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2003 DIGILAW 440 (PNJ)

Amar Singh v. State of Punjab

2003-03-24

R.C.KATHURIA

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JUDGMENT R.C. Kathuria, J. - Amar Singh, Mani Singh, Tarsem Singh and Mohinder Singh, petitioners seek quashing of FIR No. 4 dated 4.1.1991 registered under Sections 223 and 224 of the Indian Penal Code with Police Station Bassi Pathana (Annexure-P.1), order dated 27.3.1998 passed by the Judicial Magistrate Ist Class, Fatehgarh Sahib (Annexure-P.3) taking cognizance on the police report, order dated 11.5.2000 passed by the Judicial Magistrate Ist class, Fatehgarh Sahib (Annexure-P.4) directing framing of charges under Section 223 Indian Penal Code, charge-sheet dated 11.5.2000 (Annexure-P.5) and order dated 28.11.2000 passed in Criminal Revision No. 7-T/7.8.2000 by the Sessions Judge, Fatehgarh Sahib (Annexure-P.8) affirming the orders dated 27.3.1998 and 11.5.2000 of the Judicial Magistrate First Class, Fatehgarh Sahib. 2. The present case came to be registered on the statement of Assistant Superintendent, Sub Jail, Bassi Pathana. According to his version, Balwinder Singh resident of Dellon, District Ludhiana was confined as under-trial in case bearing FIR No. 91 dated 20.10.1990 registered with Police Station Bassi Pathana under Section 382 read with Section 34 Indian Penal Code and Section 25 of the Arms Act, 1959 in Sub Jail, Bassi Pathana on 4.1.1991. On that day, aforesaid Balwinder Singh was successful in making escape from the Sub-Jail. As this escape had resulted due to the intentional aid of the accused or their intentional suffering of the aforesaid accused to escape, the present case was registered against the accused. Out of four petitioners, petitioner No. 1 was posted as Head Warder while petitioner Nos. 2 to 4 were posted as Wardens in the said sub jail. 3. On completion of the investigation, police report was filed in the Court of Judicial Magistrate Ist Class, Fatehgarh Sahib on 27.3.1998 without making any prayer regarding condonation of delay in filing the police report in Court. The accused appeared in Court on 30.4.1998 in order to face the trial. The service of the petitioners was effected for 22.1.2000 on which date they appeared in the trial Court. The accused appeared in Court on 30.4.1998 in order to face the trial. The service of the petitioners was effected for 22.1.2000 on which date they appeared in the trial Court. On 17.2.2000 objection was taken on behalf of the petitioners-accused before the trial Court that proceedings against them were barred by limitation as these had been filed after lapse of seven years of the commission of the crime and thus could not be continued in view of the provisions of Section 468 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and as the trial Court had not condoned the delay, the report filed be rejected. 4. The prayer made on behalf of the petitioners was opposed on behalf of the respondent. It was pointed out on behalf of the respondent that the Police report was entrusted to Constable for presentation in Court on 13.11.1992 but the file was lost by ASI Ashok Kumar. The same was subsequently re- constructed and then put in Court. The learned Court from the above facts construed that the delay in filing the police report had been explained in the report filed under Section 173 of the Code and for that reason it needed to be condoned and cognizance was taken against the accused. Consequently, the charges were ordered to be framed against the accused as per order dated 11.5.2000 under Section 232 Indian Penal Code In the Criminal Revision filed by the petitioners, the Sessions Judge, Fatehgarh Sahib came to the conclusion that letting an under-trial escape from custody due to the negligence is a serious offence irrespective of the quantum of punishment provided under the law and for that reason extension of limitation under Section 473 of the Code ordered by the trial Court cannot be said to be unjustified, arbitrary or without sufficient cause and for that reason the order called for no interference and the revision was dismissed on 28.11.2000. Hence, the present petition. 5. I heard learned counsel for the petitioners as well as the State counsel at length. 6. Hence, the present petition. 5. I heard learned counsel for the petitioners as well as the State counsel at length. 6. At the threshold of the arguments, learned counsel representing the petitioners vehemently urged before me that both the Courts below had failed to take into consideration that offence under Section 223 Indian Penal Code is punishable for a term which may extend to two years or with fine or both and as in this case incident of escape of the accused had taken placed on 4.1.1991, the respondent-State was duty bound to file police report in terms of the requirement of section 173 of the Code within a period of three years as provided under Section 468 of the Code. It was further pointed out by him that offence in question was not a continuing offence while the police report in question had been filed on 27.3.1998 so to say after a lapse of seven years and the Magistrate had not condoned the delay when he took cognizance on 27.3.1998. The subsequent condonation of delay as per order dated 11.5.2000 passed by the Judicial Magistrate Ist Class and upholding of his order by the Sessions Judge, Fatehgarh Sahib in Criminal Revision No. 7-T dated 7.8.2000 as per order dated 28.11.2000 would not cure the illegality patent on record committed by the Courts below. 7. The State counsel while controverting the stand taken on behalf of the petitioners mainly contended before me that in the Police report filed the factum of loss of report prepared under Section 173 of the Code entrusted to ASI Ashok Kumar had been specifically stated though no specific prayer was made for condonation of delay in filing the challan. Under the circumstances though there was no specific prayer that the delay be condoned but as essential facts has been stated in the report filed it was for the Court to take a decision in this regard and having not done so on 27.3.1998, the trial Court was fully justified in condoning the delay in his order dated 11.5.2000 when objection was raised by the petitioners in this regard. For the same reason, the order dated 28.11.2000 passed by the Sessions Judge, Fatehgarh Sahib upholding the order of the trial Court was justified by him. 8. Manifestly, the Police report had not been filed within a period of three years. For the same reason, the order dated 28.11.2000 passed by the Sessions Judge, Fatehgarh Sahib upholding the order of the trial Court was justified by him. 8. Manifestly, the Police report had not been filed within a period of three years. Thus, cognizance of the offence under Section 223 Indian Penal Code being punishable with imprisonment upto two years of fine or both was barred when the Police report had been filed on 27.3.1998 after a lapse of more than seven years of the commission of the crime. 9. In Ghansham Dass v. Sham Sunder Lal, 1982(I) C.L.R. 488, the facts were that the Magistrate did not apply his mind at all to the question of limitation which he was required to do at the pre-cognizance stage and for that reason it was laid down that proceedings taken were without jurisdiction and the consequential orders of summoning the petitioner-accused as also framing the charge against him were beyond jurisdiction and were consequently quashed. 10. In Hakam Singh and others v. State of Punjab, 1987 P.A.P. 14 (Punjab & Haryana), the offence under Section 419 Indian Penal Code was committed on 25.5.1962, but its commission came to the knowledge of the complainant on July 10, 1980. It was held that the trial Court was not competent to take cognizance of the commission of offence on expiry of three years after 10.7.1980. It was also observed in the above mentioned case that the Magistrate takes cognizance of the offence when the challan is presented in Court. Additionally, it was also noticed that the Magistrate had not passed an order for condonation of delay in this case and for that reason FIR dated 26.8.1981 and the order of the Judicial Magistrate Ist Class, Ferozepur dated 16.4.1985 was quashed. 11. In J.S. Maini, I.A.S. v. Thukur Hari Singh, 1989(2) RCR(Crl.) 210, it was laid down that when the application for extension of time under Section 473 of the Code was not filed along with the complaint, the Court could not extend the limitation on application filed subsequently. 12. Position of law in this regard stands well settled. In Sharadchandra Vinayak Dongre and others v. State of Maharashtra, 1991(2) All India Criminal Law Reporter 480, it had been observed in paras 29 to 31 as under :- "29. 12. Position of law in this regard stands well settled. In Sharadchandra Vinayak Dongre and others v. State of Maharashtra, 1991(2) All India Criminal Law Reporter 480, it had been observed in paras 29 to 31 as under :- "29. It is thus clear from the language of section 468 of the Code that there is a legislative interdiction against taking cognizance of the offence in the category specified in sub-section (2) after the expiry of the period of limitation except as otherwise provided elsewhere in the Code. Thus, protection has been given to an accused person under section 468(1) of the Code against belated and time-barred prosecutions and this is certainly a benefit given in favour of the accused. It cannot, therefore, be said that section 468 does not confer a right on the accused persons to plead that an offence or offences disclosed in a complaint filed against him should not have been taken cognizance of as the prosecution was barred by limitation. 30. Thus, the Court is duty bound on the presentation of the charge-sheet to consider the question of limitation and to see as to whether it is competent to take cognizance and whether the limitation has expired or not. In case the limitation has expired, it has no jurisdiction to take cognizance and if in disregard to the provisions the Court takes cognizance, the order of the Court would be without jurisdiction. 31. It is contended by the State that the accused persons are not entitled to a hearing or a notice as there was no express provision in that behalf in the Code. It is needless to say that even if the Statute is silent, a very valuable right arises in favour of the accused persons on account of the expiry of the prescribed period of limitation and they are entitled to an opportunity of being heard and principles of natural justice inevitably require that they should be heard on the question of extension of period of limitation by the Court. In my view, before taking cognizance of the offence, in case the charge-sheet is presented after the expiry of the period of limitation, an opportunity of being heard should be given to the accused persons before extending the period of limitation. In my view, before taking cognizance of the offence, in case the charge-sheet is presented after the expiry of the period of limitation, an opportunity of being heard should be given to the accused persons before extending the period of limitation. It would be relevant to refer to the observations of the Supreme Court in Surinder Mohan v. Aschraj Lal Chopra, AIR 1978 Supreme Court 786 :- "The appellant was entitled to the benefit of section 468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind it. For instance they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated a bar to the taking of cognizance has been prescribed under section 468 of Criminal Procedure Code and there is no reason why the appellant should not be entitled to it in the facts and circumstances of the case." The Supreme Court in State of Punjab v. Sarwan Singh, AIR 1981 Supreme Court 1052, has further observed that the object of criminal procedure 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 the abuse of the process of the Court by filing vexations and belated prosecution 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. From these observations, it is clear that the prosecution runs the risk of failing on the ground of limitation if the prosecution is filed beyond the prescribed period of limitation and as such the accused acquired a right to contend before the Court that belatedly filed prosecutions should not be entertained and as a consequence to oppose the application under Section 473, Criminal Procedure Code seeking condonation of delay in filing the prosecution." 13. It was further laid down in para 33 of the judgment as under :- "33. Incidentally, there is another infirmity in respect of this order condoning the delay by the trial Court. The Magistrate has no power or jurisdiction to take cognizance of an offence which is time-barred under Section 468 of the Code. That being the position, there is no scope for condonation of delay after taking cognizance of the offence. Such delay has to be condoned in accordance with the provisions of the Criminal Procedure Code, 1973, prior to the taking of the cognizance of the offence. In the present case, the process has just been reversed. The Magistrate takes the cognizance of the offence, directs process to be issued and later on proceeds to grant the application for condonation of delay. That is what has been done in the present case and as such, I feel no hesitation in holding that on this additional ground the trial Court acted illegally and without jurisdiction in taking cognizance of the offence alleged in the present case." 14. In the above mentioned case, the Chief Judicial Magistrate, Satara had taken cognizance of the offence on the basis of incomplete police report and the order issuing the process and condonation of delay dated 21.11.1986 passed by him were quashed. 15. The ratio of the above mentioned cases fully apply to the facts of the present case as well. It is clear from the orders noticed above that no specific prayer was made on behalf of the prosecution in the police report of condonation of delay. Even when the challan was presented in the Court on 27.3.1998, no prayer was made on behalf of the prosecution for condonation of delay in filing the police report. Even then the accused were ordered to be summoned on the same day, no specific order in this regard was passed by the learned trial Magistrate. He took cognizance of the offence under section 232 Indian Penal Code against the petitioners-accused without passing any order of condonation of delay. The defect as such could not be cured by him as sought to be done in the subsequent order dated 11.5.2000. Merely because in revision the orders of the Magistrate had been upheld by the Sessions Judge vide order dated 28.11.2000 would not in any manner come to the rescue of the respondent-State. 16. The defect as such could not be cured by him as sought to be done in the subsequent order dated 11.5.2000. Merely because in revision the orders of the Magistrate had been upheld by the Sessions Judge vide order dated 28.11.2000 would not in any manner come to the rescue of the respondent-State. 16. In view of the position of law explained above, the order of taking cognizance dated 11.5.2000 passed by the Judicial Magistrate Ist Class, Fatehgarh Sahib (Annexure-P.4), order of framing charge dated 11.5.2000 (Annexure-P.5) and order dated 28.11.2000 passed by the Sessions Judge, Fatehgarh Sahib being illegal can not be sustained and are set aside. Consequently the petition is accepted and the proceedings taken on the police report filed against the petitioner-accused are quashed. Petition allowed.