David Pon Pandian and Others vs State

B. Akbar Basha Khadiri, J.—These petitions coming on for hearing on Friday twenty Second day of December 2000 upon perusing the

petition and the Memo Grounds filed in support thereof and upon hearing the arguments of Mr. A.D. Jagdish Chandra Advocate for the petitioners

in all petitions and of Mr. M. Babu Muthu Meeran Government Advocate, (Crl. Side) on behalf of the respondent and having Stoodover for

Consideration till this day the Court made the following order :-

This Criminal Original Petition has arisen in this way :-

M/s. A.V.M, Productions Limited, Madras, produced a Tamil Feature film titled ""Sethupathi I.P.S."" They took 83 Prints of the picture. To avoid

video piracy they had made special marks in each of the prints in certain frames of the film. Later, it came to light that the same film was being

Screened in Television in Ambur and the Ambur Taluk Police registered a case in Crime No. 36 of 1994 under the provisions of the Tamil Nadu

Exhibition of Film in T.V. Screen through V.C.R. (Regulation Act) 1984 and Cinematograph Act, 1952 and arrested one Murali of Balaji Video

on 24.1.1994. The investigation revealed that cassettes have emerged from print No. 64 of the aforesaid film. Print No. 64 was delivered to the

distributors M/s. Golden Pictures; Tirunelveli. M/s Golden Pictures, Tirunelveli, in turn entrusted the same with M/s. Raj Cine Complex Private

Limited Tuticorin for exhibition of the picture on 13.1.1994. M/s Raj Cine Complex Private Limited are running three theatres under the name and

style of Raj Mini Raj and Cine Raj. The film was exhibited for public view in Cine Raj Theatre from 14.1.1994 to 21.1.1994 and subsequently, at

Raj Theatre from 22.1.1994 onwards. Therefore, a case in Crime No. 1 of 1994 was registered by the C.B.C.I.D. and the investigation revealed

that the pirated video cassettes were available in the market in Palayamkottai, Ambur and Tiruchirappalli, etc. The investigation revealed that the

petitioners herein had created video cassettes from and out of the print No. 64 in pursuance of the conspiracy between them. At the instance of the

Director General of Police, the case in Crime No. 36 of 1994 of the Ambur Police Station was transferred to the C.B.C.I.D. to be clubbed with

Crime No. 1/94. Accordingly the respondent investigated the crime and filed charge sheet before the learned Additional Chief Metropolitan

Magistrate, Egmore, Chennai. u/s 120(B), I.P.C. read with Section 406,1.P.C. Sections 63 and 68(A) of the Copy Right Act, 1957 Section 406,

I.P.C. and Section 406, I.P.C. read with Section 109, I.P.C. against the accused, which the learned Additional Chief Metropolitan Magistrate,

Madras, took cognizance of the C.C. No. 11626 of 1999 on 22-12-1999 and the learned Additional Chief Metropolitan Magistrate Egmore,

Chennai framed charges against the accused on 11.4.2000. At this stage, the accused filed petition u/s 239 of the Criminal Procedure Code,

seeking discharge on the ground that the offence alleged to have been committed in various places of Tamil Nadu which does not include the city

of Madras and therefore, the learned Additional Chief Metropolitan Magistrate, Egmore, Madras has no Jurisdiction to entertain the complaint. It

was also the case of the petitioners herein that taking cognizance of the case is barred by limitation as per the provision of Section 473, Cr.P.C.

The Learned Additional Chief Metropolitan Magistrate heard the matter, but dismissed the same on the ground that at the time of framing of

charges the accused had an opportunity to make their submissions and having failed to do so they cannot now seek discharge.

It is the case of the petitioners herein that even as per the prosecution case, the offence is purported to have been committed at Tutitcorin and

the pirated cassettes were made available for sale at Tiruchy, Palaykottai and Ambur, but there is no evidence to show that the cassettes were

available for sale at Madras for the C.B.C.I.D. to file the charge sheet before the learned Additional Chief Metropolitan Magistrate, Egmore,

Madras.

It is also contended that the learned Additional Chief Metropolitan Magistrate, Egmore, Madras ought not to have taken cognizance of the

matter. According to them, the offences are all punishable with imprisonment for a maximum period of three years. They have contended that the

offence is said to have been committed between 13.1.1994 and 24.1.1994. The learned Additional Chief Metropolitan Magistrate has taken the

charge sheet on 22.12.1999 after a lapse of five years. In support of his contention, the learned counsel for the petitioners cited three authorities

viz., State of Punjab Vs. Sarwan Singh, : Aru v. State, Represented by Sub Inspector of Police, Coimbatore 1993LW(Crl.) 127 and Arun Vyas

v. Anitha Vyas 1999 SCC (Crl) 629.

The object of Criminal Procedure Code putting a bar of limitation is discussed in the decision reported in State of Punjab v. Sarwan Singh''s

case (supra), wherein Their Lordships of the Supreme Court have pointed out as under :-

The Object of Criminal P.C in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a

result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions

long after the date of the offence. The Object which the statute seeks to sub serve is clearly in consonance with the concept of fairness of trial as

enshrined in Article 21 of the Constitution. It is therefore, of the almost importance that-any prosecution, whether by the State or a private com-

plainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.

In the decision reported in Aw v. State represented by Sub Inspector of Police Coimbatore (supra) T.S. Arunachalam, J. has pointed out as

under :-

On the law laid down by the Supreme Court it is apparent that mere presentation of a final report will not save limitation and limitation bar will

have to be reckoned from the date of taking cognizance of the offence by the Magistrate. However, the Magistracy the investigating agency and

the prosecuting agency in the Court, must be aware of the application of law of limitation and its link to cognizance contemplated u/s 468, Cr.P.C.

Mechanical return of final reports as though ritual should be avoided and equally while returns are made purposefully, the investigating agency and

the prosecuting agency must re-present the final reports within time, to save limitation, On facts in the instant prosecution, the investigating agency

and the prosecuting agency had gone to slumber for about a year and four months before the final report was re-presented, invoking of the

provisions u/s 473, Cr.P.C. was not even sought. As much as the liberty of Citizen is bound to be safeguarded the interest of Society requires

equal protection.

In the decision, His Lordship T.S. Aruachalam, U. has also pointed out as under

Section 468, Cr.P.C. is very specific that except as otherwise provided elsewhere in the Code, on Court shall take cognizance of an offence of

the category specified in Sub-section (2) after the expiry of the period of limitation. Apparently, the bar contemplated must be correlated to taking

cognizance of an offence by a Court. If that be so cognizance had been taken by the Magistrate only on 12.10.1999 nearly 2-1/2 months after the

prosecution was barred by limitation. If the object of the Legislature was to reckon limitation on the mere presentation of the complaint, it would

have been so stated in the Section.

The dictum that in computing the period of limitation the Court has to consider the date of commission of the offence as the starting point has

been reiterated by my learned brother A. Ramamurthi, J. in Manivasakan & Anr. v. State of Tamil Nadu rep. by Inspector of Police, Prohibition

1998 (2) MWN (Cr.) 69.

The learned Counsel for the petitioners cited the decision reported in Arun Vyas v. Anitha Vyas (supra), to indicate that Section 406,1.P.C.

would not be a continuing offence. My attention was drawn to a unreported judgment rendered by my learned brother N. Dinakr, J. In Crl.R.C.

No. 1077 of 1998, wherein it has been held that the provision u/s 468, Cr.P.C. is very specific that except otherwise provided elsewhere in the

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 and that

apparently, the bar contemplated must be correlated to taking cognizance of an offence by a Court it would thus appear that the Court can take

cognizance pf the offence, if the charge sheet is filed within the prescribed period of limitation u/s 468, Cr.P.C. and in computing the period of

limitation, the date of commission of offence is to be reckoned as the starting point. If the charge sheet is not filed within three years, the Court has

no power to entertain the complaint as reiterated in the decision reported in State of Punjab v. Sarwan Singh (supra). Though the learned Counsel

for petitioners cited the decision reported Arun Vyas v. Anitha Vyas cited supra to reiterate that offence u/s 406 I.P.C. is not a continuing offence,

still in that case certain observations have been made by Their Lordships to the effect that in cases where the conduct of the accused is such that

applying the rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence

after the expiry of the period of limitation in the interest of justice. That was a case where the husband was charged of inflicting dowry harassment

upon his wife and also for committing criminal breach of trust. In that case, Their Lordships of the Apex Court have observed that the interest of

justice demands that the Court should protect the oppressed and punish the oppressor/offender. That was a case where the wife was subjected to

cruelty by her husband and she was oppressed by the husband. In the instant case the allegation is that the petitioners have pirated the video

cassettes. It cannot be said that their act would amount to any oppression or the complainant is the oppressed person. I therefore feel that that the

ratio laid down Arun Vyas v. Anitha Vyas cited supra would not apply to the facts of the instant case.

Coming to the facts of the instant case, it is evident that the offence is said to have been committed between on 13.1.1994 and 24.1.1994. The

learned Additional Chief Metropolitan Magistrate, Egmore, Madras has taken the matter on file on 22.12.1999 well after the expiry of the period

of limitation. The finding of the learned trial Judge, that because charges were framed, the petitioners herein cannot be discharged, does not seem

to be proper, because discharge can be pleaded at any time before commencement of the trial by examination of the witnesses. I am satisfied that

the further continuance of the proceedings would amount to abuse of process of law. This Criminal Original Petition is therefore allowed.

Consequently, Crl. M.P. Nos. 8530 and 8531 of 2000 are closed.