Ajai Kumar and 2 Others vs State of Tamil Nadu

A. Selvam, J.—The order dated 17/2/2004 passed in Criminal Miscellaneous Petition No. 9421 of 2003 in S.T.C. No. 5090 of 2001 by The Judicial Magistrate, Padmanabapuram is now under challenge.

The revision Petitioners as Petitioners have jointly filed Criminal Miscellaneous Petition No. 9421 of 2003 on the file of the Judicial Magistrate, Padmanabapuram, praying to discharge them from the proceedings of S.T.C. No. 5090 of 2001, wherein, it has been stated that the case in question has been registered against the Petitioners on 27/4/2000 for the offences under Rule 10(i) of Tamil Nadu Spirituous Preparation Central Rules, 1984 r/w. Sections 11 and 14(A) of Tamil Nadu Prohibition Act and the maximum punishment for the said offences is only six months imprisonment. The Respondent ought to have laid a final report within one year from the date of commission of offences. But the Respondent has filed a final report on 22/8/2001. Therefore, the final report itself is barred by limitation. Under the said circumstances, the Petitioners are entitled to get discharge from the proceedings of S.T.C. No. 5090 of 2001.

On the side of the Respondent, a counter has been filed wherein it has been contended that the chemical report has been received only on 3/8/2001 and a separate petition has also been filed to condone the delay occurred in filing final report and the Petitioners are not entitled to get discharge and altogether, the petition deserves to be dismissed.

On the basis of rival contentions raised by either side, the Judicial Magistrate, Padmanabapuram has dismissed the petition. Against the dismissal order, the present Criminal Revision Case has been filed.

The learned Counsel appearing for the revision Petitioners has strenuously contended that the occurrence has taken place on 27/4/2000 and the maximum punishment is only six months for the alleged offences and as per Section 468(2)(b), the Respondent ought to have filed a final report within one year from the date of commission of offence. But the Respondent has filed the final report only on 22/8/2001 and therefore, the final report in question cannot be taken on file. But the Judicial Magistrate, Padmanabapuram has erroneously taken the same on file in S.T.C. No. 5090 of 2001 and only under the said circumstances, the Petitioners have filed the petition in question so as to discharge them. But the Judicial Magistrate, Padmanabapuram has erroneously dismissed the same and therefore, the impugned order is liable to be set aside.

Per contra, the learned Government Advocate has contended that along with the counter filed in Criminal Miscellaneous Petition No. 9421 of 2003, the Respondent has filed a petition u/s 473 of The Code of Criminal Procedure, so as to condone the delay that occurred in filing final report and the same has also been allowed by the Court below and therefore, the contention urged on the side of the revision Petitioner cannot be accepted and altogether, the Criminal Revision Case deserves dismissal.7. On the basis of rival submissions made by either counsel, the Court has to meticulously analyse whether the final report filed by the Respondent in Crime No. 667 of 2000 Thuckalay Police Station can be taken on file.

The alleged occurrence has taken place on 27/4/2000 and the concerned case has been registered in Crime No. 667 of 2000 under Rule 10 (i) of Tamil Nadu Spirituous Preparation Central Rules, 1984 r/w. Sections 11 and 14(A) of Tamil Nadu Prohibition Act. It is an admitted fact that the maximum punishment is only six months. The Respondent has filed a final report only on 19/11/2001.

At this juncture, it would be apropos to look into the following provisions.

Section 468(2)(b) of The Code of Criminal Procedure reads as follows.

One year, if the offence is punishable with imprisonment for a term not exceeding one year.

Section 469(1) of the Code of Criminal Procedure reads as follows:

The period of limitation, in relation to an offence, shall commence,-

a. On the date of the offence.

Therefore, it is very clear that from 27/4/2000, a final report ought to have been filed within one year i.e., on or before 27/4/2001. But in the instant case, the final report in question has been filed only on 19/11/2001. Since the final report has been filed after a period of limitation, the revision Petitioners have filed Criminal Miscellaneous Petition No. 9421 of 2003, praying to discharge them. Since as stated earlier, the final report ought to have been filed on or before 27/4/2001, it is made clear that the same cannot be taken on file. But the Judicial Magistrate, Padmanabapuram has done a stupendous mistake without looking into the period of limitation. Along with the present petition, the Respondent has filed a petition u/s 473 of The Code of Criminal Procedure.

Section 473 of the Code of Criminal Procedure reads as follows:

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

From the close reading of the provisions of Section 473 of The Code of Criminal Procedure, it is clear that the Court may take cognisance of an offence, after the expiry of the period of limitation, if it is satisfied on the facts and under the circumstances of the case, delay has been properly explained or that it is necessary but so to do in the interests of justice.

Provision of Section 473 can be invoked at the time of taking cognisance of an offence i.e, at the time of taking a final report on file. In the instant case, as pointed out earlier, at the time of taking the final report on file, the Judicial Magistrate, Padmanabapuram has not raised any query with regard to limitation. Therefore, the cognisance taken by the Judicial Magistrate, Padmanabapuram is itself is erroneous. Now, the Petitioners have come forward with the present petition, praying to discharge them on the basis of limitation. In order to cure the defect already made by the Court as well as the prosecution, the Respondent has filed a petition u/s 473 of the Code of Criminal Procedure, praying to condone the delay. After taking the final report on file, the petition u/s 473 of the Code of Criminal Procedure is not at all legally maintainable. Further, the Judicial Magistrate, Padmanabapuram has not passed any separate order in the petition filed u/s 473, so as to attract the provision of the same. On that score also, the entire order passed by the Judicial Magistrate Court, Padmanabapuram is liable to be set aside.

Further, it is made already clear that the Judicial Magistrate, Padmanabapuram should not have taken the final report on file in S.T.C. No. 5090 of 2001 since the final report itself is barred by limitation. On that score also, the order in question is liable to be set aside. Therefore, the argument advanced by the learned Counsel appearing for the revi-sion Petitioner is having effective force and whereas the argument advanced by the learned Government Advocate is not having subsisting force.

In fine, this Criminal Revision Case is allowed. The order passed in Criminal Miscellaneous Petition No. 9421 of 2003 in Calendar Case No. 5090 of 2001 by The Judicial Magistrate, Padmanabapuram is set aside. The petition filed in Criminal Miscellaneous Petition No. 9421 of 2001 is allowed and the Petitioners are discharged from the proceedings of S.T.C. No. 5090 of 2001.