Moti Pathak and Others vs State of U.P.

V.P. Mathur, J.—This revision is directed against the judgment and order passed by Mr. S.L. Tripathi, the then Sessions Judge of Deoria on 27-11-1981 in Criminal Appeal No. 153 of 1981. It was a case u/s 323 IPC. Mr. R.L. Sankhwar, the then Munsif Magistrate, Kasia, district Deoria had passed an order of conviction of the revisionists and sentenced each one of them to three months'' rigorous imprisonment. The number of the criminal case was 9963 of 1966. The appeal was heard by Mr. S.L. Tripathi, Sessions Judge of Deoria and the number of the criminal appeal was 153 of 1981. The learned Judge was addressed on the legal aspects of the matter also and it was brought to his notice that the case could not proceed as it was barred by limitation and hence he should quash the proceedings, but the Sessions Judge was of the view that since the taking of the cognizance was not challenged at the initial stages u/s 472 of the Code of Criminal Procedure since the Magistrate was empowered u/s 472 of the Code of Criminal Procedure to take cognizance even beyond limitation and he has taken cognizance in this case, hence this point can not be agitated at this stage. On merits, he found the Magistrate''s judgment to be satisfactory and confirmed it and dismissed the appeal upholding the conviction of the revisionists but reducing the sentence of each one of them to a fine of Rs. 200/-.

A perusal of Section 468 of the Code of Criminal Procedure will make it very clear that the object of the framers of the Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after long time and to ensure that material evidence does not disappear and the abuse of process of the Court does not take place, It may also be mentioned here that proceedings which are illegal and invalid right up from inception and in the initial stages, cannot become legal and valid, because illegality has persisted and the proceedings have concluded.

Section 468 prescribes for a bar on prosecutions and is in the nature of express prohibition against the taking of cognizance of offences of the categories specified in the Section after a prescribed period of limitation. And since it is clearly a limitation on the power of the Court, it consequently means that when the Magistrate sits down to take cognizance, he must determine whether his power of taking cognizance has or has not been taken away under this Section by reason of the offence being barred by limitation or by lapse of time on that date.

Section 473 of the Code of Criminal Procedure only provides for extension of period of limitation in certain cases. This Section invests the Court with a judicial power and a judicial discretion to take cognizance of an offence even after expiry of period of limitation; if sufficient cause has been shown for the delay or if the interest or demands of justice make it necessary to take cognizance. Necessarily an application of this Section would depend upon the facts and circumstances of each case and, on the basis of the same, the Court has to exercise its judicial discretion in the matter. The provision is akin to the provisions of Section 5 of Limitation Act and therefore the provision of this Section should accordingly like Section 5 Limitation Act, receive a liberal construction because the object is to advance substantial justice, when no negligence or inaction or want of bonafides is imputable to the prosecutor. But this liberality can not be extended too far, merely, because the government is the prosecutor or the prosecution has been started on a police report. Of course the power of the Court is discretionary and wider than the power u/s 5 of the Limitation Act. The words "in the interest of justice" should receive liberal construction. The Court must consider whether delay should be condoned and for that purpose it must see whether the delay has been properly explained or whether the exercise of discretion in favour of the prosecution is necessary in the interest of justice. There is some difference of opinion between the different High Courts about whether a notice to the prospective accused should be given before an order u/s 473 of the Code of Criminal Procedure is passed. We are not concerned with this aspect of the matter presently. The only point to be considered is whether in this case the provisions of Section 473 of the Code of Criminal Procedure have been applied as a matter of fact and if so whether they have been properly applied and the discretion has been correctly exercised.

The offence in this case took place on 1-3-1976. There is no doubt about it, as will be apparent from the charge-sheet submitted. In the case the learned Magistrate took cognizance of the offence on 13-12-1977 as will be apparent from the first order which he passed on the record and which is to the following effect:

13-12-77: Charge sheet received. Register. Summon the accused for 19-2-78. Sd/- Munsif Magistrate.

Under Section 323 of the IPC according to the provisions of Section 468 Code of Criminal Procedure since the offence is punishable by an imprisonment for a term of one year, the period of limitation is of one year from the date of the commission of the offence.

Apparently the cognizance was taken beyond the period of limitation. There is nothing on the record at all on any date to show that the learned Magistrate was approached to exercise his discretion u/s 473 of the Code of Criminal Procedure. I may agree that this approach may be by a written motion or may be by an oral submission. But there is no mention of any such thing on the record of the Court below. There is also nothing on the record to show that the learned Magistrate recorded his satisfaction on the facts and circumstances of the case that the delay has been properly explained or that it was necessary for him to extend the period of limitation and take cognizance of the case. Without applying his mind, the learned Magistrate, as soon as the case came before him, took cognizance and directed issue of notice. The fact therefore remains that the cognizance could not be taken of the offence, as it was clearly barred by Section 468 of the Code of Criminal Procedure. And yet what happened was that the learned Magistrate proceeded with the full trial, and passed an order of conviction and sentence. It is true that the plea of bar of limitation was not raised before the Magistrate at any stage of the trial. It was for the first time raised on behalf of the accused-revisionist when he went up in appeal before the Sessions Judge And I am afraid that the learned Sessions Judge has not given it a proper and due consideration.

I will refer to the case of State of Punjab Vs. Sarwan Singh, . In this case Sarwan Singh was charged u/s 406 of the IPC for misappropriating the amounts deposited with him as Cashier of a Co-operative Society. The challan was presented against him on 13-10-1976. The trial Court after recording the evidence acquitted him on the charge u/s 408 of the IPC but convicted him on the charge u/s 406 IPC and sentenced him to rigorous imprisonment for a period of one year and to pay a fine. Then he went up in appeal before the High Court, which allowed the appeal and acquitted him, merely on the ground that the prosecution launched against him was clearly barred by limitation under Sections 468 and 469 of the Code of Criminal Procedure. The High Court was of the view that the charge sheet clearly showed that the embezzlement is said to have been committed on 22-8-1972 and the audit report through which the offence was detected was dated 5-1-1973. Taking any of these dates, in the opinion of the High Court, the prosecution was barred by limitation u/s 468(2)(c) of the Code.

The matter went to the Supreme Court through criminal appeal No. 60 of 1981 and the Supreme Court laid down that the object of Code of Criminal Procedure 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 fifing vexatious and belated prosecutions long after the date of the offence. The Supreme Court was also of the view that 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 was therefore held to be of utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or else take the risk of the prosecution failing on the ground of limitation.

In the case mentioned above (Sarwan Singh''s case supra), the prosecution on the ground of limitation was held to be barred and the conviction as also the sentence of the Respondent as well as the entire proceedings culminating in the conviction were found to be non-est.

This being the situation, I am of the view that this plea of bar of limitation could be raised at any stage of the proceedings. If it had been raised at the initial stages, the Magistrate should have decided it. Even when it was not raised the Magistrate should have considered his power and authority in the light of Sections 468 and 473 of the Code of Criminal Procedure. He should not have proceeded with the taking of the cognizance in the case without applying his mind and as a matter of course. When this point was raised before the Sessions Judge he should have considered it on merits and in accordance with law. He should not have taken the view that since at the initial stages no action was taken, hence whatever illegality started at the inception and continued throughout, should be deemed to have been legalised. There is no law to that effect.

I am of the view that the very prosecution against the revisionists was barred by limitation and that being so, the Petitioners could not be convicted. Actually the Magistrate could not have taken the cognizance of the case at all and the result is that not only the convictions and sentences, but all the proceedings that have culminated in the convictions shall be deemed to be non-est.

The revision is therefore allowed. The conviction of the revisionists u/s 323 IPC is quashed and with it the sentences awarded to them.