Delhi High Court
Shikha Jain & Ors. vs Government Of Nct Of Delhi & Anr. on 9 March, 2015
Author: Sunil Gaur
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 09, 2015
+ CRL.M.C. 3292/2012 & Crl.M.A.16679/2012
SHIKHA JAIN & ORS .....Petitioners
Through: Mr. J.P. Sengh, Senior Advocate,
with Mr. V.K. Jain, Advocate
versus
GOVERNMENT OF NCT OF DELHI & ANR .....Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor for respondent-State
Respondent No.2 in person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In a criminal complaint for the offence of defamation, petitioner
has been summoned as an accused vide order of 28 th June, 2012, which is
assailed in this petition.
At the hearing, learned senior counsel for petitioners had submitted
that in an application under Section 156 of Cr.P.C., defamatory averments
were purportedly made by petitioner against second respondent and the
said application was filed in the year 2001 by petitioner and the period of
limitation for filing the complaint for the offence of defamation has to be
reckoned from the date of the said application.
CRL.M.C. 3292/2012 Page 1
It was pointed out that the complaint in question has been filed in
the year 2010 and is hopelessly barred by time as limitation period for
filing of the said application is of three years.
Attention of this Court was drawn to Apex Court's decision in
Surinder Mohan Vikal v. Ascharj Lal Chopra AIR 1978 SC 986 and a
decision of this Court in CRL.M.C.1187/2010 titled Ms. Romy Khanna v.
State (Govt. of NCT of Delhi) New Delhi & Ors. decided on 4th July, 2011
to submit that no cognizance of the offence in a time barred complaint
can be taken.
Respondent No.2 appeared in person and chose to argue this
petition himself. It was vehemently submitted by respondent No.2 that in
pursuance to an application under Section 156 of Cr.P.C., FIR
No.445/2001 was registered at P.S. Sadar Bazaar, District Saharanpur,
Uttar Pradesh under Sections 406/498-A of IPC and the said FIR stands
quashed by the High Court of Allahabad in the year 2007 and thereafter,
the instant complaint has been filed and the period of limitation has been
computed from the year 2007 and this complaint has been filed in the
year 2010 and thus, within the period of limitation. Reliance was placed
upon Apex Court's decision in Arun Vyas & Anr. v. Anita Vyas JT 1999
(4) 421 to submit that the question of limitation is required to be
considered in the light of Section 473 of Cr.P.C., which empowers the
court to take cognizance even after the period of limitation.
It was submitted that even if the cognizance of the offence of
defamation and forgery is taken without taking note of Section 468 of
Cr.P.C., still the most appropriate stage at which petitioner-accused can
CRL.M.C. 3292/2012 Page 2
plead for discharge, is the stage of framing of charge. Thus, it was
submitted that this petition does not deserve to be entertained at this
stage.
Upon hearing and on perusal of the impugned order, the material
on record and the decisions cited, I find that the decision of Apex Court
in Arun Vyas (supra) is of no avail to the case of respondent-accused as
the stage of hearing on the point of framing of charge will not be
available in this summons trial case.
In the instant case, Notice under Section 251 of Cr.P.C. has not yet
been framed but the question which goes to the root of the matter is as to
whether cognizance of the offence in a time barred complaint can be
taken by resorting to Section 473 of Cr.P.C. or not?
During the course of hearing, it was pointed out that the quashing
of FIR No.445/2001 was not on merits but was on jurisdictional ground.
Apex Court in Surinder Mohan (supra) has declared in no uncertain
terms that it is not permissible for the courts to take cognizance of the
offence after the period of limitation and the limitation for the offence of
defamation is three years, which is to be computed from the date of the
offence.
Apparently, impugned order of 28th June, 2012 does not deal with
the limitation aspect at all and so, it is rendered unsustainable.
Consequentially, the impugned order of 28th June, 2012 is hereby quashed
with direction to trial court to consider the limitation aspect, which goes
to the root of the matter and thereafter, to decide whether to summon
petitioner as an accused or not. The applicability of Section 473 of
CRL.M.C. 3292/2012 Page 3
Cr.P.C. be also considered by the trial court after hearing the respondent-
complainant. Let second respondent appear before trial court on 26 th
March, 2015 for hearing on the point of summoning in the complaint case
in question.
With aforesaid directions, this petition and the application are
disposed of while refraining to comment upon the merits of this case.
(SUNIL GAUR)
JUDGE
MARCH 09, 2015
s
CRL.M.C. 3292/2012 Page 4
