Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 661 (GUJ)

Nishant Deshdipak Varma v. State of Gujarat

2015-07-03

V.M.SAHAI

body2015
JUDGMENT V.M. Sahai, Actg. C.J. 1. By way of the present petition, the petitioner has challenged the order dated 7.2.2015 passed by the learned Additional Sessions Court, Ahmedabad (Rural) in Criminal Revision Application No. 102 of 2014 as well as the order dated 30.6.2014 passed by learned JMFC, Ahmedabad (Rural) in Criminal Inquiry No. 61 of 2014. 2. The facts of the case in brief are that the petitioner filed a written complaint on 11.4.2014 before Ranip Police Station alleging offences punishable under Sections 181, 191, 193, 196, 199, 406, 409, 420, 114 & 120-B of the Indian Penal Code stating therein that in the affidavit filed by respondent No. 2 along with the nomination paper for the Legislative Assembly Election, 2012, in the column of spouse, the respondent No. 2 has not filled the name of his wife and has kept the same blank and hence, the said affidavit is false and there is suppression of fact. However, in the nomination paper for the general elections of Lok Sabha in the year 2014, the respondent No. 2 has mentioned the name of his wife in the column of spouse in the affidavit. Hence, the petitioner has complained that the respondent No. 2 has not submitted correct and true facts while filling the nomination paper and hence, suitable action be taken against him. 2.1 It is the case of the petitioner that since Ranip Police authority has not taken any step pursuant to his complaint dated 11.4.2014, the petitioner filed Criminal Inquiry No. 61 of 2014 on 16.4.2014 before the learned JMFC, Ahmedabad (Rural) seeking registration of FIR against the respondents. The learned JMFC on 16.4.2014 directed the Police to file report for the actions taken till 5.5.2014. 2.2 That on 30.6.2014, the learned Magistrate after considering the material available on the record held that the respondent No. 2 has committed the offence under Section 125-A(3) of the Representation of People Act, 1951. However, as per Section 468 of Code of Criminal Procedure, 1973, the period of limitation is provided of one year and since the petitioner has filed the complaint after one year and four months, no cognizance can be taken and hence, the complaint filed by the petitioner was dismissed. However, as per Section 468 of Code of Criminal Procedure, 1973, the period of limitation is provided of one year and since the petitioner has filed the complaint after one year and four months, no cognizance can be taken and hence, the complaint filed by the petitioner was dismissed. 2.3 Being aggrieved by the dismissal of the complaint only on the ground of delay, the petitioner has preferred Criminal Revision Application No. 102 of 2014 wherein the learned Sessions Court has issued notice only to respondent No. 1 - State of Gujarat. Since the learned Sessions Judge did not issue notice to respondent Nos. 2 and 3, the petitioner preferred an application on 22.9.2014 for issuance of notice to the respondent Nos. 2 and 3 under Section 401(2) of Cr.P.C. However, the said application was rejected vide order dated 10.10.2014 by the learned Additional Sessions Judge, Ahmedabad (Rural). Against the said order, the petitioner preferred Special Criminal Application (Quashing) No. 4515 of 2014 under Article 227 of the Constitution of India. This Court vide judgment and order dated 11.12.2014 rejected the petition and directed that revision shall be decided on its own merits without being influenced by any of the observations made in the said judgment. 2.4 Thereafter, on 7.2.2015, the learned Additional Sessions Judge, Ahmedabad (Rural) dismissed Criminal Revision Application No. 102 of 2014 and set aside the finding of Magistrate that the respondent No. 2 had committed the offence under Section 125A(iii) of the Representation of People Act, 1951. Hence, the petitioner has preferred the present petition challenging the orders of learned Magistrate and the Revisional Court. 3. I have heard Mr. K.R. Koshti, learned counsel appearing for the petitioner and Mr. Kamal B. Trivedi, Advocate General with Mr. P.K. Jani, Additional Advocate General assisted by Mr. Mitesh Amin, learned Public Prosecutor with Mr. R.C. Kodekar, learned Additional Public Prosecutor for the respondent No. 1 - State of Gujarat. I have also gone through the orders passed by the Courts below and the documents produced along with the petition as well as the English translation of the documents and judgments which were in vernacular. The translated documents which were in vernacular were supplied to the learned counsel appearing for the parties on 26.6.2015. 4. Mr. I have also gone through the orders passed by the Courts below and the documents produced along with the petition as well as the English translation of the documents and judgments which were in vernacular. The translated documents which were in vernacular were supplied to the learned counsel appearing for the parties on 26.6.2015. 4. Mr. K.R. Koshti, learned counsel appearing for the petitioner has submitted that the learned Magistrate has though observed that the respondent No. 2 has committed the offence under Section 125A(iii) of the Representation of People Act, 1951, has dismissed the complaint observing that there is delay of one year and four months from the date of offence took place on 30.11.2002. He urged that the petitioner came to know about the commission of offence only on 10.4.2014 when the respondent No. 2 filled up his nomination papers for Lok Sabha Elections from Vadodara constituency and hence, the limitation starts from the date of knowledge of the offence. 4.1 Mr. Koshti has urged that the learned Magistrate has recorded a finding that offence under Sec. 125A[iii] has been found to have been proved. However, he has dismissed the compliant on the ground of limitation under clause (b) of sub-section (2) of Section 468 of the Code of Criminal Procedure. The said order passed by the learned Magistrate has been affirmed by the learned Sessions Judge. Mr. Koshti has further urged that under Section 469 of the Criminal Procedure Code, limitation for filing a complaint would commence from the date of knowledge of the offence and not from the date when the offence was committed. 4.2 Mr. Koshti lastly urged that in view of Section 40 of the Indian Penal Code, Section 468 of Code of Criminal Procedure, 1973 would not be applicable to the Representation of the People Act, 1951, which is a special law and the offences under it will be governed by its own rules and procedures. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of P.P. Unnikrishnan and another vs. Puttriyottil Alikutty and another, reported in AIR 2000 SC 2952 . 5. On the other hand, Mr. In support of his submission, he has placed reliance on the decision of the Apex Court in the case of P.P. Unnikrishnan and another vs. Puttriyottil Alikutty and another, reported in AIR 2000 SC 2952 . 5. On the other hand, Mr. Trivedi, learned Advocate General has vehemently urged that the alleged offence is said to have been committed on 30th November, 2012 whereas private complaint has been filed by the petitioner on 11th April, 2014 with Ranip Police Station and on 16th April, 2014 complaint was filed before the Magistrate. According to him, even the complaint lodged with the police as well as the Magistrate both were time-barred as they were filed beyond the period of one year and therefore, bar of clause (b) of sub-section (2) of Section 468 read with Section 469(1)(a) would be applicable and the limitation would start running from the date on which the offence is alleged to have been committed. Learned Advocate General placed reliance on the unreported decision of the Apex Court in Criminal Appeal No. 1478 of 2010 in the case of Johnson Alexander vs. State by C.B.I. A.C.B. decided on 26.2.2015. On the strength of this decision, the learned Advocate General has urged that since there is no whisper in the complaint as to when the complainant acquired knowledge about the defect in the affidavit and when he detected the offence of concealing of information, the Court cannot assume that the petitioner acquired knowledge for the first time on 10.4.2014. He has, therefore, submitted that no interference is called for as the impugned orders are well founded on both law and on facts. 6. It would be profitable to reproduce Section 125A of the Representation of People Act, 1951 and Sections 468 and 469of the Code of Criminal Procedure, 1973 which read as under:- "125A. Penalty for filing false affidavit, etc. 6. It would be profitable to reproduce Section 125A of the Representation of People Act, 1951 and Sections 468 and 469of the Code of Criminal Procedure, 1973 which read as under:- "125A. Penalty for filing false affidavit, etc. A candidate who himself or through his proposer, with intent to be elected in an election (i) fails to furnish information relating to sub-section (1) of section 33A; or (ii) gives false information which he knows or has reason to believe to be false; or (iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both." "468. Bar to taking cognizance 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. Commencement of the period of limitation. 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 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 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." 7. The allegation made by the complainant in his complaint dated 11.4.2014, if proved, provides for punishment with imprisonment for a term which may extend to six months or with fine or with both. Section 468 Cr.P.C. provides for bar to taking cognizance after the lapse of period of limitation. Sub-section (2) of Section 468 lays down the period of limitation. Clause (b) of sub-section (2) of Section 468 would be applicable to offences under Section 125A of the Representation of People Act, 1951 and for taking cognizance of the matter, a complaint or FIR should have been filed within a period of one year from the date on which the alleged offence is said to have been committed. In the instant case, the allegations are that the respondent No. 2 filed a false affidavit on 30.11.2012. An affidavit in Form 26 which is appended to the conduct of Election Rules, 1961, before the Election Officer for contesting as a candidate, for the election of Legislative Assembly from 53 - Maninagar area. Therefore, a complaint or an FIR could be lodged within a period of one year from 30.11.2012 which is the starting point of limitation as laid down by Section 469(1)(a) Cr.P.C. and the limitation would come to an end on 29.11.2013. Therefore, a complaint or an FIR could be lodged within a period of one year from 30.11.2012 which is the starting point of limitation as laid down by Section 469(1)(a) Cr.P.C. and the limitation would come to an end on 29.11.2013. After 29.11.2013, no cognizance can be taken by the Court as period of one year provided by clause (b) of sub-section (2) of Section 468 Cr.P.C. bars the Court from taking cognizance of complaints or FIR after the expiry of period of limitation. In the instant case, the complaint has been lodged by the petitioner on 11.4.2014 against the respondents with regard to filing of false affidavit on 30.11.2012. The complaint was clearly barred by limitation and no Court could have taken cognizance of such complaint after a period of one year. I am of the considered opinion that the complaint filed by the petitioner on 11.4.2014 was barred in view of the provisions of clause (b) of sub-section 2 of Section 468 Cr.P.C. and the judgment and orders of the Courts below is just and legal and do not call for any interference by this Court. 8. An application for condoning the delay in filing the complaint has to be filed by the complainant along with the complaint or reasons for delay has to be explained in the complaint before the learned Magistrate. In the complaint, there is no whisper or explanation about the delay in filing the complaint beyond a period of one year from the date the offence is alleged to have taken place nor any reason has been assigned in the complaint for filing the complaint after a period of one year though Section 468(2)(b) Cr.P.C. bars a complaint beyond a period of one year. 9. In a recent decision, the Apex Court in Criminal Appeal No. 1478 of 2010 decided on 26.2.2015 in the case of Johnson Alexander v. State By CBI ACB, has held as under:- "The said contention has been strongly rebutted by Mr. Rajiv Nanda, learned counsel for the respondent - CBI. Placing reliance on Section 473 Code of Criminal Procedure to substantiate his contention that the Court may take cognizance after the expiry of limitation, if it is satisfied on the facts and circumstances of the case and the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice. Placing reliance on Section 473 Code of Criminal Procedure to substantiate his contention that the Court may take cognizance after the expiry of limitation, if it is satisfied on the facts and circumstances of the case and the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice. The learned Special Judge, CBI in C.C. No. 115/2001 after satisfying that the delay in filing complaint and registered the FIR because the credible information was received by the CBI just few days prior to the date of lodging the complaint/FIR against the Appellant i.e. on 21.9.1999, therefore, the delay caused in filing the complaint and registering the FIR has been satisfactorily explained by the respondent prosecution and rightly exercised the power by the learned Special Judge and taken cognizance of the offence against the Appellant and Ors. And proceeded with the matter. This contention of the Learned Counsel for the CBI cannot be accepted by this Court for the reason that if the complaint is filed beyond one year, the delay must be satisfactorily explained by the complainant. The delay caused in filing such belated complaint by the Respondent must be satisfactorily explained either in the complaint or by filing an application giving satisfactory reasons. Such explanation regarding the delay caused in filing the complaint is not given by the Respondent prosecution along with the FIR, therefore, the contention urged on behalf of the Learned Counsel for the Respondent in this regard cannot be accepted by this Court." (emphasis supplied) The principles laid down by the Apex Court in Johnson Alexander's case is squarely applicable to the facts of this case and the complaint filed by the complainant without there being any application for condoning the delay or any mention in the complaint giving satisfactory reason for condoning the delay, the complaint filed by the petitioner was clearly barred by limitation provided in clause (b) of sub-section (2) of Section 468 Cr.P.C. The Parliament in Section 468 Cr.P.C. has created a right in favour of the accused, but it is curtailed by Section 469 and 470 Cr.P.C. Section 469 of Cr.P.C. specifically says that the period of limitation in relation to an offence shall commence either from the date of offence or from the date when the offence is detected. In other words, according to Section 469, the period of limitation prescribed in Section 468commences either on the date of the offence or when the commission of the offence was not known to the complainant, on the first day on which such offence came to his knowledge. From a bare perusal of the complaint, it is clear that the complainant in his private complaint had not averred specifically that on which date, the appellant came to know of the commission of offence. Therefore, the complaint was barred under clause (b) of sub-Section (2) of section 468 Cr.P.C. 10. From the aforesaid decision of the Apex Court, the law is clear that where belated complaint is filed, then, satisfactory explanation has to be furnished by the complainant either in the complaint or by way of separate application. The complainant had to plead specifically in the complaint that he has acquired knowledge for the first time on which date. In absence of any pleading, the Court cannot infer or presume that the complainant had acquired knowledge of the offence for the first time. Any fact stated by the complainant in the revision application or in the affidavit or any material filed before the revisional court is of no consequence. So far as the argument of learned counsel for the petitioner that in view of Section 40 of the IPC, the Code of Criminal Procedure, 1973 will not apply to the proceedings under Section 125A(iii) of the Representation of the People Act, 1951 cannot be accepted as in my opinion, the procedure prescribed under the Code of Criminal Procedure, 1973 would be applicable to the cases where offence is alleged to have been committed under Section 125A(iii). 11. It is well settled that when proceedings are time-barred, no observation on merits can be made by the Court and observation made by the Magistrate that offence under Section 125A(iii) is proved against accused No. 1 was uncalled for and ought not to have been made. The observation of the Magistrate has rightly been set aside by the revisional Court. 12. For the reasons given above, I do not find any error in the order dated 7.2.2015 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Criminal Revision Application No. 102 of 2014. This petition fails and is accordingly dismissed.