Delay Caused In Taking Cognizance By Court After Complaint Is Filed When There’s No Malafides, Is To Be Excluded For Limitation Period Computation: Karnataka HC

The Karnataka High Court held that the delay caused in taking cognizance by the court after a complaint is filed when there is no malafides by the complainant is to be excluded for computation of limitation period.

The Court held thus in a criminal petition filed under Section 482 of the Criminal Procedure Code (CrPC) praying to quash the entire proceedings in the Court of II Additional Chief Metropolitan Magistrate.

A Single Bench of Justice Suraj Govindaraj observed, “… I answer point No.4 by firstly holding that the delay caused in taking cognizance by Court after a complaint is filed when there is no malafieds on part of the complainant is required to be excluded for purpose of the computation of the period of limitation under Section 468 of the Code of Criminal Procedure.”

The Bench added that the delay caused by the court in taking cognizance is excluded under Section 470 of the CrPC.

Advocate S.G. Bhagavan appeared for the petitioner while Advocate S.V. Giridhar appeared for the respondent.

In this case, the respondent filed a private complaint under Section 200 of CrPC read with Section 499 of the Indian Penal Code (IPC) and cognizance having been taken, criminal process having been issued by the Additional Chief Metropolitan Magistrate, he challenged the same. In terms of Rule 1 of Chapter VII of the Criminal Rules of Practice, a Magistrate is required to record the order sheet in his own handwriting and in this matter, the same having been typed, the counsel for the petitioner submitted that the order of cognizance is bad in law and is required to be quashed.

The counsel further submitted that the only allegation which has been levelled against the petitioner is that he called the respondent a rowdy sheeter in a general meeting of the Bangalore Club and the same being the truth of the matter cannot amount to defamation. It was also contended that there is no statement made in the PCR that due to the statement made by the petitioner, the reputation of the respondent suffered damage and that there was no name of the witnesses mentioned in the PCR. The counsel said that the cognizance could therefore not have been taken, when there is no such statement made in the PCR.

The High Court in the above regard noted, “In terms of sub-Section (1) of Section 470 the time during which any person has been prosecuting with due diligence another prosecution whether in a court of first instance or in a court of appeal or revision shall be excluded. … This in my considered opinion would have to be read in right perspective in as much as when the time spent prosecuting another prosecution is excluded, the time spent in prosecution of the same compliant would also have to be excluded. It is not that the petitioner did not file a complaint post the occurrence of the offence which is alleged to be in the year 2011.”

The Court further noted that the sworn statement of the complainant was recorded and thereafter the matter was adjourned and the submission made in this regard is that since the sworn statement was not found on the file, the matter continued to be adjourned and only after the same was found, cognizance was taken.

“Be that as it may, a perusal of the order sheet would indicate that the complainant has not sought for any time, complainant has diligently prosecuted the complaint. The cognizance was taken by the Court only on 17.12.2016 as regards which no fault can be found with the complainant. … Thus, the exclusionary period prescribed under sub-Section (1) Section 470 of the Code of Criminal Procedure in my considered opinion would also have to extend to the delay caused in taking cognizance after the complaint has been filed”, it also said.

Accordingly, the High Court dismissed the petition and directed the Trial Court to expeditiously dispose of the matter considering that the complaint was of the year 2011.

Cause Title- Jagan Chandy v. Jagadish K.A. (Neutral Citation: 2024:KHC:12943)

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