Skip to content


Sureshbhai K. Desai Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ1684; (1983)1GLR364
AppellantSureshbhai K. Desai
RespondentState of Gujarat
Cases ReferredHussainara Khatoon v. Home Secretary State of Bihar
Excerpt:
- - the blood sample was sent to the chemical analyser on 18-12-1976, and as per the averment in the petition as well as in the orders of the learned sessions judge and magistrate, it is a fact that the chemical analyser sent his report to the concerned police sub-inspector on 7-9-1978, and the p. 5 the learned magistrate heard the accused as well as the prosecution, and considered that the alleged offence was committed by the. 6. as stated earlier though in the petition it is clearly mentioned that the chemical analyser sent his report to the p. it was his very emphatic submission that in order to make the accused under-stand the grounds on which the prosecution proposes to request the court for condonation of delay there must be an application so that the accused may be prepared in.....orderv.v. bedarkar, j.1. this petition is filed against the order of the learned sessions judge, valsad at navsari in criminal revision application no. 32 of 1977. condoning the delay in filing the charge-sheet against the petitioner and setting aside the order of the learned judicial magistrate, first class. umbergaon in criminal case no. 656 of 1978, which was to the effect that as the charge-sheet was presented beyond the period of limitation, the charge-sheet was ordered to be filed and the process issued against the accused was quashed.2. so far as the facts are concerned they are not disputed, and averments ire made to that effect in this revision petition also. it is a fact that the petitioner-accused was arrested for the com-mission of offences punishable under section 66 (1) (b).....
Judgment:
ORDER

V.V. Bedarkar, J.

1. This petition is filed against the order of the learned Sessions Judge, Valsad at Navsari in Criminal Revision Application No. 32 of 1977. Condoning the delay in filing the charge-sheet against the petitioner and setting aside the order of the learned Judicial Magistrate, First Class. Umbergaon in Criminal Case No. 656 of 1978, which was to the effect that as the charge-sheet was presented beyond the period of limitation, the charge-sheet was ordered to be filed and the process issued against the accused was quashed.

2. So far as the facts are concerned they are not disputed, and averments ire made to that effect in this revision petition also. It is a fact that the petitioner-accused was arrested for the com-mission of offences punishable under Section 66 (1) (b) and Section 85 (1) and (2), Bombay Prohibition Act. 1947, and Section 110, Bombay police Act, 1951. The accused was arrested at about 9.30 p. m. on 17-12-1976 on suspicion of having consumed alcohol. Blood sample was taken on that very day by the Medical Officer who clinically examined him. The blood sample was sent to the chemical Analyser on 18-12-1976, and as per the averment in the petition as well as in the orders of the learned Sessions Judge and Magistrate, it is a fact that the Chemical Analyser sent his report to the concerned police Sub-Inspector on 7-9-1978, and the P. S. I. submitted the charge-sheet before the Court on 11-9-1978. Initially when the charge-sheet was submitted, the learned Magistrate called upon the p. S, I. by an order D/~ 18-9-1978 to show cause as regards the delay in submission of the charge-sheet. Thereafter, somehow or the other, there is an endorsement on the charge-sheet, which is typed, to register the same and to issue summon/3 returnable on 20-11-1978. This order was passed on 21-10-1978. After the accused appeared before the Court, application Ex. 5 was filed by the accused before the learned Magistrate on 19-2-1979 contending that the cognizance taken against the petitioner-accused by way of charge-sheet was beyond the period of limitation as provided under Section 468 Cr. P. C 1973, (hereinafter referred to as 'the Code') and therefore, the following two issues should be raised and decided ;-

(1) Whether the complaint filed by the complainant was within the period of limitation? And if it is not so.

(2) Whether the Court is entitled to hear the complaint on merits?

Surprisingly both these issues suggested do not touch the point in dispute. First Information Report against the accused was already filed on 17-12-1976, land sent to the Court it was received by the Court on 20-12-1976 as per the first paper in file No. 2 of the record. Therefore it is not that the complaint was filed late On the application Ex. 5 the learned Magistrate heard the accused as well as the prosecution, and considered that the alleged offence was committed by the. accused on 17-12-1976 when he was arrested. The first information report is also of 17-12-1976. However the police report is filed in the Court on 10-9-1978. Then considering the legal provisions under Chap 36 of the Code he considered that the charge-sheet was submitted late and that the cognizance would not be taken by the Court after a period of one year He, therefore passed the order filing the charge-sheet and Quashing the process,

3-4. xx xx xx xx xx

5. The learned Sessions Judge on consideration of the application and also provisions of Section 473 of the Code came to the conclusion that the delay should be condoned and provisions of Section 473 of the Act should be attracted. He therefore, set aside the order of the learned Magistrate by allowing the re-Vision petition, and directed the learned Magistrate to proceed further with the case from the stage of recording the plea of the accused and to follow the procedure provided for the summary trials and then dispose of the case in accordance with law. Being aggrieved by the said judgment and order of the learned Sessions Judge the petitioner has come to this Court by way of this revision petition.

6. As stated earlier though in the petition it is clearly mentioned that the chemical Analyser sent his report to the P. S. I. concerned on 7-9-1978 and the P. S. I. submitted the charge-sheet before the Court on 11-9-1978 Mr. Arun H Mehta, learned Advocate for the petitioner, now wants to contest this position itself by saying that there is no material on record to observe that the chemical analyser's report was received by the P. S. I. on 7-9-1978 This is something which is belated and also not permissible so far as the question of re-visional jurisdiction is concerned. Both the Courts below have taken this date to be the date when the chemical analyser's report was sent to the P.S.I. Not only that, but the petitioner also proceeded on that assumption and now because this is one of the grounds which prevailed with the learned Sessions Judge in condoning the delay an argument is advanced that there is no-thing on the record It must be stated that such an argument cannot be permitted and I do not want to entertain it in view of the accepted fact that the chemical analyser sent his report to the P. S. I. on 7-9-1978.

7. It should be noted that the learned Sessions Judge in para 7 of his judgment considered that the police received the report, from the chemical analyser on 7-09-1978 and the charge-sheet was submitted on 11-9-1978, i. e. within four days after the report was received. Thereafter it has been observed, which is a fact of which judicial notice can be taken, that the police is required to prepare the copies of the police papers for submitting to the Court and for giving one copy to the accused and for doing so the police would have normally taken four days So apparently looking, the observation of the learned Sessions Judge in condoning the delay seems to her justified.

8. The grievance of Mr. Mehta is that once the police have not filed the charge-sheet within the period of limitation the substantive right has accrued to the accessed not to be prosecuted and, therefore if the charge-sheet is to be accepted then he should be heard. This submission will be considered at a proper stage

9. The first submission of Mr. Mehta is that the accused is taken by surprise when the question of receipt of the chemical analyser's report was considered. It was his very emphatic submission that in order to make the accused under-stand the grounds on which the prosecution proposes to request the Court for condonation of delay there must be an application so that the accused may be prepared in advance with the grounds and oppose them I am not prepared to accept this argument mainly because it is nowhere required by the provisions of Section 473 of the Code that an application should be given to that effect It is the submission of Mr, Mehta that rules of natural justice demand that the accused should know of such grounds, and that a person cannot be condemned unheard. This would not necessarily mean that there should be an application containing the grounds to be brought to the notice of the accused who in fact is in possession of all the police papers and also in the know of the fact as to when the chemical analyser's report was received. It is not something which was sprung as a surprise that he can make a grievance about it

10. It is true that Section 5, Limitation Act, 1963, would be applicable in criminal cases where question of condonation of delay would arise. That applicability, however, would only be so far as condonation of delay is concerned, and if there is no other provision like Section 473 of the Code which provides for condonation of delay by words 'Extension of period of limitation in certain cases', then Section 5. Limitation Act would apply This Section 473 of the Code reads as under

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.

I do not propose to consider the provision for limitation which is under Section 468 of the Code, because it is an admitted position that the period of limitation in the instant case would be of one year, and charge-sheet is definitely filed after the period of one year.

11. From the provision of Section 468 of the Code there is two-fold submission of Mr. Mehta. One is that the Court before being satisfied, must be moved by an application and second is that this provision completely debars the Court from taking cognizance. and if cognizance is taken beyond the period of limitation without any consideration of the grounds, then even at a late stage the Court cannot condone the delay or cannot consider that cognizance of the offence after the expiry of period of limitation as justified.

12. The second argument of Mr. Mehta is a bit curious argument. This would mean that if the Court takes cognizance and the accused makes a representation that cognizance is not properly taken, the Court should not consider that aspect and should not call upon the prosecution to submit any reason to satisfy the Court, but should straightway dismiss the complaint and file the charge-sheet, because at the earlier stage the Court did not apply its mind before taking cognizance and because Section 468 of the Code clearly debars the Court from taking cognizance. I am afraid, this argument is being made in such a way that it would not lead the accused anywhere. If once the cognizance is taken, can it be said that cog-nizance taken should not be disturbed later on. In that case, the accused would lose his valuable right to request the Court to consider Ss, 468 and 473 of the Code. If cognizance is taken and it is brought to the notice of the Court that it is beyond the period of limitation then the Court cannot be precluded from considering whether there are facts and circumstances which satisfy the Court that cognizance could have been taken even beyond the period of limitation. Therefore, the argument of Mr. Mehta that there should be an application, as stated above, would not stand in view of the provisions of Section 473 of the Code.

13. It should be noted that there is distinction between the provisions of Section 473 of the Code which provide for extension of period of limitation in certain cases, and Section 5 of the Limitation Act which also provide for extension of prescribed period in certain cases. Section 5, Limitation Act. is as follows;

5. Any appeal or any application other than an application under any of the provisions of Order XXI Civil P.C. 1908 (5 of 19O8) may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

(Emphasis supplied).

Explanation. - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

In this Section 5, Limitation Act. the portion underlined by me is very important. It is the duty of the appellant or applicant to satisfy the Court, that he had sufficient cause, and for that normally an application is made with the grounds for condoning the delay. While under Section 473 of the Code, what is required for the Court to take cognizance of an offence after the expiry of tha period of limitation is that it should be satisfied on tha facts and in the circumstances of the case that the delay has been properly explained. So the satisfaction whether delay is properly explained or not is to be found out from the record and argument advanced. I do- not think that so far as extension of the period of limitation under Section 473 of the Code is concerned it is necessary io give any application containing the grounds in advance so that the accused should prepare his defence, but there should be facts and circumstances on which the Court is satisfied to condone the delay before exercising the provision of Section 473 of the Code. In view of the above observations, I do not think that there is any substance in the argument of Mr. Mehta that because the prosecution has not given any application, the Court or the Sessions Court had no jurisdiction to invoke its power under Section 473 of the Code. This is much more so, because cases are not wanting either at the stage of High Court or the Supreme Court wherein question of limitation was considered without any application but on the strength of the arguments.

14. The illustrative case would be the decision of this Court (A. M. Ahmadi, J.) in State of Gujarat v. Chimanlal Gordhanbhai (1978) 19 Gui LR 603. That decision pertained to the Bombay Sales Tax Act. 1959. In that case the respondent before this Court was acquitted by the Magistrate on merits and the State had come by way of acquittal appeal. After considering the provisions of the Sales Tax Act this Court came to the conclusion that the acquittal was not justified. An argument was advanced before this Court which is referred to in paragraph 11, on behalf of the accused regarding interpretation of Sections 468 and 473 of the Code On consideration of this argument, this Court specifically observed, taking into consideration Section 468 of the Code and the facts, that the prosecution has not led any evidence to explain the delay of over three years to obtain the sanction for prosecution. Thereafter, the Court considered that Section 473 of the Code invests the Court with wide discretion to take congizance of an offence notwith-standing the fact that the action is otherwise barred by limitation by virtue of Section 468 read with Section 469 of the Code on two grounds, namely, (i) that the delay has been satisfactorily explain-ed having regard to the facts and circumstances of the case, or (ii) it is necessary to do so, i. e. to excuse the delay, in the interest of justice. The Court specifically observed that there are no grounds brought out by the prosecution to ex plain the delay, but the Court considered the second ground, i. e. about the necessity of excusing the delay in the interest of Justice, and considering the broad facts and the type of offence, observed that the accused was an economic offender a tax dodger, whose crime is the result of a deliberate and calculated manoeuvre made in the quietude of his office. Such economic offender is responsible for shattering the economy of the country and, therefore, it was considered that the discretion given to the Court under Section 473 of the Code requires to be exercised in the interests of justice. This was done at the stage of acquittal appeal before the Court, Mr, Mehta wanted to make a fine distinction that this was done by this Court not under Part I but under Part II of Section 473 of the Code and. therefore, the jurisdiction exercised by the High Court in considering Section 473 of the Code should only be circumscribed to the aspect of interest, of justice. I fail to understand how this argument can be accepted. If there is material on record, would it mean that the Court would not be inclined to consider the period of limitation and provisions of Section 473 of the Code, if on that material the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained. Would the High Court or even the Sessions Court be precluded from considering those circumstances and can invoke the jurisdiction only if it is necessary to do so in the interests of justice I am, therefore, not prepared to accept this argument that the grounds advanced should be put forth before the trial Court and not at a later stage. On the contrary, the grounds which were mentioned orally or during the arguments were very much before the learned Magistrate and he has specifically incorporated those grounds in para 6 of his judgment. Therefore, it is not a new thing and, therefore, this argument of Mr. Mehta also has no force.

15. Mr. Mehta thereafter referred to me the decision of the Delhi High Court in Municipal Corporation of Delhi v. Amrit Lal 1981 Cri LJ 422 wherein it has been observed:.Time would also not be allowed because the law does not favour that an order of acquittal should remain in jeopardy longer than what is prescribed by the law of Limitation for that purpose.

In that case, the accused was prosecuted on the complaint filed on behalf of the Municipal Corporation. Appeal was filed late and, therefore, the Corporation claimed that the limitation should be extended by the period of six months under Section 378(5) of the Code, The Delhi High Court negatived this argument holding that the Corporation, being a corporate body, could not be said to be a public servant within the meaning of Section 21, Penal Code, and, therefore, when the order of acquittal is passed, then that, order of acquittal should not be disturbed if there is no condonation. The facts of that case would not be applicable to the facts of the instant case, because in the instant case the accused knew that he was prosecuted. There is no order of acquittal against him. Only charge-sheet is submitted late for the reasons mentioned above.

16. It is the submission of Mr. Mehta that if law provides that charge-sheet should be submitted within a particular period, it was the duty of the prosecuting agency to see that the report of the chemical analyser is received at the earliest, but that cannot be a ground to continue the proceeding against the accused beyond the period of one year so as to keep the sword hanging on the accused. Apparently looking, this argument seems to be attractive, but it cannot be said that getting of the report of chemical analyser was within the control of the police. Then as a second argument, Mr. Mehta, submitted that even without the chemical analyser's report police could have submitted the charge-sheet within time and therefore, non-receipt of chemical analyser's report in time is no ground to submit the charge-sheet late So far as the offence under Section 66 (1) (b) Prohibition Act, is concerned, if the report of the chemical analyser brings in concentration of alcohol in blood beyond 0.5 per cent, then a presumption is raised against the accused, and if it is less, then no presumption would be raised against the accused, and probably at that time it will be difficult for the prosecution to prove the offence under Section 66 (1) (b) Prohibition Act. Therefore, it is necessary for the prosecution, before filing the charge-sheet, to get the report of the chemical, analyser, satisfy itself about the contents of alcohol in blood, and then submit the charge-sheet. This may or may not be necessary. However, it cannot be said to be in any way wrong on the part of the prosecuting agency if it waits for the report of the chemical analyser before filing the charge-sheet. Whether it, was necessary or not would be a type of academic discussion. So far as the dispute before me is concerned though I have touched it to some extent, whether that can be sufficient circumstance to satisfy the Court about late filing of the charge-sheet can certainly be appreciated from the view point of the prosecuting agency.

17. Mr. Mehta then came out with an argument that neither the p. S. I. nor the Investigating Officer has stated anything before the Court as to why the charge-sheet was filed late. But does it mean that the Court should ignore the circumstances on record that till 7-9-1978 the police did not receive the chemical analyzer's report and, therefore, the charge-sheet was filed late. This is a fact for which no special application is required. This fact was brought to the notice of the Court, which shows that there is reasonable ground for submitting the charge-sheet late.

18. Mr. Mehta relied on the decision of the Supreme Court in State of Punjab v. Sarwan Singh AIR 1981 SC 1054 : 1981 Cri LJ 722. In that case, the conviction of a person was set aside by the High Court on the ground of limitation, which was confirmed by the Supreme Court. The Supreme Court observed that the object of the Code in putting a bar of limitation on prosecution 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. It is, of course, true that the case before the Supreme Court was also pertaining to police charge-sheet. The allegation against the accused was that he had committed embezzlement on 22-8-1972, the audit report through which the offence was detected was dated 5-1-1973, and the challan was presented on 18-10-1976, Considering these dates, the High Court and the Supreme Court considered that the challan presented against the accused was beyond the period of limitation. The circumstances did not show that delay was properly explained and, therefore, this judgment was given. That is not the case here. Facts and circumstances for condoning delay are on record. So, that judgment also has no application.

19. Mr. Mehta came out with an argument that the delay whatever is to be explained, should be explained before the period of limitation expired, and after the period expires, no ground can be considered. In order to support his argument, he relied on the decision of the Supreme Court in Aiit Singh v. State of Gujarat. AIR 1981 SC 733: 1981 Cri LJ 293. In that case, initial ly the State Government took a decision not to file an appeal and allowed the period of limitation, to lapse. Subsequently on certain observations made by the High Court while considering a revision petition filed by injured complainant that it was a fit case where the State Government should file an appeal and on notice being issued by the High Court to the State Government, the appeal was filed. Therefore, the Supreme Court observed that though a party is entitled to wait until the last day of limitation for filing an appeal, if it allows the limitation to expire and plead sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstances arising before limitation expired, it was not possible to file the appeal within time. No event or circumctances arising after the expiry of limitation can constitute such sufficient cause. It is, therefore, the submission of Mr. Mehta that whatever sufficient cause the prosecution could plead, should be within the period of limitation and not thereafter, it is not understood how this judgment would help Mr. Mehta. In that case, the State Government initially decided not to file the appeal, and kept quite and allowed the limitation to expire, and then all of a sudden got up when, the High Court, made some remarks in the revision petition filed by a private party and filed the appeal. Therefore, this was a clear case where there was inaction on the part of State Government till the period of limitation expired, in the instant case, there is nothing to show that there was inaction on the part of the prosecution because within the period of limitation the report of the chemical analyser was not received, and the moment it was received, the charge-sheet was submitted. So, it is not a case of negligence or lethargy so that question of limitation would be considered against the party claiming condonation.

20. Mr. Mehta cited before me the decision of the Allahabad High Court in Prakash Chandra Sharma v. Kaushal Kishore 1980 Cri LJ 578 wherein it was held:-

When a complaint is filed against the accused which prima facie is barred by time it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of delay under Section 473. Unless the delay is condoned the Court cannot take cognizance of the complaint, it is not open for the Magistrate to take cognizance, issue process, record evidence and thereafter to determine the question of limitation.

I have already considered the provisions of Section 473 of the Code earlier and, therefore, I have come to the conclusion that no separate application is necessary, and in view of that, I respectfully disagree with the aforesaid decision of the Allahabad High Court, Provisions of Section 473 of the Code clearly show that if there are facts and circumstances on record explaining the delay, then time can be extended by the Court, it cannot be gainsaid that each case depends on its own facts. In that case before the Allahabad High Court proceedings under Section 145 of the Code were pending between Prakash Chandra and Babuddin, Prakash Chandra informed the Municipal Board that those proceedings were over, and the Rasta in dispute was released, go, the Municipal Board sanctioned the plan. Babuddin filed an application and affidavit on 11-11-1976 before the Municipal Board to the effect that the information conveyed by Prakash Chandra regarding termination of proceedings under Section 145 of the Code was false and that the same were still pending. Therefore, on 0-5-1977 a complaint was filed by the Officer-in-Charge of the Municipal Board against prakash Chandra This was a private complaint. After the accused was summoned, he appeared and filed objection under Section 468(b) of the Code on the ground that the period of limitation had already expired and; the Court could not take cognizance of the complaint. Thereafter, on 7-2-1978 the Assistant. District Government Counsel filed an application that the Officer-in-Charge, Municipal Board, obtained knowledge of the false information given by Prakash Chandra on 11-11-1976 when Babuddin filed his application and affidavit before him, and if the period of limitation is computed from the date of knowledge the complaint would be well within on,e year of such date and the delay in filing the complaint should, therefore, be condoned. This was not accepted by the Magistrate. He dismissed the complaint. The Sessions. Judge allowed the revision and, therefore, the matter, went, before the High Court. The High Court, thereafter considered that because prakash Chandra had given incorrect information to the Municipal Board on 20-12-1975, the date of offence for which he was sought to be prosecuted under Section 182 Penal Code, would be that date. The Allahabad High Court observed that the case set up by Assistant District Government Counsel that the Officer-in-charge, Municipal Board, had no knowledge of the offence in question till 11-11-19.76, did not find place at all in the complaint which was filed by the Officer-in-charge on 6-5-1977 and no affidavit either was filed before the Magistrate to support the assertion that he had no knowledge prior to 11-11-1976, and a mere application by the Assistant District Government Counsel was not sufficient to hold that the officer-in-charge did not have knowledge of the offence earlier than 11-11-1976. With respect, it is difficult to agree with the reasoning and the decision of the Allahabad High Court in view of the observations made by me above while considering the provisions of Section 473 of the Code. I. therefore, do not accept the argument of Mr. Mehta that an application should be given. This would be against the spirit of Section 473 of the Code.

21. Mr. Mehta has cited before me the decision of the Delhi High Court in State v. Anil Puri ILR 19791 2 Delhi 350. That decision on the contrary goes against the case of Mr. Mehta, that after the cognizance is taken the Court should not hear about limitation. In that case the accused were acquitted, on the ground of limitation under the provisions of Section 468 of the Code. The complainant appealed against the acquittal on the ground that once the Magistrate had framed the charge, he should have decided the case on merits and that any objections regarding limitation had to be decided before the Magistrate takes cognizance and not after, at which time he is deemed to have condoned the delay. The acquittal in that case was on the ground of limitation after the charge was framed. The Delhi High Court negatived the contention and held that 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, therefore, 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 of the Code 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. This postulates three positions - (1) that cognizance can be taken if period of limitation is not over and attention is drawn of the Magistrate to this; (2) that if cognizance is taken, it does not necessarily mean that it is taken after exercising powers under Section 473 of the Code and (3) that even if that position is there when the accused comes and makes a grievance about limitation, then he should be heard and a speaking order should be passed about exercising or refusing to exercise the powers under Section 473 of the Code. Therefore, it cannot be said now that because the Court has earlier taken cognizance without considering the provisions of the Limitation Act, all the proceedings are non est and, therefore, the Sessions Judge should not have considered the provisions of Section 473 of the Code.

22. Mr. Mehta, in order that proper procedure may be laid down and the Magistrates' Court in the State should follow proper procedure wanted to argue that before a complaint or charge-sheet is accepted beyond the period of limitation, the Court must issue notice to the accused and then admit the complaint or exercise the powers under Section 473 of the Code. This suggestion would he quite proper, but it does not help his case to confirm the order of the learned Magistrate only on the ground that accused was not heard at the time when the charge-sheet was submitted or accepted. When the charge-sheet is submitted by the police, the accused is nowhere in the picture. He does not come in picture till the process is issued against him and, therefore, while taking cognizance, it is not a stage where any notice is required to be given to the accused.

23. In Cushrow Russy Irani v. State 1977 Cri LJ 160 same type of question was raised. The Calcutta High Court observed that the scheme in the Criminal Procedure Code does not provide for such an opportunity to an accused of being heard before consideration of the question of limitation in accordance with the provisions of Chapt. 36 of the Code. At the time when the cognizance is taken, the accused is nowhere in the scene and, therefore that the bar is with regard to taking cognizance of offences and not of the offender. It is only after cognizance of offence is taken, the Magistrate is required to proceed in accordance with provision of Sections 202 to 204 of the Code for the purpose of either dismissing the petition of complaint or for issue of processes against an offender; Therefore, at the time the Magistrate takes cognizance of the offence the accused cannot be heard nor can he raise any grievance of his not being given an opportunity of being heard at that time. After the process is issued and the accused appears before the Magistrate, it is open to him to raise the question regarding the bar of limitation and it is for the learned Magistrate to consider at the proper stage of the proceeding whether the accused can avail of the bar of limitation as imposed upon the Court, Therefore, the Calcutta High Court stated that no principles of natural justice were denied by not giving an opportunity to the accused of being heard at the time the learned Chief Metropolitan Magistrate was considering the application for condonation of delay filed by the Registrar of Companies. Therefore, so far as this aspect is concerned, I fully concur with the observations of the Calcutta High Court, and in view of that, the ground advanced by Mr. Mehta that the accused should have been heard, even before taking cognizance of the case wherein period of limitation is applicable, has no basis.

24. In P. Bhanumathi v. Smt. Premalatha 1979 Cri LJ 257 the Andhra Pradesh High Court has specifically observed that the Court can take cognizance of the offence even after expiry of period of limitation, if the delay is properly explained, but the Court must give reasons for condonation of delay while taking cognizance of the offence. In that case, it was found that the circumstances did not show that the trial Court had Section 473 of the Code in mind and, therefore, the High Court remanded the matter holding that an opportunity should be given to the petitioner-accused to raise the plea before the lower Court as to whether the complaint was within time or not. The High Court also categorically stated, considering Section 473 of the Code that the accused should be given an opportunity to raise the plea of limitation. This would mean that if after cognizance is taken by the Court on a charge-sheet which is beyond the period of limitation, it is open for the accused or the prosecution to move the Court. The prosecution would move the Court to exercise power under Section 473 of the Code or the accused would move the Court to dismiss the complaint as barred by limitation. Even on the request of the accused the Court may consider whether provisions of Section 473 of the Code would be applicable or not

25. In Sulochana v. State 1978 Cri LJ 116 the Madras High Court has observed that power to condone the delay can be exercised even after taking cognizance of the offence beyond the period of limitation, and specifically observed that condonation of delay is not a precondition to taking cognizance of offence after limitation, and that power under Section 473 of the Code is an overriding power and is not limited to time factor of condonation.

26. In order to support his argument of limitation and also to come out with another argument, Mr. Mehta cited before me the decision of the Supreme Court in Hussainara Khatoon v. Home Secretary State of Bihar AIR 1979 SC 1360 : 1979 Cri LJ 1036. In that case, the shocking affairs in regard to administration of justice in State of Bihar were brought to the notice of the Supreme Court, and considering the numerous under-trial prisoners languishing in jail for a long number of years for exceeding six months, the Supreme Court made some observations considering the provisions of law. In paras. 18 and 19 the Supreme Court considered the provisions of Section 468 and also Section 167(5) of the Code. So far as Section 468 of the Code is concerned, it was observed :-.It would, therefore, be seen that the under-trial prisoners, against whom charge-sheets have not been filed by the police within the period of limitation provided in Sub-section (2) of Section 468 cannot be proceeded against at all and they would be entitled to be released forthwith, as their further detention would be unlawful and in violation of their fundamental right under Article 21 We, therefore, direct the Government of Bihar to scrutinise the cases of under-trial prisoners charged with offences which are punishable with fine only or punishable with imprisonment for a term not exceeding one year or punishable with imprisonment for a term exceeding one year but not exceeding three years and release such of them who are not liable to be proceeded against by reason of the period of limitation having expired.

On these observations it is the submission of Mr. Mehta that once the period of limitation has expired, then the accused is entitled to be released forthwith as otherwise that would be in violation of his fundamental right under Article 21 of the Constitution. That was a case where persons were detained in jail without the submission of charge-sheets beyond the period of limitation. In the instant case, the petitioner is already released on bail and is not languishing in jail. The charge-sheet was submitted against him and the grounds given for submitting it late show that delay is properly explained. Therefore, the observations of the Supreme Court could not be made, applicable in each and every case where question of exercise of Jurisdiction under Section 473 of the Code arises, and if that is properly exercised.

27. So far as Section 167(5) of the Code is concerned, Mr, Mehta submitted that this provision takes out the right of the prosecution to proceed with the case at all, and those provisions should have been implemented by the learned Magistrate at an earlier stage. Under Section 167(5) of the Code there is a provision that if in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence, unless the Officers making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. It is not in dispute that the case in which this petitioner is involved is a summons triable case Therefore this provision would be applicable. In view of this provision, if is the submission of Mr. Mehfa. that when the charge-sheet was not submitted by the police within six months, it was the duty of the Magistrate to stop further proceedings, and if the Magistrate has failed in his duty, this Court should consider that the proceedings are non est and, therefore, also the order of the learned Magistrate should have been confirmed.

28. The Supreme Court in case of Hussainara Khatoon 1979 Cri LJ 1036 (Supra) has in para 16 (on appreciation of the provisions of Section 167(5) of the Code, observed:-.We are not at all sure whether this provision has been complied with because there are quite a few cases where the offences charged against the under-trial prisoners are triable as summons cases and yet they are languishing in jail for a long number of years far exceeding six months. We therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the under-trial prisoners unless the necessary orders of the Magistrate are obtained within a period of one month from today. We would also request the High Court to look into this matter and satisfy itself whether the Magistrates in Bihar have been complying with the provisions of Section 167(5).

That was the case, where the prisoners were languishing in jail for a long num were of years, and in peculiar circumstances of the case the Supreme Court directed the Government of Bihar and the High Court of Bihar to see whether the provisions of Section 167(5) of the Code were complied with or not. These observations would apply to cases where police after arresting the accused, do not proceed with investigation and the accused remains as under-trial prisoner for a long period. This cannot be put on par with the instant case where police had completed the investigation so far as they are concerned and waited for the report of the chemical analyser as a step in completing the investigation. Can it be said in such cases that proceeding should be dropped? It should be noted that there is provision under Section 167(6) of the Code, which is a supplementary provision to the provision under Section 167(5) of the Code Section 167(6) of the Code reads;-

167 (6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

In view of this provision, if the attention of the learned Magistrate or the learned Sessions Judge would have been drawn that the prosecution is not in a position to submit the charge-sheet because the report of the chemical analyser is not received, could it not be a ground to satisfy the conscience of the Court that time should be extended. That apart, can it now be said that after cognizance is taken and the learned Sessions Judge has applied his mind to the aspect of condonation of delay that the entire clock should be turned back to step back and direct the learned Magistrate to stop further, investigation now when the charge-sheet is there and the question of condonation of delay is also considered I am afraid, this cannot be done. Therefore, the argument advanced by Mr. Mehta on the Strength of Section 167(5) of the Code also would not be available to him.

29. It is true that now it is necessary for all the Magistrates in the State to see that police do not unnecessarily linger on in submission of charge-sheet beyond one year or six months. If they have not submitted the charge-sheet up to six months for summons triable cases, the Court may consider as to why the proceedings should not be stopped for not completing the investigation within a period of six month's. Thereafter, the. Court may hear the prosecution and decide the matter. It is necessary that the provisions of Section 167(5) of the Code are properly followed.

30. However, on over-all consideration, the grievance made by the petitioner against the order of the learned Sessions Judge is not justified. The revision petition is therefore, dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //