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2008 DIGILAW 627 (KAR)

Raufsab v. State of Karnataka

2008-10-22

MOHAN M.SHANTANAGOUDAR

body2008
ORDER Mohan Shantanagoudar, J: This petition is filed under Section 482 of Code of Criminal Procedure praying for quashing the proceedings in Crime No.61/ 2004 (Sp.C.C.No.50/2008), pending on the file of Addl. Sessions Court, Bidar. 2. The case of the prosecution in brief is that: the checking staff of KPTCL, Bidar, visited the premises of the petitioner and found that the petitioner had committed theft of electricity by-passing the meter. The inspection was conducted on 18.3.2004. Based on the inspection report, complaint is lodged before GESCOM Police Station, Bidar, alleging offences punishable under Sections 39 and 44 of the Indian Electricity Act, 1910. It is alleged that the petitioner has committed theft of electricity worth Rs. 18,564/-. Based on the complaint, Crime No.61/2004 is registered in the said police station. After completion of investigation, charge-sheet is filed for the aforesaid offences. It is also alleged that petitioner is due a sum of Rs. 18,564/- towards back billing charges and Rs.6,000/- towards compounding fees. Now the matter is pending trial in Special C.C.No.501 2008 before Addl. Sessions Court, Bidar. 3. It is contended by Smt. Umadevi S. Babshetty, learned Counsel appearing on behalf of the petitioner that though the complaint is lodged immediately after the inspection, the charge-sheet is stated to have been filed on 16.5.2008. It is further submitted that though the investigation report (charge -sheet) is dated 1-2-2005, the same is actually before the Court on 16.5.2008 i.e., after the lapse of four years and two months from the date of inspection i.e., from the date of cause of action. Thereafter, the Court below has taken cognizance of the offence. She points out from the order sheet maintained by the Court below that the application tot condonation of delay is filed under Section 5 of Limitation Act to condone the delay in filing the investigation report. The Court below keeping open the question of limitation took cognizance of the offences and registered the case. She points out from the order sheet maintained by the Court below that the application tot condonation of delay is filed under Section 5 of Limitation Act to condone the delay in filing the investigation report. The Court below keeping open the question of limitation took cognizance of the offences and registered the case. In this view of the matter, it is contented by the learned Counsel appearing for the petitioner that the proceedings vitiate, inasmuch as the cognizance is taken alter the lapse of about four years from the date of cause of action (i.e., Inspection) and the same is hit by the provisions of Section 468 of Cr.P.C. The offences in question are punishable with sentence of imprisonment, which may extend up to three years or with fine or both. Under Section 468 of Cr.P.C., the prescribed period of limitation to take cognizance of such offence is three years. Therefore, it is contended by the learned Counsel for the petitioner that talking cognizance of the offence alter three years of the incident is bad in the eye of law and consequently, the proceedings are liable to be quashed. She also relies upon the judgment of this Court dated 25th August, 2008 passed in Criminal Petition No. 8601/ 2008 - (Venkata Reddy Vs. The State of Karnataka) in support of her contentions. 5. The aforementioned dates as pointed out by the Counsel for the petitioner are borne out from the records. Hence there is no dispute with regard to the dates. The vigilance squad of GESCOM, Bidar, conducted the inspection on 18-3-2004. First information report is lodged pursuant to the inspection report on 19-3-2004 and the' same is registered in Cr.No.61/2004.It is not in dispute that the investigation report is filed by the police on 16-5-2008 i.e., after' about four years and two months from the date of cause of action. It is also not in dispute that the offences alleged are punishable with sentence of imprisonment up to three years. Section 468(2) of Code of Criminal Procedure prescribes the limitation of three years for taking cognizance in such matters. It is also not in dispute that the offences alleged are punishable with sentence of imprisonment up to three years. Section 468(2) of Code of Criminal Procedure prescribes the limitation of three years for taking cognizance in such matters. It is no doubt true that this Court in Criminal Petition No.8601/2008 has ruled that filing of the charge-sheet beyond the period of limitation prescribed under Section 468 of Cr.P.C. and taking cognizance of the offence by the Trial Court thereafter is against the provisions contained in Section 468(2) and also against the provisions of Section 473 of Cr.P.C. In that matter also, the Trial Court had not condoned the delay in filing the Investigation report and keeping open the question of condonation of delay, cognizance was taken after the period of three years by the concerned Court. By holding, that the order of taking of cognizance beyond the period of limitation prescribed under Section 468 of Cr.P.C. is against the provisions. contained in Section 468(2)(c) and also against the provision of Section 473 of Cr.P.C., this Court quashed the proceedings in the said matter. But, with great respect to my learned brother Judge, I am unable to persuade myself to agree with the said conclusion reached in Criminal Petition No. 8601/2008 in view of the dictum laid down by the Apex Court in the case of Bharat Damodar Kale and Another Vs State of A.P. [ (2003) 8 SCC 559 ] and in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty [ (2007) 7 SCC 394 ]. In the aforementioned matters, the very question as Involved in this matter had come up for consideration before the Supreme Court. While deciding the said matters, the Apex Court interpreted Section 468 of Cr.P.C. to mean that the limitation prescribed therein is only for filing of the complaint or initiation of prosecution and not for taking cognizance. The judgment in the case of Bharat Damodar Kale (cited supra) is affirmed and followed by the Apex Court in the case of Japani Sahoo (cited supra). The Apex Court while deciding the matter of Japani Sahoo's case overruled the judgments of various High Courts which are contrary to the aforementioned dictum laid down by the Supreme Court and has affirmed the view taken by the Apex Court in the case of Bharat Damodar Kale. The Apex Court while deciding the matter of Japani Sahoo's case overruled the judgments of various High Courts which are contrary to the aforementioned dictum laid down by the Supreme Court and has affirmed the view taken by the Apex Court in the case of Bharat Damodar Kale. In this context, it is relevant to note Para- 10 of the judgment in Bharat Damodar Kale's case, which reads thus: 'Para-10: On facts of this case and based on the arguments advanced before us, we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned Counsel for the appellants, the limitation prescribed under the above Chapter applies to taking of cognizance by the Court concerned, therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be inspired by the chapter heading of Chapter XXXVI of the Code which reads thus: Limitation for taking cognizance of certain offences'. It is primarily based on the above language of the heading of the Chapter, the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because 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 initiation 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. 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 470 indicates that 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 in fructuous by an act or 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 the 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 earlier decision of this Court in the case of Rashmi Kumar. This view of ours is also in conformity with the earlier decision of this Court in the case of Rashmi Kumar. (Emphasis supplied) Thus, it is clear that the Apex Court considered the scheme of the Code of Criminal Procedure, particularly Section 468 and held that the crucial date for computing the period of limitation is the date of filing of the complaint and not the date when the Magistrate takes cognizance of the offence. Unfortunately, the judgments of the Apex Court cited supra seem to have not been brought to the notice of this Court while deciding Criminal Petition No.8601/2008, inasmuch as, they are not adverted to during the course of the order passed in the said matter. If the date of filing of the complaint is taken into consideration in the matter on hand, the same is undisputed)" within the time prescribed. The complaint is filed immediately after the inspection by the vigilance squad and it's report. As aforementioned, the Apex Court in the afore cited judgments has ruled that the crucial date for computing the date of limitation is the date of filing of the complaint and not the date when the Court takes cognizance of the offence. Hence, the proceedings in this matter are in accordance with law and are to be disposed of on merits. Consequently the same cannot be interfered with. No other point is urged by the petitioner's Counsel. Accordingly, the petition fails and the same is dismissed. However, it is made clear that non-bailable warrant issued against the petitioner stands suspended for a period of ten weeks from today. In the meanwhile, the petitioner shall appear before the Court below and take necessary steps in accordance with law.