V.M. Dakshinamurthy and Others vs State

Janarthanam, J.—All these applications are filed u/s 482, Criminal Procedure Code, to quash the proceedings in S.T.C. Nos. 557 to 581 of

1984 on the file of the Judicial Second Class Magistrate, Kancheepuram.

The Deputy Commercial Tax Officer, Kancheepuram (North), launched criminal prosecution by filing 25 complaints against the petitioners

(accused 1 to 5) and another by name Gopal (accused No. 6) for violation of the provisions of rules 26 and 53 of the Tamil Nadu Entertainments

Tax Rules, for non-furnishing of the returns within the respective period. The first petitioner is the proprietor of the theatre Raja Talkies,

Wallajabad, Chengalpattu district. Petitioners 2 to 5 are the sons of the first petitioner. The sixth petitioner is a stranger. All the petitioners obtained

a licence for the running of the cinema theatre by exhibiting films and the licence so taken by them expired on 25th June, 1983. Thereafter also the

theatre was exhibiting films even without a licence. According to the petitioners, one Kumaresan illegally entered into the theatre breaking open the

locks and started exhibiting films without the connivance or the consent of the petitioners. On this aspect, the petitioners would say that they in fact

had given a complaint to the Wallajabad Police Station and the police had not taken any action at all. They also filed a writ petition in W.P. No.

7763 of 1984 on the file of this Court to forbear the commercial tax authorities from taking any action against them including the collection of tax. It

is represented that no stay had been given in the writ proceedings. It appears that a direction had been given to the Wallajabad Police to

investigate the complaint given by the petitioners and submit a report before 15th December, 1984. But no report had been filed as directed. All

the complaints in all the S.T.Cs. excepting S.T.C. Nos. 580 and 581 of 1984 had been filed into the court after a delay of 6 months and below.

The Magistrate not taking cognizance of the complaints in fact returned them stating that they had been filed after delay. All the abovesaid

complaints had been represented before the court by the officer of the department by making an endorsement as follows :

The delay is due to pressure of work in final assessment and collection work. The charge sheets filed were misplaced by the concerned clerk and

hence the delay in filing the same before the Honourable Court. I request that as the delay was due to administrative reasons the same may be

condoned and the charge sheets may be taken on file of this Honourable Court and disposed of according to law.

The Magistrate on his part simply took cognizance of all these cases by making an endorsement as follows :

Delay condoned u/s 473, Criminal Procedure Code and C.S. taken on file.

On receipt of summons, the petitioners have come forward with the present petitions seeking to quash the criminal proceedings initiated against

them.

Learned counsel appearing for the petitioners would contend that since the licence in their favour expired on 25th June, 1983, they are not at all

liable for filing any returns thereafter for the exhibition of films in the theatre in view of the fact that one Kumaresan had illegally entered into the

theatre and had been exhibiting films for which he alone was responsible for the submission of returns. This argument of the learned counsel for the

petitioners, if examined with some care and caution, the ugliness taking shelter thereunder will emerge to the surface pointing out the reality of the

situation. In order to appreciate this aspect of the matter, it is better to refer to sections 3 and 8 of the Tamil Nadu Cinemas (Regulation) Act of

1955. Section 3 of the Act is couched in the following terms :

Cinematograph exhibitions to be licensed. - Save as otherwise provided in this Act, no person shall give an exhibition by means of a

cinematograph elsewhere than in a place licensed under this Act, or otherwise than in compliance with any conditions and restrictions imposed by

such licence.

Section 8 of the Act runs as follows :

Penalties. - If the owner or person in charge of a cinematograph uses the same or allows it to be used, or if the owner or occupier of any place

permits that place to be used, in contravention of the provisions of this Act or of the rules made thereunder, or of the conditions and restrictions

upon or subject to which any licence has been granted under this Act, he shall be punishable with fine which may extend to one thousand rupees

and, the case of a continuing offence, with a further fine which may extend to one hundred rupees for each day during which the offence continues.

From a cursory perusal of the aforesaid two sections, it will be crystal clear that exhibition of films in a place is permissible only if such place is

licensed by the authorities concerned to exhibit films. Further, if the owner or a person in charge of a cinematograph uses the same or allows it to

be used or if the owner or occupier of any place permits that place to be used in contravention of the provisions of this Act, then it goes without

saying that such person is liable to be prosecuted for infraction or violation of the provisions of the Act. Admittedly, the first petitioner is the owner

of Raja Talkies and petitioners 2 to 5 are his sons and the sixth petitioner, though appearing to be a stranger, is the person who joined with

petitioners 1 to 5 in taking out a licence for exhibiting films in the theatre which unfortunately expired on 25th June, 1983. The fact remains that

even subsequent to the expiry of the licence, films were being exhibited in the theatre. It also appears that the petitioners had complained to the

police at Wallajabad as to the illegal entry of one Kumaresan into the theatre who had been exhibiting films even though there was no licence. On

this premise, the petitioners contend that what all possible they could do in the circumstances had in fact been done and, therefore, they may not be

mulcted with liability for exhibition of films in the theatre by the trespasser Kumaresan. The fact whether Kumaresan is a trespasser or is a person

authorised by the petitioners behind the back of the authorities to run the cinema theatre in view of the fact that they were unable to run the theatre

on account of arrears of tax due to the department, is a matter to be decided on the evidence to be adduced before the trial court. The mere fact

of preferring of a complaint by itself will not throw any light as to the truth or otherwise of the allegations stated in the complaint. It is well-nigh

possible that the preferring of a complaint before the police is a stage-managed show to escape from the clutches of law. At this stage, it is not

feasible to decide this aspect of the matter. As such, there is no merit and substance in the contention of the petitioners in this regard.

Learned counsel for the petitioners would further submit that barring the two cases, namely, S.T.C. Nos. 580 and 581 of 1984, the rest of the

cases had been filed after a delay of a minimum period of six months and such being the case, the prosecution so launched, excepting the two

cases, is clearly barred by limitation u/s 468, Criminal Procedure Code. As adverted to earlier, the delay so caused in launching the prosecution

had been condoned by the Magistrate concerned u/s 473, Criminal Procedure Code and then only cognizance of all those cases had been taken

and process had been issued to the petitioners and others. Learned counsel for the petitioners would contend that the order of the Magistrate

condoning the delay u/s 473, Criminal Procedure Code without issuance of any notice to the petitioners, is clearly illegal and consequently taking

cognizance of the complaints by the Magistrate has to be quashed as not maintainable. This argument of the learned counsel is not tenable on the

face of the express and explicit provisions of sections 468 and 473, Criminal Procedure Code. Before dealing with the provisions relating to

condonation of delay, it is better to mention here that before taking cognizance of the offence by the Magistrate and the receipt of process by the

accused, the accused have no right at all to make representations before the court in respect of any matter whatever, much less the question of

limitation. It is only after taking cognizance of the offence and the receipt of process, the accused can have a say in any matter in the court. Section

468, Criminal Procedure Code prescribes a period of limitation for various categories of offence. Section 473, Criminal Procedure Code contains

the salient provisions regarding the power of the court to extend the period of limitation in fit and proper cases for the ends of justice. The section

in fact starts with a non obstante clause, ""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 the delay has

been properly explained or that it is necessary so to do in the interests of justice."" That means under the section the court is possessed of a very

wide power and this power, though discretionary, is to be exercised not in a capricious and arbitrary manner, but in the exercise of judicial

considerations of the matter. The argument of the learned counsel that issuance of notice by the court before the delay is condoned is necessary, on

the face of the provisions, does not appear to be correct and, therefore, such contention merits a little substance. But, however, learned counsel for

the petitioners at this juncture would contend with all force and vehemence that judicial exercise of discretion by the Magistrate in condoning the

delay does not appear to stand on the sound footing by applying his mind to the facts of the case. This argument of the learned counsel receives so

much of weight and consideration when we consider the endorsement made by the tax authorities in the complaint giving the tell-tale story of

pressure of work, misplacement of papers and administrative reasons as the sole reasons for the delay caused in filing the complaints before the

court. The delay of every minute in such circumstances has to be explained by cogent and convincing reason and unless this is done, the delay

cannot at all be condoned, the reason being that a valuable right accruing to the accused will once for all be a irretrievable loss in facing the

prosecution before the criminal court having so much of agony and anguish. The misfortune of the department in misplacing the records should

never become the misfortune of the accused-petitioners and if anybody is to be blamed, the authorities of the department alone are to be blamed

for the misplacement of the records. Pressure of work is always there in any office and it may not be a sound reason for the delay to be condoned.

The other limb of explanation of administrative reason is a vague phraseology which has no meaning at all in the context of things taking place in this

country. The further puzzling factor is when such reasons are trotted out by the department in explaining the delay, the Magistrate on his part

without application of his mind would affix his seal of approval for the condonation of delay in making an endorsement in the respective complaints

as ""delay condoned u/s 473, Criminal Procedure Code and C.S. taken on file"". The endorsement so made is a mechanical device adopted by the

Magistrate to condone the delay in those cases. In such circumstances, I am of the view that the delay caused in filing the complaints in all those

cases had not been properly explained by the authorities and the Magistrate also had not applied his mind in a judicious way in condoning the delay

in taking cognizance of those complaints. The petitioners as such on this score are entitled to succeed in quashing the proceedings initiated against

them in all the cases, excepting S.T.C. Nos. 580 and 581 of 1984 which, according to the learned Public Prosecutor and also as conceded by the

learned counsel for the petitioners, were instituted within time.

In the result, all these petitions excepting Cr.M.P. Nos. 8397 and 8398 of 1984, are allowed quashing the proceedings against the petitioners in

the court below. The prosecution in S.T.C. Nos. 580 and 581 of 1984 will be proceeded with in accordance with law as against the petitioners.

Since the cases before the court below are pending for the past four years, it is directed that the prosecution in S.T.C. Nos. 580 and 581 of 1984

will be proceeded with in quick succession and disposed of within three months from the date of receipt of the records from this Court.

Petitions disposed of accordingly.