(Prayer: This Criminal revision is filed under Section 397 and 401 of Cr.P.C., against the order passed by the VIII Judicial Magistrate, Coimbatore in C.M.P.No.272 of 2011 in C.C.No.21 of 2011 dated 09.02.2011.)
This revision has been directed at the instance of the sole accused in C.C.No.21 of 2011 on the file of the learned VIII Judicial Magistrate, Coimbatore as against the grant of extension of time for prosecution in C.M.P.No.272 of 2011.
2. On 25.8.2006, a road accident has been reported to the respondent police alleging that it is a case of rash and negligent driving of the accused and he has also caused injuries to the victim. The police registered a case in Cr.No.250 of 2006 under Sections 279 and 338 I.P.C. As per Sec.460 Cr.P.C., charge sheet is to be filed on or before 24.8.2009. However, it was not filed in time. Later, on 31.1.2011 final report was filed by the respondent police along with a petition in C.M.P.No.272 of 2011 under Section 473 of Cr.P.C. seeking condonation of delay caused in filing the final report in the interest of justice.
3. The learned Magistrate in the said petition, passed the following impugned order:
''Records perused. Satisfied with the documents. Further statement of MVI Sivakumar and MVI report also enclosed. Hence delay condoned may be ordered.''
4. The learned counsel for the revision petitioner/accused contended that the learned Magistrate has not followed the principles of natural justice. Although no proper reason has been given in the affidavit filed by the investigation officer, without assigning proper reason, the delay has been condoned. The impugned order is a non speaking order. Before passing the said order, no notice was given to the accused. Thus, the impugned order is vitiated. It suffers from legality and propriety.
5. In this respect, the learned counsel for the revision petitioner cited decision of this Court rendered in M.S.Jothimani vs. Inspector of Police, N.1 Royapuram Police station and another (Crl.O.P.No.1730 of 2009 dated 12.02.2009).
6. On the other hand, the learned Govt. Advocate (Crl.side) would submit that the trial Court considering the factual aspects of the case, condoned the delay in the interest of justice.
7. I have anxiously considered the rival submissions, perused the impugned order and the entire materials on record.
8. Chapter XXXVI, Code of Criminal Procedure contains the period of limitation in respect of taking cognizance of offence alleged to have been committed. The different periods of limitation has been prescribed for certain types of offences depending upon the gravity of the offence. It seeks to prescribe the limitation depending upon the nature of offence, heinous character of the offence at the most, upto 3 years has been prescribed for the period of limitation for certain category of offence with respect to which Court can take cognizance under section 192 Cr.P.C. For the purpose of limitation, date of offence has to be taken to compute the limitation period for taking cognizance. The Code also contains exclusion of time in computing the limitation period under certain circumstances investigation is not under the control of the investigation agency. The provisions to condone the delay has been made under Sec.473 Cr.P.C. and to extend the time prescribed in Sec.468 Cr.P.C.
9. It will be useful to extract Section 473 Cr.P.C. as under:
"Extension of period of limitation in certain cases:
Notwithstanding any thing contained in the foregoing provisions of this Chapter, any court may make cognizance of an offence after the expiry of the period 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 so to do in the interests of justice.''
10. The exercise of judicial discretion vested under section 473 Cr.P.C. is regulated by two considerations viz., when the delay is satisfactorily explained to the Court or it is so necessary in the interest of justice, delay can be condoned. Therefore, under these two parameters upon which the Court which has power to take cognizance, can extend the time and take cognizance on the final report filed by the investigation agency.
11. The power to be exercised by the Court under Sec.473 Cr.P.C. is judicial discretion. The reasons are live wire in the judicial orders. An order without reason is faceless order. Such an order is used to be called face of Egyptian phoenix bird. The judicial discretion has to be exercised on sound judicial principles. Judicial discretion cannot be exercised on whimsical or fanciful reasons. There is wide difference between the judicial power and the administrative power. Any order passed by a Court tending to have an adverse effect on a person or it will ultimately prejudice the interest and right of a person including an accused shall not be passed behind the back of the accused. If an order beneficial to the prosecution by extending time to file final report, it will be an adverse order to the accused.
12. In this connection, it is apposite to extract hereunder the following observations of the Hon'ble Supreme Court made in State of Maharashtra vs. Sharadchandra Vinayak Dongre and others (AIR 1995 SC 231) which has been made with reference to matter arose under section 473 Cr.P.C.
''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 purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be dtermined with reference to the offence which is punishable with the more severe punishment or as the case may be, the most severe punishment)
7. A reading of the above said provision makes it crystal clear that as per Section 468(2)(c) the period of limitation is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, there is no doubt that the charge sheet ought to have been filed before the expiry of the period of three years from the date of preferring the complaint. In this instant case, the complaint was preferred on 11.8.2005 and admittedly even as per the order of condoning the delay passed by the learned Magistrate, final report was filed only on 31.10.2008. Now it is seen that in view of such delay, the respondent police filed a petition to condone the delay in filing the charge sheet as contemplated under Section 473 Cr.P.C. It is very unfortunate to note on perusal of the condone delay petition filed by the respondent herein that the petition was not filed properly and even the provisions of Cr.P.C. also not stated or mentioned in the petition. The learned Magistrate has not sent any notice to the respondent/accused and straight away passed an order dated 13.10.2008. Therefore, this Court is constrained to state that the learned Magistrate thought it fit to pas a creptic order without assigning any reasons. At this juncture it is pertinent to be noted that the Honourable Apex Court in AIR 1995 Supreme Court 231, State of Maharashtra V. Sharadchandra Vinayak Dongre and others has held as follows:
"In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge-sheet" on the basis of an 'incomplete charge sheet' and quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous."
8.In view of the above settled principle of law laid down by the Honourable Apex Court in the decision cited supra which is squarely applicable to the facts of this case as in this case also admittedly no notice was served to the accused before condoning the delay, this Court is constrained to set aside the order passed by the learned XVI Metropolitan Magistrate, George Town, Chennai dated 13.10.2008 condoning the delay and the learned Magistrate is hereby directed to consider the condone delay petition filed by the respondent police after affording opportunity to the accused by ordering notice to the accused and after hearing both sides and pass orders on merits and in accordance with law.''
13. Under the analogous situation as before us, in Jothimani case (supra) my esteemed brother Hon'ble Justice K.N. Basha referring to the said decision held that the power under section 473 Cr.P.C. before being exercised, an opportunity by way of notice to the accused shall be given. Further, it should be exercised by passing reasoned order and proper reason must be given. However, in the instant case, admittedly, no notice has been given to the accused before passing the impugned order. It is pertinent to note that the accused was on bail. In the case of absconding accused, ex facie the impugned order does not disclose the grounds or reasons for its existence. In short, the impugned order has been passed behind the back of the accused. Secondly, the accused will have a say before passing the impugned order. In the facts and circumstances, the Apex Court ruling and the decision of this Court squarely applies to the facts and circumstances of this case.
14. In view of the foregoings, the impugned order suffers from legality, propriety and thus it requires revision.
(1) This revision is allowed.
(2) The impugned order passed by the learned VIII Judicial Magistrate, Coimbatore in C.M.P.No.272 of 2011 in C.C.No.21 of 2011 dated 09.02.2011 is set aside.
(3) The learned Magistrate will restore the C.M.P.No.272 of 2011 in C.C.No.21 of 2011 to his file.
(4) The learned Magistrate will fix a hearing date and send notice to the accused and the prosecution.
(5) The learned Magistrate will give an opportunity to both side and pass orders accordingly.