Judgment S. Shamsul Hasan, J. 1. This application is for quashing of the proceeding against these petitioners pending in G. R. Case No.1662 of 1966 in the Court of Shri V. S. Prasad, judicial Magistrate, first class, Sasaram. Cognizance was taken on 3-1-77 and the case was transferred for trial on that day. A petition was filed before the trial Magistrate at the stage of framing of charge with a prayer that in view of the operation of Sec.468 of the Code of Criminal Procedure the cognizance being bad, no charge could be framed. 2. The prosecution of the petitioners is as a result of two F. I. Rs. lodged in connection with the misappropriation of tins of Vanaspati ghee belonging to rohtas Industries. A first information report was lodged first by Besh Lal chaudhary which was numbered as Dehr P. S. Case No.10 (10)/66. It was alleged in the first information report that 600 tins of Hanuman ghee were loaded on Truck No. BRP-2391 for being taken to the depot of the company at barauni. Since this truck was sent on 6-11-66, when no information was received about the arrival of the truck, the first information report as stated above, was lodged on 12-10-66. Subsequently a second F. I. R. was lodged at Ranchi on 14-10-66 and a case was instituted there being Kotwali P. S. , Case No.62 (10)/ 66. This was lodged by a representative of the Rohtas Industries. Allegation under Sec.411 of the Indian Penal Code was stated to have been made out inthat first information report and it was stated that on 6-10-66.600 tins were sent on Truck no. BRP-2391 belonging to the informant of the first case. This truck was later recovered and seized and kept in Marafari Thana. Later on, the informant of the second case was informed by one Shri Lun Karan that one shri Paras who is a partner in the firm of the petitioners M/s. Naveen Chandra prakash Chandra, was trying to sell some Hanuman ghee on 8-10-66, but since there could be no explanation from where the goods were obtained he did not buy it. On getting this information the informant started moving around the market and he found certain Hanuman Vanaspati tins bearing Batch nos.200, 204 and 205 in the premises of petitioners 1 to 4. On getting this information the informant started moving around the market and he found certain Hanuman Vanaspati tins bearing Batch nos.200, 204 and 205 in the premises of petitioners 1 to 4. This Batch number was stated for the first time in the second F. I. R. after the informant had seen the tins in the shop of the petitioners 1 to 4. On search 92 tins of vegetable oil were recovered from the premises of the petitioners. On the basis of this f. I. R. the petitioners have been made accused in the Ranchi case. Subsequently ranchi case and the Dehri case were amalgamated. Charge-sheet was submitted on investigation of both the cases and was filed on 24-7-76 and cognizance of the offence was taken on 3-1-77. Charge-sheet has been submitted under Sec.406 read with Sec.411, I. P. C. 3. In support of the application, learned Counsel for the petitioners has raised two points. His first point is that since the cognizance was taken after 3 years of the date of occurrence and after discovery of the name of the persons involved, the prosecution is barred by Sec.468 of the Code of Criminal Procedure. While taking cognizance, according to him, the court has not condoned the delay in exercise of its power under Sec.473, Cr. P. C. His second point is that reading the prosecution material in its entirety and accepting it as wholly correct, no offence has been made out against these petitioners. 4. In reply to the first point the learned Counsel for the informant has submitted that this is a case covered by Sec.407 of the Indian Penal Code and, therefore, Sec.468 Cr. P. C. has no application whatsoever. His second submission is that if Sec.468 Cr. P. C. is found applicable in view of the sections under which cognizance has been taken, then it is a fit case which shonld be remanded to the Magistrate to enable him to deal with the matter once again so that he may have no opportunity to exercise power under Sec.473, Cr. P. C. if he deems it proper. P. C. is found applicable in view of the sections under which cognizance has been taken, then it is a fit case which shonld be remanded to the Magistrate to enable him to deal with the matter once again so that he may have no opportunity to exercise power under Sec.473, Cr. P. C. if he deems it proper. He has also drawn my attention to the reasonings given in the order of the trial Magistrate due to which the said Magistrate feels that there was cogent ground for condoning the delay which the learned Magistrate taking cognizance, according to him, has done which would be evident from the fact that he has taken cognizance of the offences, and that there was no need for an express order in that regard. 5. Before I take up the consideration of the points stated above. I would like to make one thing clear and that is that the Magistrate is wholly wrong when he says that the Magistrate taking cognizance will be deemed to have exercised power under Sec.473, Cr. P. C. In terms of Sec.473 in my view, it is incumbent upon the Magistrate to state expressly giving the grounds that he is satisfied that the deleay had been properly explained or that it is in the interest of justice to do so and to condone the delay. Merely because he has chosen to take cognizance after the period of limitation, does not mean that he will be presumed to have exercised power under Sec.473, Cr. P. C. The requirement to give a reasoned order is all the more important when the setting in of limitation is a valuable right that accrues to an accused which can only be taken away for reasons stated in Sec.473. Cr. P. C. and which can be examined by a higher court at all stages of the proceeding. The question of limitation, as is well known, is always open to be agitated. It is, therefore, all the more imperative that the delay should be properly explained and the order should contain the facts and circumstance? on which the satisfaction of the Magistrate is based. Further, it is also necessary that materials should be available in the order itself to show that exercise of power under Sec.473 was necessary in the interest of justice. 6. on which the satisfaction of the Magistrate is based. Further, it is also necessary that materials should be available in the order itself to show that exercise of power under Sec.473 was necessary in the interest of justice. 6. Coming to the second point first, I have examined the first information report and the charge-sheet. The only material available in the two F. I. Rs. is that some 690 tins of Hanuman Vanaspati which were loaded on Truck no. BRP 2391 never reached their destination. Second thing that appears from these two first information reports, in so far as it concerns these petitioners is that 92 tins of Hanuman Vanaspati were recovered from their premises which contained certain batch numbers which were said to be the batch numbers of the tins of hanuman Vanaspati sent on the truck, and this was for the first time stated after the tins were found in the premises of the petitioners. It is surprising that no first information report was lodged implicating the owner of the truck by the owner of the goods at the earliest point of time, the first F. I. R being by the owner of the truck himself. If any offence is said to have been committed, it is an offence under Sec.406 or 407 I. P. C. by the carrier of the goods. Nothing has been shown by the two F. I. Rs. that the petitioners were party to any conspiracy to misappropriate or commit the theft of Hanuman Vanaspati sent on truck no. BRP-2391. It has also not been indicated anywhere, nor any material has been shown to me, that the petitioners were in any way aware of the fact that the tins of Hanuman Vanaspati were stolen or misappropriated tins belonging to the informant company of the second F. I. R, Although considerable period elapsed between the filing of the F. I. R. and the framing of charge, no material has been brought to my notice how the petitioners re involved in any way in the misappropriation or theft of the Hanuman Vanaspati. in this view of the matter, on the materials available, I am satisfied that no case is made out against the petitioners and the prosecution against them is an abuse of the process of the court. in this view of the matter, on the materials available, I am satisfied that no case is made out against the petitioners and the prosecution against them is an abuse of the process of the court. It is essential to show that the accusation against the petitioners in respect of the Hanuman Vanaspati was as a result of the conspiracy or that they were having the knowledge that those articles were stolen or misappropriated articles. The circumstance that is greatly in favour of the petitioners is the fact that the batch numbers of the tins were not stated in the earlier F. I. R. The element of mens rea in this regard is absolutely absent. 7. The second question is of considerable importance. It has been held in an unreported decision of this Court in Criminal Miscellaneous No.1820 of 1978 disposed of on 7-8-73 that in such a situation the case should be remanded back to the Magistrate for giving him an opportunity to act under Sec.473, cr. P. C. if he deems it fit. Since I am disposing of this case on the first question, i do not propose to decide the second question, although in the passing I may state that I am in respectful disagreement with that decision. The provisions of Chapter XXXVI of the Code of Criminal Procedure are for the benefit of the accused and if limitation has set in and if the prosecution has failed to take advantage of Sec.473 ac the appropriate scage, when cognizance was being taken, it is not for this Court to deprive the accused of the benefit that has accrued to him. 8. In the result, the proceeding against the petitioners is quashed and the application is allowed. Anything that may have been stated in this decision should not mean to affect in any way the trial of any other person in this prosecution. Application allowed.