1. Both these matters involve a common question of law with hardly any difference in the facts and, therefore, they have been heard together and are being disposed of by this common judgment.
2. Respondent No. 1, A. H. Paranjape in his capacity as Asstt. Electrical Inspector, I. & E.L. Department, filed a complaint against the two petitioners alleging breach of R. 44-A of the Indian Electricity Rules punishable under R. 141 of the said rules in Criminal Case No. 219/S of 1978 which forms the subject-matter of Criminal Application No. 229/81 and alleging breach of Rr. 64(2)(a), (e) and (f) of the Indian Electricity Rules punishable under R. 141 of the said rules in Criminal Case No. 218/S/78, which is the subject-matter of Criminal Application No. 228/81. In Criminal Case No. 219/S of 1978 it was alleged that a non-fatal accident occurred to one Mr. Manhar B. Desai on the installation belonging to M/s Calico Chemicals Plastics and Fibres Division of Anik-Chembur, Bombay-74 at about 7 p.m. on July 4, 1977 while the said Manhar B. Desai a machine operator was engaged in doing rethreading of PVC film on the unwinding unit of the printing machine at about 6-30 p.m. along with one Hari Sonu Ghanekar, a helper. R. 44-A of the Indian Electricity Rules provides for an intimation of accident and for the making of reports to the relevant authorities within 24 hours and 3 hours respectively. The breach of R. 44-A is punishable under R. 141 with a fine which may extend to Rs. 300/-, and in case of a continuing breach with a further fine which may extend to Rs. 50/- every day. It appears that in Criminal Case No. 219, the breach consisted of not giving the necessary intimation and not making the necessary report according to R. 44-A, immediately after the accident to Manhar B. Desai on July 4, 1977. It is thus clear that the offence was complete immediately on failure to give the relevant intimation and report.
3. In Criminal Case No. 218/S of 1978, it was alleged that the non-fatal accident occurred to one A. K. Podar on the installation of M/s. Calico Chemicals. Plastics and Fibre Division. Anik Chambur, Bombay 74, on April 11, 1977 at 7-45 a.m. R. 64(2)(a), (e) and (f) provide for the making of certain provisions when the energy at high or extra high voltage is supplied, converted, transformed or used. It was alleged that an omission to make these provisions resulted in the causation of an accident to A. K. Podar and this omission or breach of the relevant rules was again punishable under R. 141. It was alleged that the two petitioners having failed to observe the provisions of R. 64(2)(a), (e) and (f) on July 4, 1977 were guilty of an offence punishable under R. 141.
4. It is an admitted position that the complaint in respect of the offence in Criminal Case No. 219/S of 1978 which took place on July 4, 1977 as well as the complaint in respect of the offence in Criminal Case No. 218/S of 1978, which took place on April 11, 1977, came to be filed on March 11, 1978 while the limitation for filing both these complaints was only six months under the provisions of Section 468 sub-Section (2)(a) of Cr.P.C. Both these complaints were, therefore, obviously barred by the provisions of Section 468 of Cr.P.C. and, therefore, objections were raised in both these cases in September 1978, praying that the cases be dismissed as barred by limitation. It appears that the parties were heard after these objections were raised and the learned Metropolitan Magistrate passed the two impugned orders on November 25, 1980 in Criminal Case No. 218/S and No. 219/S of 1978 holding that the filing of the complaint was obviously barred by time but further finding that the delay was liable to be condoned in the interest of justice. These two orders, which have been challenged in the two Criminal Applications, are before me.
5. The impugned order Dt. November 25, 1980 in Criminal Case No. 218/S of 1978 contains the finding which is as under :
'In the present case, delay has not been properly explained by the complainant.'
The other impugned order in criminal Case No. 219/S of 1978 also contains a similar finding which is in the following words :-
'In the present case, it is no doubt true that the delay has not been properly explained by the complainant.'
6. It is thus clear that both the complaints were obviously barred by time and in both the complaints, the complainants had failed to explain the delay properly. Another admitted position is that no order condoning the delay under the provisions of S. 473, Cr.P.C. and extending the period of limitation was passed in either of the cases when the process was issued and the impugned orders came to be passed after a lapse of considerable time only after the objections regarding the limitation were raised. It is an admitted position that in Criminal Case No. 219/S of 1978 even a prayer for the condonation of delay was not made in the original complaint or by a separate application filed along with the original complaint though the impugned order in Criminal Case No. 218/S of 1978 disclosed that a prayer for the condonation of delay was contained in the complaint itself in that particular case. Mr. Vashi, the learned Counsel appearing for the petitioners, submitted that a copy of the complaint received by his clients does not contain any such averment or prayer and he has filed a copy of the complaint received by his clients as annexure 'A.' It appears from annexure 'A' that no such prayer has been made in the original complaint. The records and proceedings of this case have not been called, but I do not think it necessary to call for the records and proceedings of the case for deciding this particular controversy for the simple reason that it is an admitted position that the Court concerned did not pass any order condoning the delay and extending the limitation for filing complaint as it would have done under the provisions of Section 473 of Cr.P.C. if properly moved and requested.
7. After finding that the delay was not properly explained by the complainant, the learned Metropolitan Magistrate has proceeded to condone the delay by the impugned orders on the basis of the decision of this Court in State of Maharashtra v. P. D. Pujari : (1980)82BOMLR6 , after observing that in view of the observations in the judgment of this case, the provisions contained in Sections 468 and 469 of Cr.P.C. 'will have to be liberally construed.' Relying upon a passage from the judgment in the case of State of Maharashtra v. P. D. Pujari the learned Metropolitan Magistrate further observed that the delay was liable to be condoned in the interest of justice and for the reason that no injustice would be caused to the accused. It appears to me that the liberal construction of provisions does not mean that the right vested in a party can be ignored. P. D. Pujari's case (supra) was mainly concerned with the provisions of Section 469 of Cr.P.C. providing for commencement of the period of limitation on the date of an offence or on the date of knowledge of commission of an offence when the commission of the offence is not known or on the date of the knowledge of identity of the offender when the identity of the offender is not known earlier. In the present case, the question of applicability of the latter 2 parts of Section 469 does not arise and what is material is only the date of offence. It is, therefore, clear that the said decision is in no way applicable to the facts of the present case. I have already observed that even adverting to the general observations made by Pratap, J. in para 11 of the said judgment relating to fair and reasonable construction of the provisions of Section 468 Cr.P.C. it is not possible to construe these provisions in such a way as to deprive an accused person of a right which has accrued in his favour under Section 468 of Cr.P.C. and which can be denied to him only on an order for extension of period of limitation passed by the Court concerned acting judicially under Section 473, Cr.P.C. not when an objection is taken but at the time of the issuance of the process itself. The High Courts of Allahabad, Andhra Pradesh and Madhya Pradesh have taken a similar view (see Prakash Chandra v. Kaushal Kishore, Krishna v. State of M.P. (Madh Pra) & Bharat Hybrid Seeds & Agro Enterprises v. State (Andh Pra)). The consistent view is that the delay could not be condoned under the provisions of Section 473 of Cr.P.C. as a matter of course and after the cognizance of the offence is taken. The act of taking cognizance of the offence itself becomes an Act without jurisdiction unless the Court concerned examines the question of limitation under Section 468 of Cr.P.C. either upon a request by the party or on its own accord and, as far as possible, after hearing the opposite party, and decides judicially to grant extension of limitation in that particular case.
8. While parting I will refer to the following observations of the Supreme Court of India in the case of State of Punjab v. Sarwan Singh, : 1981CriLJ722 to which my attention was invited by Mr. Vashi, the learned Counsel for the petitioners, for emphasising the object of the provisions for limitation incorporated in Cr.P.C. of 1973 for the first time :-
'The, object of Criminal P.C. 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 statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution. 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. Cri. Revn. No. 342 of 1980, D/- 8-4-1980 (Punj and Har). Affirmed.'
9. The result, therefore, is that the two impugned orders are quashed and set aside and the two complaints in question shall stand dismissed as barred by limitation under Section 468 Cr.P.C. Rules made absolute in these terms.
10. Applications allowed.