Rajasthan High Court - Jaipur
Dr. Hari Kishan Gupta And Ors. vs State Of Rajasthan on 18 September, 1986
Equivalent citations: 1987(2)WLN630
JUDGMENT Guman Mal Lodha, J.
1. This is an application under Section 482 Cr. P.C. against the order passed by the Magistrate and upheld by the Sessions Court dated 9-12-1985 and 2-5-1985 in criminal case of 84 of 1984.
2. The dispute between the parties i.e. the petitioner Dr. Hari Kishan Gupta and his wife Smt. Pramod Rani on the one hand and Riskant Chaturvedi respondent on the other hand relate to the strained relationship between alleged land lord and tenant. The petitioners are not prepared to treat Chaturvedi as tenant and they alleged that he was family guest in the residential premises in 'C Scheme Jaipur and wanted the apartment to be returned. Since Chaturvedi was not prepared to vacate the premises there were two civil suits, one by Chaturvedi for restraining Mr. Gupta and Mrs. Gupta from evicting him and other one by Mr. Gupta against Chaturvedi for possession from Chaturvedi.
3. The parties did not stop with the civil litigation and it appears that on 28-7-1982 Chaturvedi filed a report in the Police Station Ashok Nagar, Jaipur with the allegation that Gupta and his wife has committed trespass and mischief. FIR 224 of 1982 was registered investigation followed the report that no offence is made out against the accused Dr. Gupta and his wife.
4. After this report was submitted on 4-12-1982 to the Magistrate concerned being Judicial Magistrate No. 12 Jaipur City, Jaipur, the papers remained pending not for a few days but for a quite some months and ultimately on 26-6-84 the Judicial Magistrate No. 12 took cognizance.
5. This time gap between 4-12-1982 and 28-6-1984 for the allegations of offence having been committed on 28-7-1982 would certainly make out a case taking cognizance after about 2 years.
6. When the cognizance of offence was taken the learned Magistrate did not realise that there is a provision of limitation under Section 468, Cr. P.C. in the amended Criminal Procedure Code with powers to condone the delay under Section 473, Cr. P.C. Probably under the ignorance of provisions the Magistrate took cognizance but the accused then filed an application that the cognizance has been wrongly taken because on the date the cognizance was taken it has become time barred under Section 468 Cr. P.C.
7. Both the learned Magistrate and Sessions Judge took the view that true it is that there was delay and it was prima facie time barred' to the provision of Section 468 Cr. P.C. because the maximum period could have been one year and the offence was punishable was not more than one year, but as it was on account of latches or inaction of the court no body should be asked or allowed to suffer and therefore the delay should be deemed to be condoned.
8. It is precisely against these orders that the accused petitioners have come before this court and prays for invoking the extra-ordinary powers known as inherent powers under Section 482 Cr. P.C.
9. There is no room for doubt that the time leg between the date of allegation of the commission of the offence and taking of cognizance is about 2 years because the offence is alleged to have been committed on 28-7-1982 and the cognizance has been taken on 28-6-1984. There is also no doubt that the two offences under Sections 448 and 426 IPC for which cognizance has been taken are punishable for one year and not more than one year and, therefore, the limitation is one year under Section 468, Cr. P.C.
10. However the crucial question which now requires adjudication is whether this court should quash the proceedings or remand the case for exercise of the discretion under Section 473 Cr. PC. In Krishna Sanghi v. State of Madhya Pradesh 1977 Cr. LR 90 the Madhya Pradesh High Court was required to interpret the implication of Sections 468 and 473, Cr. P.C.
11. It was held that whenever a complaint or challan is filed the court must first secs that Section 468 Cr. P.C. is attracted or not. If it does it should not register the case but give an opportunity to the person or the police officer filing the complaint or challan to satisfy it on the point of limitation for the purpose of condonation of delay. The delay should not be condoned as a matter course but it was to be condoned with the exercise of discretion.
12. It was then further held that Section 473, Cr. P.C. cannot be construed too liberally because the Government is the prosecutor and the prosecution is upon the police report. After delay, it is condoned by the Court on it being satisfied and then alone it would register the case and proceed with the same in accordance with law.
13. His Lordships also held that the 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 the valuable right which accrues to the accused and cannot be allowed to be taken away lightly. As such the accused are required to be heard when an application under Section 473 is moved by the prosecution before the cognizance is taken.
14. The Allahabad High Court in Prakash Chand v. Kaushal Kishore 1980 Cr. L.J. 578 interpreted Section 473 and Section 468 Cr. P.C.
15. It was held that when a complaint is filed against the accused which is prima facie barred by time it becomes necessary for the prosecution agency to simultaneously file an application for condonation of delay under Section 473 Cr. P.C. The court cannot take cognizance unless the delay is condoned. It is not open to a Magistrate to take cognizance issue process and record evidence and thereafter determine the question of limitation.
16. There is no doubt that in the present case there has been delay of about two years because as mentioned above the offence is alleged to have been committed on 28-7-1982 and the cognizance was taken on 28-6-1984. That being so the complainant was required to explain the delay of about one year since the limitation was only one year.
17. It appears that the Magistrate as well as the complainant both were ignorant about the legal implication of Sections 468 and 473 Cr. P.C. and the amendment introduced in the Criminal Procedure Code for putting an end to such prosecution after delay. The object was not to allow indefinite time to the complainant or the police.
18. However, the question emerges for consideration whether after quashing the proceedings which obviously deserves to be quashed because the cognizance was taken without application of mind regarding delay I should remand the case to the Magistrate for considering whether the delay should be condoned or not.
19. Firstly, I find that there is no application either by the prosecution or by the complainant before the Magistrate explaining the delay and the reasons for it which could have been considered.
20. The question which emerges for consideration is whether since the Magistrate did act apply his mind to Section 473 Cr. P.C. and registered the case by taking cognizance after about two years without condoning the delay, the court should now quash the order of taking cognizance and send the case back, to the Magistrate for consideration on the question whether delay can be condoned or not under Section 473, Cr. P.C.
21. However, I find that there are two difficulties and those factors acquire consideration by this court. Firstly, before the Magistrate even till now there is no application of the complainant explaining delay and requesting for condonation of delay under Section 473 Cr. P.C. Unless some grounds are given in the application and the accused is allowed an opportunity to rebut them and the court hears the parties decides them, condonation cannot be done lightly and as a matter of course as observed by the Madhya Pradesh High Court in the judgment mentioned above.
22. Secondly, I find that there has been enough delay nOW for petty offence of 1982 now the cognizance if at all would be taken and the proceedings would commence in 1986 after about 4 years. The additional factor which also requires consideration is that the dispute is of trivial nature. The parties are landlord and tenant or at the most according to the complainant family guest and the other one are the host. Now the question is regarding possession Mr. Singh has submitted that the possession of these premises are yet with the tenant, and not with the landlord, and the civil suits are pending from both sides in a competent civil court. The allegations in the FIR read as a whole shows that all that was alleged that accused No. 2 i.e. wife of Dr. Gupta entered the house, of course within his own house as a landlord which was in possession of the complainant as tenant and try to oust him. In this process some of crockery was broken (two or three cups).
23. These allegations in themselves may he sufficient for making out a criminal offence and for conviction but it cannot be said that the nature of the offence alleged to have been committed is of a serious or heinous nature.
24. In my opinion, it would not be in the interest of justice to now remit the case back to the Magistrate in the year 1986 for the alleged incidence of 1982 and that too of incidence of such trivial nature which has got more trapping of a civil dispute rather than a criminal offence.
25. In this view of the matter, I am of the opinion that it would not be in the interest of justice to remit the case now. Consequently, since the cognizance was token without application of mind regarding provisions of Section 473 Cr. P.C. and without giving a finding that there was sufficient cause or good cause for delay of about year, I deem it proper that the proceedings as a whole should be quashed. Consequently the application under Section 482 Cr. PC is accepted and the proceedings in the criminal court are quashed.