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Jharkhand High Court · body

2011 DIGILAW 1050 (JHR)

S. Seshadri v. State of Jharkhand

2011-11-29

R.R.PRASAD

body2011
Order 1. Both these revision applications are directed against the order dated 20.1.2010 passed by the Sub-divisional Judicial Magistrate-cum-Special Judicial Magistrate (C.B.I), Ranchi in R.C.No.5 of 1973 whereby prayer made by the petitioners to discharge them from the case on amongst other on the ground that the cognizance taken against the petitioners on 25.4.1978 is barred by limitation. 2. The facts giving rise these revision applications are that on 29.4.1970 Inspectorate of Armaments, Ranchi sent 37 drawings pertaining to Recoil System and Recoil Indicator 105/53 I.A of Vijayant Tank to the Commercial Manager of the H.E.C, vide its secret letter dated 29.4.1970 with a view to explore possibility of manufacturing the components. In that process of exploring possibilities of manufacturing the components three drawings out of 37 got lost. When the matter was reported to the C.B.I, the case was registered in the Ranchi Branch of the police establishment for investigation. During investigation, it was detected that it was the petitioner, S. Seshadri, who was posted as Junior Sales Engineer (C & F) in H.E.C as well as the other petitioner, K.L.Dutta posted as Sales Manaer in the Commercial Division of H.E.C were responsible for the theft of those drawings. Accordingly, complaint was lodged on 29.3.1978 alleging therein that the petitioners have committed offence under Section 5(4) read with Section 5(1)(d) of the Official Secret Act, 1923. On sanction being accorded by the competent authority, cognizance of the offence was taken on 25.4.1978. 3. Being aggrieved with that order, an application was filed before the court below to recall the order taking cognizance as the same was time barred but the prayer made by one of the petitioners was rejected. Thereupon the petitioner Kunja Lal Gupta moved before this Court in Cr. Misc. No.6558 of 1980. The Court having found that the order in terms of Section 473 of he Code of Criminal Procedure has been passed without hearing the petitioner, disposed of the case directing the court concerned to examine the question of limitation afresh as well as legality of the cognizance at the stage of framing the charge. That order was challenged before the Supreme Court by the C.B.I, vide S.L.P (Cr.) No.2183 of 1982 which was dismissed on 7.10.1983. Thereafter the prosecution before charge examined seven witnesses. That order was challenged before the Supreme Court by the C.B.I, vide S.L.P (Cr.) No.2183 of 1982 which was dismissed on 7.10.1983. Thereafter the prosecution before charge examined seven witnesses. Upon closure of the prosecution evidence before charge, an application was filed under Section 239 of the Code of Criminal Procedure for discharging the petitioners from the case on the ground that sufficient materials are not there for framing charge and also challenged the order taking cognizance being barred by limitation. That application was dismissed, vide order dated 21.1.2010 by holding that sufficient materials are there for framing charge. At the same time, the court on the point of limitation passed an order for condonation of delay in the interest of justice by exercising power under Section 473 of the Code of Criminal Procedure . That order has been challenged in these two applications. 4. Learned counsel appearing for the petitioners submits that the order under which cognizance of the offence has been taken against the petitioners is barred by limitation as first information report had been lodged on 6.7.1973 for the offence which occurred in the year 1970 and the cognizance of the offence under Section 5(4) read with Section 5(1)(d) of the Official Secret Act, 1923 has been taken on 25.4.1978 which is beyond three years and as such, it is barred by limitation by virtue of the provision as contained in Section 468 of the Code of Criminal Procedure. 5. As against this, learned counsel appearing for the C.B.I would submit that though first information report had been lodged for the commission of the offence of theft in the year 1973 but the offenders (petitioners) could only be identified on 17.8.1974. Upon the culprits being identified, permission was sought by the competent authority on 9.12.1974 for according sanction for prosecution which was accorded on 21.3.1978 and immediately thereafter complaint was lodged on 29.3.1978, upon cognizance of the offence was taken on 25.4.1978. 6. It was further submitted that though more than three years was consumed by the department but that period in terms of the provision as contained in Section 470(3) of the Code of Criminal Procedure needs to be excluded for the purpose of counting limitation. 7. 6. It was further submitted that though more than three years was consumed by the department but that period in terms of the provision as contained in Section 470(3) of the Code of Criminal Procedure needs to be excluded for the purpose of counting limitation. 7. Section 473 of the Code of Criminal Procedure empowers the court with wide discretion to take cognizance of an offence notwithstanding the fact that the action is otherwise barred by limitation by virtue of Section 468 read with Section 469 of the Code of Criminal Procedure on two grounds namely, (i) that the delay has been satisfactorily explained having regard to the facts and circumstances of the case and (ii) it is necessary so to do in the interest of justice. 8. In the instant case, as it appears from the impugned order that no explanation was pressed into service for explaining the delay caused in filing the complaint. However, the court condoned the delay as according to it, it was necessary to do in the interest of justice but no reason has been assigned as to why it was necessary to do so whereas the court was required to pass speaking order in this regard. 9. In this context, I may refer to a decision rendered in a case of State of Himachal Pradesh vs. Tara Dutta and another ( AIR 2000 SC 297 ) wherein it has been observed as follows: “Section 473 confers power on the court taking cognizance after 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 it is necessary so to do in the interest of justice. Obviously, therefore, in respect of an offence for which period of limitation has been provided in Section 468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the court has to be exercised judicially and on well recognized principles. This being the discretion conferred on the court taking cognizance wherever the court exercises this discretion, the same must be by a speaking order (emphasis laid by me) . 10. This discretion conferred on the court has to be exercised judicially and on well recognized principles. This being the discretion conferred on the court taking cognizance wherever the court exercises this discretion, the same must be by a speaking order (emphasis laid by me) . 10. But in the instant case, as I have noted above that no reason has been assigned as to why it was necessary for the ends of justice to condone the delay and as such, the impugned order in view of the aforesaid decision of the Hon’ble Supreme Court certainly suffers from illegality. 11. However, before this Court a plea has been taken that the period during which the matter was pending for consideration for according sanction for the prosecution needs to be excluded for the purpose of counting limitation. 12. In this respect, it be noted that no explanation whatsoever has been given in the counter affidavit as to why more than three years were consumed in according sanction for prosecution. However, relevant record was placed before me to substantiate the plea that the matter was pending before an appropriate authority. On examination of the records which were produced before the court, I did not find any significant fact which could have legitimately explain the delay caused in granting sanction. On the contrary, I do find that at number of times, the reminder was given for according sanction but the authority does not seems to have cared for that. Therefore, I do not find any reasonable explanation for taking so much time in according sanction. 13. Under this situation, the plea advanced on behalf of the C.B.I that time consumed by the authority in granting sanction is required to be excluded is not acceptable. 14. So far submission relating to grant of sanction before launching prosecution seems to be based on the provision as contained in sub-section (3) of Section 13 of the Code of Criminal Procedure which reads as follows: “ No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the Appropriate Government or some officer empowered by the Appropriate Government in this behalf.” 15. Similar question fell for consideration before the Hon’ble Supreme Court in a case of Rakesh Kumar Jain vs. State through C.B.I, New Delhi ( AIR 2000 SC 2754 ) whereby the Hon’ble Court after taking notice of the provision as contained in sub-Section (3) of Section 13 did observe as follows: “ Sub-section (3) provides that cognizance of offence under the Act can be taken only upon complaint which is (a) filed by order of appropriate Government; or (b) filed under authority from the appropriate Government; or (c) by some officer empowered by the appropriate Government. No consent or sanction of the Government or any authority, as contemplated by Explanation to sub-section (3) of Section 470, Cr.P.C, is required for filing the complaint under the Act. ‘Consent’ or ‘sanction’ envisaged under Section 470, Cr.P.C cannot be equated with the ‘order’ or ‘authority’ for the purposes of filing the complaint as envisaged by sub-section (3) of Section 13 of the Act. Specific provisions have been made in various statutes requiring previous consent or sanction for the purposes of launching of prosecution against the accused under those enactments. Explanation to sub-section (3) of Section 470, Cr.P.C obviously refers to such consents and sanctions and not the order or authority as required under the Act. “16. Having observed the court came to following conclusion as recorded in paragraph 9 of the said judgment which reads as under: “We, therefore, agree with the submissions made by Mr. Bahuguna that no sanction or consent is provided to be taken from the Government under Section 13(3) of the Act and the period spent in obtaining the orders for filing the complaint cannot be excluded under Explanation to sub-section (3) of Section 470, Cr.P.C.” 17. Bahuguna that no sanction or consent is provided to be taken from the Government under Section 13(3) of the Act and the period spent in obtaining the orders for filing the complaint cannot be excluded under Explanation to sub-section (3) of Section 470, Cr.P.C.” 17. Notwithstanding the conclusion which the court arrived at it was held that the accused is not entitled to seek his discharge under Section 245 of the Code of Criminal Procedure, simply for the reason that complaint was filed 25 days after the expiry of the period of limitation for the reason that the complainant has, under law, a right to seek for extension of time under Section 473 of the Code of Criminal Procedure and therefore, the complainant could satisfy the Magistrate on the facts and circumstances of the case that the delay was explainable which has occasioned on account of their bona fide belief to obtain the sanction for the purpose of filing the complaint. 18. Here, in the instant case, this plea could be available to the complainant that under the bona fide belief of obtaining the sanction for the purpose of filing the complaint, sanction was sought which was granted after more than three years for which no explanation what to say about the reasonable explanation could be afforded with either before the court below or before this Court. However as I have stated above on examining of the relevant record which was produced on behalf of the C.B.I for its examination, nothing significant was found which could have bearing on the excuses of decision being taken delayedly and as such, nothing could be noted about any valid reason in consuming time in granting sanction in spite of the fact that the authority was reminded time to time for granting sanction. Therefore, it can easily be held that there has been no reasonable explanation of the delay in filing the complaint. However, before parting with this order once again it is to be noted that occurrence is of the year 1970 for which first information report was lodged in the year 1973 and as such, there has already been inordinate delay and in such situation, if the proceeding is allowed to be continued, the petitioners would be denied right to speedy trial which is inalienable right under Article 21 of the Constitution of India. 19. 19. Here at this juncture, I may refer to a case of Vakil Prasad Singh vs. State of Bihar [(2009) 14 SCC 3] wherein it has been observed as follows: “It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial. “ 20. Here in the instant case, before the charge could be framed, 38 long years have already got elapsed in a case where no reasonable explanation for condonation of delay has been pressed into service on behalf of the prosecution and as such, order taking cognizance of the offence is held to be barred by limitation. 21. Accordingly the order dated 20.1.2010 under which cognizance of the offence has been taken is hereby set aside. 22. In the result, both the applications are allowed.