Vijay Kr. Agarwalla vs The State of Assam

Manisana, J.—This revision petition arises from the order dated 10.2.1984 passed by the learned Judicial Magistrate, Gauhati, in Case No. 2169 of 1982.

On the basis of the ejahar dated 29.5.1982 the police investigated the case and submitted chargesheet on 18.8.1983 under Sections 352 and 448, IPC. Upon the receipt of the police reports, the learned Magistrate took cognizance of offence under Sections 352 and 448, IPC. Thereafter, the accused filed an application to quash the proceedings as the cognizance was taken by the learned Magistrate after the expiry of the period of limitation prescribed u/s 46 Code of Criminal Procedure. Then the prosecution also filed an application u/s 473, Code of Criminal Procedure for condonation of delay. After hearing the parties, the learned Magistrate passed the impugned order dated 10.2.1984 condoning the delay hence this petitions to the Court.

Mr. R.K. Jain, learned Counsel for the Petitioner, has submitted that the Magistrate cannot extend the period of limitation after taking cognizance. In support of his contention he has cited the decisions in Krishna Sanghi and Others Vs. The State of Madhya Pradesh, ; Panney Singh and Others Vs. State of Rajasthan, and Prakash Chandra Sharma v. Kaushal Kishore On the other hand, the learned Public prosecutor, Sri Gopal has submitted that the limitation can be condoned after taking cognizance. In support of his contentions, he has cited decisions in Cushrow Russy Irani Vs. The State and Another, and Sulochana Vs. State Registrar of Chits (Investigation and Prosecution),

Section 468 of the Code provides that except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence after the expiry of the period of limitation. Limitation for the offence punishable under Sections 448 and 352 is one year and the period of limitation shall commence from 29.5.1982. This is not disputed by the parties.

In Krishna Sanghi and Others Vs. The State of Madhya Pradesh, the Madhya Pradesh High Court has impliedly held that the condonation of delay is to be made before taking cognizance of an offence.

In Cushrow Russy Irani Vs. The State and Another, the Calcutta High Court has held that the Magistrate can consider the question of delay after taking cognizance of an offence and after accused enter appearance.

In Sulochana Vs. State Registrar of Chits (Investigation and Prosecution), the Madras High Court has held that the power to condone delay can be exercised even after taking cognizance of the offence beyond the period of limitation. Condonation of delay is not a pre-condition to the taking of cognizance of an offence after limitation. Power u/s 473 is an overriding power and is not limited to time factor of condonation.

In Panney Singh and Others Vs. State of Rajasthan, the Rajasthan High Court has, after considering decisions of the Karntaka High Court reported in State of Karnataka Vs. Vedavati, ; Channabasappa Vs. The State of Karnataka, and Krishna Sanghi and Others Vs. The State of Madhya Pradesh, held that the Court cannot, subsequent to the passing of the order of taking cognizance, condone the delay and extend the delay of limitation.

In Prakash Chandra v. Kushok Kishore 1980 Cri. L.J. 329 the Allahabad High Court also has, after considering the decisions in Krishna Sanghi and Others Vs. The State of Madhya Pradesh, and Bharat Hybrid Seeds and Agro Enterprises and Another Vs. The State, held that unless delay is condoned, the Court cannot take cognizarce 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.

Mr. Jain has further submitted that after taking cognizance if the Magistrate condones delay, it will amount to review or recall a judicial order passed by him. The Magistrate has no such power of review as there is no provision in the Code empowering the Magistrate to review or recall the judicial order. Mr. Jain relies on a decision of the Supreme Court in Bindeshwari Prasad Singh Vs. Kali Singh,

Section 468, Code of Criminal Procedure, prohibits the Court from taking cognizance of the offences of the category specified in that section after the prescribed period of limitation. Therefore, an order of the Court taking cognizance of an offence without condoning the delay is had and without jurisdiction.

Section 473; Code of Criminal Procedure runs:

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 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.

Section 473 is a non-obstinate provision. However, the expression "any Court may take cognizance of an offence after the expiry of the period of limitation" shows that normally question of the limitation is to be considered and decided at the time of the taking of the cognizance.

The next question which arises for consideration is whether condonation can be made after taking cognizance of an offence. As already stated such taking of cognizance without condoning the delay is had and without jurisdiction. The order may be void or may be voidable. If the accused does not challenge the order of taking cognizance of an offence the effect of such order may be otherwise. If such order is challenged as void, the order of taking cognizance of an offence without condoning the delay will become null and void, that is, it would be deemed that there was no order of taking cognizance of an offence. This is not an end of the matter. If there is no order for taking cognizance of an offence as stated above; the Court has to pass an order stating that it is barred by Section 468 Code of Criminal Procedure, or the Court may take cognizance of the offence by extending the period of limitation as provided u/s 473, Code of Criminal Procedure. Therefore, before passing an order to stop or terminate the proceedings, the Court can consider an application for condonation of delay subsequent to the illegal order of taking cognizance of the offence. If the application for condonation is allowed, it will remove the legal hurdle and it will be deemed by operation of law that the cognizance has been taken after condoning the delay.

Such condonation of delay will not amount to review of an order as submitted by the learned Counsel for the Petitioner. Review means to reconsider the order or the judgment for changing or altering of the order or the judgment. The application for condonation of delay is not for alteration or changing of the order. It is only for removing the aforesaid legal hurdle. It is quite different from its being reconsidered or altered. If such consideration for condonation amounts to review as submitted by Mr. Jain, it may be said that the application of the accused to drop the proceedings as barred by limitation amounts to review as there was an order for taking cognizance and that order is to be altered. But it is not so as it is a matter relating to the jurisdiction of the Court. The view also supports my conclusion above. In this view of the matter, the condonation of delay can be allowed after taking the cognizance of an offence and I respectfully agree with those decisions in which this view of mine has been taken and with a great respect I disagree with the decisions in which it has been held that the condonation of delay is to be made before taking the cognizance of an offence.

As regards the merit of the order, it is a discretion of the Magistrate to allow or disallow the condonation if the findings are based on material on records. In the present case, the impugned order appears to have been passed on the material on record. It is not the case where the impugned order can be attacked.

For the foregoing reasons, the petition is dismissed.