Roshan Lal vs State

G.D. Srivastava, J.—This is a petition u/s 482 Code of Criminal Procedure by Roshan Lai Kapoor and 39 others against the State of Uttar Pradesh. The brief facts of the case are that a case u/s 3/4 of the Gambling Act was registered against the petitioners as Crime No. 560 of 1973. After investigation , a charge-sheet was submitted against them, but the charge sheet in fact reached the court on 8-5-1975. When cognizance was taken on the basis of this charge sheet, the petitioners filed a revision, which was allowed by the Sessions Judge on 23-10-1975 holding that the cognizance was barred by the provisions of Section 468 Code of Criminal Procedure as the cognizance had been taken after more than a year after the commission of the offence. Against this decision of the Sessions Judge, the State of Uttar Pradesh filed a petition u/s 482 Code of Criminal Procedure, but it was dismissed on 27�10� 1976, and the order of the Sessions Judge was upheld. Thereafter, the A. P. P. moved an application u/s 473 Code of Criminal Procedure for condonation of delay. The Magistrate, after hearing the parties came to the conclusion that there were good reasons for condoning the delay under the said section and he, therefore ordered that the accused persons (the present petitioners) be summoned for 5-4-1977. It is this order which is now being challenged.

The point raised by the learned counsel for the petitioners was that if any illegality had been committed by the Magistrate initially by taking cognizance of the offence after the expiry of the period of limitation, that illegality was not now curable by making an application u/s 473 Code of Criminal Procedure. In other words, the contention was that taking cognizance beyond the period of limitation was a defect which was fatal to the prosecution and that now it was not open to the prosecution to fill up the lacuna by coming forward with an application for condonation of delay on any ground whatsoever. It may not be necessary to reproduce the provisions of Section 468 Code of Criminal Procedure. It will simply suffice to say that this section bars cognizance of certain offences after the period of limitation has expired. Naturally therefore if cognizance is taken against this provision of law, it will be an illegality, which cannot be cured. I thus find no difficulty in holding that in the instant case, the taking of cognizance by the Magistrate after the expiry of the period of limitation was an illegality, which was not curable. It will, however, be useful to reproduce the provisions of Section 473 Code of Criminal Procedure which run as under :� "Notwithstanding anything contained in the foregoing provisions of the 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." The learned counsel for the petitioners referred to the provisions of Section 537 Code of Criminal Procedure (old) which correspond to Sections 464 and 465 of the new Code of Criminal Procedure. These provisions simply lay down which defects will be curable and which defects shall be fatal. Obviously, therefore, the consideration of these provisions do not appear to be material for the purposes of this petition, simply because I have already held that taking cognizance against the provisions of Section 468 Code of Criminal Procedure is a defect, which is not curable. The material question, however, is whether by a subsequent application it is open to the prosecution to take advantage of Section 473 Code of Criminal Procedure or not. The learned counsel for the petitioners argued that because the initial taking of cognizance was illegal, this defect was not curable. I have given my anxious consideration to this argument and in my opinion it is not acceptable. If cognizance is taken against the provisions of Section 468 Code of Criminal Procedure it is true that the whole proceedings in pursuance of that cognizance will be illegal and invalid. But I fail to see why the prosecution should be debarred from taking advantage of Section 473 Code of Criminal Procedure afterwards. It would not in fact be a case of curing of illegality but it would rather be a case of removal of an illegality.

The provisions of Section 473 Code of Criminal Procedure are analogous to the provisions of Section 5 of the Limitation Act which are applicable to certain appeals and applications. u/s 5 of the Limitation Act also, the Court has been given a power to admit an appeal or application after the expiry of the period of limitation if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or application within the prescribed period. But it would be pertinent to note that Section 473 Code of Criminal Procedure gives the court an additional power, viz. that the court can take cognizance after the expiry of the period of limitation not only in those cases where the delay has been explained but also in those cases where it is necessary so to do in the interests of justice. Taking the instance of an appeal, if an appeal is filed beyond time by an appellant who bona fide believes that it is within time but subsequently if it is ultimately decided by the court that the appeal is barred by time, I fail to see why the appellant should be debarred from taking advantage of Section 5 of the Limitation Act. Whether the court, in such circumstances, will consider the grounds to be sufficient or not will be a question of fact, which will be decided by the court concerned, but I do not think that if once an appellant has filed an appeal beyond time, he would be debarred from taking advantage of Section 5 of the Limitation Act. Similarly the provisions of Section 473 Code of Criminal Procedure also empower the court to take cognizance of an offence after the expiry of period of limitation by condoning the delay if it has been explained or if it is necessary to do so in the interest of justice. This court shall certainly interfere and will act u/s 482 Code of Criminal Procedure if the condonation of delay or taking cognizance purporting to be in the interest of justice really amounts to an abuse of the process of law. It was argued that this condonation of delay was done without any notice to the petitioners. Section 473 Code of Criminal Procedure however does not provide for any notice. Moreover this argument appears to be incorrect, because the order of the Magistrate clearly shows that he passed this order after bearing both the parties. It was of course not urged before me that this condonation of delay on any ground whatsoever really amounted to an abuse of the process of law.

The question whether a subsequent cognizance or trial will be barred or not cannot possibly be governed by Section 537 Code of Criminal Procedure (old). The question whether a fresh trial would be barred or not is governed by Section 403 Code of Criminal Procedure (old). I was not referred to any provision of law which bars a fresh cognizance if the initial cognizance was defective for any reason whatsoever. The learned counsel for the petitioners cited the case reported as Ukha Kolhe v. State of Maharashtra AIR 1963 SC 1531. This case relates to the powers of an appellate court ordering a re-trial. Obviously the instant case is not one of re-trial. It is only a case of taking cognizance afresh. This ruling therefore hardly applies to the facts of the present case. I have already pointed out that the question whether the Magistrate was or was not correct in condoning delay is not to be decided in these proceedings unless it be urged that this condonation amounts to an abuse of process of law. On behalf of the State, reference was made to a case recently decided by this court and reported as Ramesh Chandra and Another Vs. State, . In this case also it was held that because cognizance had been taken after the expiry of the period of limitation it was an illegality. But at the same time it was observed that it was open to the Magistrate to take cognizance afresh in accordance with law. It is true that this ruling does not decide the point, which has been raised by the present petitioners. But I have not been able to find out any grounds which may debar the Magistrate from taking cognizance under the provisions of Section 473 Code of Criminal Procedure, afresh.

For these reasons the petition appears to be without force and is rejected.

The stay order dated 4-3-1977 stands vacated.