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Gauhati High Court · body

2008 DIGILAW 554 (GAU)

Mridul Kumar Bhattacharjee v. State of Assam

2008-08-01

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482, Cr PC, the petitioners, who are accused in Complaint Case No. 2623/2008, which has been pending in the Court of the learned Sub-Divisional Judicial Magistrate (Sadar), No. 1, Guwahati, has sought for quashing of the complaint case, as a whole, and also the impugned order, dated 2.5.2008, passed therein, whereby processes were directed to be issued against the accused-petitioners. 2. Heard Mr. S. Ali, learned Counsel for the accused-petitioners, and Mr. Z. Kamar, learned Addl. Public Prosecutor, Assam. 3. Broadly speaking, there are two grounds on which the petitioners have sought for quashing of the complaint, in question, and also the order dated 2.5.2008, aforementioned, the grounds being, namely, that (i) the offences, allegedly committed by the accused-petitioners, were barred by the period of limitation prescribed therefore and (ii) that the process were directed to be issued without cognizance of the offences aforementioned having been taken and without extending the period of limitation. 4. It is appropriate, at this stage, to take note of the relevant provisions, contained in Chapter XXXVI of the Code, which impose bar to the taking of cognizance upon lapse of the prescribed periods of limitation. The relevant provisions, contained in this Chapter, are, therefore, reproduced hereinbelow: 468. Bar to taking cognizance of 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. 469. (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. 469. Commencement of the period of limitation.-(1) The period of limitation, in relation to an offence, shall commence: (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. 470. Exclusion of time in certain cases.- (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which suffers from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. (4) 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. 471. Exclusion of the date on which Court is closed.-Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens. 473. Extension of period of limitation in certain cases.-Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. 5. A conjoint reading of Sections 468 and 473 of the Code shows that while Section 468 bars Courts from taking cognizance of the offences of the categories specified in Section 468(2), whereunder time frames have been prescribed as the periods of limitation, Section 473 permits the Court to take cognizance of an offence even after the expiry of the prescribed period of limitation provided that the Court is satisfied, in the context of the facts and circumstances of a given case, that the delay has been properly explained or that it is necessary so to do in the interest of justice. 6. 6. A closer look into the provisions of Section 473 of the Code clearly shows that this section starts with a non-obstante clause, which reads, "notwithstanding to anything contained in the foregoing provisions of the Chapter". This, in turn, means that notwithstanding the bar, which stands imposed by Section 468 of the Code, on the Court's power to take cognizance of an offence beyond the prescribed period of limitation, a Court may, in a given case, if satisfied, that 'the delay has been properly explained' or 'that it is necessary so to do in the interest of justice', take cognizance of an offence even after the period of limitation stands expired. The granting of such extension or taking of such cognizance beyond the period of limitation would obviously mean that the Court has invoked its powers under Section 473 and has condoned the delay provided, of course, that the order, taking such cognizance, reflects judicial application of mind by the Court to the question of delay, for, no exercise of judicial power can be mechanical of without application of mind. 7. What is, now, of utmost importance to note is that a microscopic reading of Section 473 indicates that it is permissible for a Court to take cognizance of an offence after expiry of the period of limitation under two different conditions. One condition is that before such cognizance is taken, the Court must be satisfied that the delay has been explained; whereas the other condition is that the Court shall be satisfied that it is in the interest of justice to condone the delay. Unless a different intent can be attributed to the provisions of Section 473, one has no option, but to construe the two expressions, 'the delay has been properly explained' and 'it is necessary to do so in the interest of justice', disjunctively and not conjunctively. Unless a different intent can be attributed to the provisions of Section 473, one has no option, but to construe the two expressions, 'the delay has been properly explained' and 'it is necessary to do so in the interest of justice', disjunctively and not conjunctively. When construed in this light, it logically follows that though ordinarily, a Court can taken cognizance of an offence only when the police or the complainant has explained the delay in not presenting the police report or complaint, as the case may be, within the period of limitation, the fact remains that in a given case, even if there is no formal application or prayer made for condonation of delay, the Court is not powerless in condoning the delay and taking cognizance of the offence if it is satisfied that the condonation of such delay is necessary in the interest of justice. 8. Coupled with the above, what is also imperative to note is that when a State launches prosecution against a person as an accused, the State also represents the interest of the person, who is aggrieved by the commission of such offence. Victimology has developed into a recognized aspect of criminal jurisprudence. Every provision of penal as well as procedural law has to take into account the interest of the victim, while construing or interpreting such a provision. The expression, 'it is necessary so to do in the interest of justice' reflects the legislative concern for the unseen victim or for the unseen aggrieved party, the protection of whose interest becomes, undoubtedly, the duty of the Court too. 9. What surfaces from the above discussion is that though it is true that the prosecution or the complainant should be the one to seek condonation of delay in a case, where taking of the cognizance is barred by a prescribed period of limitation, the fact remains that is the duty of the Court too to appreciate that when a charge-sheet or a complaint is filed after expiry of the period of limitation, there is an implied prayer for condonation of delay. This apart, before the Court refuses to take cognizance of an offence on the basis of a belatedly filed police report (i.e. charge-sheet) or complaint, it is in the interest of the real victim, who may not be before the Court, that the Court looks into such materials, which may be available on record, or collect such materials, as may be warranted in a given case, and, then, determine for itself if the materials on record explain the reason(s) for the delay or if the interest of justice necessitates condoning of the delay in laying belatedly such police report or complaint. 10. While considering the above aspects of the case, it is pertinent to note that though Section 469describes the point of time from when the period of limitation commences, the fact remains that in a given case, the police may not have been able to submit charge-sheet, because of the reason that forensic report has not been made available or some material articles could not be seized or effective interrogation of the accused had not been possible due to the fact that the accused had been evading police or absconding in such circumstances, the perusal of the case diary may itself reflect the cause(s) of delay. In such a situation, it would be, contrary to the legislative intent expressed in Section 473, to contend that the Court is powerless to look into the causes of delay on its own motion and condone, suo moto, in a given case, the delay if the facts and circumstances of the case so warrant in the interest of justice. 11. It is worth pointing out that Chapter XXXVI of the Code, which prescribes various periods of limitation, was introduced, for the first time, in 1973. Before the provisions, prescribing various periods of limitation, were incorporated in the Code, the delayed launching of prosecution was a relevant factor, while adjudging the truth or veracity of the prosecution's version of the occurrence. The need to prescribed a period of limitation was considered advisable for several reasons. Lapse of time has the effect of weakening and, at times, obliterating the memory of the witnesses and, sometimes, the evidence itself may disappear. Larger interest of peace in the society too requires that even an offender be left to rest after a reasonable lapse of time. Lapse of time has the effect of weakening and, at times, obliterating the memory of the witnesses and, sometimes, the evidence itself may disappear. Larger interest of peace in the society too requires that even an offender be left to rest after a reasonable lapse of time. Deterrent and retributory punishments get denuded of their effect after a reasonable period of time. This apart, introduction of the period of limitation was considered necessary to put pressure on the prosecutors and/or complainants to expedite bringing of their grievances to the Court at the earliest. With these objects in view, Section 468 of the Code prescribes, six months, one year and three years limitation for offences punishable with fine, punishable with imprisonment for a term not exceeding one year and punishable with imprisonment for a term exceeding one year, but not exceeding three years respectively. 12. However, while making the special provisions as regards limitation, the Parliament has enacted Section 473 giving overriding effect over all earlier sections and vesting a discretionary jurisdiction in the Criminal Court empowering it to take cognizance of an offence despite expiry of the period of limitation if the Court is satisfied, in the facts and circumstances of a given case, that the delay has been property explained or if it is satisfied that the interests of justice warrant taking of cognizance of the offence(s) even if the period of limitation stands expired. The Legislature, in their wisdom, chose not to enumerate any circumstances or lay down concrete guidelines, which would enable the Court to exercise its jurisdiction under Section 473. The Parliament appears to have, even after prescribing various periods of limitation, considered it necessary that wider interest of the society or the citizens may, in a given case, justify taking of cognizance beyond expiry of a prescribed period of limitation. It is in this perspective that the provisions of Section 473 need to be considered. 13. Coupled with the above, it is also worth noticing that under the Limitation Act, which applies to civil proceedings, extension of the period of limitation or condonation of delay is possible only when the appellant or the applicant satisfies the Court, as embodied in Section 5, that he had sufficient cause for not preferring the appeal or making the application within the period of limitation. As against this, Section 473 gives absolutely no indication that a formal application has to be made by the police or the complainant, as the case may be, for the purpose of enabling the Court to take cognizance of an offence by extending the period of limitation. For from this, Section 473 merely requires that the Court shall be satisfied, on the facts and the circumstances of the case, that the delay has been properly explained or that it is necessary so to do in the interest of justice. 14. Noticing the underlying difference between the provisions of Sections 468 and 473 of the Code, on the one hand, and Section 5 of the Limitation Act, on the other, the Apex Court, in Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy and Ors. reported in (1993) 3 SCC 4 , observed: 6. At times it has come to our notice that many Courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the Court that there was sufficient cause for condonation of delay under Section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of the delay, whereas Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power, under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the latin maxim vigilantibus, et non, dormientibus jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty against women. 15. Thus, Section 473 does not contemplate making of any application by the prosecutor or a prayer being made to the Court by a prosecutor or a complainant. Section 473 is a discretionary jurisdiction, which the Court can exercise suo motu and without, in a given case, being asked for the legislative intent is that it is for the Court, exercising criminal jurisdiction, to examine and ascertain if the delay has been properly explained or whether the interests of justice warrant extension of the period of limitation. Any other interpretation would defeat the legislative intents for incorporating the provisions of extension of the period of limitation in the Code with the help of Section 473. It must, however, be borne in mind that every order, whether extending the period of limitation or refusing to the extent the period of limitation, must assign cogent reasons therefor. 16. I may, at this stage, pause to point out that no such condonation of delay is possible without an opportunity of hearing having been accorded to an accused, who is sought to be proceeded against, for, on expiry of the period of limitation, a valuable right accrues to such an accused of not being prosecuted for commission of the offence(s), which he is alleged to have committed. Such right cannot be set at naught by refusing to give to such an accused the right to have his say in the matter of condonation of delay. A three Judge Bench of the Supreme Court has, therefore, laid down, in State of Maharashtra v. Sharat Chandra Vinayak Dongre AIR 1995 SC 231 , that when the taking of cognizance stands barred by a prescribed period of limitation, notice needs to be issued to the person, who is sought to be proceeded against, offering him an opportunity to have his say in the matter of extension of the period of limitation. The relevant observations, made in Sharat Chandra Vinayak Dongre (supra), read thus, "(9) Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties...." 17. In the present case, it is, to my mind, necessary to clarify that Chapter XXXVI of the Code applies to the delay in instituting the prosecution and not to the delay in taking of cognizance. As a corollary, it becomes evident that when a complaint or a police report is filed within the period of limitation, the Court will remain competent to take cognizance even after the period of limitation has expired, for, as already indicated hereinbefore, Chapter XXXVI of the Code applies to the making of the complaint or filing of the police report. Though the language, appearing in Chapter XXXVI of the Code, reflects that taking of cognizance is barred by the prescribed period of limitation irrespective of the fact as to whether the complaint or police report was filed within the period of limitation or upon expiry thereof, the Apex Court, in Bharat Damodar Kale v. State of A.P. AIR 2003 SC 4650 : (2003) 8 SCC 559 , while elaborately explaining this aspect of law, observed thus: "...a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or inflation of the prosecution and not for taking cognizance. It of course prohibits the Court from taking cognizance of an offence where the complaint is filed before the Court after the expiry of the period mentioned in the said chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected Section 471 indicates while computing the period of limitation, time taken during which the case was being diligently prosecuted in another Court or in appeal or in revision against the offender should be excluded. The said section also provides in the explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicate that the Court taking cognizance can take cognizance of an offence, the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the Court over which the prosecuting agency or the complainant has no control. Therefore a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of Court. The legal phrase 'actus curiae neminem gravabit' which means an act of the Court shall prejudice no man, or by a delay on the part of the Court neither party should suffer, also supports the view that the Legislature could not have intended to put a period of limitation on the act of Court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra)." 18. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra)." 18. In view of the fact that the alleged violation, according to the complainant, took place, in the present case, on 26.7.2007 and the impugned order, directing issuance of processes, was passed on 2.5.2008, it is clear that 'cognizance', if any, was taken after expiry of the period of six months from the date of alleged violation of the requirements of the provisions of Weights and Measures (Enforcement) Act, 1985, hence, the learned Court below ought to have given notices to the accused petitioners before extending the period of limitation and before taking 'cognizance' of the offences, which the accused-petitioners have allegedly committed. 19. Considering the matter in its entirety and in the interest of justice, the impugned order, dated 2.5.2008, aforementioned is hereby set aside and the proceedings of the Complaint Case, namely, CR Case No. 2623/2008, are hereby remanded to the learned Sub-Divisional Judicial Magistrate (Sadar), No. 1, Guwahati, for giving opportunity of hearing to both the complainant as well as the accused-petitioners on the question as to whether the period of limitation for taking cognizance of the offences, in question, shall or shall not be extended. 20. While considering the question of extension of the period of limitation, the learned Court below shall bear in mind that under Section 473, Cr PC, which permits the Courts to extend the period of limitation, there need to be a formal application for the purpose of seeking extension of the period of limitation inasmuch as the power to extend the period of limitation is (unless barred by the provisions made under any special penal enactment) available to a Court under Section 473, Cr PC. If it is satisfied, in the facts and circumstances of a given case, that the delay has been properly explained or that it is necessary so to do in the interest of justice; hence, the extension of the period of limitation is possible if the Court forms the view that giving of such extension is necessary in the interest of justice and such a view may be formed (unless a statute indicates otherwise) even in the absence of any formal application or prayer made by the complainant. 21. 21. In order to avoid further delay in the proceedings of the Complaint Case, in question, the petitioners are hereby directed to appear in the learned Court below in connection with the case aforementioned on 11.8.2008 and, upon their appearance in the learned Court below, the learned Court below shall deal with the matter in accordance with law bearing in mind the observations made hereinabove. 22. With the above observations and directions, this Criminal Petition shall stand disposed of.