Dismissed

Shri. H.R.Ranganath v. Shri.Vamadeva Gowda

Karnataka HC12 Jul 2021WP/36410/2018

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition seeking to quash criminal proceedings for defamation. The bench held there was no abuse of process, affirmed the trial court's jurisdiction, and clarified that limitation runs from the complaint date, not the cognizance date. The petition was dismissed with costs.

What did the court decide?

The writ petition was dismissed with costs of Rs. 5,000/-.

Shri. H.R.Ranganath Vs Shri.Vamadeva Gowda — Civil Procedure and Limitation | Karnataka HC (2021)

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W.P.NO.36410/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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WRIT PETITION NO.36410/2018 (GM-RES)

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BETWEEN:

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SHRI. H.R.RANGANATH, AGED ABOUT 58 YEARS, DIRECTOR, M/S WRITEMEN MEDIA PVT. LTD., CHIEF PATRON OF PUBLIC TV, HAVING ITS MAIN OFFICE BMTC BUILDING, YESHWANTHPUR CIRCLE, BANGALORE – 560 022.

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…PETITIONER (BY SRI. M.S.SHYAM SUNDAR, ADVOCATE) AND:

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SHRI. VAMADEVA GOWDA S/O SHRI KOLLURAPPA GOWDA, AGED ABOUT 66 YEARS, PRESIDENT OF OPPOSING PARTY OF DANDAVATHI WATER PROJECT HALAGHATTA VILLAGE, ULLAVI HUBLI, SORAB TALUK, SHIVAMOGGA DISTRICT – 577 201.

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…RESPONDENT

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(BY SRI.UMESH MOOLIMANI, ADVOCATE FOR SRI.S.V. PRAKASH, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C PRAYING TO QUASH THE ORDER OF COGNIZANCE DATED 23.06.2013 AND DIRECTING FOR THE REGISTRATION OF CRIMINAL CASE IN CC NO.291/2013 ON

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W.P.NO.36410/2018

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FILE OF THE CIVIL JUDGE (JR. DN) & JMFC COURT, SORAB, SHIVAMOGGA DISTRICT PASSED IN PCR NO.58/2009, ANNEXURE-B; AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in CC.No.291/2013

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against the petitioner on the file of the Civil Judge (Jr Dn) & JMFC, Sorab, amounts to abuse of process of the Court? is the question involved in this case.

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Petitioner at the relevant time was the editor of Kannada Prabha daily news paper. The respondent presented a complaint before the Civil Judge, (Jr Dn) & JMFC, Sorab against the petitioner and four others seeking the prosecution for the offences punishable under Sections 500 & 501 of IPC.

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In the complaint the petitioner was arraigned as accused No.1. Sri. K. Shankar Nair-accused No.2 was the publisher, Sri. K.V.Shivakumar-accused No.3 was the editor & publisher of Kannada Prabha daily news paper. One Sri. Y.K.Suryanarayana-accused No.4 was the

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W.P.NO.36410/2018

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Executive Editor of the said paper and Accused No.5 was an advocate from Sorab Taluk.

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The respondent in his complaint alleged as

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follows:

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(i) That he was President of the Committee constituted to oppose the Dandavathi Water Project. He was also a social worker and a man of good reputation in Shimoga District and also an environmental activist.

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(ii) The Government tried to implement the irrigation project to Bhadravathi River in Soraba Taluk which was against the interest of the farmers. Therefore, under his leadership local farmers had formed a committee called “Dhandavthi Neeravari Yojana Virodhi Horata Samithi”.

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(iii) Accused No.5 though he was not an office bearer of the said committee, projecting himself as the Secretary of the Committee was trying to bring rift between the members of the

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W.P.NO.36410/2018

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committee and the complainant. Therefore, he along with four others started publishing defamatory articles in Kannada Prabha daily news paper, Shivamogga Edition dated 19.04.2009.

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(iv) Accused Nos.1 to 4 published an article written by Accused No.5 in their news paper dated 19.04.2009 stating that the complainant was extracting money from the villagers in the guise of conducting agitation against Dandavathi irrigation project and he has misappropriated Rs.2,00,000/- without giving proper accounts.

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(v) Accused Nos.3 & 4 published similar article in their “Namma Nadu” kannada daily evening newspaper on 18.04.2009 whereby they have defamed him.

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The complaint was registered in PCR No.58/2009. The learned Magistrate vide order dated

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W.P.NO.36410/2018

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14.09.2009 directed the office to register the case which reads as follows:

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“Complaint is present. Perused the complaint. Registered the case. Call on for S/St by 14.10.2009

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Learned magistrate on referring the matter to Station House Officer, registered the case. On 14.10.2009, the matter was placed before the learned Magistrate. On 02.12.2009 the learned Magistrate recorded the sworn statement of the complainant (CW1). The statement of CW2 (complainant’s witness) was recorded on 23.11.2010.

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The learned magistrate after hearing complainant’s counsel by order dated 23.06.2013 at Annexure-B took cognizance, registered the case in CC.No.291/2013 and issued process against the accused. Petitioner-accused No.1 seeks quashing of the said order on the following grounds:

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(i) The Trial Court failed to notice that there was delay in filing the complaint which was not explained;

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W.P.NO.36410/2018

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(ii) The order reference of the complaint under Section 156(3) of Cr.P.C. is contrary to Section 190 of Cr.P.C., is procedurally incorrect. The article in question was published in the public interest;

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(iii) Though accused No.1 was the resident beyond the jurisdiction of the Magistrate, issuing process without inquiry was contrary to Section 202 of Cr.P.C.

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(iv) Reiterating the said contention, Sri. M.S.Shyam Sundar, learned counsel for the petitioner seeks quashing of the proceedings.

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Sri. Umesh Moolimani, learned counsel for the respondent counters the argument of the petitioner’s counsel on the following grounds:

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i) The learned Magistrate has not referred the complaint to police invoking Section 156(3) of Cr.P.C. The endorsement in the order sheet is only Ministerial endorsement which is a mistake of the ministerial staff.

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ii) The enquiry which is required under Section 202 of Cr.P.C. was conducted before issuing the process.

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W.P.NO.36410/2018

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iii) The offence under Section 499 is punishable under Sections 500 & 501 of IPC with imprisonment upto two years.

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iv) The complaint filed within 5 months was well within time.

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v) Whether the article published was truthful or not is a matter of defence, on that ground the proceedings cannot be quashed.

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It is the settled principle of law that the powers under Section 482 of Cr.P.C. to quash the criminal proceedings at inception shall be sparingly exercised and in rarest of rare cases. Unless it is shown that there is abuse of process of the Court or continuation of the proceedings lead to failure of justice, the proceedings cannot be quashed.

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Therefore, this Court has to see whether the impugned order or the proceedings are the abuse of process of the Court or they lead to abuse of failure of justice.

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W.P.NO.36410/2018

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The petitioner-Accused No.1 did not dispute that he was the editor of the Kannada Prabha daily news paper. It is not even in dispute that an article which is alleged in the complaint was published. Only on technical grounds, the proceedings are sought to be quashed.

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Referring to Section 156(3) of Cr.P.C. it is contended that the learned Magistrate at the first instance referred the complaint to the police invoking Section 156(3) of Cr.P.C. and then he himself proceeded to record the sworn statement and took cognizance.

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The certified copy of the complaint, order sheet, affidavit filed along with the complaint, list of witnesses, sworn statement of CW1 & 2, the list of documents produced along with the complaint, notice issued to the accused, postal acknowledgement are placed on record for perusal of this Court.

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The records produced by the petitioner himself

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show that on presentation of the complaint before the learned Magistrate, on the complaint itself he endorsed

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about the presence of the complainant and presentation of the complaint. The learned Magistrate further directed the Office to register the case and call the same for sworn statement on 14.10.2009.

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The copy of the order sheet shows that the office in the process of extracting the said order has committed a mistake. Though learned Magistrate had not passed an order to refer the matter to the police invoking Section 156(3) of Cr.P.C., the staff of trial Court have said in the process of extraction that the matter is referred under Section 156(3) of Cr.P.C., it appears that has escaped the notice of the learned Magistrate.

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When the matter was placed before the Court, the learned Magistrate ordered to list the matter for recording sworn statement. Then the matter was listed for recording sworn statement. The records further show that along with the complaint, the list of witnesses, list of documents and affidavits were submitted.

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The learned Magistrate then recorded the sworn statement of CW1 on 02.12.2009 and CW2 on 23.11.2010 and took cognizance. Therefore, there is no merit in the contention that the learned Magistrate referred the complaint to the police for investigation under Section 156(3) of Cr.P.C. as well as proceeded to take cognizance under Section 190 of Cr.P.C.

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Reg. limitation :

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The offences punishable under Sections 500 & 501 of IPC carry sentence of imprisonment upto two years. As per Section 468(1)(c) of Cr.P.C., in such case, the limitation for taking cognizance is three years from the date of offence. Admittedly, the complaint is filed within 5 months from the date of the alleged offence. The cognizance was taken on 23.06.2013.

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Under Section 468 of Cr.P.C., the material date for reckoning limitation is the date of presentation of the complaint and not the date of taking cognizance. If complaint is presented within time then even if the cognizance is taken beyond the period prescribed under

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Section 468 of Cr.P.C. that is immaterial. This view is supported by the judgment of the Hon’ble Supreme Court in Mrs. Sarah Mathew v. Institute of Cardio Vascular Diseases & Ors .¹ Therefore, there is no merit in the contention that the impugned proceedings are hit by Section 468 of Cr.P.C.

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Reg. contravention of Section B 202 of Cr.P.C. :

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It was contended that the petitioner was residing beyond the jurisdiction of the Magistrate. Therefore, learned Magistrate should have conducted the enquiry as contemplated under Section 202 of Cr.P.C.

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Learned counsel for the petitioner submits that the learned Magistrate should have seen whether the article published amounts to defamation and whether it comes within the exceptions under Section 499 of IPC.

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The order of the trial Court shows that the learned Magistrate recorded the sworn statement of CWs.1 & 2, perused the complaint, the material produced by the

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1 AIR 2014 SC 448

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W.P.NO.36410/2018

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complainant and then formed an opinion that there are grounds to proceed against the accused.

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In Judicial Dictionary Third Edition by Justice L.P.Singh and P.K.Majumdar, the inquiry regarding judicial proceedings is defined as follows:

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“ Inquiry . “Inquiry” means every inquiry, other than a trial, conducted under the Code of Criminal Procedure by Magistrate or Court. (See Code of Criminal Procedure, 1973, Section 2(g)).”

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“In re. (Of a judicial proceeding) not formally including adverse parti es , but rather involving something (such as an estate). The term is often used in case citations, esp. in uncontested proceedings. In re Butler’s Estate. Also termed the matter of. Matter of Butler’s Estate. (Vide Black’s Law Dictionary, 8th Edn. At 809.)

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24 In the Law Lexicon by Justice P.Ramanatha Aiyar, the inquiry regarding judicial proceedings is defined

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as follows:

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“Inquiry”, of a case is not differed till such time as Magistrate begins to record evidence. It commences not with the lodging of the complaint or issue of process, but with the appearance of the accused before the Magistrate to answer the charges. (134 IC 361=33 Bom LR 668=1931 Bom. 411)

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The reading of the above definitions makes

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clear that at that stage of inquiry the Court cannot sit into

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the arm chair of the adversary and presume the defence of the accused. The contention of the accused is that the news item published was truthful and in public interest. That may constitute defence to the accused in the trial. Section 202 of Cr.P.C. does not contemplate the examination of the defence of the accused. Therefore, this Court does not find any merit in the contention that the trial Court at that stage should have seen whether case comes under the exceptions to Section 499 of IPC.

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So far as the publication being truthful, not defamatory and unmotivated that may constitute defence for the accused in the trial or at the stage of framing of the charge.

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This Court does not find any abuse of the process of the Court in the impugned order or the impugned proceedings. The records show that the trial Court proceedings are of the year 2009 and cognizance was taken in the year 2013. The proceedings were stalled due to interim stay granted in this vexatious petition.

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Therefore, the petition is dismissed with costs of Rs.5,000/-.

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The accused shall deposit the said costs before the trial Court within one month from the date of receipt of copy of this order. The same shall be recovered as fine.

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Sd/JUDGE

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Shri. H.R.Ranganath v. Shri.Vamadeva Gowda

Case brief

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Shri. H.R.Ranganath v. Shri.Vamadeva Gowda

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