Bal Krishan Sharma vs Raj Bala

Mahmood Ali Khan, J.—This petition filed u/s 482 Cr.PC. has challenged an order of Additional Sessions Judge dated 24-7-1999 whereby he has dismissed a revision petition filed by the petitioner against the order of a Metropolitan Magistrate dated 18-9-1998. By order dated 18-9-1998, the learned Magistrate had dismissed an application of the petitioner for recalling the summoning order and his consequential discharge. Briefly stated the facts are that the respondent, Mrs. Raj Bala filed a criminal complaint against the petitioner, a Police Officer, and three other Police officials for their prosecution for committing offences u/s 365, 325, 323, 452, 506 read with Section 34 IPC. The allegations made in the complaint was on 6-2-1993 at about 3.00 P.M., the co-accused came into the complainant''s house and asked her and her husband to hand over their son Mr. Naveen as he was wanted in a case FIR No. 92/93 u/s 324 read with Section 34 IPC. They were told that Naveen was not in home. They tried to take away the complainant''s Husband, Jai Singh with them forcibly. She resisted it but was pushed down by the accused and in the process she sustained injuries on her person. Jai Singh, however, returned on 8-2-1993 with multiple injuries on his person. After the pre-summoning evidence was recorded the petitioner was summoned on 26-5-1994 to stand trial for offences under Sections 323 and 342 read with Section 34 IPC. The petitioner filed an application for discharge. The learned Magistrate dismissed the application by order dated 18-9-1998. The petitioner challenged this order in a revision petition before the Additional Sessions Judge which was also dismissed by order dated 24-7-1999. The petitioner is still aggrieved and has challenged that order in this petition.

Before the learned Magistrate, the petitioner wanted his discharge from the criminal proceedings on the ground of delay in the trial in view of the law laid down by the Supreme Court in the case of Common Cause, a registered Society through its Director Versus Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, . His contention was rejected by the Magistrate holding that a public servant who committed an offence while discharging his official duty was excepted from the benefit of the law laid down in the said judgment. Before Additional Sessions Judge, the petitioner raised two contentions, firstly, that he should have been discharged in view of the principle of law laid down by the Supreme Court in the above cited case and secondly, that the congnizance of the offence was taken beyond the period of one year prescribed by u/s 568(2)(b) Cr.PC., therefore, he should have been discharged. Both these contentions were rejected by the Additional Sessions Judge, firstly, on the ground that the benefit of judgment of the Supreme Court is not available to the petitioner, who is government servant and had committed offences while on duty and secondly, the complaint was filed within a period of limitation of one year, therefore, the congnizance of the case was within the period prescribed u/s 468 Cr.PC.

Before this Court the only argument advanced by the counsel for the petitioner is that the offence was allegedly committed by the petitioner on 6-2-1993, the complaint was filed by the respondent on 29-3-1993 but the congnizance of the offence was taken by the learned Magistrate on 26-5-1994 when summoning order was passed. It is argued that the petitioner had been summoned to be stand trial for offence u/s 323 and 342 IPC, which provide for maximum punishment of one year imprisonment. Therefore, in terms of Clause (b) of sub-section (2) of Section 468, the limitation for taking congnizance of the offence would be one year from the date of the commission of the offence. It is urged since the cognizance has been taken long after the expiry of the one year from the date of the commission of the offence i.e. 6-2-1993, the summoning order as well as the prosecution of the petitioner is barred by the limitation and the petitioner deserved to be dis-charged for this reason alone.

No arguments has been raised on behalf of the petitioner that the petitioner was entitled to be dis-charged on account of delay in the trial. The judgments of the Supreme Court in Common Cause, a Registered society through its Director Versus Union of India (supra) and R.D. Sharma Versus State of Bihar, 1999 III AD Crl.SC 573 are no more good law in view of the decision of a larger bench of the Supreme Court in P. Ramachandra Rao Vs. State of Karnataka, . Even otherwise nothing has been argued on behalf of the petitioner that he was entitled to a discharge from the case for inordinate delay in the trial of the case in the light of the aforesaid judgment of the larger bench.

The next question is to whether the date of taking cognizance should be reckoned from the date of the filing of the criminal complaint or the date on which the Magistrate has passed summoning order. The question is no more res integra in view of the judgment of the Supreme Court in Krishna Pillai v. T.A. Rajendran . Supreme Court in Krishan Pillai (supra) has referred to the judgment of five-Judges Bench of the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, where it was held:

When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.PC. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken congnizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking congnizance process is issued which means that the accused is called upon to appear before the court.

Thereafter the Supreme Court observed "the extract from the Constitution Bench clearly held that filing of a complaint in court is not taking congnizance and what exactly constitutes taking cognizance is different from filing of the complaint". Therefore, the contention of the respondent that the learned Magistrate ought to have taken cognizance in the matter when the complaint was presented to it which was well within one year of the commission is the offence is not tenable in law. As held by the Supreme Court the date of taking of cognizance is not the date of filing of the complaint but the date on which the court had applied its mind by examining the witnesses of the complainant and taken decision in accordance with Section 204 Cr.PC for summoning of the accused for trial.

It is not disputed that the offence in this case was allegedly committed by the petitioner on 6.2.1993 and the summoning order against him was passed on 26.5.1994. In accordance with Section 468(2)(b) of Cr.PC the cognizance of the offences under Sections 323 and 342 IPC could have been taken within one year from the date of commission of offence. The taking of cognizance of offence is in this case, as such, manifestly beyond the period prescribed by Section 468 Cr.PC.

But the matter would not end here. Section 473 empowers the trial court, in its discretion, to 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 interest of justice". Section 468 of Cr.P.C. cast a statutory obligation on the court not to take cognizance of an offence specified in sub-section (2) after the lapse of the period of limitation. Whenever a complaint u/s 200 Cr.P.C. or a police report u/s 173 Cr.P.C. is received the learned Magistrate has first to check up whether it is within the limitation prescribed by Section 468 Cr.P.C. If they are beyond the period prescribed it was incumbent upon the Magistrate to decide whether he could extend the period of limitation in accordance with Section 473 of the Code. It can be done by calling upon the complainant or the police office and an opportunity of hearing be provided and then decide whether the limitation can be extended and the complaint or the police report be entertained beyond the period of limitation. The condonation of delay u/s 473 is in the discretion of the Magistrate and like all discretions the power of Section 473 is also to be exercised with some circumspection care and judicially. Court has to consider whether there was sufficient cause for condonation of delay or whether extension of limitation is necessary in the interest of justice. At this stage the laws does not provide for issuance of a notice to the accused. But when the court is exercising its discretionary powers u/s 473 of the Code it is prejudicially affecting a valuable right of the accused which has vested in him by reason of the expiry of the period of limitation. In view of this though the law does not require a notice to be issued to the accused but interest of justice and a fair trial requires that a notice is issued to the accused also to give him an opportunity of hearing before the request of the complainant or the police officer for extension of the time is acceded to. If such an opportunity is not provided to the accused the order of extension of limitation will be vitiated and invalid (See State (Delhi Administration) Vs. Anil Puri and Others,

Even if an opportunity hearing has not been provided to the accused at the time of the extension of the limitation by the Magistrate under Section473 of Cr.P.C., the right of the accused in raising objections to the taking of the congnizance and resultant his summoning to stand trial is not defeated and he can challenge his trial on the ground that the taking of the congnizance has become barred by the limitation as prescribed by Section 468 of Cr.P.C. at any stage of trial. Indeed it should have been done at the earliest opportunity but since the limitation prescribed by Section 468 vest indefeasible right in the accused, there is no rule of law that it cannot be raised at a subsequent stage of trial.

The law does not require an application for exercise of the powers of Section 473 of the Code for extension of the time of limitation. Therefore, the court even at a subsequent stage may give reasons for exercising its discretion for condonation of delay in accordance with the said provision. In K. Hanumantha Rao Vs. K. Narasimha Rao and Others, a Division Bench of Andhra Pradesh High Court had laid down as follows:

In State of Karnataka Vs. Vedavati, a single Judge of the Karnataka High Court C. Honnaih, J., held that where no application was filed under S.473, Cr.P.C., to condone the delay in a prosecution filed by the Forest Officer, Puttur after expiry of the period of limitation the delay could not be condoned. In view, no formal application for condonation of delay in launching the prosecution after expiry of the period of limitation prescribed under S.468(2), Cr.P.C. is necessary and it is open to the prosecuting agency to explain the delay to the satisfaction of the court without a formal application.

In the instant case the learned Magistrate has not considered in its order dated 18.9.1998 nor has the learned Additional Sessions Judge in its order dated 24.7.1999 and considered the question of condonation of delay in taking cognizance in accordance with Section 473 Cr.P.C.

The facts and circumstances of the case show that if the delay in taking of the cognizance of the offence is not condonable and the time prescribed by Section 468 is not extendable in accordance with Section 473 Cr.P.C., a valuable right will stand vested in the accused against whom the cognizance was taken and he was summoned to stand trial. Therefore, the learned Magistrate has to consider and decide this question afresh. If the limitation is not extendable the taking of the congnizance and summoning of the accused to stand trial will be a clear abuse of the process of the court. The High Court in view of the law laid down in above cited judgments, can exercise its inherent powers u/s 482 of Cr.P.C. in the matter to prevent miscarriage of justice. Result of the above discussion is that the order of the trial court dated 18.9.1998 and confirmed in revision dated 24.7.1999 by the Additional Sessions Judge are set aside. Case is remanded back to the trial court to decide the question of extension of the limitation in taking cognizance of the offence in accordance with Section 473 of Cr.P.C after giving reasonable opportunity of hearing to the complainant as well as to the petitioner accused. The parties shall appear before the trial court on 6th May, 2003.

Petition stands disposed of.