Basappa Basavanthappa vs Hanumappa Basappa

This petition is directed against the order, dated 20-11-1978 passed by the learned Judicial Magistrate First Class, Ramadurg, in Private Complaint case No. 47/1978, taking cognizance of the offences under Sec. 447, 341, 323 and 506, I.P.C. against the petitioner-accused-1.

Brief facts of the case are that the complainant Hanmappa Basappa lodged a complaint alleging that he had been to his lands bearing R.S. No. 25/2 along with his wife Kalasavva and farm worker Thimmanna, at about 11 a.m., when he was ploughing the lands, the petitioner who is arrayed as the first accused in the complaint along with two others suddenly came to the spot and began to abuse him in foul language and further obstructed him from proceeding with his agricultural operations. When he questioned them, as to why they have come and obstruct, they said that he must leave the field or they would cut him to pieces. In the meanwhile, his wife and also coolie worker came there. Even at their remonstration the aforesaid accused did not heed, but continued to obstruct agricultural operations. When he forced himself to continue ploughing, they came before him and felled him down. Then the first accused caught hold of his hand and the second accused sat on his chest and all the accused assaulted him and his shirt also was torn. In the meanwhile, his uncle Ningappa Shirannavar came there and he was also put to fear. That the accused have absolutely no right, title, or interest in the land in question and that they have trespassed into his land with the sole intention of assaulting him and that therefore they have committed offences punishable under Sec. 447, 347, 323 and 506, I.P.C. This complaint was lodged in the court on 19.6.1977. It was also averred in the said complaint that in terms of the above, a complaint was also lodged with the police and that they have recorded his statement as also of his witnesses. But, however, the police have not impleaded accused-1 i.e., the petitioner herein, but have filed a charge-sheet against accused 2 and 3. Because accused-1 is a big man and he is a bank manager and a rich person, the police have not included him in the charge-sheet as an accused. Though allegations have been made against accused-1, they have not made accused-1 as an accused and that, therefore, the complainant is now lodging a complaint against accused-1 also and prayed that action should be taken against him according to law.

As already stated, this petition was presented in court on 18-11-1978 and the sworn statements of the complainant and his witness were recorded on 20-11-1978 and the impugned order was passed which reads thus:

"20-11-1978: Complainant by D.H.N. for verification. Verified statement of Complainant and one. witness taken. Heard. Already charge-sheet is filed against other 2 accused. Register the case for offences under Ss. 447, 347, 323 and 506 and issue process. Issue SS r/by 30-11-78. Sd/- V.G. Mahajan, Judicial Magistrate F.C., Ramdurg."

The counsel for the petitioner Sri B.V. Deshpande contended that the Magistrate while passing the impugned order has erred in issuing process against A-1 petitioner for offences under Ss. 447, 347, 323 and 506, IPC. though the complaint against accused has been filed more than one year and 6 months, beyond a period of limitation prescribed under S. 468, Cr.P.C. He further contended, that so fair as the aforesaid three offences under Ss. 447, 347 and 323, I.P.C. the complaint is clearly haired as per S. 468 (2) (a) (b), Cr. P.C.

S. 468, Cr. P.C. which deals with bar of taking cognizance after lapse of period of limitation reads thus:

"468(1) Except as otherwise provided elsewhere in, this Code, no Court shall take cognizance of an offence of the category specified in sub-sec. (2), after the expiry of the period of limitation.

(2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) ** **"

To know whether a complaint for the aforesaid three offences are barred by limitation, it is necessary to ascertain whether they fall under sub-sec. (2) (a) & (b) of S. 468, Cr. P.C. and reference may be made in this regard to the first schedule of the Code. The punishment prescribed for offence punishable under S. 447, I.P.C. is imprisonment for three months or fine of Rs. 500 or both; the imprisonment prescribed for offence punishable under S. 347, I.P.C. is 3 years and the punishment prescribed for the offence under S. 323 I.P.C. is imprisonment for one year or fine of Rs. 1000 or both.

The period of limitation in respect of the offence under S. 447, I.P.C. would be as per sub-clause (b) of sub-sec. (2) of S. 468 Crl. P.C., namely one year; for offence under 347, I.P.C. the period of limitation would be three years as per sub-clause (c) of sub-sec. (2) of S. 468, Cr.P.C. and for offence under S. 323, I.P.C. it would be one year under subclause (b) of sub-sec. (2) of S. 468, Cr.P.C. According to the sworn statement of the complainant, the incident is said to have happened on 19-6-1977, at 11 a.m. and the present complaint is lodged on 18-11-1978 on his file, i.e., approximately 1 year 5 months after the occurrence in which case they are certainly barred under S. 468(2) (a) & (b), Cr.P.C. and the Court could not have taken cognizance of them. On this ground alone Sri Deshpande submitted that the cognizance of the complaint for the aforesaid three offences should have been rejected by the Magistrate.

Sri K.I. Bhatta learned counsel for the complainant submitted that while not refuting the fact and the time of the occurrence and as also filing of the private complaint on 18-11-1978, the complainant is entitled to the exclusion of the time as permitted under S. 470(1), Cr.P.C. Elaborating his argument, when he submitted was that the complainant had lodged the complaint with the police against all the accused alleging the commission of the aforesaid offences. But however, the police did not send the charge-sheet against the first accused for reasons best known to them and as such the complainant should not suffer for the lapse on the part of the investigating agency. He has submitted that the complainant was in the aforesaid sense prosecuting with due diligence and as such the complainant is entitled for exclusion of time in which case the complaint against the petitioner for the aforesaid offences would be in time But a perusal of sub-sec. (1) of S. 470, Cr.P.C. clearly indicates that in com- puting the period of limitation the time during which any person has been prosecuting with due diligence,, another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded. Therefore, the complainant cannot seek refuge under this provision m as much as he has only filed a complaint against the petitioner before the police and that by itself cannot be said that he was prosecuting with due diligence another prosecution. The section further clarifies that another prosecution should be in a court of first instance or in a court of appeal or revision. None of these provisions apply to the stand taken by the learned counsel for the complainant, because there was no prosecution by him either in the court of first instance, or in a court of appeal or revision, but only he had filed a complaint before the investigating agency. So he cannot avail himself of exclusion of time, as envisaged under S. 470(1) Cr. P.C.

Sri K.I. Bhatta, learned counsel for the complainant, further submitted, if that is the position in law, then he would be entitled to claim extension of period of limitation under S. 473, Cr. P.C. S. 473 Cr. P.C. reads thus:

"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."

There is considerable force in the submission made by Sri K.I. Bhatta, the learned counsel for the complainant. It is significant to note that the section begins with the words "Notwithstanding anything contained in the foregoing provisions of this Chapter . . . . . . ." It is therefore clear that provisions of this section prevail over all the other provisions in Chapter XXXVI with regard to limitation of taking cognizance under certain Ss. including the one under Section 468 Cr. P.C. Therefore, the contention of Sri B.V. Deshpande that there is a bar at the threshold itself to take cognizance of an offence even if a complaint has been lodged after the period of limitation cannot be sustained. If the Court is satisfied that the complainant has satisfactorily explained the delay or ultimately if the Court comes to the conclusion that in the interests of justice it is a fit case where the delay has to be condoned, the Court is not precluded in applying the provisions of S. 473, Cr. P.C. But however, it is incumbent upon the Magistrate while acting under S. 473, Cr. P.C. to satisfy himself on the facts and circumstances of the case which pre-supposes that there should be application of mind by the learned Magistrate which again follows that there should bet an order explaining the circumstances under which he was convinced that that was a fit case, for condoning the delay. In the instant cape though there are averments in the complaint itself, that the complainant had lodged the complaint with the police in similar terms alleging all the overt acts attributed to the accused including the petitioner herein, the police had not sent up a charge-sheet against this petitioner for reasons best known to themselves. Therefore, it is not as though the averments in this complaint were made for the first time by the complainant so as to rope in the first accused also. This, we could gather from a reading of the complaint and also sworn statement of the complainant. As could be seen from the impugned order, the, learned Magistrate has not indicated whether he has applied the provisions of S. 473, Cr. P.C. at all while taking cognizance of the aforesaid offences against the first accused. It is, therefore, necessary that the trial Court should have considered on the facts and circumstances of the case or in the interest of justice whether the instant cast was a fit case wherein he can take cognizance of the aforesaid offences against the first accused. But however the same cannot be said in respect of the offences alleged under 3. 506, I.P.C. against the petitioner as there is absolutely no bar for the Magistrate to take cognizance. The provisions of S. 468, Cr. P.C. could not be a bar.

At this stage the learned counsel for the petitioner relied upon a decision in State of Karnataka v. Vedavati, (1978) 1 Kar.L.J. 46, to canvass the position that unless an application was filed for condonation of delay under S. 473 Cr. P.C. explaining the circumstances under which the complaint was not filed within the period of limitation as provided under Section 468, Cr. P.C. the Magistrate cannot condone the delay and entertain the complaint and in such a case delay should not be condone as a matter of course Relying on the said decision, he contended that there was no application, by the complainant for condonation of delay as contemplated under S. 473 Cr. P.C. and as such the learned Magistrate was not justified in taking cognizance of the offences under Sections 447, 341 and 323, I.P.C. It is true that the complainant has not filed a separate application along with his complaint praying for condonation of delay. In the instant case there is no separate application. But the averment in the complaint itself indicates under what circumstances the complaint lodged before police included the first accused for the aforesaid offence and why the investigating agency has rot chosen to file a charge-sheet against the petitioner along with others. There is sufficient indication in the petition itself narrating the circumstances which led the complainant to file a separate private complaint before the Magistrate including the petitioner as also one of the accused, along with two others against whom the charge-sheet was sent up by the investigating agency. It is therefore clear the complainant has made out a case narrating the facts and circumstances and explaining the delay why he could not file a complaint in time. The Court under such circumstances has to consider judiciously the averments made in the complaint and pass suitable orders. This section has invested the Court with judicial power and discretion to take cognizance of an offence after the period of limitation, if sufficient cause is shown for the delay or if the, interest of justice make it necessary to do so. It is therefore clear that the application of S. 473, Cr. P.C. varies from case to case and it depends upon the facts and circumstances of the case. Further S. 473 Cr. P.C. is analogus to S. 5 of the Indian Limitation Act, in which case the Court will exercise its judical discretion in a matter like this. It is well known principle that under S. 5 of the Limitation Act, the facts and, circumstances of the case would be construed very liberally so as to advance substantial justice when there is no negligence or inaction or want of bona fides imputable to the prosecutor. Therefore, applying the above principles to the facts of this case, though there is no separate application under S. 473, Cr. P.C., the facts and circumstances and the necessary ingredients to constitute an application, which would, under S. 473, Cr. P.C. are available in the complaint itself. It is in this way that the facts involved, in, the case cited by the learned counsel for the petitioner could be distinguished from the facts involved in this case. If the Court without using its judicial discretion proceeds to reject solely on the ground that there is no separate application under S. 473, Cr.P.C. that would certainly amount to grave injustice particularly so when there are facts and circumstances in the complaint itself to warrant an order under S. 473, Cr. P.C. Therefore, the contention of the learned counsel for petitioner that there is no separate application for condonation of delay is of no avail.

For the aforesaid reasons, this petition is partly allowed and the impugned order taking cognizance of the complaint for offences under Ss. 447, 341 and 323, I.P.C. are hereby set aside and the case is remanded to the Court of the Judicial Magistrate First Class, Ramdurg with a direction to consider the bar for taking cognizance of the aforesaid offences in the light of the averments made in the complaint and other facts and circumstances available from the record.

With these observations, the petition is disposed of.