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2001 DIGILAW 162 (GAU)

Roma Kanta Seal v. State of Assam

2001-06-11

P.G.AGARWAL

body2001
Heard the learned counsel for both sides. 2. This criminal revision is directed against the order dated 17.5.2001 passed by the Judicial Magistrate, 1st Class, Silchar in GR Case No. 1957/1996 whereby the application filed by the accused persons for quashing the proceeding as barred by limitation under section 468, CrPC was rejected. 3. The case of the prosecution is that in GR Case No. 1957/1996 under section 498A/3 847109/34,1PC police made investigation and submitted charge sheet against the petitioner-accused persons and thereafter on 18.9.98 the learned Chief Judicial Magistrate made over the case to the Judicial Magistrate for disposal in accordance with law. While the case was pending before the trial Magistrate, the accused persons on 17.5.2001 filed an application stating that the Court had no power to take cognizance of the offence as it is barred by limitation as provided under section 468 (2) (c), CrPC. The learned Magistrate held that the case was made over to him on 18.9.98 and the learned Chief Judicial Magistrate had taken cognizance of the offence when it was within time and not barred by limitation. Learned counsel for the petitioner submits that cognizance of the case was taken by the Court at a later date, that is on 7.2.2001 only when process was issued by the Court. As the petition for quashing the complaint on the ground of limitation was rejected, the petitioners have filed the present application. 4. Admittedly, the case was charge sheeted before the expiry of the period of limitation and the learned Chief Judicial Magistrate also made over the case to the learned trial Magistrate for disposal before the expiry of the statutory period. Section 192 CrPC reads as follows : "192. Making over of cases to Magistrates - (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the First Class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may by general or special order, specify and thereupon such Magistrate may hold the inquiry or trial." 5. The learned trial Court has held that the case was made over after taking cognizance by the Chief Judicial Magistrate. The learned trial Court has held that the case was made over after taking cognizance by the Chief Judicial Magistrate. Learned counsel for the petitioner submits that the learned Magistrate having failed to apply his mind in taking cognizance and passing the impugned order, the same is vitiated. 6. On going through the materials available on record, it is seen that there is serious allegation against the accused persons for commission of an offence under section 498A/3 84/109/34IPC. Section 473 CrPC provides for extension of period of limitation in certain cases. Admittedly, there was no fault on the part of the investigating agency of the case. The delay, if any, was caused due to the process of the Court. The law is well settled that no one should be prejudiced by the process of the Court whether it is prosecution or the accused. Section 468 CrPC bar may not be applicable in certain cases. Learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of State of Himachal Pradesh vs. Tara Dutt & another reported in AIR 2000 SC 297 wherein the Apex Court observed : "Section 473 confers power on the Court taking cognizance after the expiry of 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 and that if is necessary so to do in the interest of justice." It is also provided that there should be speaking order indicating satisfaction of the Court. It is not permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay, Sections 467 to 473, CrPC in Chapter XXXVI were introduced in order to give some protections to the accused persons so that the prosecution does not put the sword of prosecution on the head of the accused persons for unlimited period. However, it was never meant that the benefits must be given to the accused persons for alleged lapses in the court process. Section 473, CrPC was introduced for the special purpose. However, it was never meant that the benefits must be given to the accused persons for alleged lapses in the court process. Section 473, CrPC was introduced for the special purpose. There is no dispute at the Bar that the prosecution b submitted charge sheet within time and the delay, if any, was due to the process of the Court only and thus it is a simple case where the provision of section 473, CrPC is squarely applicable. 7. In view of the above, the present revision petition stands dismissed at the stage of Motion hearing. Since the matter is pending since 1996, the learned trial Magistrate shall proceed with the trial in accordance with law.