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Allahabad High Court · body

1986 DIGILAW 252 (ALL)

Altaf Khan v. State of U. P

1986-03-04

P.DAYAL

body1986
JUDGMENT P. Dayal, J. - This is a petition under Section 482 Cr.P.C., filed by Altaf Khan Nor quashing the order dated 31.10.81 passed by the 8th Munsif Magistrate Kheri on the application no. 41 Kha in case No. 786 of 1980 and for quashing the proceedings of case no. 786 of 1980 itself. 2. One Sunder Lal lodged a F.I.R. under Sections 279/304-A, I.P.C. against the petitioner on 19.1.77 at 6.30 p.m. with regard to an occurrence alleged to have taken place on 19.1.77 at about 2 p.m. The 1.0. submitted charge-sheet on 23.7.79. The case was registered on 17.3.80 i.e. after about three years and two months. The learned Magistrate took cognizance of the case on 17.3.80 with the result that the petitioner moved application-41 Kha on 21.9.81 under Section 468 Cr.P.C. claiming that his prosecution was barred by limitation. That application 41 Kha was rejected by means of the impugned order dated 31.10.81 with the observations that the case could not be termed as having been beyond the period of limitation in the interest of justice. 3. The petitioner contended that there has not been any explanation for delay from the side of the prosecution and the learned Magistrate had no justification for condoning the delay in view of the provisions of Section 468 and 473, Cr.P.C. He relied on the case of Sheoraj Bahadur Mathur v. The State, 1979 ILJ 104 and on the case of Prakash Chandra Sharma v. Kaushal Kishore, 1980 (17) ACC 142. 4. 4. In view of the provisions of Sections 468 and 473, Cr.P.C. and as held in the afore- said cited cases, a Magistrate takes cognizance of a case only when there is some judicial application of mind by him to the facts of the case and not on an earlier date when there is some judicial application of mind by him to the facts of the case and not on an earlier date when there was no judicial application of mind by the Magistrate, and that the Magistrate could order the continuance of the trial after the expiry of the period of limitation only when he was satisfied on the facts and the circumstances of the case that the delay had been explained or it was so to do in the interest of justice, and also that the courts cannot take cognizance in the case of time barred complaint unless there is application for condonation of delay and the delay is condoned. 5. In view of., the provisions of Section 468 (2) (c) three years period of limitation shall apply. The offence in question had taken place on 19.1.77 and the Magistrate had taken cognizance on 17.3.80. The prosecution did not apply for condonation of delay. It was on the application 41 Kha of the petitioner-accused that the Magistrate passed the impugned order dated 31.10.82. 6. Any explanation, whatsoever, for not taking cognizance of the case earlier has been given and there was no averment that the petitioner had absconded or he intended to do so. The Magistrate has invoked the provisions of Section 473 Cr.P.C. for condoning the delay on the ground that there has been delay and lachess on the part of the office. But the Magistrate could not order the continuation of the trial after the expiry of the period unless he was satisfied on the facts and the circumstances of the case that the delay had been explained or that it was so to do in the interest of justice. On account of the laches in the office the prosecution was not to suffer while the petitioner has to suffer the trial after the period of limitation. There cannot be any justification for continuation of prosecution after the expiry of the statutory period of limitation for covering the negligence or inaction on the part of the office as it would be against the interest of justice. There cannot be any justification for continuation of prosecution after the expiry of the statutory period of limitation for covering the negligence or inaction on the part of the office as it would be against the interest of justice. As such it is a fit case where the powers under Section 482 Cr.P.C. may be exercised. 7. Accordingly, this petition is allowed and the order dated 31.10.1981, passed by 8th Munsif Magistrate, Kheri, on the application-41 Kha in case No. 786 of 1980 State v. Altaf Khan is quashed as also the proceeding of case no. 786 of 1980.