and again, it may be for the reason that the Court was satisfied itself for the cause shown and could have adjourned the matter. The fact that matter was adjourned for about 3 years for the absence of complainant itself cannot be a ground to quash the proceedings and it cannot be said an abuse of process of law. (Paras 6 & 7)
(ii) Criminal Procedure Code, 1973—Section 204(2) —Cognizance of offence on a private complaint—Petition for quashing proceedings on ground that test of witnesses was not filed with complaint—Provision of Section 206(2) Cr.P.C. was directory and not mandatory and proceedings were not liable to be quashed. (Paras 10 to13)
(iii) Indian Penal Code, 1860—Sections 499 and 500—Press and Registration of books Act, 1867—Section 7—Defamatory imputations published in newspaper, a weekly that there were illicit relationship between teaching staff and students and that Principal was a womanizer—Prima facie imputations were defamatory—Explanation 4 to Section 499 IPC could not be invoked at this stage and Ninth exception also as a matter of defence could be put up before trial Court and could not be a ground to quash the proceedings—As against accused, the Editor of newspaper, presumption under Section 7 of the Press and Registration of Books Act was available but against Managing Editor, in absence of any material sugging his complicity, proceedings against him were liable to be quashed. (Paras 14 to 18)
Result: Petition partly allowed.
ORDER
A.S. Pachhapure, J.— The petitioners have sought for quashing the proceedings in CC No. 310 of 2008 pending’ on the file of Additional Judicial Magistrate First Class, Sagar.
2. The facts relevant for the purpose of this petition are as under:
The petitioners herein are the accused whereas respondent is the complainant and is said to be a reputed society imparting education in Sagar Taluk. It is running Primary, Middle and High Schools at Sagar and Pre-University College at Talaguppa. It has got two colleges at Sagar, apart from a degree college and even B. Ed. course is also introduced. It has the facilities of library and hostel to accommodate the students hailing from different other places. The institution is said to have achieved its goal of imparting education and is said to be a reputed institution. The college has teaching staffs who are qualified, dignified with well built characters. These being the facts, the defamatory imputations were published in the newspaper ‘Vidhaata’, a weekly, and the first petitioner is said to be the Editor, whereas second petitioner is the Managing Editor. In the article relating to this institution, the imputation is such that it is said to have lowered down the reputation of its members and also office bearers including teaching staffs. In the aforesaid item, it is stated that there are no rest rooms, lavatories in the campus and the allegation is made about the illicit relationship between teaching staff and the students. It is also alleged that there is mal-administration of the college and the hostel and illicit relationship between the inmates of the hostel and staff. Likewise, many other allegations have been made in the item published in the aforesaid newspaper dated 20.10.2004.
The respondent noticing the publication through friends and others alleged ‘that the article is intended to harm the reputation of the institution, office bearers and the staffs and as there is allegation to the effect that Principal of the college is a womanizer, the dignity of the institution is lowered in the eyes of public. Hence, a complaint is filed before the Court below and on 20.10.2005, learned Magistrate perusing the averments in the complaint took cognizance and directed to register a case and posted the matter for recording the sworn statement on 3.12.2005 and subsequent dates. It was adjourned on different dates all along for about 3 years and on 25.6.2008, he recorded the statement and having heard the arguments on taking cognizance, vide order dated 26.7.2008 again took cognizance and issued process to the petitioners. The petitioners aggrieved by the initiation of proceedings by way of complaint and subsequent orders passed by the learned Magistrate taking cognizance of the offence and issuing process have approached this Court to quash the proceedings.
3. I have heard learned Counsel for both the parties.
4. It is the submission of learned Counsel for the petitioners that the order dated 26.7.2008 taking cognizance and issuing process is illegal for the reason that as on that date, the complaint was barred by time and as more than 3 years and 8 months have been elapsed in between the publication and taking cognizance of the order, he would submit that the proceedings initiated are barred by time. So also, it is his contention that the complainant has not furnished the list of witnesses and as there is non-compliance of provisions of Section 204(2) of the Criminal Procedure Code, 1973, the order issuing process is illegal. It is his submission that after taking cognizance on the first occasion, the matter was pending for 3 years and only on two occasions, the complainant was present before the Court, therefore, he would submit that there is abuse of process of Court and for no reason case was adjourned and hence, he contends that continuation of the proceedings is improper. It is also his submission that respondent has not examined any witnesses in support of his case and as there is
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