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2000 DIGILAW 635 (AP)

A. Sreeranga Rao v. State Of A. P.

2000-08-21

VAMAN RAO

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VAMAN RAO, J. ( 1 ) PUBLIC Prosecutor, for the Respondent. Judgementorder :- This Criminal Revision Case is directed against the order of the III Metropolitan Magistrate, Hyderabad Dated 12-1-2000 passed in Cri. M. P. No. 806 of 2000 in C. C. No. 493 of 1999 under which he dismissed the application filed by the petitioner-accused No. 2 to discharge him from the prosecution for the offences under Section 39 and 44 of the Indian Electricity Act on the ground that the learned Magistrate has taken cognizance of those offences after the prescribed period of limitation has elapsed. ( 2 ) THE revision petitioner is the accused No. 2 in C. C. No. 493 of 1999 facing charges for the offences punishable under Section 39 and 44 of the Indian Electricity Act. The alleged offence is said to have been detected on 14-12-1993 and charge sheet is said to have been first filed on 9-12-1996 before the 17th Metropolitan Magistrate and the learned 17th Metropolitan Magistrate returned the charge sheet for presentation of the same before the III Metropolitan Magistrate on 28-5-1997 and the same was presented before the III Metropolitan Magistrate on 4-7-1997 but the charge sheet was returned with certain office objections and the same was represented after complying with the objections on 27-10-1999. The petitioner-accused No. 2 surrendered before the Magistrate on 20-7-1997 and was released on bail. ( 3 ) THE contention of the learned counsel for the petitioner is that inasmuch as indisputably the offence was detected on 14-12-1993 and as the offence is punishable with maximum: imprisonment of three years the cognizance of the offence ought to have been taken before 14-12-1996. Charge sheet was filed five days before the expiry of the period of limitation for taking cognizance of the offence. After return and resubmission of the charge sheet ultimately cognizance was taken only on 6-11-1999. Therefore, the contention of the learned counsel for the petitioner-A2 is that in view of these facts the learned Magistrate had taken cognizance of the offence after the period of limitation prescribed under Section 468, Cr. P. C. ( 4 ) THE learned Magistrate proceeded on this footing. But, however, the learned Magistrate dismissed the petition of the accused No. 2 for discharging him on the ground that the facts of the case disclose that the provisions of Section 470, Cr. P. C. ( 4 ) THE learned Magistrate proceeded on this footing. But, however, the learned Magistrate dismissed the petition of the accused No. 2 for discharging him on the ground that the facts of the case disclose that the provisions of Section 470, Cr. P. C. are applicable under which while computing the period of limitation the time during which the accused No. 2 had avoided arrest by absconding or concealing himself is liable to be excluded from the period of limitation. Section 470 (4), Cr. P. C. reads as follows :"in computing the period of limitation, the time during which the offender- (a) has been absent from India or from any territory outside India which is under the administration of the Central Government or (b) has avoided arrest by absconding or concealing himself, shall be excluded. " ( 5 ) THE learned Magistrate in his order refers to the circumstance that the petitioner-accused No. 2 and the other accused were shown as absconding in the charge sheet and a request was made by the persecuting agency for issuance of non-bailable warrants against both the accused. Thereafter, the charge-sheet was returned and ultimately it was resubmitted on 27-10-1999 and the cognizance was taken on 6-11-1999 against both the accused. Thus, the learned Magistrate relied on the fact that accused No. 2 was shown as absconding since the date of offence and that he has surrendered on his own on 20-7-1997 and was released on bail. ( 6 ) THE learned counsel for the petitioner urges that there was no material before the learned Magistrate to come to a firm conclusion that the petitioner herein had avoided arrest by absconding or concealing himself as contemplated under clause (b) of sub-section (4) of Section 470 of Cr. P. C. ( 7 ) THE learned Public Prosecutor on the other hand contends that the fact that in the charge-sheet, the petitioner has been shown as absconding and the fact that subsequently the petitioner himself surrendered before the Magistrate and was released on bail are the circumstances which must be considered sufficient for holding that the petitioner was absconding. P. C. ( 7 ) THE learned Public Prosecutor on the other hand contends that the fact that in the charge-sheet, the petitioner has been shown as absconding and the fact that subsequently the petitioner himself surrendered before the Magistrate and was released on bail are the circumstances which must be considered sufficient for holding that the petitioner was absconding. ( 8 ) THE contention is that having considered these circumstances, the learned Magistrate rightly held that the time during which the petitioner was absconding as held by the learned Magistrate is liable to be excluded for the purpose of computing the period of limitation. Thus, it is contended that the learned Magistrate has rightly taken cognizance of the offence. ( 9 ) IT is a question of fact as to whether the petitioner had the knowledge of his having been charge sheeted in the concerned criminal case and whether his inaccessibility to the police was by way of avoiding arrest and whether it constitutes absconding on his part. It is contended that there is no material on this aspect before the learned Magistrate. ( 10 ) THE learned counsel for the petitioner contends that at any rate it requires enquiry and ascertainment by the learned Magistrate as to whether the petitioner could be said to have been concealing himself for avoiding his arrest and was absconding. ( 11 ) THE learned counsel for the petitioner cites a judgment of the Madras High Court in the case of Rev. Dr. Dhayan Chand Carr v. State, (1994) 1 Andh LR (Cal) 75 (Madras) wherein the learned Judge held that since exclusion of period of limitation had been sought to be made on no evidence, the matter may be remitted to the Judicial Magistrate for fresh consideration of the petition filed under Section 468 of Cr. P. C. pleading limitation bar. ( 12 ) IN this case before me also, while there is a mention in the charge-sheet that the petitioner was absconding and ultimately the petitioner surrendered before the Court these two circumstances in themselves cannot be conclusive of the fact whether the petitioner has been avoiding his arrest and has been absconding. P. C. pleading limitation bar. ( 12 ) IN this case before me also, while there is a mention in the charge-sheet that the petitioner was absconding and ultimately the petitioner surrendered before the Court these two circumstances in themselves cannot be conclusive of the fact whether the petitioner has been avoiding his arrest and has been absconding. ( 13 ) UNDER these circumstances, this petition is allowed and the matter is remitted back to the learned Magistrate for enquiry on the question as to whether the petitioner has been concealing himself for avoiding arrest by absconding, which matter has to be decided after affording opportunity to both sides to place such material before the Court as they may desire. Petition allowed.