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Manindra Nath Das Vs. Public Prosecutor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1979CriLJ1465
AppellantManindra Nath Das
RespondentPublic Prosecutor
Excerpt:
- .....these grounds, i may state the facts of the case in a nutshell. on 15th october, 1971, the learned public prosecutor, burdwan, filed a petition of complaint against the petitioners, alleging that during inspection held on 15th december, 1970, of the shop of the petitioners named and styled as m/s. n.c. daw & co. at raniganj, burdwan of which the petitioner no. 1 is the licensee and the petitioner no. 2 is an employee of the petitioner no. 1; two revolvers, one noted in the stock register and another in the repairing register could not be produced on demand and further 99 pistol cartridges and 486 gun cartridges were found short on verification of stocks and that the petitioners without having a licence to repair fire arms accepted revolvers for repair. on these allegations sanction for.....
Judgment:
ORDER

Jyotirmoyee Nag, J.

1. This Rule is directed against a proceeding being Case No. C/1430 of 1976, now pending in the Court of the learned Sub-Divisional Judicial Magistrate, 3rd Court, Asansol. The petitioners have prayed for quashing this proceeding and certain grounds have been urged in support of the same. Before dealing with these grounds, I may state the facts of the case in a nutshell. On 15th October, 1971, the learned Public Prosecutor, Burdwan, filed a petition of complaint against the petitioners, alleging that during inspection held on 15th December, 1970, of the shop of the petitioners named and styled as M/s. N.C. Daw & Co. at Raniganj, Burdwan of which the petitioner No. 1 is the licensee and the petitioner No. 2 is an employee of the petitioner No. 1; two revolvers, one noted in the stock register and another in the repairing register could not be produced on demand and further 99 pistol cartridges and 486 gun cartridges were found short on verification of stocks and that the petitioners without having a licence to repair fire arms accepted revolvers for repair. On these allegations sanction for prosecution under the Arms Act was obtained by the learned District Magistrate for initiation of the proceeding against the petitioners. On the complaint made by the learned Public Prosecutor, the learned Magistrate took cognizance of the offence and the petitioners were summoned under the Arms Act td face a trial. That on 21st July, 1973, charges were framed against the petitioners under Section 25(m) of the Indian Arms Act, 1959 after examination of seven witnesses. That on 29th July, 1975, the learned Sub-Divisional Judicial Magistrate dropped the proceedings in the said case and released the petitioners from their bail-bonds accepting the contentions made on behalf of the petitioners concerning the maintainability of the aforesaid case on the ground of contravention of Section 200 Clause (aa) of the Code of Criminal Procedure on the basis of a decision reported in 1974 Cri LJ 1441 (Cal). That on 23rd August, 1976 more than a year after disposal of the case, being No. C/4905A of 1971, the learned Public Prosecutor Burdwan filed another petition of complaint through the learned Additional Public Prosecutor containing the same allegations as made in a complaint filed earlier under Section 25(m) of the Indian Arms Act (No. C/4905A of 1971). The learned Magistrate perused the petition of complaint and called for the records of the earlier case and on 3lst August, 1976, dn scrutiny of the records of the earlier case and on considering the allegations made in the petition of complaint took cognizance of the offences alleged to have been committed by the petitioners. The learned Sub-Divisional Judicial Magistrate found that the prosecution had conducted the earlier case with due diligence and there was no bar to taking fresh cognizance upon the complaint made by the learned Additidnal Public Prosecutor, who was the public servant and as such need not be examined under Section 200 of the Cr. P.C. and on the basis of the previous sanction the learned Magistrate took cognizance of the defenses and issued summons against the petitioners by tagging the earlier case records with the records of the present case. The petitioner No. 2 appeared in the Court of the learned Sub-Divisional Judicial Magistrate on 15th May, 1978 and the petitioner No. 1, who is an old man was allowed to be represented through his learned lawyer. The petition of complaint in paragraph 12 gives the reason for dropping the proceeding. That is clearly stated and reason for the delay in filing the subsequent case is also explained viz., the basis being the decisions, reported in 1974 Cri LJ 1441 (Cal) and 1974 Cri LJ 1079 (Cal) wherein it has been held by the Division Bench of this Court that non-compliance with the mandatory provisions of Section 200, Cr. P.C. is fatal to the prosecution. The learned Magistrate as I have already stated discharged the accused petitioners in 1975. These two decisions of the Division Bench were subsequently overruled by the Special Bench decision of this Court and that the decision is reported in 1976 Cri LJ at page (sic) : AIR1975Cal450 ?. Thereafter, the present petition of complaint was filed and the learned Magistrate after calling for the records of the previous case, being Case No. C/4905A of 1971 issued process against the accused persons on the basis of a complaint made by the learned Additional Public Prosecutor. In response to summons, the accused petitioners appeared before the learned Magistrate to answer a charge Under Section 25(m) of the Indian Arms Act. Two points have been urged before this Court by the learned Advocate, Mr. Mukti Prosanna Mukherjee, appearing for the petitioners. The first point urged is that the petition of complaint is barred by limitation under Section 468 of the Criminal Procedure Code, 1973. The 2nd point is that the learned Additional Public Prosecutor who filed the instant complaint is no doubt a public servant but when he filed the complaint he did not do so in the discharge of his duties as a public prosecutor for it is no part of the duty of the learned Public Prosecutor to file a complaint and if he does he does so as a private citizen and as such the provisions of Section 200, Criminal Procedure Code should have been followed in this case, that is the complainant should have been examined so also his witnesses if any. Non-compliance with this provision has vitiated the proceeding and hence the proceeding cannot go on. So far as first point regarding the limitation is concerned, it has been agrued on behalf of the State by the learned Public Prosecutor that Section 468 of the new Code and the subsequent provisions up to Section 473 are unconstitutional inasmuch as they place a clog upon the duty of the State to prosecute the offender whenever he has found there should be no bar of limitation to such prosecution. Now in the previous Criminal Procedure Code this salutary provision was not there. It must be remembered that the duties of the State are from time to time provided in the various statutes. There is nothing in the Constitution itself regarding 'fundamental duties of the State' such as 'fundamental rights of the private individual'. The State prosecutes an offender by virtue of the powers given in the Criminal Procedure Code and by/under Section 468 of the Criminal Procedure Code a limitation is placed upon the powers of the State to prosecute the offender after the expiry of the period prescribed therein and various periods are prescribed for various offences depending upon the gravity of the offences and the sentences prescribed for such offences. The limitation for prosecution provided under Section 468 of the Code is a special law laid down in the Criminal Procedure Code and, as such, this will override the provisions of the Limitation Act itself, if there is any conflict with that Act and the special provisions in the Criminal Procedure Code. The Limitation Act, however, does not provide any time limit for prosecution of the offenders fdr various offences under the Indian Penal Code and other statutes. Therefore, Section 468 and the subsequent sections uptil Section 473 of the Code do not cdnflict with the Limitation Act and undoubtedly these sections have been enacted in the Criminal Procedure Code with the object of preventing harassment td the prosecuted so that he may be haunted with the fear of prosecution throughout his life in cases which are not of very great consequences. With this object in view, limitation is provided for taking cognizance of certain offences and the Police as well as Private Prosecutor are also altered so that they may take steps and complete investigation within the period prescribed by Section 468 of the Code in respect of the offences provided therein. Therefore, reasonable restriction is placed upon the so called 'fundamental duties', to use the language of the Public Prosecutor 'of the State' to prosecute the offender. In this connection a reference may be made to Article 226-A of the Constitution which provides that the validity of any Central law cannot be questioned under Article 226 of the Constitution. Accordingly this provision is a bar to this Court to entertain any such question. Next so far as the objection raised by the learned Advocate appearing for the petitioners that the present complaint is barred by limitation, I am not inclined to hold in his favour as the petition of complaint, it will appear in paragraph 12, the delay for filing the complaint has been properly explained. It is true that there is no prayer in the petition of complaint for condoning the delay but the facts were scrutinised by the learned Magistrate as he called for the records of the previous case (i.e. Case No. C/4905A of 1971) and was satisfied with the explanation given for the delay and thereafter the learned Magistrate issued process. The grounds in the petition of complaint in paragraph 12 are satisfactory enough to condone the delay, if any, under Section 473, Cr. P.C. which provides that the 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 interest of justice. The learned Magistrate has found after considering all the facts and circumstances of the previous case and why the accused was discharged in that case and the previous case was conducted with due diligence but due to reasons stated it could not be continued and justice demands that the present petition of complaint be accepted and accordingly he took cognizance of the offence on the basis of the fresh petition of complaint. This argument of the learned Advocate for the petitioners is accordingly disposed of. now, regarding the second ground urged by the learned Advocate for the petitioners that the entire proceeding is vitiated inasmuch as the learned Magistrate took cognizance on the basis of a fresh petition of complaint in 1976 and he did not comply with the provisions of Section 200, Cr. P.C. by examining the complainant and its witnesses as required under that section on the ground that the learned Public Prosecutor is a public servant and as such his xamination is not necessary in view of Section 200(aa) of the said Code. But it must be noticed that it is not sufficient that the complainant should be a public servant to exempt him from examination under Section 200(aa) but he must file a complaint in the discharge of his duties. It is no part of the duty of the learned Public Prosecutor as learned Public Prosecutor to file a complaint and when he does that his position is that of a private complainant and, therefore, he should have been examined Under Section 200 of the Cr. P.C. This is a mandatory provision of law and this ground has vitiated the entire proceeding and accordingly the same is quashed. However. the learned Magistrate may proceed with the previous case upon an application being made for continuing the proceeding from the stage where it was dropped on the groundof the impediment created by the decision of this Court reported in 1974 Cri LJ 1441 or on a fresh petition of complaint to be filed by the learned Public Prosecutor stating the facts and circumstances which have resulted in the delay in filing the complaint and after consideration of the circumstances and condoning the delay in filing the complaint and after proper examination of the complainant under Section 200, Cr. P.C. With these observations, the Rule is made absolute.

2. The petitioners are discharged from their bail bonds.


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