Karnataka High Court

Mr Ando Paul vs Mr G Ismail Musliyar on 7 May, 2024

                           -1-
                                     CRL.RP No. 2 of 2018


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 07TH DAY OF MAY, 2024
                         BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
     CRIMINAL REVISION PETITION NO. 2 OF 2018
BETWEEN:
   MR. ANDO PAUL
   S/O. P.P. PAUL
   AGED ABOUT 49 YEARS
   EDITOR AND PUBLISHER
   PATTARU SAVINA COMPLEX
   AZIZUDDIN ROAD
   BUNDER, MANGALORE
                                              ...PETITIONER

(BY SRI. NITHIN R, ADVOCATE)

AND:
   MR. G. ISMAIL MUSLIYAR
   S/O. ABOOBACKER
   AGED ABOUT 51 YEARS
   R/AT KURNAD POST, FAJIR
   MANGALORE TALUK
   D.K. DISTRICT - 576 101.
                                             ...RESPONDENT

(BY SRI. SACHIN B S, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE IN C.C.NO.3490/2008 DATED 30.12.2016 PASSED
BY THE JMFC (II COURT), MANGALORE AND ETC.,


     THIS   CRIMINAL   REVISION   PETITION   HAVING   BEEN
HEARD AND RESERVED ON 19.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                          -2-
                                                         CRL.RP No. 2 of 2018




                                      ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 30.12.2016 in C.C.No.3490/2008

passed by the J.M.F.C. (II Court), Mangaluru and its

confirmation judgment and order dated 18.12.2017 in

Crl.A.No.20/2017 on the file of the IV Additional District and

Sessions Judge, Dakshina Kannada, Mangaluru, seeking to set

aside the concurrent findings recorded by the Courts below,

wherein the petitioner / accused is convicted for the offences

punishable under Sections 500, 501 and 502 of Indian Penal

Code (for short 'IPC').

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. It is the case of the prosecution that, the

complainant was an Arabic Teacher at various madarasas i.e.,

Malali, Kemmara of Uppinangady etc. He was working as a

Qatib of various Jumma Masjids. The complainant hailed from

a very respectable family and he did not have any criminal

background and did not have any personal blemish in his life.

The accused being the Editor of a fortnightly magazine namely

'Pattanga' published a defamatory article against the

complainant stating that the 'Satanic Chronicle of Mylar Ismail

of Arkana'. It is further stated that the said statement

published in the magazine which defamed the dignity of the

complainant and his family members in the public view and

people started enquiring him about the article published in the

magazine which became ridiculous. Therefore, a complaint

came to be registered by the complainant.

4. The Trial Court after taking cognizance, recorded

the evidence of PWs.1 to 3 and got marked six documents as

Exhibits P1 to P6 and recorded the conviction for the offences

punishable under Sections 500, 501 and 502 of IPC. The

Appellate Court on appeal being filed, after having re-

appreciated the facts and evidence dismissed the appeal by

confirming the judgment of conviction. Hence this revision

petition.

5. Heard Shri Nithin R., learned counsel for the

petitioner and Shri Sachin.B.S., learned counsel for the

respondent.

6. It is the submission of learned counsel for the

petitioner that the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court are required to be set aside as

the concurrent findings are perverse, illegal and opposed to

facts and law.

7. It is further submitted that there is an inordinate

delay in filing the PCR i.e., delay of 2 years 9 months which is

fatal to the case of the complainant. However, the Trial Court

did not consider the said delay and proceeded to take

cognizance and recorded the conviction which is not proper.

8. It is further submitted that the cognizance taken

after seven years from the date of institution of complaint

which is contrary to the facts and also contrary to the settled

principles of law declared by the Hon'ble Supreme Court in the

case of PRADEED S WODEYAR v. STATE OF KARNATAKA1.

9. It is further submitted that as per the order of the

Press Council of India (Ex.P5), the accused published Ex.P6 in

order to clarify the said publication, however, the complainant

filed a complaint with an ulterior motive in order to harass the

(2021) 19 SCC 62

accused. The evidence of PWs.1 to 3 ought not to have been

considered for the reason that they are not only the interested

witnesses, but also their statements are contrary to the

documents on record.

10. It is further submitted that the Courts below ought

to have considered the legal aspects which are required to be

considered as mandatory while appreciating the evidence on

record. Having failed to consider the same, resulted in passing

the impugned judgments, which are required to be set aside.

Making such submission, learned counsel for petitioner prays to

allow the revision petition.

11. Per contra, learned counsel for the respondent

vehemently justified the concurrent findings and submitted that

the findings of the Courts below regarding defamation are

appropriate. The respondent / complainant is a reputed person

in the locality, without verifying the said aspect, the petitioner

has published the defamatory article in his magazine which

defamed the dignity of the respondent in the locality.

12. It is further submitted that the article which was

published in the magazine of the accused, not only defamed the

dignity but also caused irreparable loss to the personal life of

the complainant. The evidence of PWs.1 to 3 is consistent that

the said article was false and baseless. The accused being an

Editor of the magazine should have verified the veracity or

authenticity before it was published.

13. It is further submitted that the averments of the

said article clearly defamed the dignity of the individual in the

Society. Therefore, the person who was responsible for

publishing the article has to be punished. Accordingly, the Trial

Court rightly recorded the conviction in respect of the

defamation, hence, interference with the said concurrent

findings may not be necessary. Making such submission,

learned counsel for respondent prays to dismiss the petition.

14. After having heard the learned counsel for the

respective parties, learned counsel for the petitioner has raised

three grounds, firstly, there is delay in filing the complaint.

Secondly, taking cognizance is bad in law as it was taken after

8 years from the date of filing of the complaint. Thirdly,

convicting the petitioner / accused on the evidence of

interested witnesses is bad in law.

15. As regards the delay in lodging the complaint is

concerned, the evidence of PW.1 is seen which discloses that

on 31.05.1998, the accused published a defamatory article

against the complainant. On 18.07.1998, a letter was written

to the accused asking him to publish an apology in his

magazine. However, again on 31.07.1998, the accused

published a defamatory article against the complainant. Being

aggrieved by the said article, the complainant approached the

Press Council of India on 10.08.1999 sought for action to be

initiated against the accused. The Press Council of India

directed the accused to publish a version of refuting the

allegations made in the magazine as per Ex.C4. Thereafter, the

accused published an article as per Ex.C6 (Ex.P6) which also

not refuting the defamatory article published against the

accused. Therefore, on 21.04.2001, the complainant

approached the Jurisdictional Magistrate by filing a private

complaint. Since there is a clear explanation by PW.1 regarding

delay in lodging the complaint, the said contention of the

learned counsel for the accused cannot be accepted.

16. As regards taking cognizance is bad in law is

concerned, learned counsel for the accused relied on the

judgment of the Hon'ble Supreme Court in the case of

PRADEED S WODEYAR, stated supra, the paragraph Nos.76, 84

and 91 referred by the learned counsel for the accused relating

to taking cognizance on the basis of the police report and not

on the basis of the private complaint. In the present case, the

matter relating to taking cognizance after 8 years from the date

of lodging the complaint for the offences which are punishable

with simple imprisonment for 2 years or a fine or both,

especially in non-cognizable offences. To deal with the said

aspect, it is necessary to refer to Section 468 of the Code of

Criminal Procedure, which reads thus:

"468. Bar to taking cognizance after lapse of the period of limitation.--(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be--

(a) six months, if the offence is punishable with fine only;

1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), s. 2 and Sch.192

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"

17. On careful reading of the above said provision, it

makes it clear that cognizance should be taken within 3 years if

the offence is punishable with imprisonment for a term

exceeding one year, but not exceeding 3 years. In the present

case, a complaint is filed on 21.04.2001, cognizance taken on

12.08.2008. Therefore, the order of taking cognizance is bad

in law and the Trial Court and the Appellate Court should have

considered the said aspect and recorded the acquittal. In my

considered opinion, taking cognizance is bad in law.

18. In the light of the observations made above, when

the order of taking cognizance is bad in law, answering point

No.3 is not necessary and the revision petition deserves to be

allowed.

19. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of

sentence dated 30.12.2016 in C.C.No.3490/2008

passed by the J.M.F.C. (II Court), Mangaluru and

the judgment and order dated 18.12.2017 in

Crl.A.No.20/2017 on the file of the IV Additional