Kerala High Court
K. Venugopalan vs State Of Kerala on 5 September, 2002
Equivalent citations: 2003CRILJ1427
ORDER T.M. Hassan Pillai, J.
1. Heard.
2. The ground urged in the Crl. M.C. for quashing Annexure-A final report filed by the police after investigation alleging commission of an offence punishable under S. 323, IPC by the petitioner (the offence is alleged to have been committed on 6-9-1993) invoking the powers of this Court under Section 482, Cr. P.C. is that the offence alleged to have been committed was committed as early as on 6-9-1993 and cognizance was taken by the learned Magistrate after the expiry of the period of limitation provided under Section 468(2)(b), Cr. P.C. for taking cognizance i.e. cognizance was taken three years after the alleged commission of the offence. Learned Counsel also contended that in view of the law laid down by the three Judge Bench of the Supreme Court in State of Himachal Pradesh v. Tara Dutt, AIR 2000 SC 297 : (2000 Cri LJ 485) and the decision of this Court in M/s. ECIYO Coconut Oils Private Ltd. v. State of Kerala, ILR (2002) 1 Ker 273 : (2002 Cri LJ 1087), the learned Magistrate was not justified in taking cognizance of the offence and the ground of attack is that no speaking order has been passed by him condoning the delay. Taking cognizance of the offence has been assailed on the further ground of non-giving of an opportunity to the accused to be heard before taking cognizance of the offence.
3. I shall first consider the meaning of the expression 'taking cognizance' and then decide the question when cognizance was taken by the learned Magistrate of the offence under Section 323, IPC alleged to have been committed by the petitioner. The question as to what is meant by taking cognizance is no longer res Integra. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence (See R. R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 : (1951 Cri LJ 775). Supreme Court endorsed the observation made by Justice Das Gupta in Superintendent and Remembrancer of Legal affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437 : (1951 (52) Cri LJ 806), which read thus :
It seems to me clear however that before it can be said that, any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
4. Taking cognizance of an offence within the meaning of Section 190, Cr. P.C. only means that the Magistrate must apply his mind to the contents of the complaint before him for the purpose of proceeding under Section 200 and the other provisions following it (See Mowu v. The Superintendent, Special Jail, Nowgong, Assam, 1972 SCC (Cri) 184). It is settled that before a Magistrate can be said to have taken cognizance of an offence under Section 190(1)(a) Cr. P.C. he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200, Cr. P.C. and the provisions following that Section (see Nirmaljit Singh Hoon v. State of West Bengal, 1973 SCC (Cri) 521).
5. The Supreme Court held in Tula Ram v. Kishore Singh 1977 SCC (Cri) 621 : (1978 Cri LJ 8) that there is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Section 190 contemplates that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Court prescribes several modes in which a complaint can be disposed of after taking cognizance. In Narayandas Bhagwandas Madhavdas v. The State of West Bengal, AIR 1959 SC 1118 : (1959 SC 1368) the Supreme Court observed thus :
"It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so far the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter -- proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202."
6. The words "institution of a case" is not defined in the Code and a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Provision for taking cognizance of offences by the Magistrate is contained in Section 190(1), Cr. P.C. and cognizance can be taken in three ways, as provided in that Section (1) on receiving a complaint of facts, which constitute such offence; (2) on a report in writing of such facts -- that is, facts constituting the offence --made by any police officer and (3) upon information received from any person other then a police officer or upon the Magistrate's own knowledge or suspicion that such an offence has been committed. When a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence such a case is one instituted on a complaint. When a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer, it is a case instituted in the Magistrate's Court on a police report.
7. Cognizance can be taken in three ways enumerated in Clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. It is well settled by a catena of decisions of the Supreme Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is to be borne in mind that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Section 200 or 204 of the Code, (see Kishun Singh v. State of Bihar, 1993 SCC (Cri) 470 : (1993 Cri LJ 1700).
8. The expression "cognizance of the offence" has not been defined in the Code and Section 190 of the Code talks of cognizance of offences by Magistrates. This expression, in its broad and literal sense, means taking notice of an offence and would include the intention of initiating judicial proceedings against the offender in respect of that offences or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes Judicial notice of an offence. Initiation of proceedings is entirely different from taking cognizance of an offence and taking cognizance of an offence is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. In Wharton's Law Lexicon 14th Edn. at page 209 "cognizance" is defined, which reads as follows :
"Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in evidence : as the public statutes of the realm, the ancient history of the realm, the order and course of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the Several seals of the Kind, the Supreme Court and its jurisdiction, and many other things. A Judge is not bound to take cognizance of current events, however notorious, nor of the law of other countries."
9. When the Magistrate applies his judicial mind to the offence stated in the complaint or the police report, etc. cognizance is said to be taken. When the Magistrate takes judicial notice of the offence cognizance takes place. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which the case is sought to be dealt with or nature of the action taken by the Magistrate. Section 190 of the Code says that any Magistrate may take cognizance of an offence (a) on receiving a complaint of facts, which constitute such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge, that such an offence has been committed (See Anil Saran v. State of Bihar, 1995 SCC (Cri) 1051 : (1996 Cri LJ 408).
10. Investigating Officer is obliged under Section 170, Cr. P.C. to submit the police report if, in the course of investigation, sufficient evidence or reasonable ground is made out for the trial or for commitment of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report. The Magistrate takes cognizance of the offence disclosed in the investigation, as envisaged by Section 190, Cr. P.C. on the Investigating Officer filing the report. Taking cognizance of an offence under Section 190 is purely a judicial function subject to judicial review by Court of appeal or revision to which the Magistrate is subject, Cognizance of an offence, even if exclusively triable by the Court of Session, has to be taken by the Magistrate, because Section 193 precludes the Court of Session from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. In a case of an offence exclusively triable by the Court of Session, the police report on completion of the investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial and it is the Magistrate who takes cognizance of the offence not the Court of Session, though the case is one exclusively triable by the latter (see State of U.P. v. Lakshmi Brahman, 1983 SCC (Cri) 489 : (1983 Cri LJ 839).
11. If on receipt of a complaint under Section 154 of the Code in regard to a cognizable offence, an offence is registered and the concerned police officer embarks on an investigation and ultimately submits a police report under Section 173 of the Code, the Magistrate may take cognizance and if the offence is exclusively triable by a Court of Sessions, he must follow the procedure set out in Section 209. That Section provides that when in a case instituted on a police report, as defined in Section 2(r), or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session and remand the accused to custody (see Kishun Singh v. State of Bihar (1993 SC (Cri) 470 : (1993 Cri LJ 1700).
12. At the time of taking cognizance of the offence, the Court, has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It is not open to the Court to sift or appreciate the evidence at that stage with reference to the materials and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such a offence has been made out, and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court to proceed further in the matter. It is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not (See Rashmi Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415).
13. The well settled position of law is that upon receipt of a police report under Section 173(2) Cr. P.C. a Magistrate is entitled to take cognizance of an offence under Section 190 Cr. P.C. even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of witnesses examined by the police during the investigation and take cognizance of the offence complained of and order issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer has given an opinion that the investigation has made out a case against the accused. Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202, Cr. P.C. for taking cognizance of a case under Section 190(1)(a), though it is open to him to act under Section 200 or Section 202 also. The fact that the investigation had not originated from a complaint preferred to the Magistrate, but had been made pursuant to a report given to the police would not alter the situation in any manner. On receiving the police report; the Magistrate may take cognizance of the offence and issue process straight away to the accused (see India Carat Pvt. Ltd. v. State of Karnataka, (AIR 1989 SC 885 : (1989 Cri LJ 963).
14. The Supreme Court in Krishna Pillai v. T.A. Rajendra, (1990 SCC (Cri) 646, after referring to the Constitution Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak, 1984 SCC (Cri) 277 : (1984 Cri LJ 647, held that the extract from the Constitution Bench judgment clearly indicates that filing of a complaint in Court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. The Supreme Court has not accepted the contention that it must be taken that Court has taken cognizance on the date when the complaint is filed. In Narsingh Das Tapadia v. Goverdhan Das Partani, (2000 SCC (Cri) 1326 : (AIR 2000 SC 2946) the Supreme Court held that mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate and that taking cognizance of the offence has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown that he has applied him mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied his mind not for the purpose of taking action upon the complaint, but for taking some other kind of action contemplated under the Code of Criminal Procedure, such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence.
15. It may appear from the materials on record that the Magistrate took notice of the accusation made against the petitioner on the police report and applied his judicial mind to the accusation made in the police report and satisfied that the allegations, if proved, would constitute an offence and decided to take judicial proceedings against the petitioner, i.e. the Magistrate took cognizance of the offence punishable under Section 323, IPC after the expiry of the period of limitation provided for taking cognizance of an offence punishable under Section 323, IPC. However, in view of the sub-mission made by Counsel for the petitioner that the contentions urged before me are to be permitted to be raised before the Magistrate, I need not finally decide the question whether cognizance was taken after the expiry of the period of three years or not.
16. For properly appreciating the ten-ability of the contentions urged, relevant provisions that are to be considered are Sections 468 and 473, Cr. P.C. Sections 468 and 473, which occur in Chapter XXXVI of the Code of Criminal Procedure, which are relevant for the present purpose, read as follows :
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.
(3) For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment.
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."
17. The general rule of Limitation is based on the Latin maxim 'Vigilantibus et non dormientibus jura subveniunt' (the vigilant, and not the sleeping, are assisted by laws). Statutes of limitation have legislative policy behind them. 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 prosecution.
18. 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 process of Court by filing vexatious and belated prosecution long after the date of the offence is the object of the Code of Criminal Procedure, 1973, in fixing a bar of limitation on prosecution. Fairness of the trial as enshrined in Article 21 of the Constitution of India is the object which the provisions of Section 468, Cr. P.C. seek to subserve and it is clearly in consonance with the concept of fairness of trial. Any prosecution, whether by the State or by a private complainant, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation is, therefore, of utmost importance (see State of Punjab v. Sarwan Singh, 1981 SCC (Cri) 625 : (1981 Cri LJ 722) and Vanka Radhamanohari v. Vanka Venkata Reddy, (1993 SCC (Cri) 571 : (1993 AIR SCW 3595). The Supreme Court in State of Punjab v. Sarwan Singh, (1981 SCC (Cri) 625 : (1981 Cri LJ 722) held that prosecution launched against the respondent before the Supreme Court being barred by limitation, the conviction, as also the sentence of the respondent as also the entire proceedings culminating in the conviction became non-est.
19. Section 473 is in the nature of an overriding provision. According to Section 473, Cr. P.C. notwithstanding anything contained in Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The Supreme Court held in Bhagirath Kanoria v. State of M.P., (1984 SCC (Crl) 590 : (AIR 1984 SC 1688) that the Courts which are confronted with the provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section 473 of the Code. The same view has been expressed by the Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya G. Hiremath, 1991 SCC (Cri) 315 : (1991 AIR SCW 505). In view of Section 473, Cr. P.C. a Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained, but even in the absence of a proper explanation, if the Court is satisfied that it is necessary to do so in the interests of justice (see Vanka Radhamanohari v. Vanka Venkata Reddy, 1993 SCC (Cri) 571 : (1999 AIR SCW 3595). Section 473 has an overriding effect on Section 468 in view of the non-obstante clause in Section 473 and if the Court is satisfied on the facts and in the circumstances of a particular case, that either the delay has been properly explained or that it is necessary to do so in the interest of justice. As such, whenever the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power under Section 473, Cr. P.C. is to be exercised in the interests of justice, then, while considering the grievance of a lady, of torture, cruelty and inhuman treatment by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with the lapse of time the cause of action itself has come to an end.
20. There is a basic difference between Section 5 of the Limitation Act and Section 473, Cr. P.C. The onus is on the applicant or appellant who approaches the Court for exercising its power under Section 5 of the Limitation Act for condonation of delay to satisfy the Court that there is sufficient reason for condonation of delay. Whenever the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone the delay in the interest of justice. Section 473, Cr. P.C. enjoins a duty on the Court to examine not only whether such delay has been explained, but as to whether it is the requirement of the justice to condone or ignore such delay (see Vanka Radhamanohari v. Vanka Venkata Reddy (1993 SCC (Cri) 571 : (1993 AIR SCW 3595).
21. In Sukhdev Raj v. State of Punjab, 1994 SCC (Cri) 1480 the Supreme Court held that Section 472 Cr. P.C. does not in any clear terms lay down that the application for condonation of delay should be filed at the time of filing a challan itself and that the words "so to do in the interest of justice" are wide enough. On the basis of the principle laid down by the Supreme Court in the decision cited supra it may be possible to say that an application for condoning the delay and also explaining the delay can be filed at a later stage.
22. In State of Maharashtra v. Sharad-chandra Vinayak Dongre, 1995 SCC (Cri) 16 : (AIR 1995 SC 231) the Supreme Court accepted the view expressed by the High Court that the delay, if any, in launching prosecution should not have been condoned with-out notice to the respondent and behind his/ her back and without recording any reason for condonation of delay (an application for condonation of delay was moved before the Magistrate and that application was allowed by the Magistrate without giving notice to respondents and behind respondent's back and in that context the Supreme Court made the above observation). It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the materials placed by the prosecution with the report (charge-sheet) is sufficient to take cognizance of the offence or not and that power of the Magistrate to take cognizance of the offence cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate.
23. Sections 469 to 473 deal with various aspects of computation of limitation. Sub-section (1) of Section 468 ordains that no Court shall take cognizance of an offence of the category specified in Sub-section (2) after the expiry of 'the period of limitation' prescribed thereunder. This, however, is subject to the other provisions of the Code. Sub-section (2) postulates different period of limitation for offences with reference to the punishment provided for them; if the punishment provided for an offence in any Act is only fine, the period of limitation fixed is six months; if the offence is punishable with imprisonment for a term not exceeding one year, the period of limitation prescribed is one year and if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years, the period of limitation laid down is three years. Sub-section (3) spells out the rule of limitation in cases of joinder of charges; if a person is tried for more offences than one, than the period of limitation will be determined with reference to the offences which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Sub-section (1) of Section 469 provides for three alternative starting points of limitation -- (a) the date of the offence; (b) the first day on which an offence came to the knowledge of the person aggrieved by the offence or to any police officer, whichever is earlier, in a case where the commission of the offence was not known to any of them, or (c) the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation, into the offence, whichever is earlier, but this can be called in aid in a case where it is not known by whom the offence was committed. Basically from the date of the offence the period will start. But there will be cases where the commission of offence or identity of the offender comes to the knowledge of those concerned with it long thereafter. In such situations Clauses (b) and (c), as the case may be, would be the date of commencement of the period of limitation (see State of Rajasthan v. Sanjay Kumar, 1998 SCC (Cri) 1260 : 1998 Cri LJ 2531).
24. Section 239 and 240, Cr. P.C, are to be read together and if there is a prima facie evidence or material against the accused in support of the charge (allegations), the Magistrate may frame charge in accordance with Section 240, Cr. P.C. If, on the other hand, the Magistrate finds that the allegations or imputations against the accused do not make out a prima facie case and do not furnish the basis for framing charge, it will be a case of the charge being groundless and in that case, the Magistrate has no option but to discharge the accused. If the Magistrate finds that taking cognizance of the offence is contrary to any provision of law like Section 468, Cr. P.C., on the ground that complaint is barred by limitation, Magistrate has to discharge the accused. In a case where the Magistrate takes cognizance of the offence without taking note of Section 468, Cr. P.C. the most proper stage at which the accused can plea for discharge is the stage of framing the charge and the accused need not wait till the completion of the trial. The Magistrate will not be committing any illegality in considering that question and discharging the accused at the stage of framing the charge if the facts so justify (see Arun Vyas v. Anitha Vyas, 1999 SCC (Cri) 629 : (1999 Cri LJ 3479).
25. Section 473, Cr. P.C. which extends the period of limitation, is in two parts. The first part contains a non-obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. Power is conferred on every competent Court under the first limb to take cognizance of an offence after 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 and the second limb empowers such a Court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interest of justice. The expression "in the interest of justice" in Section 473 cannot be interpreted to mean in the interest of prosecution. The Court has to see only interest of justice, the Court should, in the interest of justice, protect the oppressed and punish the oppressor offender (See Arun Vyas's case cited supra).
26. Thus it is clear from the decisions of the Supreme Court referred to by me above that even in a case where the delay is not properly explained, the Magistrate can take cognizance of the offence if he is satisfied on the facts and in the circumstances of the case that cognizance is to be taken in the interest of justice and the Court has to apply its mind on the question whether it is necessary to condone the delay in the interest of justice. From the principles enunciated by the Supreme Court in Arun Vyas's case (1999 Cri LJ 3479) it is clear that even if the Magistrate has taken cognizance of the offence without taking note of Section 468 Cr. P.C. the accused can plead fo'r his dis- charge at the stage of framing charge.
27. A three Judge Bench of the Supreme Court in State of H. P. v. Tara Dutt, 2000 SCC (Cri) 125 : (2000 Cri LJ 485) observed thus :
"7. Section 473 confers power on the Court taking cognizance 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 and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well-recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same is in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence."
28. Thus it is clear from the three Judge Bench decision cited supra that whenever the Court exercises its discretion of taking cognizance of the offence, the same must be by a speaking order indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. From a bare reading of the impugned order it would appear that the learned Magistrate has not indicated satisfaction of the Court that the delay was satisfactorily explained and the condonation of the delay was in the interest of justice. I need not finally express my view on that question in view of the submission made by Counsel for the petitioner.
29. Learned Counsel for the petitioner submitted that the petitioner will be satisfied if a direction is given to the Magistrate to consider the contentions urged before me, if raised before him on behalf of the petitioner.
In view of the above submission, learned Magistrate is directed to consider the grounds urged before me in this Cri. M.C. if raised before him on behalf of the petitioner, and pass appropriate orders uninfluenced by the opinion expressed by me in this order on the matter. The Cri. M.C. is disposed of accordingly.