Thambiram Achari and Others vs State

K.M. Natarajan, J.—This revision is directed against the order passed by the learned Chief Judicial Magistrate, Chengalpattu in Crl.M.P. No. 1418 of 1981 on his file.

The Petitioners are the accused in C.C. No 129 of 1981. According to the prosecution, a search was conducted on 18th May, 1976, and a number of fire arms belonging to the licensed persons and which were in the possession of the Petitioners for the purpose of repair were seized and a charge-sheet has been tiled u/s 25(c) read with Section 5 of the Arms Act and Section 120B , I.P.C., against the Petitioners on 8th May, 1981, about five years after the occurrence.

The Petitioners herein filed a petition u/s 468, Code of Criminal Procedure after the receipt of copies of documents u/s 175, Code of Criminal Procedure on the ground that the prosecution is barred by limitation.

The learned Chief Judicial Magistrate dismissed the said petition on the ground that a petition was filed at the time of filing the charge-sheet, that his predecessor had condoned the delay and took cognizance of the offence and hence he cannot sit in judgment over the orders passed by his predecessor and consequently he dismissed the petition. It is the correctness of this order that is challenged in this revision by the accused.

Mr. V. Gopinath, learned Counsel for the revision Petitioners mainly submitted that the punishment provided in the section for the offence is only three years, but the charge-sheet was filed after a period of five years and that therefore, the prosecution is clearly barred by limitation, The learned Counsel further contended that the reasons given for condoning the delay are all incorrect, that the accused were not given an opportunity before even the delay was condoned and that the valuable right accrued to the Petitioner u/s 468 (2), Code of Criminal Procedure, has not been duly considered by the court below and hence the order passed by the learned Magistrate is liable to be set aside.

The learned Public Prosecutor submitted that the Court below condoned the delay after satisfying itself with the reasons alleged in the interest of justice and the said order having not been challenged, the subsequent filing of the petition questioning the order under revision is not maintainable.

In the instant case, the alleged occurrence took place on 8th May, 1976 and the charge-sheet was filed on 8th May, 1981, i.e., after a period of five years. Admittedly, the period of limitation is only three years, since the alleged offence is punishable with three years. The request made by the Inspector of Police at the time of filing the charge-sheet, which is in the form of a letter is to the effect that the case was detected on 18th May, 1976 involving the arrest of six persons and seizure of guns from their illegal possession, that during the course of investigation, sincere efforts were taken to unearth the conspiracy, that sanction order for prosecution from the Collector of Chengalpattu District and the Ballistic Expert''s report was obtained, that the respective owners of the guns, which were given to the accused for repairs, were to be traced from the various places and licenses were also obtained from such owners and in those circumstances, there was a delay in filing the charge-sheet.

The Learned Counsel for the Petitioner submitted that the sanction of the Collector was obtained on 23rd July, 1976 and the opinion of the Ballistic expert was obtained on 25th November, 1976 and the investigation in this case was over on 9th May, 1979 as seen from the available records and hence, the reasons alleged for the delay of two years from 1979 till 8th May, 1981 cannot be accepted since nothing was done during that period. The learned Counsel further contended that the learned Magistrate had not applied his mind at the time of passing the order and he mechanically conceded the request of the prosecution, in condoning the delay. The learned Counsel also contended that before condoning the delay, the Petitioners were not given an opportunity to put forth their contentions and that immediately after perusing the copies of documents furnished to them u/s 173, Code of Criminal Procedure, they came to know about the delay in filing the charge-sheet and hence they filed the present petition raising an objection regarding the question of limitation. In support of his contention that this Court has got ample power to interfere with the order passed by the Court below, he relied on the following decisions:

(1) In Manickam v. State by R.D.O., Coimbatore 1982 L.W. Crl. 1 Sathar Syeed, J., held as follows:

The provisions of Section 473, Code of Criminal Procedure, under which the Respondent (State) has filed the petition should be liberally construed in the same way as Section 5 of the Limitation Act, so as to advance justice in the absence of negligence or want of bona fides, but notice liberally merely because the Government is the prosecutor. A bald statement like the "administrative delay" as contended by the Respondent in his petition for excusing the delay, cannot be said to be a sufficient cause to excuse the delay of 17 months in filing the complaint against the Petitioner.

In Mohan Raj and Appavoo, In re 1982 L.W. Crl. 164 Singaravelu, J., held as follows:

The Supreme Court has clearly observed in Stale of Punjab v. Sarwan Singh,3 that it is of the utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution on the ground of limitation. On the facts of the case, the mere fact that the forest officials laid information to the police within the time will not save the prosecution from the bar of limitation. It is no defence for the prosecution to say that the delay in filing the charge-sheet was on account of official correspondence.

In State of Punjab v. Sarwan Singh 1981 2 S.C.J. 59: 1981 L.W. Crl. 293, the Supreme Court held as follows:

...The object of the 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 filing vexatious and belated prosecutions long after the date of the offence. The object which the State seeks to sub serve 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 must abide by the letter of law or to take the risk of the prosecution failing on the ground of limitation....

On a careful analysis of the materials on record and the order passed by the Court below, I find that after 9th May, 1979, there was no investigation done in this case and the explanation offered by the prosecution that the delay had occurred because report had to be obtained from the Ballistic Expert and the sanction order from the Collector of Chengalpattu and also the respective owners of the guns which were given to the accused for repair were to be traced from various places and licenses were also to be obtained from such owners. But, in my view, the said explanation does not seem to be reasonable. There is nothing to show that after 9th May, 1979 whether any witness concerned in this case was examined. In the absence of any material to hold that the prosecution was prevented from filing the charge-sheet immediately after three years from 18th May, 1976 the order of the court below cannot be upheld. The decisions referred to above clearly show that the discretion vested in the court u/s 473, Code of Criminal Procedure, which is similar to Section 5 of the Limitation Act, must be exercised on judicial principles and not in an arbitrary, vague, or fanciful manner. In my view the discretion exercised by the court in condoning the inordinate and unexplained delay of two years, without applying its mind cannot be sustained.

The result is, the prosecution case is barred by limitation and hence, the order taking cognizance of the offence against the Petitioners in C.C. No. 129 of 1981 passed by the learned Magistrate is set aside and the petition filed by the Petitioners before court below in Crl. M.P. No. 1418 of 1981 is allowed. The revision will stand accordingly allowed.