Chonary Ahmed Kutty vs Special Police Establishment

Ramachandrlah, J.—The point that falls for determination in this Criminal Petition filed u/s 482 read with Section 401 Cr.P.C. by the second accused in C.C.No. 1343/1989 on the file of the Additional Chief Metropolitan Magistrate, Bangalore City (for short ''the Magistrate'') is whether the charge-sheet filed by the respondent against the petitioner and one Smt. P.V. Surayya on 21-3-1989 alleging commission of offences punishable under Sections 12(1)(a) and 12(1)(b) of the Pass Ports Act, 1967 (for short ''the Act'') by the first accused and the offence punishable u/s 12(2) of the Act by the petitioner is barred by time as the period of limitation of one year is prescribed u/s 468(2)(b) Cr.P.C. The learned Magistrate has by his order dated 12-3-1990 held that the charge-sheet is filed within time.

The relevant facts are that one P.V. Surayya, resident of Kalpakancheri in Kerala State filed an application for a passport in the Passport Office at Bangalore on 12-8-1985 stating therein that she came within the jurisdiction of the Passport Office, Bangalore as she was residing at No. 4, Bore Bank Road, Benson Town, Bangalore-46 during the past two years. She also furnished the names and addresses of two persons who are non-existent, in order to make it appear that they were the persons known to her so that the Passport Authority may make reference to them in order to ascertain her credentials to get the passport. After making necessary enquiry through the Commissioner of Police, the Passport Authority issued a passport to the first accused and sent it to her Bangalore address by registered post. But, the cover containing the passport was returned undelivered on 30-9-1985. Subsequently, the Passport Office found that the unreturned cover containing the passport of the first accused was missing in their office on 16-1-1986. Passport Authority came to know on 9-7-1987 that first accused P.V. Surayya had committed an offence and referred the matter to the CBI for making necessary inquiry. Thereupon, CBI registered a case in R.C.36/1987 u/s 12(2) of the Act. After making necessary investigation, the Special Police Establishment, CB!, Bangalore-32 filed a charge-sheet against the petitioner and the first accused in the Court of the learned Magistrate on 21-3-1989 alleging that the first accused and the petitioner (A-2) had committed the above, mentioned offences. It is written at the foot of the charge-sheet by APP, CBI, SPE, Bangalore, as under:

"The original statements of witnesses and documents will be submitted at the time of hearing this case since the same are required to finalise one connected case."

and the date 21-3-1989 is put below the signature of the said Officer. It is also mentioned in the charge-sheet that previous sanction of the Central Government was obtained u/s 15 of the Act for prosecuting the accused and the sanction order is enclosed to the charge-sheet. On the basis of the charge-sheet, the learned Magistrate took cognizance of the above mentioned offences against the first accused and the petitioner and issued process against them. Petitioner appeared before the learned Magistrate through his Advocate and raised a contention that the charge-sheet filed against him on 21-3-1989 was barred by limitation. Arguments on the point of limitation raised by the petitioner was heard on 28-2-1990 and the case was posted for orders on 3-3-1990. It is noted in the order-sheet dated 3-3-1990 that exemption application filed by the first accused is allowed and the case is posted to 5-3-1990 to hear. It is noted in the Order-sheet dated 5-3-1990 that the prosecution filed calculation sheet regarding (Imitation and further arguments were heard and posted for orders by 12-3-1990. On 12-3-1990, the learned Magistrate pronounced the order holding that the charge-sheet filed by the petitioner is in time. It is that order that is questioned in this Criminal Petition.

So far as the first accused is concerned, she has pleaded guilty on 25-4-1990 and she is convicted for offences under Sections 12(1)(a) and 12(1)(b) of the Act and sentenced to pay a fine of Rs. 2,000/- for each offence or in default, to undergo simple imprisonment for three months on each count.

Sri J. Jeshtmal, learned for the petitioner, contended that the starting point for reckoning limitation of one year prescribed u/s 468(2)(b) Cr.P.C. is 16-1-1986 when the Passport Office found that the passport issued to the first accused was missing in their office or in the alternative on 9-7-1987 when the Passport Authority came to know that the petitioner and the first accused had committed offences under the Act and referred the matter to the CBI for enquiry, and, therefore, the charge-sheet filed on 21-3-1989 is barred by limitation.

Sri Ashok Harnahalli, learned Additional Standing Counsel for the Central Government, argued that the charge-sheet filed on 21-3-1989 is in time if the time taken for obtaining the sanction order from 31-12-1987 to 12-12-1988 is excluded as per the provisions of Sub-section (3) of Section 470 Cr.P.C. as it is provided in Section 473 that where the previous consent or sanction of the Government or any other Authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period for such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. It is also stated in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or, any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other Authority shall both be excluded.

By way of reply, Sri J. Jeshtmal contended that there is no material in the copy of the sanction order produced along with the charge-sheet to hold that application for sanction was made on 31-12-1987 and the sanction order was received on 12-12-1988. He also submitted that the charge-sheet also does not throw any light as the relevant dates are not disclosed.

In my opinion, there is considerable force in the said argument of Sri Jeshtmal A perusal of the charge-sheet found at page 8 and the sanction order dated 20-10-1988 found at page 15 are as vague as they possibly could be as they do not contain the relevant dates mentioned above. However, the prosecution appears to have furnished the relevant dates for computing the period of limitation u/s 469 and 470 Cr.P.C. In a statement dated 5-3-1990 found at page 40 of the records in C.C.1343/1989. It contains the following particulars:

"1.

Date on which the Passport Authorities came to know of the offence (as per C.W.I)

:9-7-87

2.

Date of Registration

:16-9-87-

3.

Date of application for sanction

:31-1 2-1987

4.

Date of receipt of sanction at the CBI office, Bangalore

:12-12-87

5.

Date of charge-sheet.

:20-3-89

6.

Period from date of knowledge of Passport Authorities to the date of filing charge-sheet (from 9-7-87 to 20-3-89).

:20 months

7.

Period to be excluded u/s 470(3) Cr.P.C. (time taken for obtaining sanction order u/s 15 of the Passport Act 1967) (31-12-87 to 12-12-88).

:11months 12 days

8.

Period of limitation u/s 468 Cr.P.C. for offences punishable u/s 12 of the Passport Act (punishment provided: six months or fine)

:0neyear

9.

Time taken for filing the charge sheet excluding the time taken to obtain sanction. (From 9-7-87 to 20-3-89 excluding the period 31-12-87 to 12-12-88) (Sl.No.6 minus Sl. No. 7)

:9 months

Dated this the 5t day of March, 1990 at Bangalore

Sd/- Public Prosecutor CBI/SPE/Bangalore"

But, the said document was not produced along with the charge-sheet. Except stating that sanction order as required u/s 15 of the Act has been obtained and produced, the particulars of the date on which the application was filed for according sanction to prosecute the accused and the date on which the sanction order was received are not furnished in the charge-sheet although Sub-section (5) of Section 173 Cr.P.C. ordains that all the relevant documents should be produced with the charge-sheet. However, a memo dated 2-3-1990 filed by the prosecution is found at page 117 and the learned Magistrate has also put his initials on 2-3-1990 on that memo. It is stated in that memo that C.C.1343/1989 is posted for orders on 3-3-1990 and as per the direction of the Hon''ble Court, the correspondence made by the DIG, CBI to obtain sanction is produced and the same may kindly be considered before passing the order in the case. But, the order-sheet does not disclose that any such direction was given by the learned Magistrate to the prosecution or that the correspondence referred to in that memo were produced on 2-3-1990. According to copies of correspondence produced with that memo, the prosecution appears to have filed application for obtaining the sanction order on 31-12-1987 and received the same on 12-12-1988. But, the said information belatedly furnished by the prosecution behind the back of the petitioner should not have been taken note of by the learned Magistrate at the time of passing the order on 12-3-1990 without giving an opportunity to the petitioner to have his say in the matter. When confronted with this situation, Sri Ashok Harnahalli submitted that the matter may be remitted to the learned Magistrate for fresh disposal after giving an opportunity to the petitioner to have his say after looking into the documents subsequently produced with the memo dated 2-3-1990. But, I am of the view that this is not a fit and proper case to be remanded to the learned Magistrate at this stage.

As I have already mentioned above, it was incumbent on the prosecution to have produced with the charge-sheet all the relevant documents. There was no difficulty for the prosecution to produce the list of correspondence mentioned in the memo dated 2-3-1990 atleast before arguments on the point of limitation were heard by the learned Magistrate. The original letter of correspondence are not produced with the memo dated 2-3-1990 and no explanation is offered for producing only xerox copies of the letters of correspondence but not the originals.

The scope and object of the provisions of Section 468 Cr.P.C. are considered by the Supreme Court in State of Punjab Vs. Sarwan Singh, and it is observed in paragraph-3 as under:

"....The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant roust abide by the letter of law or take the risk of the prosecution failing on the ground of limitation

In the light of the said observations, the Supreme Court has held that the prosecution launched against the respondent was barred by limitation and, therefore, his conviction as also the entire proceedings culminating in the conviction of the respondent was nonest. Therefore, the appeal filed by the State against the order of the High Court of Punjab setting aside the conviction of respondent on the ground of limitation is affirmed by the Supreme Court. Sri Jeshtmal also invited my attention to a decision of the Allahabad High Court in PRAKASH CHANDRA SHARMA v. KAUSHAL KISHORE 1989 CriLJ 578 in which it is held that "when a complaint is filed against the accused which prima facie is barred by time, it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of delay u/s 473. Unless the delay is condoned, the Court cannot take cognizance of the complaint. It is not open for the Magistrate to take cognizance, issue process, record evidence and thereafter to determine the question of limitation." Therefore, I am of the opinion that the learned Magistrate has committed patent illegality in looking into the copies of the documents produced with the memo dated 2-3-1990 and coming to the conclusion that the charge-sheet filed against the petitioner was in time and, therefore, the impugned order is liable to be set aside.

Before concluding, I consider it necessary to refer to the contention urged by the learned Counsel for the respondent that non-compliance with the provisions of Section 174(4) of old Cr.P.C. in the matter of producing the documents along with the charge-sheet is not fatal as copies of some of the documents not produced by the prosecution are subsequently produced. In support of that submission, he placed reliance on a decision of the Bombay High Court in State Vs. J.D. Daroga and Others, He also placed strong reliance on a decision of the Supreme Court in Narayan Rao Vs. The State of Andhra Pradesh, . The main question which arose for determination by the Supreme Court in that case was whether and if so, how far non-compliance with the provisions of Section 173(4) and Section 207A(3) of the Old Cr.P.C. has affected the legality of the proceedings and the trial resulting in the conviction of the appellant. In that context, the Supreme Court has observed that non-compliance with those provisions has not the result of vitiating proceedings and subsequent trial. The word "shall" occurring both in Sub-section (4) of Section 173 and Sub-section (3) of Section 207A is not mandatory but only directory, because an omission by a Police Officer, to fully comply with the provisions of Section 173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective. But, the said argument cannot be accepted in view of the observations made by the Supreme Court in a subsequent decision in State of Uttar Pradesh Vs. Lakshmi Brahman and Another, in which the Supreme Court has held with reference to the analogous provisions of Section 207 Cr.P.C. that the statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish free of costs copies of documents is a judicial obligation and Section 207 is cast in a mandatory language. Therefore, it was not open to the prosecution to produce copies of the letters of correspondence pertaining to obtaining the sanction order at the belated stage as already mentioned above.

In the result, the Petition is allowed and the impugned order of the Court-below holding that the charge sheet filed on 21-3-1989 was in time u/s 468(2)(b) Cr.P.C. is set aside and the prosecution launched against the petitioner for the offence u/s 12(2) of the Passport Act by filing the charge-sheet on 21-3-1989 is hereby quashed.