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(2020) 4 RCR(Criminal) 173
PUNJAB AND HARYANA HIGH COURT
SINGLE BENCH

JUSTICE (RETD.) RANJIT SINGH — Appellant

Vs.

SUKHBIR SINGH BADAL AND ANOTHER — Respondent

( Before : Amit Rawal, J. )
CRM-CLT-OJ No. 1 of 2019 (O&M)
Decided on : 08-11-2019

Commissions of inquiry Act, 1952 - Section 10A, Section 5(4)

Counsel for Appearing Parties

Mr. APS Deol, Senior Advocate with Mr. H.S.Deol, Advocate, Mr. G.S.Punia, Senior Advocate
with Mr. P.S.Punia, Advocate, for the complainant; Mr. Ashok Aggarwal, Senior Advocate
with Mr. K.S.Nalwa, Advocate & Mr. A.S.Thind, Advocate, for Respondent No.1. Mr. Puneet
Bali, Senior Advocate with Mr. Satyam Aneja, Advocate & Mr. D.S.Sobti, Advocate, for
Respondent No.2

Cases Referred

Balasinor Nagrik Cooperative Bank Ltd. vs. Babubhai Shankerlal Pandya and
others, (1987) 1 Supreme Court Cases 606
Bharat Damodar Kale &Anr. vs. State ofA.P., (2003) 8 SCC 559
Bhushan Kumar and another vs. State (NCT of Delhi) and another, 2012(5) SCC
424
Common Cause vs. Union of India & ors., (2008) 5 SCC 511
Dr. Subramanian Swamy vs. Arun Shourie, 2014 (12) SCC 344
Gujarat Urja Vikas Nigam Ltd vs. Essar Power Ltd., (2008) 4 SCC 755
Indrani Wahi vs. Registrar, West Bengal Co-operative Societies & ors., 2004 (3)
CHN 483
 Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394
Jinia Keotin & ors. vs. Kumar Sitaram Manjhi & ors., (2003) 1 SCC 730
K.M.Mathew vs. State of Kerala & another, 1992 (1) SCC 217
Kunwar Pal Singh vs. State of Uttar Pradesh & ors., (2007) 5 SCC 85
Lalit Narain Mishra vs. The State of Himachal Pradesh & others, 2016 SCC OnLine
HP 2866
Lenigh Valley Coal Co. vs. Yensavage 218 FR 547
P.C Joshi and Anr. vs. The State of U.P., AIR 1961 Supreme Court 387
Padma Sundara Rao (Dead) & others vs. State of T.N. And others, (2002) 3
Supreme Court Cases 533
Prabha Shankar Dubey vs. State of M.P., (2004) 2 SCC 56
Ram Chandra Murarilal Bhattad vs. State of Maharashtra & ors., (2007) 2 SCC 588
Ram Phal Kundu vs. Kamal Sharma, (2004) 2 SCC 759
Ramdhani Sao and others vs. State of Bihar and another, 1987 CriLJ 1428
Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC 515)
S.K.Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors.,
2008(2) SCC 492
Sri Kanti Ganguly vs. State of West Bengal & Ors., 2016(3) Cal.L.T. 594
Union of India and Ors. vs. Filip Tiago De Gama of Vedem Vasco De Gama (AIR
1990 SC 981)
Union of India vs. Elphinston, (2001) 4 SCC 139

JUDGMENT

Amit Rawal, J. - The complainant, a member of the Commission of Inquiry constituted

under the Commissions of Inquiry Act, 1952 (for short, 1952 Act), through various
notifications, Annexures C-8(i), 8(ii) & 8(iii), has invoked the jurisdiction of this Court
under Section 10-A of the 1952 Act by making the respondents as accused enclosing
three applications, i.e., CRM No.5006 of 2019 for seeking exemption from filing
typed/certified copies of news reports Annexures C-l to C-5 and CDs Annexures C-6 and
C-7, CRM No.5007 of 2019 under proviso to sub-section (5) of Section 10-A of 1952 Act
for exemption from personal appearance as Chairman of the Commission of Inquiry and
CRM No.5008 of 2019 under proviso to Section 200 read with Section 204 of the
Criminal Procedure Code, 1973 for dispensing with the examination of the complainant
and witnesses.

2. The facts and circumstances resulting into filing of the complaint, in brief, are
recapitulated as under:-

Complainant, a former Judge of this Court, vide notification dated 14.04.2017,

Annexure C-8 (i), was appointed as a Chairman of the Commission of Inquiry
regarding the incidents of alleged desecration of Sri Guru Granth Sahib Ji in 2015,
 particularly in District Faridkot and other places in the State, to conduct an inquiry
into the incidents of sacrilege by confining its scope as under:-

a) Conduct an enquiry into the cases of sacrilege of Sri Guru Granth Sahib Ji,
Srimad Bhagwad Gita, Holy Quran Sharif;

b) Enquire into the detailed facts and circumstances and chronology of events of
what actually happened and to identify as a matter of fact the role played by various
persons into what happened;

c) Enquire into the truth of what occurred in such incidents and factual role of the
persons who may have been involved;

d) Enquire into the firing at Kotkapura on 14.10.2015 and village Behbalkalan,

District Faridkot in which two persons died; and

e) Identify and enquire into the role of the police officers/officials in

incomplete/inclusive investigations into the earlier incidents of sacrileges so far."

3. The tenure of the Commission was fixed as six months. However, vide second
notification dated 22.09.2017, Annexure C-8(ii), the tenure was extended for another six
months, i.e., upto 12.04.2018. Through another notification dated 02.04.2018, Annexure
C-8 (iii), period was extended upto 31.08.2018.

4. Respondent No.l, at the time of the incident, was Deputy Chief Minister as well as the
Home Minister of the State of Punjab and similarly, respondent No.2 was elected
member of the State Legislative Assembly. Earlier a Commission of Inquiry was
constituted headed by a former Judge of this Court to enquire into the acts and incidents,
but after extension of the terms of the previous Chairman, report was submitted on
30.06.2016, which was not accepted by the Government resulting into appointment of the
complainant as the Chairman. The complainant, being Chairman of the Commission,
executed his duties and functions in a completely non-partisan manner and with utmost
honesty, integrity and a great sense of responsibility and on publication of the enquiry
report, respondent No.l and his associates embarked upon a tirade to publicly undermine
and ridicule the Commission as well as the complainant, which as per the provisions of
Section 10-A of 1952 Act, constitute an offence and the offences have been committed by
means of medium of Social Media, Press Conferences, Print Media, Public Gatherings,
Interviews etc. Certain instances have been referred to in Para 9 of the petition and its
English translation. The allegations levelled by respondent No.l are stated to be false,
baseless and have been made with the solitary motive to malign the reputation of the
complainant on his degree of law, complainant not only served in the JAG Branch of the
Indian Army, but also practiced as an Advocate for approximately two decades and adorn
the Bench of this court for a period of more than seven years. The second incident of
willful disrepute was allegedly done on 27.08.2018 outside the Punjab Legislative
Assembly at Chandigarh by respondent Nos.l and 2 along with several other members of
the Shiromani Akali Dal (SAD) protested against the enquiry report, thus, respondent
Nos.l and 2 have committed the offences of grave nature. The offences have been
committed on public platforms, in full view, hearing of the entire citizens of the State of
Punjab and even beyond. Press conferences were also widely broadcasted in various
news channels and other digital platforms, like, YouTube etc. On having viewed the press
conferences on Television, the witnesses were shocked that they have casted the remarks
on the reputation of a Judge resulting into jostling of stature and dignity of the
complainant.

5. In order to bring the offence within the period of six months as per the provisions of
Section 10-A of 1952 Act, reference has been made to the press conferences held on
23.08.2018 and 27.08.2018, i.e., before the period of the commission could cease and,
therefore, complaint is well within the period of limitation, enclosing list of witnesses.

6. On institution of the complaint, matter came up for hearing before this Court on
11.02.2019. This Court raised the query with regard to maintainability of the complaint,
but before it could be heard, thought to examine the CDs, Annexures C-6 and C-7 and
matter was adjourned to 13.02.2019. On the aforementioned date, this Court called upon
the complainant to place on record notification dated 14.04.2017, whereby the
complainant for the first time was appointed as a Chairman of the Commission. Vide
CRM No.5845 of 2019, three notifications, ibid, were enclosed and taken on record and
in the main complaint, following order was passed:-

"Notice of the case to the respondent for 25.03.2019 subject to the maintainability
of the complaint provided the respondent renders assistance in the lis.ht of the
provisions under Section 10-A(3) of the Commissions of Inquiry Act, 1952.

As regards the argument of Mr.Deol, regarding preservation of the evidence, the

same shall be considered after hearing other party. "

7. Respondents before they could appear, moved an application seeking exemption to

appear through counsel vide criminal misc. application. On 11.07.2019, respondent Nos.l
and 2 appeared. Officer on Special Duty was directed to accept the personal bonds in the
like amount of Rs.one lac each and on furnishing the same, admitted to bail. On the said
date, Mr.APS Deol, learned Senior Counsel assisted by Mr.H.S.Deol, Advocate and
Mr.G.S.Punia, learned Senior Counsel assisted by Mr.P.S.Punia, Advocate sought the
indulgence of this Court for filing of the list of witnesses in terms of the provisions of
Section 244 of the Code of Criminal Procedure. The respondents being represented by
Mr.Ashok Aggarwal, learned Senior Counsel assisted by Mr.K.S.Nalwa, Advocate and
Mr. R.S.Cheema, learned Senior Counsel assisted by Mr.A.S.Cheema, Advocate raised
the objection qua maintainability of the complaint by bringing into notice of this Court
the order dated 20.02.2019. Noticing the aforementioned contention, this Court in the
penultimate paragraph, while adjourning the matter to 21.08.2019, observed as under:-

"Keeping in view the order dated 20.02.2019, whereby this Court while issuing
notice to the respondents, has also kept the question open regarding maintainability
of the complaint in terms of the provisions of Section 10(3) (A) of the Commission
of Inquiry Act, 1952, I deem it appropriate to adjourn the hearing of the complaint
and direct the counsels representing the parties to address arguments in terms of
order dated 20.02.2019."

8. On 19.08.2019, on submissions of the applications, personal exemption of respondent

Nos.l and 2 was granted for the next date of hearing, i.e., 21.08.2019, on which date also,
their personal appearance was also exempted.

9. Learned Senior Counsel representing the respondents submitted their arguments qua
the maintainability of the complaint by commencing at 2 PM, which concluded at 3.52
PM by raising the following submissions and as well as the provisions of 1952 Act:-

1) By referring provisions of Sections 3, 7(2) and of course 10 and 10-A of 1952

Act that the tenure of the Commission on the dates specified in the notification
ceased to exist and so would be the Commission and its Chairman;

2) Section 10 deals with the description of the members etc. of the Commission to
be public servant as per the provisions of Section 21 of the Indian Penal Code, 1860
(45 of of 1860);

3) No doubt, provisions of Section 10-A prescribe a complete procedure as a penalty

for acts calculated to bring the Commission or any member thereof into disrepute by
assigning the power to the High Court to take the cognizance of the offence on
receipt of the complaint and tried the same as a warrant case and prescribed the
limitation within six months from the date on which the offence is alleged to have
been committed;

4) Complaint has been filed on 29.01.2019 and registered on 04.02.2019 by

branding the complainant as the Chairman of the Commission of Inquiry, attention
of this Court was drawn to the memo of parties of criminal complaint and affidavits
in support of the applications, ibid, and as well as the averments in Paragraph 18 of
the complaint;

5) Designation of the Chairman was bestowed vide notification, but on the date of
filing of the complaint, status of the complainant was not of a public servant or
Chairman and, therefore, his presence or the exemption being a public servant
cannot be deemed to have been granted. Life of the Commission was upto
31.08.2018. As per the provisions of Section 5(4) of 1952 Act, the Commission is
deemed to be a civil court. The word "Member" used in Section 10 would not
extend the life of the notification beyond 31.08.2018 till the filing of the complaint
in February, 2019. The intent of the Legislation by applying the principal
interpretation, as per settled law that once the language of the Act is plain and
unambiguous, there cannot be any change or taking assistance of any other
provision of the Act making a complaint maintainable;

6) The period of six months is from the date on which the offence is alleged to have
been committed. The said period would be construed during the life of the
Commission and notification and not beyond that;

7) Section 10-A of 1952 Act is required to be read in conjunction with Section 7

thereof. Protection given to the member is during the subsistence of the
Commission. There cannot be any re-writing of the Legislature. Provisions of
Section 4 have to be read with it and not in isolation. On expiry of the notification,
member or the Commission is powerless and denuded of power to derive any
benefit, like initiation of the complaint as under the provisions of Section 10-A,
special procedure is provided, which is in exclusion to the general law;

8) By filing the complaint in January, 2019, complainant cannot brand and treat him
to be a public servant to bring the case within the parameters of Section 10-A, but
there is no bar for him to avail the remedy of filing a separate private complaint for
commission of alleged offences, if any, under Section 499 of the IPC;

9) All privileges would be alive during the period of Commission but on demission
would not institute complaint as on the date of filing of the complaint, the
complainant was not a member of the Commission;

10) Since the complainant is not a public servant, he should have been examined as
per the provisions of Section 200 of the Code of Criminal Procedure, but in some
other forum as jurisdiction of the Court could not have been invoked nor granted the
deemed personal presence as the proviso to subsection (5) of Section 10-A of 1952
Act protects the personal appearance only of a member of the Commission as a
complainant. Otherwise, the expression "otherwise" cannot be construed to apply to
the Ex-Chairman or Member;

11) As per the provisions of Section 204 of the Code of Criminal Procedure,
procedure prescribed for warrant case is enshrined in sub-section (b) thereof. It is
not a case of cognizance. There cannot be any argument in favour of the
complainant that while issuing notice, this Court had already taken the cognizance
as it was subject to the caveat to the maintainability of the complaint to be satisfied
by the other side. In support of the aforementioned submissions, following
judgments have been cited:-
 a) Balasinor Nagrik Cooperative Bank Ltd. Versus Babubhai Shankerlal
Pandya and others, (1987) 1 Supreme Court Cases 606 on the point that a statute
must be read as a whole;

b) Five Judges judgment in Padma Sundara Rao (Dead) & others Versus State of
T.N. And others, (2002) 3 Supreme Court Cases 533;

c) Lalit Narain Mishra Versus The State of Himachal Pradesh & others, 2016
SCC OnLine HP 2866 to contend that the expression "functus officio" is read in
terms and it means without further authority or legal competence as the duties and
the functions of the original commission were fully accomplished;

d) Sri Kanti Ganguly Versus State of West Bengal & Ors., 2016(3) Cal.L.T. 594,
wherein while interpreting Section 7(1) of 1952 Act, it has been held that the words
"appoint a Commission of Inquiry for the purpose of making an inquiry, on expiry
of terms, would have no authority to making inquiry/perform the function entrusted
to it;

and, thus, prayed for dismissal of the complaint on the ground of maintainability.

10. On the other hand, Mr. A.P.S.Deol, learned Senior Counsel assisted by Mr. H.S.Deol,
Advocate and Mr. G.S.Punia, learned Senior Counsel assisted by Mr. P.S.Punia,
Advocate, representing the complainant submitted the following submissions:-

a) The complaint by referring to Section 199 of the Code is maintainable as the

provisions of Section 10-A of 1952 Act are pari materia, therefore, public servants
detailed are entitled to espouse grievance through complaint filed by Public
Prosecutor;

b) The time of six months to be construed from the date of commission of the
offence, thus, would enable the member of the Commission to act as a public
servant and raise the grievance in view of the incidents referred to above. The word
"aggrieved person" would also include the Chairman/member of the Commission;

c) The scope of the Court is to see whether the act of the accused has brought the
disrepute to the Commission during the term and whether the complaint was within
six months;

d) Annexures C-l to C-5 are the reports which make a prima-facie case for
proceeding against the respondents under Section 10-A of 1952 Act. Report was
submitted in two parts, one on 30.06.2018 and second on 16.08.2018. The incidents
are of 23.08.2018 and 27.08.2018. He would be presumed to be a public servant for
filing the complaint. Cognizance is to be taken from the filing of the complaint and
not from the date, whereby Court takes cognizance;
e) Section 10-A (1) & (2) of 1952 Act have to be read conjunctively. As per proviso
to sub-section (5) of Section 10-A, the word "otherwise" would not take away the
right of the complainant to institute the complaint under Section 10-A as the
complainant is purportedly discharging the duty of a public servant. Sub-section (2)
of Section 199 of the Code opens with a non-obstante clause that anything
contained in the Code for offence falling under Chapter XXI of the Indian Penal
Code (45 of 1860) if alleged to have been committed against a person, who, at the
time of commission, is the President of India, the Vice-President of India, the
Governor of a State, the Administrator of a Union Territory or a Minister of the
Union or of a State or of a Union territory, or any other public servant employed in
connection with the affairs of the Union or of a State in respect of his conduct in the
discharge of his public functions, the Court of Sessions shall take the cognizance of
such offence without the case being committed to it, upon a complaint in writing
made by the Public Prosecutor and the limitation prescribed is six months from the
date on which the offence is committed;

f) The process was issued on 25.03.2019 and there is complete procedure for follow
up. Order of 20.02.2019, thus, in such circumstances, deemed to have been
superseded. If at all the respondents were aggrieved, they had a remedy to file an
appeal;

g) As per provisions of Section 244 of the Code, warrant case instituted otherwise
than on a police report, on appearance of the accused, the Magistrate would proceed
to hear the prosecution and take all such evidence as may be produced in support of
the prosecution and it is only after taking of the evidence, the Magistrate considers,
for the reasons to be recorded, that no case is made out and if remained unrebutted,
would discharge the accused;

h) Respondents cannot invoke the jurisdiction under Section 245 of the Code
without following the procedure under Section 244 of the Code;

i) Exemplifying his arguments, relied upon the judgment rendered by the Hon'ble
Supreme Court in Adalat Prasad Versus Rooplal Jindal, 2004(4) R.C.R.
(Criminal). The object and the reason of introducing the provisions of Section 10-A
of 1952 Act was in the larger public interest by taking departure from the general
public while dealing with the cases of offence under Section 198 with the sole
object to protect the Commission and its member from disrepute of any kind which
may be a subterfuge for the other side to raise objection qua the maintainability as
the act and conduct of respondent Nos. 1 and 2 have brought gravest disrepute to the
Commission and its member;

j) The departure by introducing Section 10-A and subsections has been borrowed
from the amended provisions of Section 199(2) of the Code dealing with the
 prosecution for defamation. A bare reading of Section 10-A leaves no manner of
doubt that the date to be reckoned for calculating the period of limitation for
initiation of the complaint would be the date of commission of offence and
limitation under sub-section (4) of Section 10-A is six months, therefore, it cannot
be read in isolation, but in conjunction, both being co-terminus. A right to initiate
the proceedings by way of a complaint would not get extinct after expiry of the term
of Commission, otherwise Legislature in its wisdom would not have granted any
time of six months, i.e., upper limit for its protection, lest it would render the
proceedings under sub-section (5) of Section 199 of the Code redundant. Complaint
has been filed by taking reliance of proviso to Section 200 of the Code as status of
the complainant would be deemed to be a public servant for the purpose of filing the
complaint. Affidavits, ibid, for dispensing with the examination of the complainant
by virtue of subsection (a) of Section 200 of the Code and proviso to subsection (5)
of Section 10-A of 1952 Act, from personal attendance is to a member of a
Commission being complainant.

11. In support of the aforementioned contentions, reliance has been laid to the following
judgments:-

i) S.K.Sinha, Chief Enforcement Officer Versus Videocon International Ltd. &

Ors., 2008(2) SCC 492, byreferring Para 27 of the judgment that date of taking
cognizance would be reckoned from the date of filing of the complaint. The
expression "cognizance" has not been defined in the Code, but is of indefinite
import. It would not involve any formal action of any kind. It occurs as soon as a
Magistrate, by virtue of subsection (2) of Section 10-A of 1952 Act, applies his
mind to the suspected commission of an offence . The underlying object of the
inquiry under Section 202 of the Code is to see whether there is prima-facie case
against the accused. It does not allow the Magistrate to form an opinion whether the
process should or should not be issued, thus, the scope of the inquiry is unlimited;

ii) Bhushan Kumar and another Versus State (NCT of Delhi) and another,
2012(5) SCC 424. The order passed by the Magistrate can not be faulted with on
the ground that the summoning order was not a reasoned order. Respondents cannot
raise the ground of maintainability once they have been summoned and only remedy
is by resorting to the provisions of Section 244 of the Code;

iii) Dr. Subramanian Swamy Versus Arun Shourie, 2014 (12) SCC 344 where a
sitting Judge of the Hon'ble Supreme Court was appointed as a Chairman under
Commission of Inquiry Act, 1952;

iv) P.C Joshi and Anr. Versus The State of U.P., AIR 1961 Supreme Court 387
to contend that the complaint under sub-section (2) of Section 199 of the Code can
be filed by the Public prosecutor in the absence of the signatures of the complainant.
12. In rebuttal, Mr. Ashok Aggarwal and Mr. Puneet Bali, learned Senior Counsel
submitted:

a) That the manner and mode in which the provisions of Sections 10, 10-A (1) & (2)
are being projected, it would tantamount to re-writing of the statute which is
impermissible in law;

b) Notification appointing the complainant as the Chairman ceased to exist on

31.08.2018. Period of limitation of six months cannot be stretched beyond expiry of
term of tenure. There was no bar for him to file a complaint before the expiry of his
term.

c) Applications for exemption both under sub-section (5) of Section 10-A of 1952
Act and under Section 200 of the Code have not been disposed of and they are still
pending consideration. The complainant cannot seek exemption branding the
Chairman of the Commission beyond expiry of tenure and claim himself to be a
public servant in terms of provisions of Section 21 of the IPC.

d) There cannot be any substitution or additions to the provisions of the Act. The
Legislature in its wisdom has specifically introduced the words "is and was" in
Section 197 Cr.P.C. for prosecution of the Judges and the public servants. The Court
has not taken any proceedings as no separate order has been passed for recording
preliminary evidence.

e) The orders dated 11.07.2019 and 20.02.2019 noticing the maintainability of the
complaint are specific and have not been modified so far. Section 10-A is complete
Code and cannot travel beyond by adding or subtracting. Act do not envisage any
remedy for ex-member or past member.
f) Mr. Bali has also submitted that Section 482 Cr.P.C. enables this Court to exercise
the power of dismissing the complaint which has been rebutted by Mr. Deol that
there is no concept of invoking the power under Section 482 of the Code. There is
no need to file any affidavit along with the application for exemption. The
applications for exemption deemed to have been disposed of once the court had
taken the cognizance and, thus, urged this Court for rejecting the arguments of the
learned counsel for the respondents and to proceed under Section 244 of the Code.

13. I have heard the learned Senior Counsel for the parties, appraised the paper book and
gone through the judgments cited at bar and in view of the rival contentions of the
learned counsel qua maintainability of the complaint, I am of the view that the following
questions arise for determination by this Court:-

1) Whether the complaint under Section 10-A of 1952 Act by an Ex-member of the
Commission filed in January, 2019 and registered on 04.02.2019 is maintainable or
 not?

2) Whether the period of six months provided under the provisions of 1952 Act can
be extended enabling the Ex-member to espouse the grievance or not?

3) Whether an Ex-Chairman of the Commission can be treated as a public servant as

per the provisions of Section 21 of the IPC and claim exemption from examination
and evidence in terms of Section 199 of the Cr.P.C;

4) Whether this Court while issuing notice by putting a caveat qua maintainability
has taken the cognizance and proceed further in accordance with the provisions of
Section 244 of the Cr.P.C;

5) Whether the intent of the Legislature in protecting the rights of the member and a
Chairman can be enlarged de hor of the fact that he ceased to be a member of a
Commission.

14. It would be apt to reproduce the provisions of Sections 3, 7 (1) & (2), 10 and 10-A of
1952 Act and Sections 199, 200, 204, 244 and 245 of the Code, referred to at the time of
the arguments. The same read thus:-

"Section 3

Appointment of Commission.(1) [Save as otherwise provided in the Lokpal and

Lokayuktas Act, 2013, the appropriate Government may], if it is of opinion that it is
necessary so to do, and shall, if a resolution in this behalf is passed by 2 [each
House of Parliament or, as the case may be, the Legislature of the State], by
notification in the Official Gazette, appoint a Commission of Inquiry for the purpose
of making an inquiry into any definite matter of public importance and performing
such functions and within such time as may be specified in the notification, and the
Commission so appointed shall make the inquiry and perform the functions
accordingly. Provided that where any such Commission has been appointed to
inquire into any matter
(a) by the Central Government, no State Government shall, except with the approval
of the Central Government, appoint another Commission to inquire into the same
matter for so long as the Commission appointed by the Central Government is
functioning;

(b) by a State Government, the Central Government shall not appoint another
Commission to inquire into the same matter for so long as the Commission
appointed by the State Government is functioning, unless the Central Government is
of opinion that the scope of the inquiry should be extended to two or more States.
(2) The Commission may consist of one or more members appointed by the
appropriate Government, and where the Commission consists of more than one
member, one of them may be appointed as the Chairman thereof.

[(3) The appropriate Government may, at any stage of an inquiry by the

Commission fill any vacancy which may have arisen in the office of a member of
the Commission (whether consisting of one or more than one member).

(4) The appropriate Government shall cause to be laid before 2 [each House of
Parliament or, as the case may be, the Legislature of the State], the report, if any, of
the Commission on the inquiry made by the Commission under sub-section (1)
together with a memorandum of the action taken thereon, within a period of six
months of the submission of the report by the Commission to the appropriate
Government]

Section 7(1) & (2)

Commission to cease to exist when so notified.(1) The appropriate Government
may, by notification in the Official Gazette, declare that

(a) a Commission (other than a Commission appointed in pursuance of a resolution

passed by 4 [each House of Parliament or, as the case may be, the Legislature of the
State] shall cease to exist, if it is of opinion that the continued existence of the
Commission is unnecessary;
(b) a Commission appointed in pursuance of a resolution passed by [each House of
Parliament or, as the case may be, the Legislature of the State] shall cease to exist if
a resolution for the discontinuance of the Commission is passed by 4 [each House of
Parliament or, as the case may be, the Legislature of the State].

(2) Every notification issued under sub-section (1) shall specify the date from which
the Commission shall cease to exist and on the issue of such notification, the
Commission shall cease to exist with effect from the date specified therein.]

Section 10
Members, etc., to be public servants.Every member of the Commission and every
officer appointed or authorised by the Commission in exercise of functions under
this Act shall be deemed to be a public servant within the meaning of section 21 of
the Indian Penal Code (45 of 1860).
Section 10A

10A. Penalty for acts calculated to bring the Commission or any member thereof
into disrepute.(1) If any person, by words either spoken or intended to be read,
makes or publishes any statement or does any other act, which is calculated to bring
the Commission or any member thereof into disrepute, he shall be punishable with
simple imprisonment for a term which may extend to six months, or with fine, or
with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), when an offence under sub-section (1) is alleged to have been committed,
the High Court may take cognizance of such offence, without the case being
committed to it, upon a complaint in writing, made by a member of a Commission
or an officer of the Commission authorised by it in this behalf.

(3) Every complaint referred to it in sub-section (2) shall set forth the facts which
constitute the offence alleged, the nature of such offence and such other particulars
as are reasonably sufficient to give notice to the accused of the offence alleged to
have been committed by him.

(4) No High Court shall take cognizance of an offence under sub-section (1) unless
the complaint is made within six months from the date on which the offence is
alleged to have been committed.
(5) A High Court taking cognizance of an offence under subsection (1) shall try the
case in accordance with the procedure for the trial of warrant cases instituted
otherwise than on a police report before a court of a Magistrate:
Provided that the personal attendance of a member of a Commission as a
complainant or otherwise is not required in such trial.

(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2

of 1974) an appeal shall lie as a matter of right from any judgment of the High
Court to the Supreme Court, both on facts and on law.

(7) Every appeal to the Supreme Court under sub-section (6) shall be preferred
within a period of thirty days from the date of judgment appealed from:

Provided that the Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that the appellant had sufficient cause for not
preferring the appeal within the period of thirty days."

"Section 199
Prosecution for defamation.(1) No Court shall take cognizance of an offence
punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence: Provided that where such
person is under the age of eighteen years, or is an idiot or a lunatic, or is from
sickness or infirmity unable to make a complaint, or is a woman who, according to
the local customs and manners, ought not to be compelled to appear in public, some
other person may, with the leave of the Court, make a complaint on his or her
behalf.
(2) Notwithstanding anything contained in this Code, when any offence falling
under Chapter XXI of the Indian Penal Code (45 of I860) is alleged to have been
committed against a person who, at the time of such commission, is the President of
India, the Vice-President of India, the Governor of a State, the Administrator of a
Union territory or a Minister of the Union or of a State or of a Union territory, or
any other public servant employed in connection with the affairs of the Union or of
a State in respect of his conduct in the discharge of his public functions a Court of
Session may take cognizance of such offence, without the case being committed to
it, upon a complaint in writing made by the Public Prosecutor.

(3) Every complaint referred to in sub-section (2) shall set forth the facts which
constitute the offence alleged, the nature of such offence and such other particulars
as are reasonably sufficient to give notice to the accused of the offence alleged to
have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public Prosecutor
except with the previous sanction

(a) of the State Government, in the case of a person who is or has been the Governor
of that State or a Minister of that Government;

(b) of the State Government, in the case of any other public servant employed in
connection with the affairs of the State;
(c) of the Central Government, in any other case.

(5) No Court of Session shall take cognizance of an offence under sub-section (2)
unless the complaint is made within six months from the date on which the offence
is alleged to have been committed.

(6) Nothing in this section shall affect the right of the person against whom the
offence is alleged to have been committed, to make a complaint in respect of that
offence before a Magistrate having jurisdiction or the power of such Magistrate to
take cognizance of the offence upon such complaint.
Section 200

200. Examination of complainant.A Magistrate taking cognizance of an offence on

complaint shall examine upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be reduced to writing and shall be
signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his official
duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate
under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate
under section 192 after examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.

Section 204
Issue of process.(1) If in the opinion of a Magistrate taking cognizance of an offence
there is sufficient ground for proceeding, and the case appears to be
(a) a summons-case, he shall issue his summons for the attendance of the accused,
or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for
causing the accused to be brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section
(1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or

warrant issued under sub-section

(1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are
payable, no process shall be issued until the fees are paid and, if such fees are not
paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.

Section 244
Evidence for prosecution.(I) When, in any warrant-case instituted otherwise than on
 a police report, the accused appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the prosecution and take all such evidence as may
be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to
any of its witnesses directing him to attend or to produce any document or other
thing.

Section 245
When accused shall be discharged.(1) If, upon taking all the evidence referred to in
section 244, the Magistrate considers, for reasons to be recorded, that no case
against the accused has been made out which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging
the accused at any previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless."

15. On plain and simple reading of the aforementioned provisions, it is deciphered that it
will be only Chairman or members of the Commission to be public servants, who have
been authorised to protect the interest of the Commission against the person, attempted to
bring disrepute by providing punishment for accused to undergo simple imprisonment for
a term which may extend to six months, or with fine, or with both and the power to
entertain the complaint has been entrusted to the High Court to take the cognizance on
receipt of the complaint in writing made by a member of a Commission or an officer of
the Commission authorised by it, whereas as per provisions of sub-section (3), the Court
on receipt of the complaint shall give notice to the accused of the offence alleged to have
been committed. The limitation during which complaint can be filed is six months from
the date on which the offence is alleged to have been committed. The High Court shall
take the cognizance and try the case as a warrant case instituted otherwise than on a
police report before a court of a Magistrate.
16. The promulgation of the notifications, duration of the term of the Chairman,
extensions and orders of this Court dated 20.02.2019 and 11.07.2019 are not in dispute.
17. The vehemence and the eloquence of the respective learned Senior Counsel
representing the parties rendering the assistance to this Court to answer the questions
raised above by referring to the provisions and the judgments, is duly appreciated by this
Court.
18. The pith and substance of the judgments rendered in Balasinor Nagrik Cooperative
Bank Ltd., Padma Sundara Rao (Dead) and Lalit Narain Mishra's cases (supra), is
when the language of the Act is simple and ambiguous, the Court cannot interpret in a
different manner by taking the assistance of the other provisions of the Act on its own.
Relevant paragraphs of the judgments in this regard are required to be extracted. The
same read thus:-

"Para 4 of Balasinor Nagrik Cooperative Bank Ltd.

"The decision of the appeal must turn on a construction of sub section (I) of Section
36 of the Act red with the two provisos, thereto, which is in these terms :

36. Expulsion of members - (I) A society may, by resolution passed by three-fourths

majority of all the members present and voting at a general meeting of members
held for the purpose, expel a member for acts which are detrimental to the proper
working of the society :
Provided that, no resolution shall be valid, unless the member concerned is given an
opportunity of representing his case to the general body, and no resolution shall be
effective unless, it is submitted to the Registrar for his approval and approved by
him :
Provided further, that the approval or disapproval of the Registrar shall be
communicated to the society within a period of three months from the date of such
submission, and in the absence of such communication the resolution shall be
effective.

It is an elementary rule that construction of a section is to be made of all parts

together. It is not permissible to omit any part of it. For, the principle that the statute
must be read as a whole is equally applicable to different parts of the same section.
Keeping that in view, we have no doubt in our mind as to the purport and effect of
sub-section (1) of Section 36 of the Act which deals with the power of expulsion of
a member for acts which are detrimental to the proper working of the society. It also
provides for the manner of the exercise of such power. The exercise of the power of
expulsion of a member for his acts which are detrimental to the interests of the
society conferred by sub-section (1) of Section 36 is made subject to the fulfilment
of the conditions prerequisite, namely, it has to be by resolution passed by three-
fourths majority of all the members present and voting at a general meeting of
members held for that purpose. There is no doubt or difficulty as to the precise
function of the two proviso appended to sub-section (1) of Section 36 of the Act.
The power of expulsion of a member by a society under sub-section (1) of Section
36 is made subject to a defeasance clause engrafted in the first proviso. It interdicts
that (1) no such resolution for expulsion of a member passed under sub section (1)
of Section 36 of the Act shall be valid unless the member concerned is given an
opportunity of representing his case to the general body and (2) unless it is
submitted to the Registrar for his approval and approved by him. Condition No. 2
keeps the resolution for expulsion of a member in abeyance."
Paras 12 and 14 of Padma Sundara Rao

12. The rival pleas regarding re-writing of statute and casus omissus need careful
consideration. It is well settled principle in law that the Court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is an edict of
the legislature. The language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that the intention of
the Legislation must be found in the words used by the Legislature itself. The
question is not what may be supposed and has been intended but what has been said.
"Statutes should be construed not as theorems of Euclid". Judge Learned Hand said,
"but words must be construed with some imagination of the purposes which lie
behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view
was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem
Vasco De Gama (AIR 1990 SC 981).
14. While interpreting a provision the Court only interprets the law and cannot
legislate it. If a provision of law is misused and subjected to the abuse of process of
law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See
Rishabh Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (2000 (5) SCC
515)]. 'The legislative casus omissus cannot be supplied by judicial interpretative
process. Language of Section 6(1) is plain and unambiguous. There is no scope for
reading something into it, as was done in Narasimhaiah 's case (supra). In
Nanjudaiah 's case (supra), the period was further stretched to have the time period
run from date of service of High Court's order. Such a view cannot be reconciled
with the language of Section 6(1). If the view is accepted it would mean that a case
can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but
also by a non-prescribed period. Same can never be the legislative intent."

Paras 10,11,12 & 13 of Sri Kanti Ganguly

10. Reliance was placed by Mr. Bhattacharya on the decisions reported in (2008) 4
SCC 755 [Gujarat Urja Vikas Nigam Ltd v. Essar Power Ltd.], (2007) 5 SCC
85 Kunwar Pal Singh v. State of Uttar Pradesh & ors.[. (2007) 2 SCC 588 [Ram
Chandra Murarilal Bhattad v. State of Maharashtra & ors.], (2004) 2 SCC 759
[Ram Phal Kundu v. Kamal Sharma and (2004) 2 SCC 56 [Prabha Shankar
Dubey v. State of M.P.], for the proposition that where a statute provides for a thing
to be done in a particular manner, then it has to be done in that manner only or not at
all.
11. Mr. Bhattacharya placed further reliance on the decisions reported in (2001) 4
SCC 139 [Union of India v. Elphinston] and 2004 (3) CHN 483 [Indrani Wahi v.
 Registrar, West Bengal Co-operative Societies & ors.] for the proposition that
while construing a statute the meaning whereof is clear and unambiguous, the court
cannot add or read words in a statute.

12. For the proposition that the court cannot re-legislate in the guise of
interpretation, for, that would be contrary to the will expressed in the enactment
itself, reliance was placed on the decision reported in (2003) 1 SCC 730 [Jinia
Keotin & ors. v. Kumar Sitaram Manjhi & ors.].
13. It was further submitted that a lacuna or defect in an enactment can be corrected
by the legislature by way of an amendment and that the court has no power to do so.
In this connection, the attention of the Bench was invited to the decision reported in
(2008) 5 SCC 511 [Common Cause v. Union of India & ors.]."
Paras 19 to 22 and 27 of Lalit Narain Mishra

19. "Functus officio" is a Latin term meaning having performed his or her office.
With regard to an officer or official body, it means without further authority or legal
competence because the duties and functions of the original commission have been
fully accomplished.
20. "Functus" means having performed and "officio" means office. Thus, the phrase
functus officio means having performed his or her office, which in turn means that
the public officer is without further authority or legal competence because the duties
and functions of the original commission have been fully accomplished.
21. Trayner's Latin Maxims, 4th Edn. Gives the expression functus officio the
following meaning:
"Having discharged his official duty. This is said of any one holding a certain
appointment, when the duties of his office have been discharged. Thus a Judge, who
has decided a question brought before him, is functus officio and cannot review his
own decision.
22. In Wharton's Law Lexicon, 14th Edn., the expression functus officio is given the
meaning, "a person who has discharged his duties, or whose office or authority is at
an end. " 27. Accordingly, we found no merit in this application and the same is
dismissed with the clear warning to the petitioner, as aforesaid."

19. Now coming to the judgment relied upon by Mr. Deol in Ramdhani Sao and others
Versus State of Bihar and another, 1987 CriLJ 1428 qua maintainability, an attempt
has been made to bring the case within the parameters of Section 10-A of 1952 Act by
referring to the findings in Paras 12 and 13 thereof that the phrase, "acting or purporting
to act in the discharge of official duties," has been defined, thus, both the statutory duties
to make the complainant equally to the nature of the incidents and offence against the
public servant as averred or alleged in the complaint. Paras 12 and 13 read thus:-

"12. Undoubtedly, the phrase, "acting or purporting to act in the discharge of his
official duties." has two aspects, and, if one may use a metaphor, two faces of the
same coin. Firstly arise the class of cases where the law enjoins that cognizance of
an offence can only be taken on the complaint of a public servant, and,
consequently, where such an offence is committed, a duty is laid on the public
servant to do so both under the general and the special statutes. Herein the duty
usually is with regard to the making or the preferring of the complaint itself. The
public servant making such a complaint may have no personal or direct connection
with the commission of the offence. He may be doing so only in his capacity as the
public servant authorised to make such a complaint, which is often made a pre-
condition for the cognizance of the offence. Classic examples thereof may well be
Section 11 of the Essential Commodities Act and Section 20 of the Prevention of
Food Adulteration Act. Indeed there seems to be no controversy herein and it is
plain that these are clear cases where the complaint has been made by a public
servant acting strictly in discharge of his official duty and, therefore, would come
within the exemption spelt out in Clause (a) of the first proviso to Section 200.

13. As regards the second classes, an example thereof is to be found in the offences
enumerated in Chapters X and XI of the Penal Code. These pertain to contempt of
the lawful authority of the public servants and of false evidence and offences against
public servants. Sections 172 to 229 therein and equally some other provisions
thereof refer to offences committed against public servants, whilst they are acting or
purporting to act in the discharge of their duties. It is, perhaps, for this reason that
the phraseology in Clause (a) of the first proviso to Section 200 has been widely
couched to include within its scope offences committed against a public servant
whilst he was merely purporting to act in the discharge of his official duties."

20. Much emphasis has been laid enabling this Court in forming opinion that the role of
the complainant if he no longer remains the member of the Commission would be acting
and purporting to act in discharge of his official duties as the incidents in the instant case
were committed during the life time of the Commission, i.e., on 23.08.2018, 27.08.2018
and 28.08.2018, when the complainant was the Chairman.

21. In P.C.Joshi's case (supra), while dealing with the provisions of Section 198B(3) of
Act No.5 of 1898 of the Criminal Procedure Code. In Paragraphs 5, 6 and 7 it was
observed as under:-

"5. Section 198B which deals with a certain category of the offences of defamation
of high dignitaries of the State, and of Ministers and public servants in respect of
their conduct in the discharge of public functions was incorporated in the Code by
Act XVI of 1955. Prior to the incorporation of. 198B, the only condition precedent
to the entertainment of a complaint of defamation by a court competent in that
behalf was prescribed by s. 198, viz., that there had to be a complaint by the person
aggrieved before the court took cognisance of that offence. By s. 198B, several
conditions precedent to the trial of offences falling within that section are
prescribed. The material clauses of. 198B are sub-ss. (1), (3) and (4). (1):-"
notwithstanding anything contained in this Code, when any offence falling under
Chapter XXI of the Indian Penal Code (Act XLV of I860) (other than the offence of
defamation by spoken words) is alleged to have been committed against the
President or the Vice-President, or the Governor or Rajpramukh of a State, or a
Minister or any other public servant employed in connection with the affairs of the
Union or of a State, in respect of his conduct in the discharge of his public
functions, a Court of Session may take cognisance of such offence, without the
accused being committed to it for trial, upon a complaint in writing made by the
Public Prosecutor.

(3):- No complaint under sub-s. (I) shall be made by the Public Prosecutor except
with the previous sanction,-(a)in the case of the President or the Vice-President or
the Governor of a State, of any Secretary to the Government authorised by him in
this behalf;
(b) in the case of a Minister of the Central Government or of a State Government, of
the Secretary to the Council of Ministers, if any, or of any Secretary to the
Government authorised in this behalf by the Government concerned;
(c) in the case of any other public servant employed in connection with the affairs of
the Union or of a State, of the Government concerned.
(4):- No Court of Session shall take cognisance of an offence under sub-s. (I) unless
the complaint is made within six months from the date on which the offence is
alleged to have been committed.
6. This section provides for a special procedure for the trial of the offence of
defamation of certain specified classes of persons. The conditions necessary for the
applicability ofsub-s. (I) ofs. 198B are:
(1) that the defamation is not by spoken words;

(2) that the offence is alleged to have been committed against the President, or the
Vice-President, or the Governor or Rajpramukh of a State, or a Minister or any other
public servant employed in connection with the affairs of the Union or of a State;

(3) that the defamation is in respect of the person defamed in the discharge of his
public functions;
(4) that a complaint is made in writing by the Public Prosecutor;
(5) that the complaint is made by the Public Prosecutor with the previous sanction
of the authorities specified in sub-s. (3); and

(6) that the complaint is made within six months from the date on which the offence
is committed.

7. The Court of Session may entertain a complaint of defamation of the high

dignitaries and of Ministers and public servants in respect of their conduct in the
discharge of their public functions only if these conditions exist. Section 198
requires,% that a complaint for defamation may be initiated by the person aggrieved
and no period of limitation is prescribed in that behalf. Such a complaint can only
be entertained by a Magistrate of the First Class. But s. 198- B in the larger public
interest, has made a departure from that rule; the accusation is to be entertained not
by a Magistrate, but by the Court of Session without a committal within six months
of the date of the offence on a complaint in writing by the Public Prosecutor with
the previous sanction of the specified authorities. It is manifest that by the non-
obstante clause, "notwithstanding anything contained in this Code " in sub. s. (1),
the operation of diverse provisions of the Code relating to the initiation and trial of
the offence of defamation is excluded and prima facie s. 198 is one of those
provisions. It is however urged on behalf of the appellants that sub-s. (13) of s. 198-
B makes the provisions of s. 198 applicable to a complaint for defamation of
persons specified in s. 198-B(1) and provides that cognisance of the offence of
defamation cannot be taken by a court except upon a complaint by the person
aggrieved, and that the Chief Minister of Uttar Pradesh alleged to be the party
aggrieved not having signed the complaint the Court of Session, Kanpur, had no
jurisdiction to take cognizance of the complaint. Subsection (13) provides that " the
provisions of this section shall be in addition to, and not in derogation of, those of s.
198 ". In our judgment, this clause is enacted with a view to state ex abundanti
cautela that the right of a party aggrieved by publication of a defamatory statement
to proceed under s. 198 is not derogated by the enactment of s. 198-B. The
expressions, " in addition to " and " not in derogation of " mean the same thing-that
s. 198-B is an additional provision and is not intended to take away the right of a
person aggrieved even if he belongs to the specified classes and the offence is in
respect of his conduct in the discharge of his public functions, to file a complaint in
the manner provided by s. 198. " Derogation " means, taking away, lessening or
impairing the authority, position or dignity, and the context in which sub-s. (13)
occurs clearly shows that the provisions of s. 198-B do not impair the remedy
provided by s. 198. It means that by s. 198-B the right which an aggrieved person
has to file a complaint before a Magistrate under s. 198 for the offence of
defamation, even if the aggrieved person belongs to the specified classes and the
 defamation is in respect of his conduct in the discharge of his public functions, is
not taken away or impaired. If sub-s. (13) be construed as meaning that the
provisions of s. 198B are to be read as supplementary to those ofs. 198, the
nonobstante clause with which sub-s. (1) of s. 198B commences is rendered wholly
sterile, and unless the context compels such an interpretation, the court will not be
justified in adopting it. There is again inherent indication in ss. 198 and 198B,
which supports the view that s. 198B was not intended to be supplementary to s.
198, but was intended to provide an alternative remedy in the case of defamation of
persons set out in that section. The expression " complaint " as defined in s. 4, cl. (h)
of the Code means " the allegation made orally or in writing to a Magistrate with a
view to his taking action under this Code that some person, whether known or
unknown, has committed an offence..........Every complaint of an offence has to be
made to a Magistrate competent to take cognizance thereof and not to a Court of
Session. A Court of Session under the Code of Criminal Procedure unless otherwise
expressly provided, is' not competent to entertain a complaint; it can only try a
criminal case committed to it. The expression complaint in s. 198 is manifestly used
in the meaning as defined by s. 4(h). Even a superficial examination of the
contention raised by the appellants reveals that if effect be given to it, the utmost
confusion would result in working out the provisions of the Code. If beside the
complaint filed by the Public Prosecutor under s. 198B, there must also be a
complaint by the person aggrieved, two courts would simultaneously be seized of
two distinct complaints for the same offence. The complaint by the Public
Prosecutor under s. 198B would undoubtedly lie, in the Court of Session and the
complaint under s. 198 would lie in the court of a Magistrate, because it is a
Magistrate who alone can take cognisance of the offence of defamation under s.
198. Thereafter, the complaint under s. 198 may have to be committed to the Court
of Session by the Magistrate and it is only after the case is committed to the Court
of Sessions that on compliant filed by the Public Prosecutor, the case may proceed.
The Legislature could not have intended that in respect of the same offence, there
should be two complaints, one in the Court of Session and another in the court of a
Magistrate-and either both should be tried, or the proceedings should be
consolidated after committal."

22. Adalat Prasad (supra), is a case where the earlier view of the Hon'ble Supreme
Court in K.M.Mathew Versus State of Kerala & another, 1992 (1) SCC 217
empowering the Court issuing summons to recall the same on being satisfied that
issuance of summons was not in accordance with law, has been reversed by holding that
the Magistrate, while taking the cognizance of an offence upon receipt of complaint, has
to examine the complainant upon oath and the witnesses. Magistrate can dismiss the
complaint under Section 203 of the Code if the conclusion arrived is that the statement of
the complainant and the witnesses do not make any sufficient ground for proceeding and
if otherwise, i.e., the satisfaction, he is enjoined upon an obligation to issue process under
Section 204 of the Code, but there is no such provision in the Code for hearing the
summoned accused.
23. Dr. Subramanian Swamy (supra), was a case where a sitting Judge of the Hon'ble
Supreme Court when appointed as a Chairman of Inquiry Commission had faced
scandalous remarks against the Commission, but it was held that provisions of Contempt
of Courts Act, 1971 would not apply.
24. In S.K.Sinha's case (supra), the question came to be pondered upon was as to
whether the limitation to file the complaint would be counted from the date of taking
cognizance or filing of the complaint. By applying the reasonable construction, in paras
26, 27 and 30, it was held that the High Court was not correct in quashing the
proceedings on the ground of limitation. The aforementioned paras read thus:-

"26. Undoubtedly, the process was issued on February 3, 2003. In our judgment,
however, it was in pursuance of the cognizance taken by the Court on May 24, 2002
that a subsequent action was taken under Section 204 under Chapter XVI. Taking
cognizance of offence was entirely different from initiating proceedings; rather it
was the condition precedent to the initiation of the proceedings. Order of issuance of
process on February 3, 2003 by the Court was in pursuance of and consequent to
taking cognizance of an offence on May 24, 2002. The High Court, in our view,
therefore, was not right in equating taking cognizance with issuance of process and
in holding that the complaint was barred by law and criminal proceedings were
liable to be quashed. The order passed by the High Court, thus, deserves to be
quashed and set aside.
27. It was also contended by the learned counsel for the appellant that the relevant
date for considering the question of limitation is the date of filing of complaint and
not taking cognizance or issuance of process by a Court of law. In this connection,
our attention was invited by the counsel to Bharat Damodar Kale &Anr. v. State
ofA.P., (2003) 8 SCC 559 and a recent decision of this Court in Japani Sahoo v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394. In Japani Sahoo, one of us (CK.
Thakker, J.), after considering decisions of various High Courts as also Bharat
Damodar Kale, stated:
"52. 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 penalized because of the omission, default or inaction on the part
of the Court or 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 leg is. 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.
30. As regards quashing of proceedings on merits, the learned counsel for the
appellant is right in submitting that the High Court has not at all touched the merits
of the case and proceedings were not quashed on the ground that the provisions of
FERA do not apply to the case before the Court. The High Court dealt with only one
point as to whether the proceedings were liable to be quashed on the ground that
they were time-barred and upholding the contention of the accused, passed the
impugned order. As we are of the view that the High Court was not right in
quashing the proceedings on the ground of limitation, the order deserves to be set
aside by remitting the matter to the Chief Metropolitan Magistrate, Mumbai to be
decided in accordance with law. We may, however, clarify that it is open to the
respondents to take all contentions including the contention as to applicability or
otherwise of FERA to the facts of the case. As and when such question will be
raised, the Court will pass an appropriate order in accordance with law."

25. No doubt, sub-section (2) of Section 245 of the Code does not prevent the Magistrate
from discharging the accused at any previous stage of the case, i.e., before initiating
procedure as envisaged under Section 244 of the Code, if for the reasons to be recorded
by such Magistrate, he considers the charge to be baseless, for recording the evidence of
the prosecution or complainant. In view of the aforementioned provisions and as well as
the caveat reflected in the order dated 10.02.2019, this court is not prevented to examine
the maintainability of the complaint at threshold as the power to take cognizance as per
sub-section (2) of Section 10-A is of the High Court.
26. No doubt, the submission of Mr. Deol had been very stupendous by applying the
doctrine interpretation that the complainant even after expiry of his term would be in a
position to espouse the grievance regarding the alleged scandalous remarks occurred
during his tenure as Chairman, because the limitation provided in sub-section (4) of
Section 10-A of 1952 Act is six months from the date on which the offence is alleged to
have been committed. In this regard, he cited provisions of Section 199 of the Code,
where certain class of persons being public servants employed in connection with the
affairs of the Union or of a State, the Court of Sessions are permitted to take the
cognizance of the offence without committal of the complaint, upon receipt of a
complaint in writing made by the Public prosecutor. Even the signatures of the
complainant as per the law cited supra would not be required.
27. I am afraid that the aforementioned argument would not come to the rescue at this
stage of filing of the complaint, but there would have been a force had the complaint
been filed before 31.08.2018, i.e., before the date the incidents had taken place as
complainant was aware that his tenure as Chairman after two extensions was to expire on
31.08.2018.
28. The expression "Commission or any member thereof having disrepute would be
extended and relate to an Ex-member. Had, the Legislature intended to grant such
protection, i.e., liberty to avail the remedy as provided under Section 10-A, there would
have been a specific provision. The plain and simple reading of the aforementioned
provisions, leaves no manner of doubt that the provisions of Section 10-A can only be
invoked by the Chairman or any other member during tenure and not thereafter as the
remedy lies elsewhere. The doctrine akin to rule of interpretation is no longer res integra
and equally so, time and again it has been held that when the language of the provisions
and the intent of the Legislature do not require any interpretation than the one prescribed,
the court cannot re-write the law as it would defeat the purpose of incorporating the
provision while enacting an act. In the case of Dr. Subramanian Swamv (supra),
Hon'ble Supreme Court has gone to the extent of laying down the law that even if the
sitting Judge of the Supreme Court having been appointed as a Chairman of the
Commission shall be powerless to invoke the provisions of the Contempt of Courts Act,
1971 when faced with the scandalous remarks against the Commission.

29. The functions of a Commission appointed under the 1952 Act are not like a body
discharging judicial functions or judicial power. The Commission appointed under the
1952 Act is not a Court for the purpose of taking evidence except the civil court for the
purposes of Section 5(4), but to make the inquiry or determination of facts which are not
of judicial character. The Court is an institute which has the power to regulate legal rights
by the delivery of definitive judgments, and to enforce its orders by legal sanctions, if its
procedure is judicial in character, but not the member of the Commission, nor would be a
deemed public servant.
30. Issuance of a notice and admitting the respondents on bail would not mean that the
Court has taken the cognizance and is required to proceed under Section 244 Cr.P.C, as
not only in one order but in subsequent order of 11.07.2019, extracted ibid, during the
presence of the parties, the objection qua maintainability was left open. High Court in
this case as per provision of Section 10-A is empowered to discharge the accused at any
previous stage. Period of six months cannot be enlarged after the complainant ceased to
be a member or a Chairman of the Commission. If such interpretation is stretched by
accepting the argument of Mr.Deol, then every member of the Commission at his own
sweet will can bring the action from the date of alleged commission of the offence de hor
of the fact that he no longer remains the Chairman of the Commission. That would
tantamount to laying an incorrect law.

31. In Para 18 of the complaint, unflinching, admitted the alleged commission of the
incidents on 23.08.2018, 27.08.2018 and tenure of the Commission till 31.08.2018.
Relevant portion of Para 18 of the complaint reads thus:-

"More importantly, since the Press Conference in question was held on 23.08.2018
and then on 27.08.2018, the Commission was in operation till 31.08.2019-the
offence(s) in question were originally committed well-during the official tenure of
the Commission. Therefore, the present complaint has been filed well within the
period of limitation prescribed under the Act."

32. Having aware of its power and denudation, jurisdiction of this Court for taking
cognizance and trying the accused for commission of the offence under Section 10-A of
1952 Act cannot be invoked.
33. As an upshot of my aforementioned observations, questions framed above are
answered against the complainant. The present complaint is held to be not maintainable
and hereby dismissed.