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1977 DIGILAW 138 (MAD)

S. K. Malhotra v. State

1977-03-11

CHENNAKESAV REDDY

body1977
Order.- These are petitions presented under section 482, Criminal Procedure Code, seeking to invoke the inherent powers of this Court to quash the Criminal Proceedings in S.P.E.C. Nos. 10 and 11 of 1975 on the file of the Court of the 5th Metropolitan Magistrate;, Hyderabad. The principal and the only ground on which the prayer in these petitions is founded is that the prosecution launched against the accused in these cases is barred by limitation prescribed under section 468, Criminal Procedure Code, 1973 (II of 1974). 2. The facts in both the cases are identical. Therefore, it is sufficient to state the facts in Criminal M.P. No. 2577 of 1976 for proper and full appreciation of the problem posed for decision. 3. The accused, S. K. Malhotra, made an application for the allotment of Vespa Scooter on 30th June, 1966 and again on 8th September, 1966 he made an application for the allotment of a three-wheeler Vespa Scooter. On 18th November, 1966 a three-wheeler Vespa Scooter was allotted to the accused. He took delivery of the same on 22nd February, 1969 and got it registered in Hyderabad. On 13th March, 1969 a Vespa Scooter was also tllotted to him. He obtained the delivery of the same on 20th May, 1969 and got it registered as ADY 1851 suppressing deliberately his earlier purchase of a three-wheeler scooter on 22nd February, 1969. It is alleged that the accused thereby violated section 24 (1) of the Industries (Development and Regulations) Act, 1951 read with clause (8) of the Scooter (Distribution and Sale) Control Order, 1960. 4. According to the prosecution, the offence was committed on 20th May, 1969 the date on which the accused took delivery of the second scooter. The charge -sheet was filed in the case on 12th September, 1975 and the Court took cognizance of the same on the same day. 5. Under the Criminal Procedure Code of 1898 which was in force on the date of the commission of the offence there was no period of limitation prescribed for launching the criminal prosecution. The Code of Criminal Procedure, 1973 (II of 1974) hereinafter called the new Code’ came into force on 1st April, 1974. For the first time a new chapter, Chapter XXXVI entitled “Limitation for taking cognizance of certain offences” has been introduced in the new Code. The Code of Criminal Procedure, 1973 (II of 1974) hereinafter called the new Code’ came into force on 1st April, 1974. For the first time a new chapter, Chapter XXXVI entitled “Limitation for taking cognizance of certain offences” has been introduced in the new Code. Under section 468 varied periods of limitation are prescribed for launching the criminal prosecution in certain cases. Though the alleged offence was committed on 20th May, 1969 when the old Code was in operation, the charge-sheet was filed and the offence was taken cognizance of on 12th September, 1975 after the new Code came into force. The problem that is, therefore, immediately provoked or posed is whether the period of limitation prescribed for certain offences for taking cognizance under section 468 is applicable to offences committed prior to 1st May, 1974 the date on which the new Code came into force. It is, therefore, necessary to scrutinise the relevant sections in Chapter XXXVI entitled ‘Limitation for taking cognizance of cerain offences’. Section 467 defines the expression ‘period of limitation’. Section 468 enacts the bar for taking cognizance of the offences of the categories specified in sub-section (2) thereto after the expiry of the period of limitation. It would be useful to read section 468: "468. Bar to taking cognizance after lapse of the period of limitation. — (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be: (a) six months, if the offence is punishable with fine only; (b) one year if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishabl with imprisonment for a term exceeding one year but not exceeding three years." 6. Section 469 states when the period of limitation shall commence, and sections 470 and 471 enumerate how the period of limitation should be computed. Section 473 empowers the Court to take cognizance of the offence after the period of limitation in certain cases. 7. The offence in these cases was registered by the police on 31st January, 1973. Section 469 states when the period of limitation shall commence, and sections 470 and 471 enumerate how the period of limitation should be computed. Section 473 empowers the Court to take cognizance of the offence after the period of limitation in certain cases. 7. The offence in these cases was registered by the police on 31st January, 1973. The charge-sheet was filed for an offence under section 24 (1) of the Industries (Development and Regulations) Act, 1951 read with clause (8) of the Scooter (Distribution and Sale) Control Order, 1960 on 12th September, 1975 and the Court took cognizance of the offence on the same day. The offence in question is punishable with six months rigorous imprisonment. The period of limitation prescribed for taking cognizance of such an offence is one year under suction 465; (2) (b), Criminal Procedure Code. The period of one year limitation expired by 30th January, 1974. It is, therefore, the contention of the learned Counsel for the accused Mr. Ayyapu Reddy that the Court was barred from taking cognizance of the offence on 12th September, 1975 after the expiry of the period of limitation. 8. On the other hand, it is the contention of the learned Standing Counsel for S. P. E. and C. B. I. cases that the law of limitation for criminal cases was enacted for the first time in the Criminal Procedure Code of 1973, that under the old Criminal Procedure Code of 1898, there was no such period of limitation prescribed for launching criminal prosecution, that the right to file a charge-sheet is a vested right and cannot be taken away by implication and that it should be specifically so taken away. 9. It is no doubt true that under the repealed Code of 1898, no period of limitation was prescribed for launching criminal prosecution. The Court could not throw out a police case or a private complaint solely on the plea of delay in filing the report or complaint though inordinate unexplained delay i light be a good ground for doubting the truth of the prosecution story. For the first time in the new Code sections 467 to 473 in Chapter XXXVI prescribing the period for launching criminal prosecution in certain cases have been enacted. It would be useful to look at what is contained in the Statement of Objects and Reasons for enacting this Chapter. For the first time in the new Code sections 467 to 473 in Chapter XXXVI prescribing the period for launching criminal prosecution in certain cases have been enacted. It would be useful to look at what is contained in the Statement of Objects and Reasons for enacting this Chapter. "Periods of limitation have been prescribed for criminal prosecution in the laws of many countries and the Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the law Commission. 10. Among the grounds in favour of prescribing limitation may be mentioned following: — "(1) As time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater. (2) For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with multifarious laws creating new offences many persons at sometime or other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences. (3) The deterrent effect of punishment is not inflicted before the offence has been wiped off the memory of person-; concerned. (4) The sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of long period. (5) The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly. The actual periods of limitation provided for in the new clauses would, in the Committee’s opinion, be appropriate having regard to the gravity of the offences and other relevant factors. * * * * The Committee has considered it necessary to make a specific provision for extension of time whenever the Court is satisfied on, the materials that the delay has been properly explained or that the accused has absconded. The provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country. 11. It is thus clear from the statement of Objects and Reasons that in prescribing the period of limitation, the Law Commission took into consideration the gravity of the offences and other relevant factors. The provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country. 11. It is thus clear from the statement of Objects and Reasons that in prescribing the period of limitation, the Law Commission took into consideration the gravity of the offences and other relevant factors. Accordingly, no period of limitation is prescribed for offences punishable with more than three years imprisonment. It is only for offences punishable with fine or rigorous imprisonment of less than three years that a period of limitation is prescribed. 12. It is well settled that the limitation applicable to a case is that limitation in force at the time of the initiation even though the cause of action might have arisen earlier, subject however to the qualification that vested rights are not taken away retrospectively unless otherwise expressed. Section 468 (1) specifically enacts an injunction on the Criminal Court from taking cognizance of offences included in the category under sub-section (2) after the expiry of the period of limitation. Therefore, the Court has to look into the period of limitation only at the time of taking cognizance of the offence. It is the duty of the Court to satisfy itself that what it is taking cognizance of is not outside the period of limitation. Computation of the period of limitation should however be done as provided in sections 469 to 471, Criminal Procedure Code. Section 469 fixes the date when the period of limitation shall commence. It reads: "469 (1). The period of limitation, in relation to an offender, shall commence (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever in earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. 2. In computing the said period, the date from which such period is to be computed shall be excluded." 13. 2. In computing the said period, the date from which such period is to be computed shall be excluded." 13. The section enacts that the limitation shall commence to run from the date of commission of the crime or where the commission of the offence was not known to the victim of the crime or Police Officer the first clay on which such offence comes to the knowledge of the complainant or police. It is thus clear from a close and careful reading of the section that the section itself does not specifically provide that the period of limitation prescribed in the Chapter is inapplicable to offences committed prior to 1st April, 1974, the date on which the provisions of the new Code come into force. 14. That leads to the question whether the applicability of the provision of limitation to offences committed prior to 1st April, 1974, is specifically excluded by section 484, the repealing and saving section in the Code. Section 484 (2) reads: “484. (2) Notwithstanding such repeal — (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending then, such appeal, application, trial inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, (V of 1898) as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force: Provided that every enquiry under Chapter XIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.” 15. There can be no dispute, therefore that any investigation commenced into an offence prior to 1st April, 1974 the date of commencement of the new Code, shall be continued under the provisions of the old Code. So also is the case in respect of pending appeal, application, trial or inquiry. 16. The proviso however enacts an exception in respect of the enquiries under Chapter XVIII of the old Code and it is provided under the proviso that such enquiries shall be dealt with and disposed of in accordance with the provisions of the new Code. So also is the case in respect of pending appeal, application, trial or inquiry. 16. The proviso however enacts an exception in respect of the enquiries under Chapter XVIII of the old Code and it is provided under the proviso that such enquiries shall be dealt with and disposed of in accordance with the provisions of the new Code. In the Statement of Objects and Reasons to section 484, it is observed: “Clause 488 contains provisions regarding repeal and savings. With a, view to make the transaction smooth, it is being provided that any investigation, inquiry, trial or appeal commenced before the commencement of the new Act in any territory, shall be continued and concluded under the old law. The provisions of the New law would apply to the subsequent stages of these proceedings as a so to any proceedings commenced after the commencement of the Act. The Committee considers that preliminary inquiries in Sessions Cases which are pending on the date of coming into force of the new Code should not be continued under the old Code so as to ensure that the trial of such cases are expedited.” The intention of the Legislature clearly appears to be that the provisions of the new Code alone should apply to the sub-1 sequent stages of the proceedings after completion of investigation. So at the subsequent stage of taking cognizance of the offence the provisions of limitation in Chapter XXXVI are attracted. The investigation pending shall have to be completed under the provisions of the old Code. It is also clear that the intention of the Legislature in engrafting the proviso providing an exception in so far as the preliminary enquiry in Sessions Cases is concerned, is to ensure a swift trial of such cases. It could be seen from the statement of Objects and Reasons to Chapter XXVI that one of the reasons for providing the period of limitation for taking cognizance of offences based on the gravity of the offence is that the sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of a long period and no useful purpose would be served in proceeding with the prosecution of such cases. The intention of the Legislature therefore clearly appears to be that the period of limitation should be made applicable to offences committed not only after 1st April, 1974 but also to offences committed prior to 1st April, 1974. 17. This conclusion of mine derives full support from the decision of the Gujarat High Court in Hiralal Nansa Bhavasar v. The State of Gujarat1. Desai, J. speaking for the Full Bench observed: “It is therefore, obvious that in enacting sub-section (2) (a), the Parliament intended that the pending proceedings be disposed of or continued or held or made according to the procedure under the old Code. Subsection 2 (b) is merely a transitory provision which does not confer any right but provides for continuance of notifications, orders, rules, appointment, sentences passed etc. It must be noticed, what are saved under sub-section (2) (a) are only the pending proceedings. If a proceeding is instituted subsequent to the commencement of:he Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provisions of the new Code.” 18. It is, however, contended by the learned Standing Counsel for CBI. Mr. Satyanarayana, that when once an investigation is commenced, the prosecution is bound to file the charge-sheet and such a right is a vested right and cannot be taken away retrospectively unless otherwise expressed. The learned Counsel placed strong reliance on the decision of the Maharashtra High Court in State v. Madhukar Hedau2. In that case the question was whether the prosecution for an offence under section 12 (a) of the Prevention of Gambling Act, was barred by limitation under section 468, Criminal Procedure Code. Admittedly, in that case, the investigation into the offences was pending on 1st April, 1974, the date on which the new Code came into force and the alleged offence took place on 25th December, 1972. The charge-sheet was admittedly filed on 1st April, 1974 after the expiry of one year’s period of limitation applicable to such an offence. The learned Judge observed: “Now section 468 provides a bar of limitation for the first time since the commencement of the New Code. In other words, the prosecution agency is under an obligation, which is an obligation, newly put upon them to file file charge-sheets in relation to the offence within the period stipulated in various sub-sections. The learned Judge observed: “Now section 468 provides a bar of limitation for the first time since the commencement of the New Code. In other words, the prosecution agency is under an obligation, which is an obligation, newly put upon them to file file charge-sheets in relation to the offence within the period stipulated in various sub-sections. Obligation and rights are always complimentary and to that extent the provisions of section 468, Criminal Procedure Code, cannot be looked upon as mere provisions of procedure but as depriving the prosecuting agency of the right which they had under the old Code of filing proceedings even after the period provided in section 468. It is on this background that the saving provisions of section 484 may have also to be looked into Section 468 puts a bar and the question for consideration would be whether section 484 saves the attraction of such a bar.” The learned Judge further observed- “Because of this situation and because an obligation is cast upon the prosecuting agency to file charge-sheets within a certain period and because obligations are inter-connected with rights, I view that the prosecuting agency is deprived of the right and, therefore, section 468 could be non-applicable to the cases which would fall under section 484, Criminal Procedure Code. In other words, investigations which are pending on 1st April, 1974 would be saved from the bar of section 468 of the Code of Criminal Procedure.” For the reasons already recorded above by me, I am unable, with great respect to the learned Judge, to agree with this decision. The learned Counsel also placed reliance on a decision of the Delhi High Court in State (Delhi Administration) v. Vipin Kumar Jaggi3, wherein the learned judge Jagit Singh, J., observed that "any investigation pending immediately before the date on which the new Code came into force has to be made in accordance with the provisions of the old Code as if the new Code "had not come into force", by virtue of sub-section (2) of section 484, Criminal Procedure Code. This decision has absolutely no relevance to the present case. The question in this case is whether the provisions of the new Code are applicable to the subsequent stage of investigation. 19. This decision has absolutely no relevance to the present case. The question in this case is whether the provisions of the new Code are applicable to the subsequent stage of investigation. 19. My attention was also invited to a decision of the Orissa High Court in Kanika Bewa v. State1In that case it was held that the trial having been pending on 1st April, 1974 under the provision of the old Code, the accused had a vested right of appeal under section 408 of the Old Code and revision under section 401(1) of the new Code was not competent. This decision also is of no assistance to the learned Counsel. Nor does the decision of the Rajasthan High Court in Government of Rajasthan v. Saugram Singh2wherein it is observed that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of a litigant to enforce his right in a Court of law. 20. But that does not, however, conclude the matter. There still remains the question whether the proceedings are to be quashed by this Court on the ground that the prosecution is barred by limitation. Section 474, Criminal Procedure Code empowers the Criminal Court to take cognizance of offences after the expiry of the period of limitation if the delay has been properly explained or it is necessary do so in the interest of justice. It is, therefore, open to the Magistrate to proceed with the case if the delay is properly explained by the prosecution and if the Magistrate considers it necessary to do so to proceed with the case in the interests of justice. 21. In the result, the proceedings are quashed and the learned Metropolitan Magistrate is directed to return the charge-sheet and consider any application filed by the prosecution under section 473, Criminal Procedure Code, to condone the delay in filing the charge-sheets on its own merits and dispose of the cases according to law.