M.C. Jain, J.
1. The accused persons have moved this application under Section 482 of the Cr. P. C. for quashing the order of the Additional Munsif & Judicial Magistrate 1st Class No. 2, Jodhpur dated 6-11-1978 whereby the learned Magistrate condoned the delay in presentation of the charge-sheet. They have further sought' to quash the entire proceedings against them.
2. The material facts relating to the present application are that' on the report of one Dharma Ram, case under Sections 147, 148, 149 and 323 I. P. C. was registered against the accused persons on 19-10-1974 regarding the occurrence alleged to have taken place on that date. The police presented the charge-sheet after the expiry of three years on 15-2-1978. The learned Magistrate on presentation of the charge-sheet registered the case. Accused Umed Singh was present to whom copies of the police papers were supplied. Rest of the accused persons were not present in the court so warrants were ordered to be issued against' them. The accused persons Panney Singh, Sher Singh and Onkar Singh appeared on 18-4-1978, On the next date i.e. on 17-5-1978, on behalf of the present accused applicants, an application under Section 468(2)(c) was presented in which it was stated that the charge-sheet should have been filed within three years before 19-10-1977 but the same had been filed on 15-2-1978, thus the prosecution is barred by time, so the case may be dismissed. On behalf of the prosecution, reply of the Station House Officer addressed to the Assistant Public Prosecutor No. 2 of the Court of Additional Munsif & Judicial Magistrate NO. 2, Jodhpur was presented wherein it was stated that there were in all six accused persons, out of whom five were released on bail by the police and the sixth accused viz. Umed Singh was declared a proclaimed offender. He was produced before the court after effecting his arrest. It was further stated in this communication that without the accused persons, the court did not accept the challan and on all occasions the court verbally so ordered. The charge-sheet' was not accepted in the absence of all the accused persons. It is due to this reason, the charge-sheet could not not be presented within the prescribed period of limitation. It was further stated that the accused persons in spite of their bail bonds did not present themselves in the court and no proceedings for forfeiture of their bail bonds accepted by the police were initiated by the court. This reply was accompanied with an affidavit of Bhanwarlal, Station House Officer, Police Station, Udaimandir in which he deposed that the court ordered that' charge-sheet would not be accepted without the presence of the accused persons. It was also stated in the affidavit' that accused persons and their sureties were directed to be presented before the court and their memos were also produced along with the affidavit. The learned Magistrate, after hearing the arguments, condoned the delay in presentation of the charge-sheet for the period between 19-10-77 to 15-2-78. Aggrieved against this order of the learned Magistrate, the present application has been filed.
3. I have heard Shri Jaswantmal Bhandari, advocate for the accused applicants and Shri S. L. Mardia, Public Prosecutor for the State.
4. Shri Bhandari on behalf of the applicants contended that under Section 468(1), Cr. P. C., the Court is debarred to take cognizance of an offence after the expiry of period of limitation. The period of limitation is prescribed under Sub-section (2) of Section 468 and the present' case is covered under Clause (c) of Sub-section (2). On 15-2-78, when the charge-sheet was presented, it was beyond the prescribed period of limitation so the Court had no jurisdiction to take cognizance, The learned Counsel urged that Section 473 Cr. P. C. empowers the Court to condone the delay and extend the period of limitation only when delay is properly explained or condonation is necessary in the interest of justice. In the present case, he submitted, that there was no application under Section 473 Cr. P. C., the Court did not apply its mind on 15-2-78 and no delay was condoned on 15-2-78 as such the order taking cognizance was bad and without jurisdiction. After taking cognizance of the offence, subsequently, delay could not have been condoned. The order which is void ab initio and without jurisdiction, cannot be rendered valid and with jurisdiction by the subsequent condonation. He further urged that the delay could not have been condoned without an opportunity of hearing been given to the accused persons as extension of period of limitation in presentation of the challan affects their very valuable right. The learned Counsel in support of his contention placed reliance on some case law which I shall consider while dealing with his arguments.
5. The learned Public Prosecutor on the other hand submitted that the court could exercise powers under Section 473 Cr. P. C. at any time and could condone the delay. When once the court condones the delay, the bar under Section 468 would not exist. He urged that the learned Magistrate after satisfying himself of the circumstances in which the charge-sheet came to be presented, if condoned the delay, it could not be said that the discretion has not been judicially exercised by the learned Magistrate and this Court should not interfere in the discretionary order passed by the learned Magistrate.
6. For the proper appreciation of the contentions advanced before me by both the sides, it is necessary to have a look into the provisions of Sections 468 & 473 Cr. P. C. For facility of reference they are reproduced hereunder:
'Section 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.
'Section 473. Extension of period of limitation in certain cases.
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. It may be stated that Chapter XXXVI of the Cr. P. C., 1973 deals with limitation for taking cognizance of certain offences. There are Sections 467 to 473 in this Chapter. Section 468 bars taking cognizance after lapse of the period of limitation whereas Section 473 empowers the court to take cognizance of offence after the expiry of the period of limitation, satisfying itself on the facts and circumstances of the case, that' the delay has been properly explained or that it is necessary so to do in the interests of justice. If these conditions are fulfilled, the court is empowered to take cognizance notwithstanding anything contained in the foregoing provisions of Chapter XXXVI. Section 473 Cr. P. C. begins with a non obstante clause. Looking to this clause, it would appear that Section 468 would not debar the court from taking cognizance, in case the court is satisfied that the delay has been properly explained or that it is necessary to take cognizance in the interests of justice. If these two provisions are read together and in my opinion, they have to be so read, it would be obvious that the legislature on the one hand prohibits the court from taking cognizance of an offence beyond the prescribed period of limitation and on the other hand enables the court to take cognizance, in case the court is satisfied that the delay has been properly explained or that it is necessary so to do in the interests of justice. The court is duty bound on presentation of the charge-sheet to consider the question of limitation and to see as to whether it is competent to take cognizance and whether limitation has expired or not. In case limitation has expired, then It has no jurisdiction to take cognizance and in disregard of this provision, if the court takes cognizance, the order of the court would be without jurisdiction. There is legislative interdiction for taking cognizance of an offence after the expiry of the period of limitation and Section 468 is couched in a clear and peremptory language. If the court finds, that the period of limitation has expired, the court shall see as to whether 'there are sufficient grounds for condonation of delay or for extension of the period of limitation. It is not necessary that there should be a separate application moved by the prosecution under Section 473 Cr. P. C. The delay may be explained in the charge-sheet itself or the grounds for extension of the period of limitation may be stated in the charge-sheet itself. Extension of limitation may also be sought by a separate application accompanied with an affidavit or papers in support of the same.
8. As regards the provision of Section 468 Cr. P. C. I may refer to a decision of the Supreme Court Surinder Mohan Vikal v. Aschraj Lal Chopra : 1978CriLJ764 . In this case there was a prosecution for the offence under Section 500 I P. C. The complainant was prosecuted along with one co-accused for the offence under Sections 406 & 420 I. P. C. He was ac-quitted( in that case and thereafter he presented a complaint under Section 500 I. P. C. The earlier complaint was presented on 15-3-1972. The complaint under Section 500 I. P. C. was filed on February 11, 1976 much after the expiry of the period of limitation. The Magistrate after enquiry order issue of summons for the appearance on 15-9-1976. The accused moved an application under Section 482 Cr. P. C, r quashing the orders of Magistrate for taking cognizance but the same was rejected by the High Court. An appeal was brought by Special Leave before the Supreme Court. Their Lordships of the Supreme Court' had an occasion to consider the provision of Section 468 Cr. P. C. In para eight of the report their Lordships observed that-:
The appellant was entitled to the benefit of Sub-section (1) of Section 468 which prohibits every Court from taking cognizance of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost' because of the delay on the part of the prosecutor. As has been stated a bar to the taking of cognizance has been prescribed under Section 468 Cr. P. C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case.
In State of Karnataka v. Vedavati 1978 Cri LJ 1375 (Kant), Mr. Justice C. Honniah, as he then was, considered the provision of Sections 468 & 473 Cr. P. C. and observed as under:
The offence committed by the accused, if proved, is one falling under Section 468(2)(b) of the Cr. P. C. That being so, the charge-sheet should have been filed within one year from 25-12-1974. As regards the condonation of delay, it should not be condoned as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Cr. P. C. empowers the court to condone such delay, if sufficient cause is shown or in the interest of justice makes it necessary to do so. But the application of the section would always depend upon the facts and circumstances of each case of which the court would be required to exercise its judicial discretion in the matter like an application under Section 5 of the Limitation Act. In the case on hand, a valuable right which was accrued to the accused could not have been interfered with by the learned Magistrate, there being no sufficient cause.
In Channabasappa v. State of Karnataka 1979 Cri LJ 185 (Kant), the offence related to non-payment' of quarterly vehicle-tax under Karnataka Motor Vehicles Taxation Act, it was observed that for the offence committed in respect of previous quarter, the accused could be in law prosecuted, such prosecution shall have to be within the period prescribed under Section 468(2)(a) Cr. P. C. After taking into consideration the nature of the offence, it was held that the prosecution was beyond the expiry of period of limitation and prosecution has not claimed extension of period of limitation under Section 473 Cr. P. C., so in this view of the matter, it was held that the learned Magistrate had no power to take cognizance of the offences and as such the prosecution of the petitioner in the case was bad in law.
9. In the instant case -the learned Magistrate took cognizance against the present applicants on presentation of the charge-sheet beyond the period of limitation. Thus, the order taking cognizance is not sustainable in the eye of law and is bad and without jurisdiction.
10. The question then arises, as to whether the delay could be subsequently condoned. In my opinion, in view of what I have discussed above, the court could not, subsequent to the passing of the order taking cognizance, condone the delay and extend the period of limitation. As I have held that before taking cognizance of the offence, the court is required to satisfy itself of the grounds for extension of time which was not done in the present case, so the order dated 6-11-1978 as well, would not validate the initial order of taking cognizance of the offences.
11. It may however, be observed that under Section 473 Cr. P. C., powers have been conferred on the court like the provision contained in Section 5 of the Limitation Act 'wherein the court may extend the prescribed period in case the appellant or the applicant satisfied the court that he has sufficient cause for not preferring the appeal or making an application within the prescribed period. Under Section 473 apart from properly explaining the delay, the court is empowered to extend the period even in the interests of justice. Section 473 thus has to be liberally construed in the light of the words in which it is expressed.
12. Shri Bhandari, however, contended that although there is no provision for issuing any notice to the accused persons to show cause as to why the period of limitation be not extended and delay be condoned but as a very valuable right arises in favour of the accused persons on account of expiry of the prescribed period of limitation, they are entitled to an opportunity of being heard and principles of natural justice require that they should be heard on the question of extension of the period of limitation by the Court. So, before taking cognizance of offence, in case the charge-sheet is presented after the expiry of period of limitation, an opportunity of being heard should be given to the accused persons before extending the period of limitation and in this connection the learned Counsel placed reliance on an authority of Madhya Pradesh High Court, Krishna Sanghi v. State of Madhya Pradesh 1977 Cri LJ 90.
13. The learned Public Prosecutor has submitted that there is no provision for issuing notice to the accused persons and the Magistrate is perfectly justified in extending the period of limitation without giving any opportunity of hearing to the accused persons.
14. I have given my anxious and earnest consideration to the contentions of both the sides on this aspect of the matter. No doubt Section 473 empowers the court to extend the period of limitation but, in what manner this power is to be exercised is a pertinent question which requires serious consideration. It' is true that under Chap. XXXVI, there is no provision for issue of any notice to the accused persons for giving them an opportunity of hearing on the question of extension of the period of limitation but simultaneously, it may be observed that extension of the period of limitation without giving an opportunity to the accused of being heard, affects a very valuable right of the accused persons. They would not' be able to show to the court that the delay sought to be condoned is not justified at all or the interests of justice do not demand extension of the period of limitation. The grounds alleged for extension of the period of limitation may be unfounded and false and if once, without an opportunity of being heard having been given and period of limitation is extended, it would be beyond the jurisdiction of the Magistrate to recall that order on subsequent application made in this regard by the accused persons.
15. In Bindeshwari Prasad Singh v. Kali Singh : 1978CriLJ187 , their Lordships of the Supreme Court' have observed that there is no provision in the Cr. P. C. empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under Section 561-A are only given to High Court' and unlike Section 151 C. P. C., subordinate criminal courts have no inherent powers. In case the order taking cognizance after extension of period of limitation is sought to be challenged, it would not be possible for the court to recall that order. In such a situation the court has to act in conformity with the accepted principles of natural justice which demands that an opportunity of being heard should be given to the accused persons even on the question of extension of the period of limitation.
16. In the light of the observations which have been made in Surinder Mohan Vikal v. Aschraj Lal Chopra's case, it can certainly be said that the accused is vitally interested in the question of extension of the period of limitation and he cannot be denied hearing on this question.
17. In Krishna Sanghi's case, R. K. Tankha, J. considered this question and on the request of the parties, he proceeded to lay down the procedure to be followed by the trial courts. In that case, Tankha, J. observed as under:
Whenever a complaint or a challan is filed at the instance of any person of any police officer, the Court must first see that Section 468 of the Code of 1973 is attracted or not. If it' does, it should not register the case but give an opportunity to the person or the police office filing the complaint or challan to satisfy it on the point of limitation for purposes of condonation of delay. As regards the condonation of delay, it should not b done as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interest of justice make it necessary to do so. But the application of the section would always depend upon the fact's and circumstances of teach case of which the Court would be required to exercise its judicial discretion in the matter, like an application under Section 5 of the Limitation Act, 1963. At this stage I would also like to point out that the provisions of Section 473 of the Code should also be liberally construed like Section 5 of the Limitation Act so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the prosecutor but cannot be construed too liberally because the Government in the prosecutor or prosecution is upon police report. After the delay is condoned by the Court on its being satisfied by the process referred to above, then alone it would register the case and proceed with the same in accordance with law. Before condoning the delay, although I do not find any provision of giving of notice to the accused person in Chapter XXXVI of the Code, but natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. As such they have to be heard when an application under Section 473 of the Code is moved by the prosecution before cognizance is taken.
18. The suggested procedure commends itself being not only in accord with the principles of natural justice but it also surmounts the situation wherein recalling of the order of extension passed in the absence of the accused is impermissible. This cannot be the legislative intendment that the accused need not be heard on the question of extension of limitation. If he is to be heard, then he can only be heard before the extension of the period and extension of the period of limitation is a condition precedent to the taking of cognizance of offence. Thus, the true legal position appears to be that before taking cognizance of an offence after expiry of the period of limitation, the accused shall be given a notice and he shall be heard on the question of extension of the period of limitation under Section 473 Cr.P.C.
19. In view of what I have discussed above, the order dated 6-11-1978 and the earlier order taking cognizance of the offences against the accused persons deserve to be quashed.
20. Accordingly, I quash the same and send the case back to the learned Magistrate to proceed further in the light' of the observations made above. It would be open to the prosecution to move an application for extension of the period of limitation. If any such application is moved, an opportunity would be given to the accused persons and thereafter, the learned Magistrate shall proceed in the matter.