IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 775 of 2008()
1. SIMON JOSEPH, S/O.A.J.ABRAHAM,
... Petitioner
2. SELINE JOSEPH, W/O. SIMON JOSEPH, -DO-.
Vs
1. STATE OF KERALA,
... Respondent
2. G. SADASIVAN NAIR,
For Petitioner :SRI.S.JAMES VINCENT
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :17/09/2008
O R D E R
R.BASANT, J.
----------------------
Crl.M.C.No.775 of 2008
----------------------------------------
Dated this the 17th day of September 2008
O R D E R
The petitioners are the accused in a prosecution under
Section 500 I.P.C. The second respondent is the complainant in
that prosecution. It is alleged that against the complainant an
Advocate, on 5/5/1989, a complaint was filed before the Bar
Council. The Bar Council initiated proceedings on the basis of
the said complaint dated 5/5/1989. A news item was published
in a daily on 28/11/1992 giving details of the said complaint
which details allegedly amount to imputations harming the
reputation of the complainant. About that imputations complaint
dated 7/2/2003 was filed by the complainant after elapse of more
than a decade. Cognizance was taken by the learned Magistrate
and the calender case was registered. The petitioner has come
to this court to complain that the cognizance has been taken in
violation of the provisions relating to limitation and that in any
view of the matter cognizance taken is not justified, is barred by
limitation and is liable to be quashed.
Crl.M.C.No.775/08 2
2. Respondent has been served; but there is no
appearance for the respondent. Report of the learned
Magistrate was called for and from the report of the learned
Magistrate as also from the averments in the complaint, it is
seen that the complaint dated 7/2/2003 is alleged to be within
time on the short reason that the Bar Council had ultimately
passed final orders on the complaint only on 03/06/2002.
Reckoning that as the date of commencement of the period of
limitation, the complaint filed on 7/2/2003 was reckoned to be
within the period of limitation and the cognizance taken is not
vitiated by the bar of limitation, it is mentioned in the report of
the learned Additional Chief Judicial Magistrate. Averments to
that effect have seen made in the complaint filed by the
complaint.
3. The learned counsel for the petitioner/accused
contends that in any view of the matter, the period of limitation
must be held to start from the date of the offending publication
that is 28/11/1992. The closure of the proceedings before the
Bar Council on 3/6/2002 cannot in any way extend the period of
limitation or justify a complaint being filed on 07/02/2003
Crl.M.C.No.775/08 3
alleging defamation in respect of the publication dated
28/11/1992. The learned counsel for the accused relies on the
decision in Surinder Mohan Vikal v. Ascharj Lal Chopra
[1978 Crl.L.J.764]. I find merit in the objections made by the
learned counsel for the accused. In any view of the matter, I am
satisfied that the clock of limitation must be held to have started
ticking from 28/11/1992 i.e the date on which offending
publication was made. The ultimate closure of the proceedings
by the Bar Council on 3/6/2002 can have no bearing on the
question of limitation for prosecuting the offender for such a
publication effected on 28/11/1992.
In the result,
a) This Crl.M.C is allowed.
b) C.C.No.215/07 pending before the learned Additional
Chief Judicial Magistrate, Thiruvananthapuram is hereby
quashed.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.775/08 4
Crl.M.C.No.775/08 5
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008