TARA DUTT v. STATE OF HIMACHAL PRADESH — 1997 DIGILAW 408 (HP)

JUDGMENT R.L. KHURANA, J.-The appellants, Tara Dutt and Sham Dutt have preferred the present appeal against the conviction and sentence imposed upon them by the learned Sessions Judge (Forests), Shimla, vide judgment dated 29-3-1994 in case No. 14-S/7 of 1989/1987. Each of the appellants stand convicted and sentenced as under: - TABLE Sr. No. Name of appellant Offence for which convicted Sentence 1. Tara Dutt 417/109 IPC Fine of Rs. 7,000/- In default of fine simple imprisonment for six months. 465/109 IPC Fine of Rs. 8,000/-, in default of fine simple imprisonment for six months. 2 Sham Dutt 417/109 IPC Fine of Rs. 7,000/-In default of fine simple imprisonment for six months. 465/109 IPC Fine of Rs. 8,000/-. In default of payment of fine simple imprisonment for six months. The two appellants were originally charged for the offences under Sections 420, 468 and 120 8 Indian Penal Code and for the offence under Section 5(1)(d), Prevention of Corruption Act, 1947. Both of them were acquitted of such offences. They were, however; convicted and sentenced for minor offences under Sections 417 and 465, Indian Penal Code though no specific charge for such offences was framed against them. 2. The other nine co-accused of the present appellants were acquitted of all the offences charged against them. 3. Be it stated that the acquittal of the appellants for the offences originally charged against them as well as the acquittal of the nine co-accused of the appellants has not been assailed by the State by way of an appeal. Therefore, such acquittal has becomes final. 4. The material facts giving rise to the present appeal have been set out in detail in the impugned judgment of the learned Sessions Judge. The same are not required to be repeated in this judgment since the appeal is being disposed of on a pure question of law. Therefore, such acquittal has becomes final. 4. The material facts giving rise to the present appeal have been set out in detail in the impugned judgment of the learned Sessions Judge. The same are not required to be repeated in this judgment since the appeal is being disposed of on a pure question of law. The question arising in the present appeal is : - "Whether an accused, who has been charged for a major offence, upon trial having been found guilty of a minor offence, can be convicted and sentenced for such minor offence if on the date of taking of cognizance of the major offence for which the accused was initially charged and tried, the period of limitation for the minor offence of which he was found guilty stood expired ?" Section 468, Code of Criminal Procedure, provides for bar to taking cognizance of offences after lapse of the period of limitation. It also provides for various periods of limitation for different offence. Section 468 reas: - 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 punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment". The offence under Section 417, Indian Penal Code, is punishable with imprisonment which may extend to one year, or with fine, or with both. While the maximum punishment prescribed for the offence under Section 465, Indian Pena! Code, is imprisonment up to two years, or with fine, or with both. 5. The offence under Section 417, Indian Penal Code, is punishable with imprisonment which may extend to one year, or with fine, or with both. While the maximum punishment prescribed for the offence under Section 465, Indian Pena! Code, is imprisonment up to two years, or with fine, or with both. 5. Since the punishment prescribed for the offence under Section 465, Indian Penal Code, is more severe as compared to the punishment prescribed for the offence under Section 417, Indian Penal Code, by virtue of sub section (3) of Section 468, Code of Criminal Procedure, the period of limitation for taking cognizance of the two offences under Sections 417 and 465, Indian Penal Code, would be three years. 6. The offences in the present case are alleged to have been committed in the months of September/October, 1983. The challan was put in Court on 29-12-1987. The cognizance of the offences was taken by the learned Sessions Judge exercising the powers of the Special Judge on 31-12-1987 when the following order was passed : "Office report seen. Heard, Register. I have seen the reports and perused the documents appended with the challan and found that there are sufficient grounds to proceed against the accused. The accused persons be summoned for 22-3-1988." Thus on the face of it the cognizance of the offences m the present case was taken long after the expiry of the period of three years from the date of offence, 7. The scope of Section 468(2), Code of Criminal Procedure, came to be considered by a Division Bench of the High Court of Andhra Pradesh in Khasim Beg v. Stale of A.P., 1979(2) APLJ 398. In the said case, a private complaint was filed against an accused person in the Court of Judicial Magistrate 1st Class for the offences punishable under Sections 419 and 420, Indian Penal Code, The learned Magistrate took cognizance of both the offences and framed charges thereunder. At the conclusion of the trial, the learned Magistrate found mat offence under Sections 419 and 420, Indian Penal Code were not made out He., however, found that a case for the offence punishable under Section 417, Indian Penal Code, was proved against the accused beyond a reasonable doubt. The learned Magistrate, accordingly, convicted the accused for the minor offence under Section 417, Indian Penal Code, and sentenced him to undergo rigorous Imprisonment for three months. The learned Magistrate, accordingly, convicted the accused for the minor offence under Section 417, Indian Penal Code, and sentenced him to undergo rigorous Imprisonment for three months. On appeal preferred by the accused, the learned Additional Sessions Judge, while agreeing with the learned Magistrate that there was sufficient material to warrant conviction of the accused for the offence punishable under Section 417, Indian Penal Code, remanded the case to the learned Magistrate on the ground that no charge was framed against the accused under Section 417, Indian Penal Code and directed a fresh trial after framing a fresh charge against the accused for the said offence. The order of remand was assailed by the accused and it was urged on his behalf that in view of provisions of Section 222(4), Code of Criminal Procedure, the accused could not have been convicted of the minor offence as the conditions requisite for the initiation of proceedings in respect of the minor offence were not satisfied inasmuch as the complaint was filed beyond the prescribed period of limitation. The Division Bench observed :...... "Section 473, Cr. P.C. provides for the discretion of the Court to fake cognizance of an offence after the expiry of the period of limitation on satisfaction of the Magistrate that either the delay has been properly explained or that it is necessary to condone the delay in the interests of justice. The question will have to be considered as to at what point of time the Magistrate should exercise his discretion under Section 473, Cr.P.C. whether before he took cognizance of the offence or even during the trial. Different High Courts have expressed conflicting views, some holding that the discretion should be exercised before the case is taken on file, while some others have held that the discretion under Section 473, Cr.P.C. can be exercised even after the complaint was taken on file. Difficulties do arise when parties, with a view to get over the limitation allege facts and quote sections involving serious offence and are unable to prove the serious offence and seek a conviction of the accused for a lesser offence. Difficulties do arise when parties, with a view to get over the limitation allege facts and quote sections involving serious offence and are unable to prove the serious offence and seek a conviction of the accused for a lesser offence. The question will naturally arise in such cases whether by resorting to such ingenuous methods, the complainant can be permitted to avoid the plea of limitation being raised by the accused against whom a minor offence only is made out and when the cognizance of such minor offence is taken beyond the period of limitation. There cannot be any hard and fast rule in deciding whether in any given case where the accused is to b® convicted for a minor offence, the complainant should be required to give proper explanation for the delay in filing the complaint. Just to illustrate this point offences under Sections 324 to 326 or 307 can be alleged in respect of a mere simple hurt caused to the complainant. Can it then be said that merely because the magistrate has taken the cases on file under one or the other of the more serious offences he can convict the accused for the offence under Section 323, I.P.C., ignoring the bar of limitation prescribed under Section 468, Cr.P.C. In our view, the accused should in such cases, be given an opportunity to raise the bar of limitation before the conviction against him is recorded for a minor offence when cognizance in respect of that minor offence was sought to be taken by the Magistrate beyond the period of limitation. It will be open to the complainant to satisfy the Court that on the facts and in the circumstances of the case, the delay has been properly explained or the Court must also satisfy itself that it is necessary to take cognizance of the minor offence after the expiry of the period of limitation in the interests of justice." 8. The Division Bench went on to observe further as under: - "It is thus to be seen that the exercise of discretion of the Magistrate under Section 473, Cr.P.C. is not a condition prerequisite for the initiation of proceedings in respect of a minor offence under Section 222 (4), Cr. The Division Bench went on to observe further as under: - "It is thus to be seen that the exercise of discretion of the Magistrate under Section 473, Cr.P.C. is not a condition prerequisite for the initiation of proceedings in respect of a minor offence under Section 222 (4), Cr. P.C. Section 222(4), Cr.P.C. does not come into play at all in cases of this type which are to be governed by the proper exercise of jurisdiction by the Magistrate under Section 473, Cr.P.C. We accordingly, answer the reference and hold that the conviction for the minor offence will be considered bad, if the cognizance of the minor offence is taken beyond the period of limitation and the accused is convicted for the minor offence without the Court exercising its judicial discretion under Section 473, Cr.P.C. whether in a given case a proper explanation for the delay was given by the complainant or that it was necessary to condone the delay in the interests of justice." 9. In State of Punjab v. Sarwan Singh, AIR 1981 SC 1054, the accused Sarwan Singh was tried for the offence under Section 408, Indian Penal Code, on the basis of a charge-sheet filed against him on 13-10-1976. Though the trial court acquitted him of the offence under Section 408, Indian Penal Code, it convicted him of the lessor offence punishable under Section 406, Indian Penal Code, and sentenced him to regorous imprisonment for one year and also to pay a fine of Rs. 1,000/-. On appeal preferred by him, the High Court of Punjab and Haryana allowed the appeal and acquitted him on the ground that the prosecution launched against him was clearly barred by limitation. The State of Punjab having preferred an appeal before the Apex Court, their Lordships affirmed the decision of the High Court and observed : - "The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein is non est." 10. it may be noted that the offence punishable under Section 408, Indian Penal Code is punishable with imprisonment which may extend to seven years. No period of limitation is prescribed under Section 468, Code of Criminal Procedure for prosecution of offences punishable with imprisonment for a term exceeding three years, in the case decided by the Supreme Court, though the trial Court took cognizance of the case against the accused under Section 408, Indian Penal Code and framed a charge against him thereunder, the trial Court ultimately found him guilty and convicted him of the lesser offence punishable under Section 406, Indian Penal Code. The offence punishable under Section 406, Indian Penal Code is punishable with imprisonment for a term which may extend to three years. The period of limitation enacted under Section 468(2), Code of Criminal Procedure is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Their Lordships of the Supreme Court, agreeing with the Punjab and Haryana High Court, held that the prosecution, though initiated against the accused under Section 408, Indian Penal Code, was barred by limitation under Section 468(2) (c) of the Code as the accused was ultimately found guilty and convicted under Section 406, Indian Penal Code. 11. A similar question again arose before a Division Bench of the High Court of Andhra Pradesh in K. Hanumantha Rao v. K. Narasimha Rao and others, 1982 Cr L.J. 734. In this case, the accused therein were charged and tried for the offence under Section 324, Indian Penal Code. They were acquitted of such offence by the trial Court. 11. A similar question again arose before a Division Bench of the High Court of Andhra Pradesh in K. Hanumantha Rao v. K. Narasimha Rao and others, 1982 Cr L.J. 734. In this case, the accused therein were charged and tried for the offence under Section 324, Indian Penal Code. They were acquitted of such offence by the trial Court. Though an offence under Section 323, Indian Penal Code was found to have been made out against the accused, the learned trial Court refused to convict them for the said offence on the ground that the prosecution of the accused for such offence was barred by time as enacted under Section 468, Code of Criminal Procedure. In the appeal before the High Court a contention was raised that the learned Magistrate having taken the cognizance of the complaint instituted for the offence under Section 324, Indian Penal Code, should not have entertained and upheld the plea of limitation put forth by the accused notwithstanding the conclusion reached by him that the accused were guilty of the offence punishable under Section 323, Indian Penal Code. The Court observed : - "To sum up, a statutory obligation is placed upon the court under Section 468, Cr.P.C. not to take cognizance of the offences of the categories specified in sub-section (2) thereof after lapse of the period of limitation. The Code does not provide an opportunity to the accused of being heard on the bar of limitation enacted under Section 468 of the Code before taking cognizance of offences of the categories specified in sub-section (2) thereof. The Code does not also envisage issue of any process against the accused before taking cognizance of the offence. Any cognizance of the offence taken by the Court is subject to defeasance of the cognizance on the ground of limitation and it is open to the accused to plead before the Court in response to the process issued to him that the complaint or the challan filed against him and taken cognizance of by the Court is barred by limitation. Such a plea can be raised by the accused at any time during the trial. Such a plea can be raised by the accused at any time during the trial. Section 473 confers a discretion upon the court to take cognizance of the offences of the categories specified in sub-section (2) of Section 468 after expiry of the period of limitation if the Court is satisfied, on the facts and in the circumstances of the case, that the delay in the institution of the prosecution has been properly explained or that it is necessary to do so in the interests of justice, The discretion given to the Court is very wide though it must be exercised judiciously on well recognized principles. No hard and fast rules can be laid down as to how the discretion can be exercised in a given case. Even when the Court takes cognizance of any of the offences of the categories specified in subsection (2) of Section 468 after applying its mind to the provisions of Section 473 of the Code, it is open to the offender to plead before the Court after conclusion of the trial that the provisions of Section 473 are not attracted or complied with. Where the Court takes cognizance of a major offence against an accused person, but finds him guilty of a minor offence, it is open to the accused to plead that conviction for the minor offence is bad if the complaint or the challan is filed against him beyond the period of limitation prescribed for the minor offence subject to the residual power of the Court to exercise its discretion under Section 473, Cr.P.C." 12. In the present case, as stated above, the period of limitation for taking cognizance of the offenders under Sections 417 and 465, Indian Penal Code had expired on the date the learned Sessions Judge took cognizance of the major offences for which there was no period of limitation. The learned Sessions Judge while convicting the two appellants for the lesser offences punishable under Sections 417 and 465, Indian Penal Code, has not exercised the discretion conferred upon him under Section 473, Code of Criminal Procedure to condone the delay in lodging the charge-sheet. The learned Sessions Judge while convicting the two appellants for the lesser offences punishable under Sections 417 and 465, Indian Penal Code, has not exercised the discretion conferred upon him under Section 473, Code of Criminal Procedure to condone the delay in lodging the charge-sheet. Therefore, on the failure of the learned Sessions Judge to exercise the discretion under Section 473, Code of Criminal Procedure, and to condone the delay for sound and cogent reasons, the P conviction of the two appellants for the offences under Sections 417 and 465, Indian Penal Code, could not have been ordered since the charge-sheet for such offence had become barred by time. 13. Even on merits, the case against the two appellants for the offences under Sections 417 and 465, Indian Penal Code does not stand proved. The receipts Ex. PS, PS/1 to PS/4 undoubtedly are signed by the two appellants for having received the amounts recorded therein. Such receipts are also verified and counter-signed by members of the "Procurement and Destruction Party" constituted under the modalities framed with regard to the scheme formulated by the State Government for providing relief to the apple growers in order to compensate them for the loss suffered by them on account of scab affected apples. The learned Sessions Judge has acquitted the other co-accused of the present appellants by holding that they were not party to any conspiracy, forgery and cheating. Once the above referred to receipts are held to have been properly verified and counter-signed by the members concerned of the "procurement and Destruction Party", the two respondents cannot be said to have either committed forgery or cheating. 14. Resultantly, the present appeal is allowed. The conviction and sentence imposed upon the two appellants by the learned Sessions Judge are set aside and they are acquitted of the offences. The bail bonds of the appellants shall stand cancelled and discharged. The amount of fine, if already deposited, shall be refunded to the appellants forthwith. Appeal allowed.