H.T. MEDIA LTD & ORS vs. STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

th
Reserved on: 6 February, 2013
th
Pronounced on: 8 April, 2013

+ CRL.M.C. 3060/2010
H.T. MEDIA LTD & ORS ..... Petitioners
Through: Mr.A.J.Bhambhani,Ms.Nisha Bhambhani
& Mr.Apurv Chandoola, Advocates
versus

STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for the State

+ CRL.M.C. 3922/2010
H.T. MEDIA LTD & ORS ..... Petitioners
Through: Mr.A.J.Bhambhani,Ms.Nisha Bhambhani
& Mr.Apurv Chandoola, Advocates
versus

STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for the State

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 1 of 23



+ CRL.M.C. 3456/2011
HINDUSTAN MEDIA VENTURES LTD AND ORS ..... Petitioners
Through: Mr.A.J.Bhambhani,Ms.Nisha Bhambhani
& Mr.Apurv Chandoola, Advocates
versus

STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for the State

+ CRL.M.C. 837/2012 & Crl.M.A.3466/2012
H.T. MEDIA LTD & ORS ..... Petitioners
Through: Mr.A.J.Bhambhani,Ms.Nisha Bhambhani
& Mr.Apurv Chandoola, Advocates
versus

STATE ..... Respondent
Through: Ms.Rajdipa Behura, APP for the State

CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL

J U D G M E N T

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 2 of 23



G. P. MITTAL, J.
1. By virtue of these four Petitions (Crl. M.C.3060/2010, 3922/2010,
3456/2011 and 837/2012), the Petitioners who are the publisher/printer
and local editors seek quashing of the four complaints and the
summoning order dated 18.11.2010, 09.08.2010, 13.12.2010 and
08.08.2011 respectively.
2. Before proceeding further, let me in brief state about the advertisements
which are alleged to be in violation of Section 3 of the Drugs and Magic
Remedies(Objectionable Advertisement) Act, 1954 (the act of 1954).
Crl.M.C.3060/2010
3. The Petition relates to an advertisement dated 22.08.2009 published in
Hindustan(Hindi) whereby the advertiser claimed instant relief from
diseases like high blood pressure, sugar through a fully Ayurvedic
medicine which did not have any side effect. As per the advertisement,
the patient was advised to contact Dr. Bengali(Kishan Malik) at the
address as mentioned in the advertisement.
CRL.M.C. 3922/2010
4. This Petition relates to an advertisement dated 19.11.2009 which was
published in Hindustan(Hindi). As per this advertisement, a Blood
Circulatory Machine (BCM) could be used for 15 minutes to get rid of
obesity, diabetes, heart problem, arthritis and blood pressure. There was
an offer of free gift with every purchase of BCM. Telephone Numbers
were provided to get a free demo if somebody was interested and the

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 3 of 23


address of the place of availability of this machine was also stated in the
advertisement.
CRL.M.C. 3456/2011
5. This Petition also relates to an advertisement dated 11.12.2009 published
in the earlier said newspaper. The advertisement relates to two exercise
machines “Crazy Fit Massager” and “Leg Massager” by the company
M/s. Amazing Health Solution. In the advertisement, it was claimed that
it was world‟s No.1 trusted selling brand. It was stated that “Crazy Fit
Massager” can be used to reduce fat, obesity and back pain, improve
blood circulation, could be used in decreasing blood pressure, builds bone
density and muscle strength, helps in constipation and diabetes control. It
was stated that “Leg Massager” decreases diabetes, massages foot, ankles
and calves, increases the tone of skin and helps in relief from pain due to
long drive. For placing an order for the machine, certain numbers were
given. It was stated in the advertisement that the machine could be used
for 15 minutes which would be equivalent to walking for 10,000 steps or
2.5 kms.
CRL.M.C. 837/2012
6. The advertisement in this Petition is also dated 05.08.2010 published in
Hindustan Times(English). The advertisement relates to a machine
„Vacurect‟ which provides relief from certain diseases and dysfunctions
of the male organ. The machine was stated to be approved by US-FDA
and could be obtained from M/s Vacurect Erection Enhancement System

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 4 of 23


by placing an order at the number given in the advertisement. The details
of the advertisement is:
___ “HIGLY RECOMMENDED FOR MEN WITH
GET - Erectile Dysfunction (ED)/Impotence
YOUR (DUE to Diabetes, Stress, Hypertension, BP, Age,
SEX Prostate, Excessive Smoking and Drinking etc.)
LIFE - Premature Finish (Early Discharge )
BACK /Less Confident (Build confidence and prolong
Love making)
___ Micro Organ/Small Organ (Effective Penis
Enhancer/developer)”


7. The following contentions are raised on behalf of the Petitioner:

(i) The Act of 1954 prohibits advertisement of certain drugs for
treatment of certain diseases as mentioned in Section 3 or in the
Schedule (under Section 3(d) ) to the Act so as to prevent any
self medication by the patient. It is urged that in
Crl.M.C.3060/2010, there was no such advertisement. Rather
the patient was advised to contact Dr. Bengali. It is thus urged
that in this Petition there is no violation of Section 3 read with
Section 7 of the Act of 1954. Reliance is placed on Hamdard
Dawakhana v. Union of India, 1960 AIR (SC) 554 and K.S.
Saini & Anr. v. Union of India, AIR 1967 Punjab 322.
(ii) Section 9 of the Act of 1954 deals with the vicarious liability of
the officers of the company or the directors of the company
who are in-charge of and responsible for the conduct of the
business of the company. There is no averment in the

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 5 of 23


respective complaint as to how Petitioners No.2 and 3 were in-
charge of and responsible for the conduct of the business of the
First Petitioner, therefore, they cannot be made vicariously
liable.
(iii) The offences with which the Petitioners have been charged is
punishable with imprisonment which could extend to six
months in the case of first offence and one year in case of
second or subsequent offence. Thus, as per Section 468 of the
Code of Criminal Procedure (Code), the Magistrate was obliged
to take cognizance within one year of the commission of the
offence which he failed to take and thus the cognizance having
not been taken within the stipulated period of one year, the
complaints are liable to be quashed. The learned counsel for
the Petitioner presses into service the report of the Supreme
Court in Krishna Pillai v. T.S. Rajendran & Anr., 1990 (Supp.)
SCC 121 . The learned counsel submits that although Krishna
Pillai dealt with the bar to limitation under the Child Marriage
Restraint Act, 1929(the Act of 1929) but the provisions of
Section 9 of the Act of 1929 being para materia with Section
468 of the Code, the same fully applies to the facts of the
instant case. The learned counsel submits that later judgments
of the Supreme Court in Rashmi Kumar v. Mahesh Kumar
Bhanda , (1997) 2 SCC 397 and Japani Sahoo v. Chandra
Sekhar Mohanty, (2007) 7 SCC 394 shall have to be treated per
incuriam.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 6 of 23


8. On the other hand, the learned APP for the State urges that the definition
of „drug‟ as given in Section 2(b) is very wide so as to include any article
other than food intended to affect or influence in any way the structure or
any organic function of the body of human beings or animals. Thus, she
contends that the advertisements in question offended Section 3 which is
punishable under Section 7 of the Act of 1954. The learned APP relies
on the judgment of the Supreme Court in Zaffar Mohammad @ Z.M.
Sarkar v. The State of West Bengal, (1976) 1 SCC 428 . The learned APP
argues that every person who takes part in publication of any
advertisement is liable to be punished irrespective of the fact whether he
is an officer/director in-charge of the company or not. She submits that
the judgment in Krishna Pillai which dealt with provision of Section 9 of
the Act of 1929 would not be applicable to the instant case in view of the
three Judge Bench decision of the Supreme Court in Rashmi Kumar
which was relied on in the later judgment of the Supreme Court in Japani
Sahoo.
9. Section 2(b) of the Act of 1954 defines „drug‟ as under:
“ (b) “Drug” includes-
(i) A medicine for the internal or external use of human beings
or animals;
(ii) Any substance intended to be used for or in the diagnosis,
cure, mitigation, treatment or prevention of disease in human
beings or animals;

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 7 of 23


(iii) Any article, other than food, intended to affect or
influence in any way the structure or any organic function of
the body of human beings or animals;
(iv) Any article intended for use as a component of any
medicine, substance or article, referred to in sub clauses (i), (ii)
and (iii).”

10. Section 3 of the Act of 1954 prohibits advertisement of certain drugs for
treatment of diseases and disorders. It would be fruitful to extract Section
3 hereunder:
“ 3. Prohibition of advertisement of certain drugs for
treatment of certain diseases and disorders. – Subject to the
provisions of this Act, no person shall take any part in the
publication of any advertisement referring to any drug in terms,
which suggest or are calculated to lead to the use of, that drug
for-
(a) The procurement of miscarriage in women or prevention of
conception in women; or
(b) The maintenance or improvements of the capacity of human
beings for sexual pleasure; or
(c) The correction of menstrual disorder in women; or
(d) The diagnosis, cure, mitigation, treatment or prevention of
any disease, disorder or condition specified in the Schedule, or
any other disease, disorder or condition (by whatsoever name
called) which may be specified in the rules made under this Act;
Provided that no such rule shall be made except-
(i) In respect of any disease, disorder or condition which
requires timely treatment in consultation with a registered

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 8 of 23


medical practitioner or for which there are normally no
accepted remedies, and
(ii) After consultation with the Drugs Technical Advisory Board
constituted under the Drugs and Cosmetics Act, 1940 (23 of
1940), and, if the Central Government considers necessary,
with such other persons having special knowledge or practical
experience in respect of Ayurvedic or Unani systems of
medicines as that Government deems fit.”

CRL.M.C.3060/2010
11. Admittedly, the advertisement dated 22.08.2009 which was published in
Hindustan(Hindi) relates to a general promotion/awareness about
availability of an Ayurvedic Medicine for getting instant relief from high
blood pressure, sugar, etc.etc. For this purpose, the patient was required
to contact Dr. Bengali. Thus, it is evident that the offending
advertisement did not advertise the use of any particular drug for the cure
of these ailments. Rather it advised the patient to contact Dr.
Bengali(Kishan Malik) at the given address or at telephone numbers
which were also mentioned in the advertisement.
12. In Hamdard Dawakhana, a Constitution Bench of the Supreme Court
went into the history and object of the enactment of the Act of 1954 and
observed that the Parliament wanted to control the indiscriminate use of
drugs and its self medication. To bring an advertisement as punishable
under Section 7 of the Act of 1954, the publication should have been
regarding a drug and that drug should have suggested as a cure for certain
ailments mentioned in clauses (a) to (d) of Section 3 of the Act of 1954

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 9 of 23


and the advertisement should be of such nature that an unaware patient
may be misled into self medication or self treatment. Para 21 of the
report in Hamdard Dawakhana is extracted hereunder:

13. In K.S. Saini relying on Hamdard Dawakhana , a Division Bench of the
Punjab High Court held that the object of the Act is to avoid self
medication by people on the basis of the advertisement.
14. In the instant case, admittedly no medicine is being advertised. What is
stated by the advertiser is that cure for the high blood pressure and sugar
is available by an Ayurvedic durg. Since the name of the drug has not
been disclosed and rather the patient has been advised to contact Dr.
Bengali(Kishan Malik), it cannot be said that the advertisement is for any
drug to be used for diagnosis, cure, etc. etc. of any disease specified in the
Schedule. Thus, even if the allegations made in the complaint are to be
taken as gospel truth, the same would not amount to commission of an
offence by the Petitioners.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 10 of 23


15. The powers under Section 482 of the Code have to be invoked sparingly
and with circumspection only (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of the Court and (iii) otherwise
to secure the ends of justice.
16. In the case of State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR
1992 SC 604, the Supreme Court laid down the guidelines which are
extracted hereunder:
“ (1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case
against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 11 of 23



(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.”

17. Since the allegations levelled do not constitute an offence in the instant
case, the powers under Section 482 of the Code must be used to put an
end to the Petitioners‟ unnecessary harassment as the same would amount
to the misuse of the process of the Court. The Petition is accordingly
allowed and the Criminal Complaint No.36/4 of 2010 titled “State
(through Drugs Inspector) v. Dr. Bengali @ Kishan Malik & Ors.” and
the proceedings arising therefrom are hereby quashed.

CRL.M.C.3922/2010, 3456/2011 & 837/2012
18. The learned counsel for the Petitioner fairly conceded that the definition
of drug as given in Section 2(b)(iii) is wide enough to include the
machines in question. He, however, urges that in view of the contention
(ii) and (iii) raised by him, the complaints cannot be proceeded and have
to be quashed.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 12 of 23


19. In abovesaid three Petitions apart from the publisher, its officers who
have taken part in the publication have been prosecuted. It would be
apposite to extract the relevant paras of the complaints to know the exact
averments levelled against the Petitioners.
In CRL.M.C.3922/2010
20. Paras 7 to 10 of the complaint read as under:
“ 7. That M/s H.T.Media Ltd. (Accused No. 5) situated at 18-20,
Kasturba Gandhi Marg, New Delhi-110001 is a company
within the meaning of Section 9 of the „Act‟ who, as on
19.11.2009, were the publisher of Hindustan (Hindi), as per the
declaration printed on page 21 of Hindustan (Hindi) dated
19.11.2009.
8. That as on 19.11.2009, Sh. Parmod Joshi (Accused No. 6)
was the Local Editor of Hindustan (Hindi) as per the
declaration printed on page 21 of Hindustan (Hindi) dated
19.11.2009, and in that capacity, was the person in charge and
responsible for the publication of impugned advertisement.
9. That as on 19.11.2009, Sh. Rakesh Sharma (Accused No. 7)
was acting publisher and printed for M/s. H.T.Media Ltd. as
per the declaration printed on page 21 of Hindustan
(Hindi)dated 19.11.2009, and in that capacity, was the person
in charge and responsible for the publication of impugned
advertisement.
10. That on 19.11.2009 an advertisement appeared in the
Hindustan (Hindi) claiming that by exercising with Deemark
Blood Circulatory Machine you can get relief from Obesity,
Diabetes, Arthritis, Heart Diseases and Blood Pressure. The
said machine is a drug within the meaning of Section 2 (b) (iii)
of the said Act. That the impugned advertisement was released
by Accused No. 1.”


Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 13 of 23


In CRL.M.C.3456/2011
21. Paras 8, 9, 10 and 11 of the complaint read as under:
“8 . That M/s. HMV Ltd. (accused no. 5) situated at 18-20,
Kasturba Marg, New Delhi-110001, is a company within the
meaning of Section 9 of the “Act” who as on 11/12/2009, were
the publisher of Hindustan (Hindi) as per declaration printed
on page 15 of Hindustan (Hindi) dated 11/12/2009 and took
part in the publication of impugned advertisement.
9. That on 11/12/2009 Sh. Parmod Joshi (accused no. 6 ) Local
editor of Hindustan (Hindi) as per the declaration printed on
page 15 of Hindustan (Hindi) dated 11/12/2009 and in that
capacity was the person Incharge and responsible for the
conduct of day to day business of the firm M/s HMV Ltd, and
took part in the publication of the impugned advertisement.
10. That on 11/12/2009 Sh. Rakesh Sharma (accused no. 7) was
acting publisher and printed for M/s HMV Ltd. as per
declaration printed on page 15 of Hindustan (Hindi) dated
11/12/2009 and in that capacity took part in the publication of
impugned advertisement.
11. That on 11/12/2009 an advertisement appeared in the
Hindustan (Hindi) claiming that by exercising with “Crazy fit
Massager and leg Massager” you can get relief from Diabetes,
Blood Pressure and Obesity, that the impugned advertisement
was released by Accused no. 1.”

In CRL.M.C. 837/2012
22. Paras 7, 8, 9 and 14 of the complaint read as under:
“7. That as on 05/08/2010, Mr. Sudeep Mukhia (Accused No. 4)
was the Resident Editor (Delhi) of the Hindustan Times and
was the person in charge and responsible for conduct of
business of M/s HT Media Limited (Accused no3), who took

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 14 of 23


part in the publication of impugned advertisement as per the
declaration printed on page 19 of news paper the Hindustan
Times dated 05.08.2010.
8. That as on 05.08.2010, Mr. M.Venkatesh (Accused no. 5) was
Publisher & Printer for the Hindustan Times, was the person in
charge and responsible for conduct of business of M/s HT
Media Limited (Accused no 3, who took part in the publication
of impugned advertisement as per the declaration printed on
page 19 of news paper the Hindustan Times dated 05.08.2010.
9. That on 05.08.2010, an advertisement as detailed in Para 2
above, appeared in the Hindustan Times claims to be highly
recommended for men with Erectile Dysfunctions/Impotence.
xxx xxx xxx xxx xxx xxx
14. That by taking part in the publication of the Impugned
advertisement, all the above mentioned accused No. 1 to 5 had
contravened the provisions of Section 3(b) and 3(d) of the Act
which are punishable under section 7 of the said Act, with
imprisonment, which may extend to six months or with fine or
with both in the case of first conviction and with imprisonment
which may extend to one year or with fine, or both, in the case
of subsequent conviction.”
23. Thus, a perusal of the averments made in the complaint reveals that apart
from the company H.T. Media Ltd., the persons have been prosecuted on
the ground that they in their capacity as local editor/resident
editor/publisher and printer, etc. etc. took part in the advertisement of the
drug in the newspaper. Thus, it can be seen that a direct role has been
attributed to the Petitioners and it cannot be said that they are being made
vicariously liable only being an officer or director of the company. The
second contention raised on behalf of the Petitioners is, therefore,
unmerited and has to be rejected.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 15 of 23


24. It would be appropriate to extract the date of the advertisement, date of
filing of the complaint and the date of issuing the process hereunder:

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 16 of 23



25. Thus a perusal of the four complaints would reveal that although all the
four complaints were filed within the stipulated period of one year but the
process was issued in Crl.M.C.3456/2011 and Crl.M.C.837/2012 after the
expiry of the period of one year. In Krishna Pillai , the Supreme Court
dealt with the period of limitation for taking cognizance under Section 9
of the Act of 1929. Relying on A.R. Antulay v. Ramdas Sriniwas Nayak ,
the three Judge Bench of the Supreme Court observed that filing of a
complaint in Court is not taking cognizance and what exactly constitutes
taking cognizance is different from filing a complaint. The last paragraph
of the report in Krishna Pillai is extracted hereunder:
“…The extract from the Constitution Bench judgment clearly
indicates that filing of a complaint in court is not taking
cognizance and what exactly constitutes taking cognizance is
different from filing of a complaint. Since the magisterial
action in this case was beyond the period of one year from the
date of the commission of the offence the Magistrate was not
competent to take cognizance when he did in view of the bar
under Section 9 of the Act. We accordingly allow the appeal
and quash the prosecution. The writ petition is permitted to be
withdrawn as not pressed.”

26. Relying on a three Judge Bench decision in Official Liquidator v.
Dayanand & Ors., 2008 (10) SCC 1 , the learned counsel for the
Petitioner argues that the three Judge Bench decision in Krishna Pillai
has to be held as a binding precedent and the judgment in Rashmi Kumar
also decided by a three Judge Bench must be held as per incuriam as the
earlier judgment in Krishna Pillai was not referred in Rashmi Kumar.

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The learned counsel argues that wherever there is divergence of opinion
between two Benches of equal strength, then the subsequent Bench
cannot take a different view but can only make a reference to a larger
Bench. Para 78 of the report in Dayanand is extracted hereunder:
“78 . There have been several instances of different Benches of
the High Courts not following the judgments/orders of
coordinate and even larger Benches. In some cases, the High
Courts have gone to the extent of ignoring the law laid down by
this Court without any tangible reason. Likewise, there have
been instances in which smaller Benches of this Court have
either ignored or bypassed the ratio of the judgments of the
larger Benches including the Constitution Benches. These cases
are illustrative of non-adherence to the rule of judicial
discipline which is sine qua non for sustaining the system.
In Mahadeolal Kanodia v. Administrator General of W.B. [AIR
1960 SC 936 : (1960) 3 SCR 578] this Court observed: (AIR p.
941, para 19)
“19. … If one thing is more necessary in law than any other
thing, it is the quality of certainty. That quality would totally
disappear if Judges of coordinate jurisdiction in a High Court
start overruling one another's decisions. If one Division Bench
of a High Court is unable to distinguish a previous decision of
another Division Bench, and holding the view that the earlier
decision is wrong, itself gives effect to that view the result
would be utter confusion. The position would be equally bad
where a Judge sitting singly in the High Court is of opinion that
the previous decision of another Single Judge on a question of
law is wrong and gives effect to that view instead of referring
the matter to a larger Bench. In such a case lawyers would not
know how to advise their clients and all courts subordinate to
the High Court would find themselves in an embarrassing
position of having to choose between dissentient judgments of
their own High Court.” (emphasis added)

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27. Elaborating his argument, the learned counsel for the Petitioner argues
that the provision of Section 9 of the Act of 1929 and Section 468 of the
Code are para materia and, therefore, the decision in Krishna Pillai would
equally apply for interpretation of Section 468 of the Code.
28. I have perused the provisions of Section 9 of the Act of 1929 which bars
the Court to take cognizance of any offence under the Act of 1929 after
the expiry of one year from the date of the offence alleged to have been
committed. In Section 468 of the Code also almost similar words have
been used by the Legislature for creating bar of limitation. It is also true
that when the provisions of the two different Acts are para materia, the
Court can rely on interpretation of one of the Act rendered by the
Superior Court to the provision in the other Act ( State of Madras v.
Vaidyanatha Iyer, AIR 1958 SC 61 and Ahmedabad Pvt. Primary
Teachers‟ Assn. v. Administrative Officer & Ors., (2004) 1 SCC 755) .
29. It is true that there are a large number of legislations which contain
similar provisions and interpretation of a similar provision in one statute
shall be a guiding factor with regard to a provision para materia in the
other statute. However, when the provisions of two different Acts are
differently interpreted by the Supreme Court, then the principle of para
materia shall not be applicable. In this view of the matter, the
interpretation by the Supreme Court with regard to the bar of cognizance
in reference to Section 9 of the Act of 1929 cannot be made applicable to
the bar created under Section 468 of the Code in view of the three Judge
Bench decision in Rashmi Kumar . In Rashmi Kumar, the three Judge
Bench of the Supreme Court held that the complaint can be filed within

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 19 of 23


the stipulated period of limitation from the date of commission of the
offence. In its later judgment in Japani Sahoo and Bharat Damodar Kale
v. State of A.P., (2003) 3 JCC 1831 while relying on the three Judge
Bench decision in Rashmi Kumar , the Supreme Court dealt with the issue
of the bar of limitation as provided under Section 468 of the Code in
greater detail and held that the date of taking cognizance for the purpose
of Section 468 would be date of the filing of the complaint by the
prosecuting agency. The Supreme Court went into the statement of
objects and reasons for introduction of the Chapter XXVI relating to
limitation and into the divergent views taken by the various High Courts.
Paras 47 to 52 of the report in Japani Sahoo are extracted hereunder:
“47 . We are in agreement with the law laid down in Bharat
Damodar [(2003) 8 SCC 559 : 2004 SCC (Cri) 39 : JT 2003
Supp (2) SC 569] . In our judgment, the High Court of Bombay
was also right in taking into account certain circumstances,
such as, filing of complaint by the complainant on the last date
of limitation, non-availability of Magistrate, or he being busy
with other work, paucity of time on the part of the
Magistrate/court in applying mind to the allegations levelled in
the complaint, postponement of issuance of process by ordering
investigation under sub-section (3) of Section 156 or Section
202 of the Code, no control of complainant or prosecuting
agency on taking cognizance or issuing process, etc. To us, two
things, namely, (1) filing of complaint or initiation of criminal
proceedings; and (2) taking cognizance or issuing process are
totally different, distinct and independent.
48 . So far as the complainant is concerned, as soon as he files a
complaint in a competent court of law, he has done everything
which is required to be done by him at that stage. Thereafter, it
is for the Magistrate to consider the matter, to apply his mind
and to take an appropriate decision of taking cognizance,

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issuing process or any other action which the law contemplates.
The complainant has no control over those proceedings.
49 . Because of several reasons (some of them have been
referred to in the aforesaid decisions, which are merely
illustrative cases and not exhaustive in nature), it may not be
possible for the court or the Magistrate to issue process or take
cognizance. But a complainant cannot be penalised for such
delay on the part of the court nor can he be non-suited because
of failure or omission by the Magistrate in taking appropriate
action under the Code. No criminal proceeding can be abruptly
terminated when a complainant approaches the court well
within the time prescribed by law. In such cases, the doctrine
„actus curiae neminem gravabit‟ (an act of court shall
prejudice none) would indeed apply. (Vide Alexander
Rodger v. Comptoir D' Escompte [ (1871) LR 3 PC 465 : 17 ER
120] .) One of the first and highest duties of all courts is to take
care that an act of court does no harm to suitors.
50 . The Code imposes an obligation on the aggrieved party to
take recourse to appropriate forum within the period provided
by law and once he takes such action, it would be wholly
unreasonable and inequitable if he is told that his grievance
would not be ventilated as the court had not taken an action
within the period of limitation. Such interpretation of law,
instead of promoting justice would lead to perpetuate injustice
and defeat the primary object of procedural law.
51 . The matter can be looked at from different angle also. Once
it is accepted (and there is no dispute about it) that it is not
within the domain of the complainant or prosecuting agency to
take cognizance of an offence or to issue process and the only
thing the former can do is to file a complaint or initiate
proceedings in accordance with law, if that action of initiation
of proceedings has been taken within the period of limitation,
the complainant is not responsible for any delay on the part of
the court or Magistrate in issuing process or taking cognizance
of an offence. Now, if he is sought to be penalised because of
the omission, default or inaction on the part of the court or

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 21 of 23


Magistrate, the provision of law may have to be tested on the
touchstone of Article 14 of the Constitution. It can possibly be
urged that such a provision is totally arbitrary, irrational and
unreasonable. It is settled law that a court of law would
interpret a provision which would help sustaining the validity of
law by applying the doctrine of reasonable construction rather
than making it vulnerable and unconstitutional by adopting rule
of litera legis. Connecting the provision of limitation in Section
468 of the Code with issuing of process or taking of cognizance
by the court may make it unsustainable and ultra vires Article
14 of the Constitution.
52 . In view of the above, we hold that for the purpose of
computing the period of limitation, the relevant date must be
considered as the date of filing of complaint or initiating
criminal proceedings and not the date of taking cognizance by
a Magistrate or issuance of process by a court. We, therefore,
overrule all decisions in which it has been held that the crucial
date for computing the period of limitation is taking of
cognizance by the Magistrate/court and not of filing of
complaint or initiation of criminal proceedings.”

30. Therefore, in my humble opinion, the law laid down in Rashmi Kumar
and reiterated in Bharat Damodar Kale and Japani Sahoo will govern
the bar of limitation as given in Section 468 of the Code and the law laid
down in Krishna Pillai will have to be held to apply to the provisions
under the Act of 1929. Thus, it cannot be said that the three complaints
in the above said Crl.M.Cs. are barred by limitation.
31. As a result, Crl.M.C.3060/2010 is hereby allowed and the Criminal
Complaint No.36/4 of 2010 titled “State (through Drugs Inspector) v. Dr.
Bengali @ Kishan Malik & Ors.” and the proceedings arising therefrom
is hereby quashed.

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 22 of 23


32. Crl.M.Cs.3922/2010, 3456/2011 and 837/2012 are hereby dismissed and
the trial shall proceed with the complaints in accordance with law.
33. Pending Applications stand disposed of.

(G.P. MITTAL)
JUDGE
APRIL 08 , 2013
pst

Crl. M.C. Nos. 3060/2010, 3922/2010, 3456/2011 & 837/2012 Page 23 of 23