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State (Delhi Administration) Vs. Anil Puri and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal Nos 389 of 1977
Judge
Reported inILR1979Delhi350
ActsIndian Penal code, 1860 - Sections 120B; Code of Criminal Procedure (CrPC) , 1973 - Sections 468
AppellantState (Delhi Administration)
RespondentAnil Puri and ors.
Advocates: R.L. Mehta, ; S.N. Tiwari,; K.L. Arora,;
Excerpt:
.....cognizance and not after, at which time he is deemed to have condoned the delay.; 1. once the period of limitation is over, a person acquires a valuable right, and it cannot be taken away except under the law. it is, thereforee, necessary and imperative that before this right is taken away, the person gets an opportunity of being heard. after cognizance, it cannot be presumed that the court has exercised its powers under section 473 to lift the bar of limitation if the accused had not been given an opportunity of being heard. after hearing the accused, if the court comes to the conclusion that the delay has been properly explained and it is in the interest of justice to take cognizance, the court must pass a speaking order.; 2. acquittal of an accused after the charge is framed has..........after the expiry of the limitation period of one year as provided for under section 468 of the code of criminal procedure. the magistrate upheld the contention of the respondents after finding that the case was covered by clause (b) of sub-section (2) of section 468, criminal procedure code.(5) mr. r. l. mehta, learned counsel for the state, contends that once the magistrate had framed a charge, he should have decided the case on merits and could not acquit the accused. it is also contended that the objection regarding limitation has to be decided before the magistrate takes cognizance and once the magistrate has taken cognizance it shall be deemed that he had condoned the delay in the interests of justice and the accused had no right to raise the plea of limitation.(6) section 468,.....
Judgment:

V.D. Misra, J.

(1) This appeal is directed against the order of Mr. Mohd. Shamim, Chief Metropolitan Magistrate, acquitting the respondents of the charges under section 120B read with section 168, section 168 and section 109 read with section 168, Indian Penal Code, on the ground of limitation.

(2) For the purpose of this appeal the facts mentioned in the impugned order are not disputed. Respondent Anil Puri is an Assistant Executive Engineer in the C.P.W.D. Respondent Daryao Singh is a Librarian working with the C.P.W.D. Respondent Lahori Mal is the father of Anil Puri.

(3) It is alleged that during March, 1971 to March, 1972 the respondents entered into a criminal conspiracy to do illegal acts and so floated a firm under the name and style of M/s. International Book Traders for carrying on business of selling and purchasing books. Respondents 1 and 2 being Government servants were not entitled to carry on business as they were public servants. However, they joined respondent No. 3 in running the firm and did various acts to sell books.

(4) On November 30, 1972 case No. R. C. 66 of 1972 was registered with Delhi branch of Central Bureau of Investigation. On December 17, 1973 case No. R. C. 5 of 1973, the present case, was registered by the Central Bureau of Investigation, It was on December 15, 1975 that Central Bureau of Investigation filed a charge-sheet under sections 120B, 168,/ 168, 467, 471, 465 and 109. Indian Penal Code, against the respondents. On December 15, 1975 the Magistrate took cognizance. On December 16, 1976 the Magistrate charged the respondents under sections 120B/168, 168 and 109 read with section 168, Indian Penal Code. Two prosecution witnesses were examined on March 28, 1977. On April 20, 1977 the respondents moved an application requesting the Court to drop the proceedings since the Magistrate could not take cognizance after the expiry of the limitation period of one year as provided for under section 468 of the Code of Criminal Procedure. The Magistrate upheld the contention of the respondents after finding that the case was covered by clause (b) of sub-section (2) of section 468, Criminal Procedure Code.

(5) Mr. R. L. Mehta, learned counsel for the state, contends that once the Magistrate had framed a charge, he should have decided the case on merits and could not acquit the accused. It is also contended that the objection regarding limitation has to be decided before the Magistrate takes cognizance and once the Magistrate has taken cognizance it shall be deemed that he had condoned the delay in the interests of justice and the accused had no right to raise the plea of limitation.

(6) Section 468, as it stood before its amendment by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978) was in the following terms:

'468.(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.'

At this stage provisions of section 473 of the Code empowering the Court to extend the period of limitation may also be noticed. The section reads thus:

'473.Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, 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.

(7) The provision for limitation was made in the Code of Criminal Procedure, 1973 (No. 2 of 1974) for the first time. It is one of the progressive steps taken by legislature keeping in view the recent trends in criminology. The idea of limitation is not new to law nor it is absolutely new to criminal offences. Limitation Act, 1963 governs the civil procedures. Various procedures in the civil law also provide for limitation. Minor criminal acts also lay down a period of limitation. For example section 92 of the Trade and Merchandise Marks Act, 1958, section 42 of the Police Act, 1861, and various Municipal Acts lay down a period of limitation for prosecuting persons.

(8) Limitation Acts are based on public policy that one must not be faced with State claims. Indeed, one should be allowed to have his peace of mind if no action is taken against him for an alleged infraction of law within a particular period. It is for that reason that a statute of limitation has been termed as a 'statute of repose'. The report of the Joint Select Committee recommending the incorporation of provisions of limitation in criminal law mentions, amongst others, the grounds that (i) 'people will have no peace of mind if there is no period of limitation even for petty offences'; (ii) 'the deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflacted before the offence has been wiped off the memory of persons concerned'.

(9) Once a limitation is barred in favor of a person he acquires a valuable-right. This right cannot be taken away except under the law. It is, thereforee, necessary that before this right is taken away he gets an opportunity of being heard. We cannot, thereforee, agree with Mr. Mehta that once the court has taken cognizance of an offence after the expiry of the period of limitation, the accused loses his right to raise this objection despite the fact that he was afforded no opportunity of being heard before the cognizance was taken. We cannot subscribe to the view that in such circumstances it should be presumed that the court shall be deemed to have exercised its powers under section 473 to lift the bar of limitation. Whenever the plea of limitation is raised it is for the parties to show whether proceedings are barred by limitation or not. Where cognizance is ex facie barred by limitation and the prosecution wishes to explain the delay to the satisfaction of the court the accused has a right to be heard. And in those cases where the court finds it necessary to take cognizance in the interests of justice it is but just and proper that the accused is heard before such a decision is arrived at. It is needless to add that wherever the court comes to the conclusion under section 473 that the delay has been properly explained or that it is necessary to take cognizance in the interests of justice, the court must pass a speaking order. The order should indicate that the court taking cognizance has applied its mind to reach the conclusion. Order taking cognizance of an offence where the cognizance is barred by limitation without giving an opportunity to the accused and without passing any speaking order, must be struck down and it cannot be deemed that the trial court had exercised its powers under section 473. After all it may happen that a court might take cognizance of an offence without applying its mind to the question whether the limitation has run in favor of the accused, and when this happens the accused has a right to raise the plea of limitation to convince the Court that limitation bars the cognizance. It is the duty of the Court at that stage to decide this question.

(10) In the instant case a stereotyped order was passed on December 15, 1975 which reads thus :

'CHALLANpresented to day by Sh. Lobender Singh P. P. for the C. B. I.

BEregistered.

ACCUSEDperson be summoned for 20/1/76.'

APPARENTLYthe question of limitations was present in the mind of the Magistrate. In these circumstances the State cannot be allowed to urge that the trial court should be deemed to have condoned the delay in terms of section 473 by holding that it was necessary to take cognizance in the interests of justice. It may be noticed that when the question of limitation was raised, the trial court refuse to condone the delay. It obsereved : 'In the circumstance stated above, I feel that the interests of justice would be best served by allowing the accused to avail the benefit of the provisions of Section 468, Cr. P. C. which was accrued in their favor, instead of depriving them of the same......... ....... . . .............. ................. .I do not feel any justification for condensation of delay in the present case.'

(11) We agree with Mr. Mehta that after sustaining the accused's objection of limitation the Magistrate should not have proceeded to acquit the accused. Acquittal of an accused after the charge is framed has to be the result of appreciation of evidence since it has to be based on a 'finding of not guilty'. Indeed, in the application dated April 20, 1977 made by the accused, it was prayed that 'proceedings against all the accused may be dropped,' In these circumstances the proper order should have been to stop further proceedings, direct the file to be consigned to the Record Room, and discharge the sureties.

(12) In the light of the circumstances discussed above, we find no merit in the present appeal which is dismissed.


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