Shankerlal Bhargava vs State of U.P.

I.P. Singh, J.—Criminal Misc. Applications Nos. 205, 458 and 459 of 1980 have been filed by applicant Shankar Lal Bhargava while Criminal Misc. Application No. 7442 of 1980 has been filed by applicants Bishan Swarup and Suresh Chandra Srivastava and Cr. Misc. Applications Nos. 7443 and 7444 of 1980 have been filed by Suresh Chandra Srivastava applicant praying to quash the charges framed against them u/s 262, 263, 380 and 420 IPC by the Chief Judicial Magistrate, Allahabad in Criminal Cases Nos. 167 to 169 of 1975.

In these six applications the facts and points of law being common they are being disposed of by this common judgment.

The brief facts giving rise to the present applications are as follows.

Some time in the year 1967 Shanker Lal Bhargava who was officiating as Stamp Reporter in the Registery of the Allahabad High Court, with the aid of Suresh Chandra Srivastava and Bishan Swarup, who were clerks of advocates, removed used stamps and out of them reused three court fee stamps of the value of Rs. 1,000/- each in First Civil Appeal No. 281 of 1967, 282 of 1967 and 357 of 1967. When the matter was detected, an enquiry was ordered and the Judicial Department of the High Court reported to the Registrar that court-fee stamps of the value of Rs. 23,007-50p. (on 15 sheets) were missing from the judicial file of First Appeal No. 186 of 1960. The enquiry further revealed that in several other cases also court-fee stamps had been taken out from the original files and reused in new cases. The Registrar of the High Court suspected that a well organized gang of racketeers was operating in the High Court to defraud the Government by surreptitiously removing the used stamps from the judicial files and reusing them in new cases. The Registrar with the permission of the Chief Justice of the High Court reported the matter to the Inspector General of Police, U.P. who ordered the Criminal Investigation Department of U.P. to investigate into the matter and ultimately three charge sheets were submitted for offences under Sections 262, 263, 467, 471, 420 and 120-B IPC.

The applicants filed six applications under Sections 482 Code of Criminal Procedure being Nos. 1655, 1656, 1657, 1690, 1691 and 1692 of 1979 connected with each other before the High Court contending that as offences under Sections 467, 471 and 120-B IPC fell within the purview of Section 195 Code of Criminal Procedure no prosecution could be launched without the procedure laid down in Section 195, being followed.

Those applications were decided by Hon. V.N. Varma, J. of this Court by his judgment dated 9-11-79 and he held that so far as the offences under Sections 467, 471 and 120-B IPC were concerned as they fell within the ambit of Section 195(1)(b)(ii) of the Code, no cognizance could be taken by the Magistrate without the complaint being filed.

Accordingly he quashed the proceedings only in respect of offences u/s 467, 471 and 120-B IPC and directed prosecution of the applicants in respect of other offences to proceed according to law (That judgment is reported in 1980 Alld. Cr. Rulings 76).

The State feeling aggrieved against quashing of charge under Sections 467, 471 and 120-B IPC filed Criminal Appeals No. 461-466 of 1980 while the applicants feeling aggrieved against the non-quashing of charges u/s 262, 263 and 420 IPC filed Special Leave Petitions (Crl.) No. 903-908 of 1984 before the Supreme Court. All of them were disposed of by the Supreme Court on 3-5-84 (that decision is reported in 1984 ACR 428). The Supreme Court affirmed the decision of the High Court and dismissed the appeals and the special leave petitions and directed that cases u/s 262, 263, 380/34 and 420/34 IPC be tried without any complaint u/s 195, Code of Criminal Procedure.

Here it may be noted that application No. 205 of 1980 was filed on 7-1-80 while applications No. 458 and 459 of 1980 were filed on 18-1-80 and applications No. 7442-7444 of 1980 were filed on 26-11-80 praying that charges u/s 262, 263 and 420 IPC framed against them by the Chief Judicial Magistrate be quashed.

Counter affidavits to first three applications were filed on 19-2-80 in which it was contended that the present applications amounted to reviewing the order of this Court passed by Hon''ble V.N. Varma, J. on 9-11-79.

In the last three applications counter affidavit was filed by the State of U.P. on 8-5-81 in which it was pointed out that the State had filed appeals against the judgment of the High Court dated 9-11-79 in the Supreme Court which were admitted on 30-7-80 and were pending disposal there.

During the pendency of first three applications of Shanker Lal Bhargava Hon''ble H.N. Kapur, J. passed order on 26-11-80 by which the final disposal of these applications was kept pending till the decision of the Government Appeals before the Supreme Court.

It is a matter of co-incidence that on 26-11-80 the other two applicants Bishan Swarup and Suresh Chandra filed the other three applications No. 7442-7444 of 1980 before this Court. These applications also came to be kept pending till the decision of the Supreme Court.

Shanker Lal Bhargava filed supplementary affidavit (forming part of the record of Crl. Misc. Case No. 205 of 1980) pointing out that the Petitioners Suresh Chandra Srivastava and Bishan Swarup had also filed special leave petitions before the Supreme Court against that part of judgment of High Court dated 9-11-79 whereby it did not quash charges u/s 262, 263, 380 and 420, IPC.

As already seen above the six State appeals and the six special leave petitions were dismissed by the Supreme Court on 3-5-84.

The State of U.P. in the present applications, moved an application dated 31-7-84 praying that in view of the above mentioned decision of the Supreme Court, the present applications should be dismissed. The above prayer of the State was countered by the applicants by way of filing objections to the said application, praying that their applications be allowed and the charges under Sections 262, 263, 380 and 420 IPC should be quashed.

The learned Counsel for the applicants has pointed out that charges under Sections 262 and 263 IPC are barred by limitation prescribed u/s 468 Code of Criminal Procedure (new) and it amounts to abuse of the process of court if the applicants are prosecuted for the said offences. Accordingly it is desirable that the charges under Sections 262 and 263 IPC should be quashed. It is also stressed that on earlier occasion Hon. H.N. Kapoor, J. in his order dated 26-11-1980 had come to the same conclusion.

To appreciate this it would be worthwhile to quote the said observation:

However, two new points have been raised by the learned Counsel for the Petitioner in these petitions which do not appear to have been considered earlier. He has argued that charges under Sections 262 and 263 IPC would be barred by limitation prescribed u/s 468 Code of Criminal Procedure (new) and it will amount to abuse of the process of court if the Petitioner is prosecuted for these offences. The record shows that although the Registrar of this Court had sent a report to the Inspector General of Police on 17-9-74 and the investigation was then started. If so, Section 484-A Code of Criminal Procedure will not apply to such investigation as the same was not pending on the date when the new Code of Criminal Procedure came into force. The offence was committed on 3-10-67. Offence under Sections 262 and 263 IPC appear to be clearly barred by time unless time was extended u/s 474 Code of Criminal Procedure (right section seems to be 473 Code of Criminal Procedure).

In this way, to my mind, the above observations on the point of limitation have been made subject to the provisions of Section 473 Code of Criminal Procedure which provides for "Extension of period of limitation in certain cases ", and runs 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 circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

To my mind, in view of the opening non-obstante clause in Section 473, that section will prevail over all other provisions in Chapter XXXVI with regard to limitation including Section 468 Code of Criminal Procedure. If the court is satisfied, that the complainant has properly explained the delay, or ultimately if the court comes to the conclusion that in the interests of justice it is fit case where the delay has to be condoned, the court is not precluded from applying Section 473 Code of Criminal Procedure. The prosecution cannot be debarred from taking advantage of Section 473 Code of Criminal Procedure even after the expiry of the prescribed period of limitation. Section 473 Code of Criminal Procedure gives the court additional power to 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 to do so in the interests of justice.

The learned Counsel for the applicants has also argued that satisfaction for purposes of extending the period of limitation is to be done by a Magistrate before taking cognizance. It is argued that the learned Magistrate had taken up the matter of taking cognizance by framing charges on 15-12-78 and after repelling the preliminary objection raised regarding taking cognizance for the offences under Sections 467/471/120-B IPC vis-a-vis Section 195(1)(b)(ii) Code of Criminal Procedure had framed the charges the same day. The point stressed is that the order dated 15-12-1976 of the learned Magistrate does not indicate that he had satisfied himself on the question of extension of period of limitation with respect to the charges for offences under Sections 262 and 263 IPC. It is, therefore, argued that the said charges are apparently time barred and should be quashed. But the learned Dy. Govt. Advocate has argued that power to condone delay can be exercised even after taking cognizance of the offence beyond the period of limitation because condonation of delay is not a precondition to taking cognizance of offence after limitation. To my mind, the power u/s 473 Code of Criminal Procedure is overriding power and is not limited to time-factor of condonation. Since condonation of delay not only depends upon satisfaction as to whether on the facts and circumstances of the case the delay has been properly explained or not but also as to whether it is necessary to condone the delay in the interests of justice, so this overriding power u/s 473 Code of Criminal Procedure can also be exercised when full facts and circumstances are brought on record during the trial and the court after assessment of those facts and circumstances can conclude as to whether the delay has been properly explained or not or whether it is necessary to condone the delay in the interests of justice or not. To my mind it will be for the Magistrate concerned to apply his mind in that direction and it would not be equitably justifiable to quash the said charges of offences under Sections 262 and 263 IPC as time-barred at this stage in exercise of powers u/s 482 Code of Criminal Procedure.

As regards the offence under Sections 380 and 420 IPC the learned Counsel for the applicant has again referred to the observations made by Hon. H.N. Kapoor. J. in his order dated 26-11-80 in support of his arguments that charges for these offences should be quashed. The said observations are as follows;--

The learned Counsel for the Petitioner also argued that no offence u/s 380 IPC and 420 IPC could be said to have been committed by the Petitioner himself and it is not possible to convict him for these offences. There appears to be some force in this contention as well.

It is, therefore, argued that the charges for these offences should be quashed. Howeve, in continuation the following observation also appears;

The argument with regard to the offences under Sections 380 and 420 IPC is based on the charge u/s 120-B IPC. Learned Dy. Govt. Advocate has vehemently argued that in view of the matter the Petitioners can be prosecuted individually also u/s 420 IPC. Learned Counsel for the Petitioner, however, pointed out that the charges as stand at present, do not fix any individval liability of the Petitioner. I leave this point open for further arguments without giving a definite finding on this point at present. In case the Hon. Supreme Court takes a different view and orders that the Petitioner should be proceeded u/s 120-B IPC as well it would naturally follow that he could be prosecuted u/s 380 IPC and 420 IPC. At this stage, therefore, I do not consider it proper to pass a final order disposing of all these petitions. That can be passed after the appeal is decided by the Supreme Court.

If we go through the entire orders dated 26-11-80 then it appears that the arguments on behalf of the State with regard to these two offences under Sections 380 and 420 IPC were that the said charges were to be read with Section 120-B IPC. Since Hon. V.N. Varma, J. by his order dated 9-11-79 in the earlier applications u/s 482 Code of Criminal Procedure had quashed the said charge u/s 120-B, IPC so normally the said charges under Sections 380 and 420-B, IPC would also seem to go away. But it was pointed out to my brother Kapoor, J. that the State had filed appeal before Hon. Supreme Court against the said decision of Hon. Varma, J. dated 9-11-79 with the result that if the Hon. Supreme Court takes a different view and orders that the Petitioners should be proceeded u/s 120-B, IPC as well it would naturally follow that they could be prosecuted u/s 380 IPC and 420 IPC. It was in this back ground, that final disposal of the three petitions Nos. 205/80, 458/80 and 459/80 was deferred till the decision of the Supreme Court. The matter as to whether the Petitioners could be prosecuted individually under Sections 380 and 420 IPC without the aid of Section 120-B IPC was, however, left open and nothing was expressed by my Brother Kapoor, J. in his order dated 26-11-80.

In this way the argument of the learned Counsel for the Petitioners that no offence under Sections 380 and 420 IPC could be said to have been committed by the Petitioner himself and it was not possible to convict him for these offences does not seem to hold water as it depended finally upon the view to be taken by the Supreme Court in the matter.

The matter seems to have engaged the attention of their Lordships of the Supreme Court in their decision dated 3-5-84 filed in Misc. Case No. 205 of 1980. The following quote from that judgment amply clarifies the position:

In the instant case, as already pointed out by us, on the facts narrated by the Registrar in his complaint no offence under Sections 467, 471 and 120-B IPC is at all revealed and as such it is not necessary to go into the question as to what offences are connected with Sections 467, 471 and 120-B and which are severable from them. The High Court was fully justified in quashing the proceedings against the accused as far as offences under Sections 467, 471 and 120-B IPC were concerned, not because they were covered by Section 195 of the Code but because allegations contained in the complaint did not constitute these offences. The High Court was further fully justified in directing the other offences mentioned above did not require a complaint u/s 195 and would have to be tried.

In the view that we take, it is not necessary for us to decide the broader question of law posed by the High Court i. e. whether or not offences under Sections 467, 471 and 120-B IPC along with other offences, were covered by Section 195 of the Code.

We, therefore, affirm the judgment of the High Court and dismiss the appeals and special leave petitions and direct that cases under Sections 262, 263, 380/34 and 420/34 Indian Penal Code be tried without any complaint u/s 195 of the Code.

The learned Dy. Govt. Advocate has, therefore, argued that the said judgment of the Supreme Court indicates that facts of the case as alleged by the prosecution were considered and it was finally directed "that cases under Sections 262, 263, 380/34 and 420/34, Indian Penal Code, be tried without any complaint u/s 195 of the Code."

It is, therefore, argued by the learned Dy. Govt. Advocate that in view of the above direction of the Supreme Court it is not open to the learned Counsel for the applicants to say that the said charges should be quashed. It is also stressed that the above direction would also mean that whereas previously charges under Sections 380 and 420 IPC were to be tried with the aid of Section 120-B IPC (which charge has since been quashed) they would now be tried with the aid of Section 34 IPC.

The learned Counsel for the applicants has argued that at present there is nothing to indicate that there was any "prior meeting of minds" between the so called co-accused and, as such, Section 34 IPC would not be applicable. As such, charges for offences under Sections 380/34 and 420/34 IPC should be quashed. To my mind, in view of the direction of the Supreme Court that cases under Sections 262, 263 and 380/34 IPC and 420/34 IPC shall be tried, no scope is left for quashing the said charges by this Court in the present applications u/s 482 Code of Criminal Procedure. It is a different matter whether the said charges are ultimately proved or not in the trial.

The learned Counsel for the applicants further pointed out that the charge u/s 380 IPC was not even alleged in the charge sheet and yet it was framed despite the above fact being brought to the notice of the learned Magistrate. In my view the Magistrate can take cognizance of an offence and frame a charge for that offence, which appears to have been committed from the facts alleged even though specific section of that offence is not quoted in the charge sheet submitted by the investigating agency.

It is further pointed out by the learned Counsel for the applicants that even if there was any allegation about commission of an offence u/s 380 IPC then in the circumstances it was said to have been committed by one Rameshwar Dayal Nigam, the senior clerk of the High Court, who died during the investigation and, as such, the charge u/s 380 IPC should be quashed. But the death of Rameshwar Dayal Nigam would not absolve the others on whom the liability would attach with the aid of Section 34 IPC. The Supreme Court has directed trial for offences u/s 380 IPC read with Section 34 IPC.

As a result of the above discussion the present six criminal misc. applications are dismissed.