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Meghalaya High Court · body

2022 DIGILAW 97 (MEG)

H. R. Shylla v. State of Meghalaya

2022-04-25

W.DIENGDOH

body2022
JUDGMENT 1. Vide order dated 21.02.2022, the learned Special Judge (POCSO), Shillong, on consideration of the application filed by the petitioner herein invoking the provision of Section 468 Cr.P.C with a prayer to dispose of the matter under consideration was disallowed and has directed that the matter connected to POCSO Case No. 107 of 2019 be proceeded. 2. Being highly aggrieved and dissatisfied with the said impugned order, the petitioner has approached this Court with an application under Section 482 Cr.P.C with a prayer to quash the proceedings therein. 3. Heard Mr. S. Kumar, learned counsel for the petitioner who has submitted that an FIR was lodged on 06.01.2017 before the Officer-in-Charge, Laitumkhrah Police Station by one Smti. Angela Rangad and the same was accordingly registered as Laitumkhrah P.S. Case No. 02(01) of 2017 under Section 21 of the POCSO Act, 2012 read with Section 166-B IPC. The matter was investigated into and the Investigating Officer has finally submitted the Final Form/Report under Section 173 Cr.P.C on 18.06.2018 after a lapse of more than one year five months and twelve days. 4. The learned Special Judge took cognizance of the same and had accordingly issued summons to the petitioner/accused to appear before the said Court. The matter then proceeded for framing of charge and is now at the stage of evidence. 5. In the meantime, as stated above, the petitioner filed petition dated 18.01.2022 pointing out that from the date of the alleged offence and the registration of the Laitumkhrah P.S. Case No. 02(01) of 2017 till the date the charge sheet was filed, a period of about more than a year had lapsed and as such, the period of limitation has accordingly expired as provided under Section 468 Cr.P.C and as such, the matter should not proceed and all proceedings related thereto should have been put to an end. However, the learned Special Court ignoring this mandatory provision has passed the impugned order denying the claim of the petitioner. 6. Mr. Kumar has further submitted that without going to the merits of the case before the learned Special Court, the point of law as indicated above is put forth before this Court, the decision thereof would eventually have an impact on the case as a whole. 7. In this regard, Mr. 6. Mr. Kumar has further submitted that without going to the merits of the case before the learned Special Court, the point of law as indicated above is put forth before this Court, the decision thereof would eventually have an impact on the case as a whole. 7. In this regard, Mr. Kumar has cited the following cases in support of his contention: i) State of Punjab v. Sarwan Singh: (1981) 3 SCC 34 , paragraph 3. ii) Moti Pathak & Ors v. State of U.P: (1988) 2 Crimes 659, paragraphs 10 & 11. iii) State of H.P v. Tara Dutt & Anr: (2000) 1 SCC 230 , paragraphs 3 & 7. 8. Mr. R. Gurung, learned GA appearing for the State respondents has supported the impugned order and has submitted that the learned Special Judge has not committed any error in passing the said order, inasmuch as, the issue of consideration of Section 468 Cr.P.C should have been taken only at the stage of framing of charge, whereas in the case before the said Special Judge, the matter has already proceeded to the stage of evidence and as such, the petitioner could not have approached the learned Special Court with the said application under Section 468. In support of his submission, the case of Arun Vyas & Anr. v. Anita Vyas: (1999) 4 SCC 690 , paragraph 8 was relied upon in this regard. 9. Due consideration has been given to the submissions and contentions of the parties. However, before proceeding further, it would be appropriate to note the nature of the case before the Special Court. The FIR has indicated that a victim of a gang rape that occurred on 01.01.2017 had gone to Woodland Hospital Emergency Unit on 03.01.2017 accompanied by the informant, however it was alleged that they were turned away by the hospital authorities, particularly the petitioner herein who, as a doctor has refused to examine the victim and to report the matter to the police. As pointed out, a case under Section 21 of the POCSO Act read with Section 166 (B) IPC was duly registered. The punishment for the offences stated above is imprisonment for a term which may extend to one year and a fine. 10. Section 468 Cr.P.C provides as follows: '468. As pointed out, a case under Section 21 of the POCSO Act read with Section 166 (B) IPC was duly registered. The punishment for the offences stated above is imprisonment for a term which may extend to one year and a fine. 10. Section 468 Cr.P.C provides as follows: '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.]' 11. On consideration of the application of Section 468 Cr.P.C in the case of the petitioner, it can be seen that the provision of Clause (b) of sub-Section (2) of Section 468 would be applicable. 12. Coming to the case of the petitioner, from the records, it is noticed that the learned Special Judge had taken cognizance of the matter upon the I/O filing of the charge sheet and has proceeded as per procedure that is, framing of charge and examination of prosecution witnesses, which is the stage at which the case is at present. 13. The learned GA while citing the case of Arun Vyas (supra) has particularly relied on portions of paragraph 8 which reads as follows: '8. ......Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 CrPC, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of the trial......' 14. ......Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 CrPC, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of the trial......' 14. In reply to this contention, the petitioner while referring to the case of Sarwan Singh (supra) at paragraph 3, wherein the Hon'ble Supreme Court in its observation on the applicability of Section 468 Cr.P.C in the proceedings has held that '.......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...... The object which the statutes seek to subserve 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.....' The Hon'ble Supreme Court in the case under consideration applying the provision of Section 468 Cr.P.C has set aside the conviction and sentence of the respondent therein. 15. Another aspect of the matter is the applicability of Section 473 Cr.P.C which section empowers any Court to take cognizance of an offence after the expiry 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 to do so in the interest of justice. 16. The Hon'ble Supreme Court in the case of Tara Dutt (supra) at paragraph 7 while emphasizing on the import of Section 473 Cr.P.C vis-a-vis Section 468 Cr.P.C has held that the Court has the discretion to apply the provision of Section 473 relatable to Section 468, however this discretion has to be exercised judicially and on well recognized principles. The Court while deciding in the matter has to be satisfied that the delay has been properly explained and that condonation of the same was in the interest of justice, however the same has to be by way of a speaking order. 17. The Court while deciding in the matter has to be satisfied that the delay has been properly explained and that condonation of the same was in the interest of justice, however the same has to be by way of a speaking order. 17. In the case in hand, there is nothing on record to show that the Special Court while disallowing the petition of the petitioner under Section 468, had applied the provision of Section 473 to condone the delay and even so, if the delay was indeed condoned, in the absence of an application by the prosecution followed by a well-reasoned order, it is evident that resort was not taken to by the learned Special Court in this regard. 18. In view of the observation made above, this Court is of the opinion that this petition has merit and accordingly, the inherent power of this Court to prevent abuse of the process of the Court has to be resorted to for the same to be allowed. 19. In the event, the impugned order is hereby set aside and quashed and the corresponding proceedings of POCSO Case No. 107 of 2019 are hereby quashed. 20. Petition disposed of. No cost.