SIYA RAM v. STATE OF U. P. — 1984 DIGILAW 536 (ALL)

R. P. SHUKLA. J. ( 1 ) THIS application had been moved by Siya Ram and five others, praying that the order passed by the Judicial Magistrate II, Varanasi, in Criminal Case No. 1084 of 1980 State v. Siya Ram and others under section 448, I. P. C. and the order dated 24. 4. 1981 passed by the Fourth Additional Sessions Judge, Varanasi, in Criminal Revision No. 402 of 1980: Siya Ram and others v. State be quashed. ( 2 ) THE facts of the case reveal that a charge-sheet was submitted in the court of the Judicial Magistrate II, of 1980 under Section 448, I. P. C. on 5. 9. 19/so with respect to an offence which took place on 22. 2. 1979 at about 10. 00 p. m. An application under section 473, Cr. P. C. praying to condone the delay in filing the charge-sheet was moved by the Incharge of the relevant policestation. The Judicial Magistrate concerned condoned the delay and summoned the accused for trial. Aggrieved by this order, the accused went in revision before the Sessions Judge. The Fourth Additional Sessions Judge, Varanasi, dismissed the revision on 24. 4. 1981. Hence the present application. ( 3 ) COUNSEL for the applicants has urged that the orders passed by the courts below are wholly illegal and without jurisdiction and they have been passed in violation of the principles of natural justice. ( 4 ) CHAPTER XXXVI deals with limitation for taking cognizance of certain offences and is a new Chapter comprising of sections 467 to 473 added to the Code of Criminal Procedure, 1973. Section 468 of the above Chapter bars taking cognizance after lapse of the period of limitation whereas section 473 of the said Chapter empowers the court to extend 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 interest of justice. The sub-section (I) of section 468 prohibits courts from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. Thus, it confers a very valuable right on the accused person that he shall not be unnecessarily harassed in a belated prosecution. The sub-section (I) of section 468 prohibits courts from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. Thus, it confers a very valuable right on the accused person that he shall not be unnecessarily harassed in a belated prosecution. This is why the delay should not be condoned as a matter of course, but it has to be condoned with exercise of judicial discretion. Although there is no provision in Chapter XXXVI of the Code of Criminal Procedure requiring a notice to the accused or hear him at the time of condonation of the delay but the natural justice demands that he should be heard before passing an order in that regard because such an order is bound to affect the valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. As such, the accused is to be heard when an application under section 473, Cr. P. C. , is moved by the prosecution before cognizance is taken. ( 5 ) IN the instant case, the charge-sheet was delayed for more than six months and the Magistrate condoned the delay without bearing the accused. Thus, he denied the right conferred to the accused by the Statute. The Sessions Judge upheld the order of the Magistrate and dismissed the revision. The principles of natural justice have thus been violated by the impugned orders. ( 6 ) THE suggested procedure is not only in accordance with the principles of natural justice, but it also surmounts the situation wherein recalling of the order of extension passed in the absence of the accused is impermissible. This cannot be the intention of the legislature that the accused need not be heard on the question of extension of limitation. If he is to be heard, then be can only be heard before the extension of the period and extension of the period of limitation is a condition precedent to taking of cognizance of the offence. Thus, the true legal position appears to be that before taking cognizance of an offence after expiry of the period of limitation, the accused shall be given a notice and he shall be heard on the question of extension of the period of limitation under section 473, Cr. P. C. ( 7 ) IN view of the foregoing discussion, the application succeeds. P. C. ( 7 ) IN view of the foregoing discussion, the application succeeds. The order passed by the judicial Magistrate II, Varanasi, in Criminal Case No. 1084 of 1980: State v. Siya Ram and others under section 448, I. P. C. and the order dated 24. 4. 1981 passed by the Fourth Additional Sessions Judge, Varanasi, in criminal Revision No. 402 of 1980 Siya Ram and others v. State are hereby quashed. .