JUDGMENT K.J. Rohee, J.
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 On the basis of the said pursis the complaint was dismissed as withdrawn and respondent No. 2 (accused therein) was discharged.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 offence punishable under Section 211 of Indian Penal Code and issuing process against the petitioner1 on complaint by private complainant. Order of issuance of process dated 30th July, 1994 by Incharge Judicial Magistrate, First Class, quashed."
ii) C. P. Kotwal v. Ali Ashad and Ors., 2003(3) Mh.L.J. 810, wherein it is held as under:
"Documents tendered in Court alleged to have been forged -No complaint made by presiding officer of Court - Magistrate erred in considering complaint filed by individual and giving direction to police officer to make investigation - Cognizance could not be taken in view of provisions of Section 195(1)(a) and (b)(ii) - Proceeding and investigation quashed. "
5. Apparently in the present case the concerned Court has not filed complaint against the petitioners and it is respondent No. 2 who filed complaint against the petitioners. As such the Court could not have taken cognizance thereof by virtue of Section 195(1)(b) of the Criminal Procedure Code. Obviously the Court could not have proceeded with the complaint by calling for the report under Section 202 of the Criminal Procedure Code.
6. As regards the allegations in respect of the offence under Section 500 of the Indian Penal Code Shri Chandurkar submitted that the complaint is barred by limitation. Shri Chandurkar submitted that the cause of action for the complaint arose on 25-8-1998 when Criminal Complaint Case No. 141 of 1998 was filed by petitioner No. 1 against respondent No. 2. The cause of action cannot be taken to have arisen on 1-1-2003 when petitioner No. 1 withdrew the complaint. Shri Chandurkar submitted that the period of limitation for taking cognizance of the offence punishable under Section 500 of the Indian Penal Code is three years under Section 468(2)(c) of the Criminal Procedure Code. As such the complaint should have been filed within three years from 25-8-1998. Since the complaint was filed on 2-8-2004 it is barred by limitation and the Magistrate could not have taken cognizance of the complaint unless an application for condoning the delay was moved. Shri Chandurkar pointed out that respondent No. 2 has not moved application for condonation of delay and thus the complaint was barred by limitation. In support of this submission Shri Chandurkar relied on Surinder Mohan Vikal v. Ascharaj Lal Chopra, AIR 1978 SC 986 wherein the Apex Court held that limitation for a complaint under Section 500 of the Indian Penal Code commences from the date of filing of the earlier complaint and not from the date of acquittal.
7. It is thus obvious that respondent No. 2 could have instituted complaint without three years from 25-8-1998 which is the date of filing of Criminal Complaint Case No. 141 of 1998 and not from the date when the said complaint was withdrawn i.e. on 1-1-2003. Since Criminal Complaint Case No. 515 of 2004 was filed on 2-8-2004 it is beyond three years from 25-8-1998. As such the cognizance of the complaint could not have been taken by the learned Magistrate and in the absence of any application by respondent No. 2 for extension of the period of limitation, the complaint was liable to be dismissed. Thus the learned Magistrate could not have passed order of postponement of issuance of process under Section 202 of the Criminal Procedure Code.
8. The legal as well as factual position as urged by Shri Chandurkar is borne out from the record and proceedings. The learned Magistrate had no jurisdiction to take cognizance of the offences under sections 193 and 211 of the Indian Penal Code without the complaint by the concerned Judicial Officer and of the offence under Section 500 of the Indian Penal Code as the complaint was barred by limitation. It is a fit case in which inherent powers of this Court can be invoked for quashing the proceedings of Criminal Complaint Case No. 515 of 2004. Hence the order :
i) The Criminal Writ Petition is allowed.
ii) The proceedings in Criminal Complaint Case No. 515 of 2004 pending before Judicial Magistrate, First Class, Kamptee are quashed and set aside.
iii) Needless to say that order dated 6th January, 2005 passed below Exh. 1 also stands quashed.