Kalpanath Singh v. State Of Bihar — 1999 DIGILAW 96 (PAT)

Judgment M.Y.Eqbal, J. 1. In these two application, common question of law has been raised by the petitioners and, therefore, these cases are being disposed of by this common order. 2. In Cr. Misc No. 21353 of 1998. the petitioner has challenged the order dated 24.8.1998 passed by the Additional Chief Judicial Magistrate, Pakur, in G.R. No. 107 of 1995, whereby he has taken cognizance of the offence under Secs. 353 and 504 of the Indian Penal Code and Sec. 134 of the Representation of Peoples Act, 1951. In Cr. Misc. No. 24561 of 1998, the petitioners have challenged the order dated 13.8.1998 passed by the Chief Judicial Magistrate Gaya, in Tr. No. 768 of 1998, whereby he taken cognizance of the offence punishable under Secs. 39/44 of the Indian Electricity Act and Sec. 379 of the Indian Penal Code. 3. Before coming to the point of law raised by the petitioner, I will proceed to State the facts of the case. Cr. Misc. No. 21353 of 1998: The prosecution case, in brief is that on 8.3.1995 two persons one after another, went to the petitioner to serve him appointment letter but the petitioner refused to accept the same. After a while the petitioner came to the cell of the Deputy Collector Land Reforms and threw the appointment letter and his application on the table and asked the D.C.L.R. to give him receipt of his application. During the period in which receipt was granted to the petitioner he made hue and cry in the office asking the D.C.L.R. to submit his application for exemption from election duty to the Deputy Commissioner, Pakur and this disturbed the functioning and other staff of the Deputy Collector got frighten. Accordingly F.I.R. was lodged on 8.3.1995 and after more than three years, charge-sheet was submitted on 6.8.1998. After submission of charge-sheet, cognizance was taken on 24.8.1998, by passing the impugned order. Cr. Misc. Accordingly F.I.R. was lodged on 8.3.1995 and after more than three years, charge-sheet was submitted on 6.8.1998. After submission of charge-sheet, cognizance was taken on 24.8.1998, by passing the impugned order. Cr. Misc. No. 24561 of 1998: The prosecution story is that on 2.9.1993 Assistant Electrical Engineer, Town Electric Supply Sub-Division No. Ill, Gaya by forming a raiding party of different officials and electrical workers on 22.9.1993 raided Mohalla Nutan Nagar in connection with theft of electricity on the basis of confidential information; in cause of raid, 13 persons were found to have taken illegal connection from low tention line by putting electric wire and during raid two accused persons were arrested and certain wires were also seized. The official of the Electrical department lodged F.I.R. on the same day in Civil Line Police Station. In this case charge-sheet was submitted after 4-5 years i.e. 30.6.1998 and cognizance was taken by the impugned order on 13.8.1998. 4. Argument advanced by he learned Counsel for the parties is that the impugned order of cognizance Is bad in law Inasmuch as it is barred by limitation. Learned Counsel for the petitioners submitted that while taking cognizance the learned Court below condone the delay in a very mechanical manner without giving any satisfactory explanation. It Is contended that the Court below has no Jurisdiction to condone the delay without giving notice and without hearing the petitioners. Learned Counsel further contended that the Courts below have failed to comply the mandatory requirement of Sec. 473 of the Code of Criminal Procedure. In this connection learned Counsel relied upon a decision or this Court in the case of Pawan Marroo @ Pawan Kumar Maroo V/s. State of Bihar 1998 (1) BLJ 202. 5. Learned Counsel appearing on behalf of the state on the other hand submitted that Sec. 473 of the code confers power to the Court to condone the delay suo muto in the interest of justice and there is no mandatory requirement to condone the delay only on application of the prosecution. Learned Counsel for the petitioners relied upon a decision of the Apex Court in the case of Venka Radha Manohari V/s. Venka Venkata Reddy and Anr. -- . 6. From perusal of the Impugned orders It transpires that in Cr. Misc. Learned Counsel for the petitioners relied upon a decision of the Apex Court in the case of Venka Radha Manohari V/s. Venka Venkata Reddy and Anr. -- . 6. From perusal of the Impugned orders It transpires that in Cr. Misc. No. 21353 of 1998 no such application for condonation of delay was filed from the side of the prosecution while in Cr. Misc. No. 24561 of 1998 one application was filed for condonation of delay. But in both the cases before condoning the delay the petitioners were not noticed nor they were heard an the Courts below suo muto condoned the delay took cognizance of the offence. 7. In the case of Venka Radha Manohari V/s. V.V. Reddy (supra), the Apex Court was considering the scope of Secs. 468 and 473 of the Code in matrimonial offences. The Apex Court observed as under: In view of Sec. 473 of the Code a Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained but even in absence of proper explanation if the Court is satisfied that it is necessary so to do in the interest of justice. Sec. 473 has non-obstante clause which means that the said Section has an overriding effect on Sec. 468, if the Court is satisfied on the facts and in the circumstances of a particular case that either the delay had been properly explained or that it is necessary to do so in the interest of Justice. Their Lordships further observed: It is true that the object of introducing Sec. 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was though proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab V/s. Sarwan Singh. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complaint. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complaint. It is matter of common experience, that victim is subject to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such. Courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should Judge that question, in the light of Sec. 473 of the Code. which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether" it is necessary to do son in the interest of justice. 8. In the case of State of Maharasthra V/s. Sharad Chandra Vinayak Donger -- . the point for consideration before the Apex Court was whether non-submission of report of the Investigating agency under Sec. 173 of the Code takes away the jurisdiction of the Magistrate to take cognizance of the offence and further whether the delay in launching the prosecution can be condoned without notice to the accused. Their Lordships held as under- In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reason for condonation of the delay. However, having come to that conclusion it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. However, having come to that conclusion it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court, however, did not adopt that course and proceeded further to hold that the trial Court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge-sheet" on the basis of an "incomplete charge-sheet" and quashed the order of the C.J.M. dated 21.11.1985 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous. 9. In the case of Pawan Maroo V/s. State (supra), this Court following the decision of the Apex Court in the case of State of Maharasthra V/s. Sharad Chandra Vinayak Dongre (supra), held that the delay in taking cognizance cannot be condoned without giving opportunity of hearing to the accused persons and without any proper application to that effect. 10. From the discussions made above, it is, therefore, clear that in view of non-obstante clause contained in Sec. 473 of the Code, the Court can suo muto condone the delay regard being had to the seriousness of the allegations and the offences. However, in other cases before condoning the delay the Court should give notice to the accused persons and then records his satisfaction by passing a reasoned order condoning the delay. In the instant case, as noticed above, the allegations made against the petitioners are not so serious, that Court should condone the delay and take cognizance of the offence without hearing the accused persons. It is well settled that after expiry of limitation a valuable right accrue to the accused persons and that right cannot be taken away without giving proper notice and without giving opportunity of hearing to him. In the instant case charge-sheets were submitted after three years and five years and no explanation has been given for non-submission of charge-sheets. The laches and negligence on the part of the Investigating agency cannot be Ignores causing prejudice to the accused persons. 11. Having regard to the facts of the case and discussions made above. In the instant case charge-sheets were submitted after three years and five years and no explanation has been given for non-submission of charge-sheets. The laches and negligence on the part of the Investigating agency cannot be Ignores causing prejudice to the accused persons. 11. Having regard to the facts of the case and discussions made above. I am of the opinion that the Courts below have committed serious illegality in passing the impugned orders. Hence these two applications are allowed, the impugned orders passed by the Courts are set aside and the matter is remitted to the concerned Court for passing fresh orders in the light of the observations made above and after giving notice of hearing to the accused persons.