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Judgment
Paul, J.—The former set of Criminal Miscellaneous Petitions are under S. 482 of the Crl.P.C. quash the criminal proceedings launched against the petitioners and pending on the fife of the VI Metropolitan Magistrate.
In these cases the petitioners are being prosecuted for offences under Ss. 14(2), 14A and 14AA of the Employees'' Provident Funds and Family Pension Fund Act, 1952 read with paragraphs 76(a), (b) and (c) of the Employment Provident Funds and Miscellaneous Provident Scheme for failure to submit the return in Form 12 as required by the provisions of the Scheme for various months during the year 1976 before the due date and the (sic) Forms 3 and 6 and 5 and 10 before the (sic) date. The complaints against the petitioners were filed after the expiry of the period of limitation laid down by S. 468, Crl.P.C. Along with the complaints, petitions were also filed for condoning the delay stating in those petitions the reasons which caused the delays and it is stated therein that the delays were merely procedural. The learned Magistrate condoned the delay and took cognizance of the offences. It is now contended in these petitions that the learned Magistrate should not have condoned the delay without having given an opportunity to the accused of making their representation to the Court against the condonation of the delay. Other contentions have also been raised in these petitions for quashing the criminal proceedings, but those contentions have not been pressed by the learned counsel for the petitioners, Mr. Panchapakesan. S. 468, Crl.P.C. reads as follows:
Bar to taking cognizance after lapse of the period of limitation-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-S. (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 offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but Lot exceeding three years.
S. 469 reads as follows:
(1) The period of limitation, in relation to an offender, shall commence,-
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence cones to the knowledge of such person or to any police officer, whichever is earlier; or
(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier,
(2) In computing the said period, the day from which such period is to be computed shall be excluded.
S. 470 deals with exclusion of time in certain cases. S. 472 lays down that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. S.473 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.
Admittedly, in these cases the complaints against the petitioners have been laid before the court after the period of limitation prescribed under S. 468, Crl.P.C. Hence, it was that petitions were filed under S. 473 stating the facts which have occasioned the delay and explaining the delay so that the Court may take cognizance of the offences even after the expiry of the period of limitation. The learned Magistrate has on being satisfied that the delay had been properly explained and that it is necessary to take cognizance of the offence even after the expiry of the period of limitation in the interests of justice, taken cognizance of the offences. The grievance of the petitioners it that the Magistrate has done so without even giving an opportunity to the petitioners to make their representations against the condonation of the delay. It might be noted that S. 473 does not stipulate that before so taking cognizance of the offence after the Magistrate 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, an opportunity should be given to the accused to be heard. It might also be noted that the Magistrate has to be so satisfied that the delay had been properly explained or that it is necessary to take cognizance of the offence even after the expiry of the period of limitation in the interests of justice before taking cognizance of the offence, for S. 468, Crl.P.C. raises a bar on taking cognizance of the offence after the expiry of the period of limitation. Without that bar being lifted, the Magistrate cannot take cognizance of the offence. At that pre-cognizance stage, the accused does not appear in the picture at all, for, it is only after so taking cognizance that the Magistrate has to issue process under S. 204. It is, however, contended that even though there is no provision which requires the issue of a notice to the accused person before the Magistrate considers, the facts and circumstances placed before it by the prosecution to explain the delay in filing the complaint, before the expiry of the period of limitation, yet the interests of natural justice required giving of such an opportunity to the accused of being heard. As far as the State of Tamil Nadu is concerned, I notice that the procedure adopted the Magistrates is not uniform. In the case of police charge-sheets, in some cases in the charge-sheet itself the reasons for the delay are set out and the Magistrate after perusing the same takes cognizance of the offence. In some cases the prosecution files a regular memo or a petition along with the charge sheet explaining the delay and thereafter the Magistrate after perusing-the same, takes cognizance. Some Magistrates, however, have taken cognizance, only after issuing notice to the accused and after hearing the accused '' with reference to the question of limitation.
A number of decisions of various High Courts have been referred to by the learned counsel for the petitioners, Mr. Panchapakesan. The first of these decisions is that of the Andhra Pradesh High Court in Bharat Hybrid Seeds & Agro Enterprises, Kurnool and another v. The State 1978 Crl. L.J. 61 wherein a single Judge of the Andhra Pradesh High Court has observed as follows:
Although S. 468 which prescribes a period or limitation for taking cognizance and imposes a bar on the court in taking cognizance of the offences which are brought to its notice after limitation period and S. 473 enables the Court to extend that period if it is satisfied that the delay has been properly explained, still there is no provision in the Code prescribing any procedure for condonation of delay. It must be noted that once the period of limitation prescribed under the Code or any other law for launching a prosecution has expired, certain rights would accrue to the accused to the effect that there would be no prosecution thereafter. Therefore, even though there is no Rule of Law requiring the court to issue notice to the proposed accused and to give him an opportunity for meeting the case cf the complainant in regard to the extension of time, interests of justice and principles of natural justice require that the condonation of the delay and extension of time can be done only after giving a reasonable opportunity to the proposed accused. Absence of a Rule of Law shall not enable the courts to extend time for filing prosecution without hearing the proposed accused. This rule of practice which is necessarily a rule of justice must always be followed.
The learned Judge of the Andhra Pradesh High Court relied on a decision of the Madhya Pradesh High Court in Krishna Sanghi and others v. State of M.P. 1977 Crl. L.J. 90 . Referring to the decision of the Calcutta High Court in C.R. Irani v. State 1977 Crl. L.J. 160 in which the Calcutta High Court has held that although reasons for the extension of time can be given by the Court even in a later stage when the accused enter their appearance and object of the prosecution having been barred by limitation the learned Judge observed that it is not only desirable but also essential in the interests of justice that even before cognizance of the offence is taken by the Court after the period of limitation, notice should be given and opportunity to the proposed accused should be afforded and the Court should satisfy itself as to the adequacy of the reason for the delay and such rule of practice should always be followed by Court. After laying down such a procedure, the learned Judge of the Andhra Pradesh High Court, however, dismissed the petition for quashing, the proceedings observed as follows:
Now, having laid down the procedure as to hew to extend the period of limitation after the expiry of the prescribed period, the question arises as to whether the proceedings in this case should be quashed. As far as I am aware there are no decided case of this Court on this aspect. Consequently the lower court thought'' that reasons for condonation of the delay could be given after the accused entered their appearance though it was satisfied that the delay was satisfactorily, explained even at the time of taking cognizance of the offence. Going by its finding that it was satisfied about the explanation given for the delay even at the time of taking cognizance of the offence,. I dismiss this petition for quashing the proceeding. I am certain, that the Courts will hereafter follow the procedure which I have indicated above while taking cognizance of the offence.
In Krishna v. State of M.P. 1978 Crl. L.J. 61 the learned-single Judge of the Madhya Pradesh High Court has observed as follows:
Whenever a complaint or a chalan is filed at the instance of any person or any police officer, the Court must first see that Section 468 is attracted or not. If it does, it should not register the case but give an opportunity to the person or the police officer filing the complaint or Chelan to satisfy it on the point o limitation for purposes of condonation of delay. The delay has to be condoned with exercise of judicial discretion. S. 473 should also be liberally construed like S. 5 of the Limitation Act so as to advance substantial, justice when no negligence or inaction or want of bona fide is imputable to the prosecutor but cannot be construed too liberally because the Government is the prosecutor or prosecution is upon police report After the delay is condoned by the Court on its being satisfied then alone it would register the case and proceed with the same in accordance with law. Natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrue to the accused and which cannot be allowed to be taken away lightly. As such, they have to be beard when an application under S. 473 is moved by the prosecution before cognizance is taken.
It might also be noted that the learned Judge has clearly pointed out that the satisfaction for the purpose of extending the period of limitation must be done before the cognizance of an offence is taken and not subsequently. In that case the trial Court took cognizance of the offence without satisfying itself about the delay and only when subsequently the accused appeared before the Court and raised objections to the Magistrate taking cognizance of the offence after the expiry of the period of limitation that the Court posted the matter for hearing the accused on their objections and the prosecution also filed a reply explaining the delay. The learned Judge also laid down that after the delay is condoned by the Court on its being satisfied, then alone it would register the case and proceed with the same in accordance with law and before condoning the delay, although there is no provision of giving notice to the accused person in Chapter XXXVI of the Code, but natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. In the circumstances of that case, the learned Judge allowed the petition for quashing, for, without satisfying itself with regard to the delay, the Magistrate had taken cognizance of the offence.
In the Andhra Pradesh case Bharat Hybrid Seeds & Agro Enterprises v. State 1978 Crl. L.J. 61, however, it must be noted that in the complaint filed against the accused persons itself a reason has been furnished for the delay. Therefore, it was that when the accused appeared before the Court and objected to the taking of the cognizance of the offence by the Magistrate and filed a petition for that purpose, the Magistrate observed that he had taken into consideration the reason given for the delay.
The learned single Judge of the Calcutta High Court in Cushrow Russy Irani v. The State and another 1977 Crl. L.J. 160 has observed as follows:
The scheme in the Criminal Procedure Code (1974) does not provide for such an opportunity to an accused of being heard before consideration of the question of limitation in accordance with the provisions of Chapter XXXVI of the Code. It is only at the time of taking cognizance the bar of limitation is imposed upon the court by S. 473 (1) and (2). At that time the accused is nowhere in the scene. Therefore, at the time when the Magistrate takes cognizance of the offence, the accused cannot be heard nor can he raise any grievance of his not being given an opportunity of being heard at that time. After the process is issued and the accused appears before the Magistrate it is open to him to raise the question regarding the bar of limitation and it is for the Magistrate to consider at the proper stage of the proceeding whether the accused can avail of the bar of limitation as imposed upon the Court.
While agreeing with the learned Judge of the Calcutta High Court that the scheme in the Criminal Procedure Code does i not provide for such an opportunity to the accused of being heard before consideration of the question of limitation in accordance with the provisions of Chapter XXXVI of the Code since it is only at the time of taking cognizance the bar of limitation is imposed upon the Court under S. 473 and at that time the accused is nowhere in the scene, yet, with great respect, I am unable to agree with the learned Judge of the Calcutta High Court that after the process is issued and the accused appears before the Magistrate it is open to the accused to raise the question regarding the bar of limitation and it is for the Magistrate to consider at the proper stage of the proceedings whether the accused can avail the bar of limitation as imposed upon the Court. Once the bar against taking cognizance is lifted and the Court takes cognizance of the offence, the Court cannot subsequently wipe out the taking of the cognizance. It has to thereafter proceed under S. 204 and the other provisions of Chapter XVI. S. 468 clearly shows that the stage at which the question of delay in filing the complaint or the charge-sheet has to be decided is at the pre-cognizance stage and not after cognizance has been taken.
This question of condonation of the delay in filing a complaint or a charge sheet was considered by Ratnavel Pandian, J. in Thanga Pillai v. Superintendent Regulated Market of the South Arcot Marketing Committee Kallakurichi. There also the complainant had filed an application for condonation of the delay and the learned Magistrate after hearing both sides had condoned the delay whereupon the accused persons came up to this Court by means of a petition under S. 482. Ratnavel Pandian, J. after considering the various decisions, most of which were decisions under S. 5 of the Limitation Act observed as follows:
It admits of no doubt that S. 473 empowers the Court in extending the period of limitation is certain cases but it is a matter of discretion of the Court whether in a given case having regard to the facts and circumstances of the case, it can enlarge the period of limitation or not. As the discretion granted under S. 473, Crl.P.C. is wider, the very width requires a corresponding caution on the part of the Court while exercising that power. Of course, it cannot be laid down by any hard and fast rule as to what constitutes sufficient cause to properly explain the delay occasioned or as to what is necessary so to do in the interests of justice It must be determined by a reference to the facts and circumstances of each particular case. In other words, the limitations of Court''s jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense have to be the only safeguard. This power must be exercised only in suitable cases where the court is satisfied that the delay has been properly explained or it is in the interests of justice. The court being the legal custodian and guardian of the rights of the citizens, has a primary obligation to protect them from vindictive or vexatious tine barred prosecutions and the valuable vested right should not be easily brushed aside or whittled down in all the cases by indiscriminately exercising the discretionary powers which extraordinary powers are vested on the courts to use them, only in exceptional cases, that too on being satisfied of the conditions enumerated thereunder. But when once the Court is satisfied on the above guidelines, then there cannot be any restriction or fetter in the exercise of the powers except saying that the discretion should not be exercised in a capricious or arbitrary manner. Thus it is seen that S. 5 of the Limitation Act gives a wide discretion to the Court to extend the prescribed period in certain cases on being satisfied that there is sufficient cause. But afortiori, S. 473, Crl.P.C. stands on a better footing and gives wider powers to courts to excuse the delay on either of the grounds provided for. From the above discussion, it can safely be concluded that though S. 468, Crl.P.C. would operate as a bar of taking cognizance of the offences after the lapse of the period of limitation, S. 473 would give a wider discretion to the Court to extend the period of lemmatization in cases where the Court is satisfied on the facts and circumstances of the case of either of the conditions, namely (1) that the delay has been properly explained or (2) that if it is necessary so to do in the interests of justice. All that the section requires in express terms as a condition for the exercise of the discretionary powers of taking cognizance of the expiry of the period of limitation is the satisfaction of the Court on any one of the requirements stated above.
S. 473, Crl.P.C. as S. 5 of the Limitation Act makes no distinction between a Government and a private individual and therefore the requirement of diligence in the case of Government cannot be different from that in the case of a private individual. Even so, a Corporate, or a statutory body, is not entitled to a greater indulgence under this section than a private individual. That is to say, the Law of Limitation operates equally for or against a private individual as also the Government or Statutory body.
In that case, however, the question as to whether before condoning the delay, notice should be given to the accused and an opportunity afforded to him for, being heard on the matter was not considered, for, apparently in that case notice was issued and such opportunity given.
In the case now before me, the learned Magistrate before taking cognizance of the offence considered the petitions filed for condonation of the delay which set out the reasons for the delay and condoned the delay and took cognizance of the offences. Once cognizance is taken, there is no question of wiping out the cognizance so taken. Therefore, the petitioners cannot now contend that cognizance of the offence should not have been taken without having given them an opportunity of being heard on the question of the delay in filing complaints. Nevertheless, since it is necessary to observe a uniform practice in all the Courts in this matter, I propose to follow the decision of the Andhra Pradesh High Court in Bharat Hybrid Seeds A Agro Enterprises, Kurnool and another v. The. State 1978 Crl. L.J. 61 and I also feel that it is not only desirable but also essential in the interests of justice that even before cognizance of the offence is taken by the Court after the period of limitation notice should be given and opportunity to the proposed accused should be afforded and the Court should then satisfy itself as to the adequacy of the reason for the delay and if so satisfied, then only take cognizance of the offence. Such a salutary rule of practice should be followed by Court; and once cognizance is so taken, it would not be for the accused to later contend that cognizance should not have been taken for the reason that the explanations given for the delay are not acceptable. Since in the case now before me, the Magistrate was satisfied with the explanations given for the delay, I am not prepared to quash the proceedings merely because no notice was given to the petitioners and an opportunity afforded for being heard in the matter. With the above observations, all these petitions are dismissed.