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2011 DIGILAW 343 (GAU)

Gauri Kanta Borah v. State of Assam

2011-04-18

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. By this application, the petitioner has challenged the impugned order dated 19.07.03, by which the learned Chief Judicial Magistrate, Dhubri, took cognizance for the commission of offence alleged under Section 448/342/323 IPC, in connection with G. R. Case No. 167/2001. 2. The facts leading to the filing of this revision petition may be stated in brief as follows:- 3. The petitioner was serving as Police Officer, of Gauripur Police Station on 21.08.95. During that period 'All Assam Students Union (in short AASU) had called for 12 hours Assam Bandh and on that day the petitioner accompanied by police force was on duty to maintain law and order situation. On the date of occurrence, some students of the locality tried to close down some shops and establishments and started quarrelling with the owners of the shops and commercial establishment. Accordingly, on reaching the place of occurrence, the petitioner arrested one Sri Pran Gobinda Sana and took him to the Police Station, for interrogation and after due interrogation released him from the Police Station. 4. In the meantime, Pran Gobinda Saha filed a complaint before the National Human Rights Commission alleging assault and confinement by the petitioner. The Human Rights Commission directed the Director General of Police, Assam to enquire about the matter. The Director General of Police, Assam, thereafter directed the Superintendent of Police, Dhubri to make an enquiry into the allegations made against the petitioner and to submit a report. An enquiry was made regarding the allegation and report thereto was also submitted. On careful perusal of the report, the Director General of Police, Assam, prima facie being satisfied with the allegations against the petitioner to be false, closed the proceedings against the petitioner. 5. However, on 01.11.2011 an FIR was lodged by Mr. B. Goswami in Gauripur Police Station against the petitioner alleging commission of offence under Section 448/342/323 IPC. Mr. B. Goswami was posted as Officer-in-charge of Gauripur P. S. at the relevant time. Apparently, the FIR was filed after 6 years from the date of occurrence. After filing of the FIR, the police launched investigation and submitted charge sheet alleging commission of offence under Section448/342/323 IPC against the petitioner. When the case was forwarded to the Court of the learned Chief Judicial Magistrate, Dhubri, where the learned trial Court took cognizance of the offence under Section 448/342/323 IPC. After filing of the FIR, the police launched investigation and submitted charge sheet alleging commission of offence under Section448/342/323 IPC against the petitioner. When the case was forwarded to the Court of the learned Chief Judicial Magistrate, Dhubri, where the learned trial Court took cognizance of the offence under Section 448/342/323 IPC. The petitioner has challenged the order of taking the cognizance by the Court after expiry of the limitation as prescribed under Section 468 CrPC. 6. As per the provision of Section 468 CrPC, no Court shall take cognizance of an offence after the expiry of the period of limitation, and 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. The learned counsel for the petitioner has pointed out that since the offence alleged against the petitioner under Section 448/323/342 IPC which are punishable with maximum period of sentence of one year, the period of limitation for taking cognizance shall be one year from the date of commission of the offence. The learned counsel while referring to the provision of Section 469 CrPC has contended that the period of limitation, in relation to an offence alleged shall commence on the date of occurrence or 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. 7. In support of his contention, the learned counsel for the petitioner has referred to a decision of the Supreme Court in State of Rajasthan Vs. Sanjay Kumar & Ors. reported in (1998) 5 SCC 82 , wherein the Hon'ble Supreme Court has observed that, on a plain reading of the provision of 468 CrPC three alternative starting points of limitation have been specified - (a) the date of the offence; (b) the first day on which an offence came to the knowledge of the person aggrieved by the offence or to any police officer, whichever is earlier, in a case where the commission of the offence was not known to any of them. In this context, it would be appropriate to quote Section 469 CrPC, which deals with commencement of the period of limitation together with the observation made by the Hon'ble Supreme Court, in State of Rajasthan Vs. Sanjay Kumar (supra) which reads as follows:- Section 469. Commencement of the period of limitation,- (1) The period of limitation, in relation to an offender, 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 pay 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 identify 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. A plain reading of the provision extracted above shown that in sub-section (1) three alternative starting points of limitation have been specified- (a) the date of the offence; (b) the first day on which an offence came to the knowledge of the person aggrieved by the offence or to any police officer, whichever is earlier, in a case where the commission of the offence was not known to any or them, or (c) 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, but this can be called in aid in a case where it is not known by whom the offence was committed. Basically from the date of the offence the period of limitation will start but there will be cases where the commission of offence or identity of the offender comes to the knowledge of those concerned with it long thereafter so in such situation clauses (b) and (c), as the case may be, would be the date of commencement of the period of limitation. 8. 8. Though the trial Court has ample power to extend the period of limitation by condoning the delay as per provision of Section 473 of CrPC, but this power is required to be exercised by specifically indicating the reason for which it is necessary to do so in the interest of justice. However, such exercise of power under Section 473 by the trial Court cannot be presumed, if the order of the Court is silent In the instant case, apparently, there was inordinate delay in taking cognizance of the offence. But neither the first informant explained the reason for filing an FIR after 5 years of occurrence, nor the trial Court at the time of taking cognizance examined the delay and condoned it. In Zandu Pharmaceuticals Works Ltd. & Ors. Vs. Mohd. Sharaful Haque & Ann reported in (2005) 1 SCC 122 , Hon'ble Supreme Court observed that the Court should not have taken cognizance of the offence after expiry of the period of limitation as prescribed Section 468 CrPC and this power to condone the delay under Section 473CrPC can be exercised only when the Court is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. 9. Section 473 CrPC, no doubt, has given ample power to the Courts to take cognizance even after the drift of statutory period. However, this discretion can be exercised only after completion of requirement laid down therein. The situation is that the Court must be satisfied on facts that the delay has been adequately explained by the prosecution or extension of time is necessary in the interest of justice. These two fundamentals are sine qua non to extend the period of limitation. 10. The law in this regard has been coherently laid down in case of State of Punjab Vs. Sarwan Singh reported in (1981) 3 SCC 34 . These two fundamentals are sine qua non to extend the period of limitation. 10. The law in this regard has been coherently laid down in case of State of Punjab Vs. Sarwan Singh reported in (1981) 3 SCC 34 . The relevant explanation of the Apex Court made in this can be rewardingly extracted below for assistance:- the object of the Criminal Procedure Code 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 abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statutes seek to sub serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation 11. In the case of State of H.P. Vs. Tara Dutt & Anr. (2000) 1 SCC 230 , the Apex Court held that the discretion bestowed on the Court has to be worked out judicially and on well documented principles. It has been further observed that if the Court exercises its discretion, it should be by a speaking order demonstrating approval of the Court that the delay was adequately explained and condonation of the same was in the interest of justice. 12. In the instant, no explanation whatsoever has been given for not filing the complaint in time. It is not a case here that the offence was not detected earlier. Technically, the FIR ought to have been lodged immediately after the occurrence. However, there is no satisfactory explanation for not filing the complaint for long 5 years. In this way, it is a case of gross negligence and latches on the part of the complaint in initiating the criminal action, which is inexcusable on facts as well as in law. Keeping in mind the gross delay, it can be said if the criminal proceeding is allowed to carry on, it would amount to unpleasant misuse of the criminal justice system. 13. Keeping in mind the gross delay, it can be said if the criminal proceeding is allowed to carry on, it would amount to unpleasant misuse of the criminal justice system. 13. It is needless to say that prosecution of a person in a criminal Court steals away certain fundamental and human rights of the accused since he has to surrender under the judicial control of the Court throughout the period of criminal trial. Thus free movements of such accused persons disappear and his movements are overshadowed by judicial orders. 14. In more than a few judgments, the Hon'ble Supreme Court has held that the accused persons have fundamental right of fair and speedy trial. In the case of Common Cause Vs. Union of India, (1996) 4 SCC 33 , the Hon'ble Supreme Court has authorized the Courts to discharge or acquit accused persons in the event of excessive delay in the commencement of the trial, at least in those cases where the offence is punishable upto 3 years of imprisonment. Similarly, in the case of Rajdeo Sharma (II) Vs. State of Bihar, (1999) 7 SCC 604 , the Apex Court has highlighted and has reaffirmed the right of accused persons to a speedy trial. 15. In the case at hand, the petitioner has been prosecuted long after 5 years of alleged commission of an offence. More so the police department after proper enquiry into the matter exempted and exonerated the petitioner from the alleged remiss. If this case which is hopelessly barred by limitation is allowed to proceed in the trial Court, it would be sheer abuse of the process of the Court and would be violative of law of limitation as provided under Section 468 CrPC. 16. For the reasons alluded hereinabove, I hold that the impugned order is unsustainable in law and on facts. Consequently, the criminal proceeding is hereby dropped. The revision application stands allowed. 17. Send down the LCR forth with together with a copy of this order.