Madhya Pradesh High Court
Vinay Sapre vs The State Of Madhya Pradesh on 18 January, 2018
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HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No.8987/2010
Vinay Sapre..................................................Petitioner
Versus
State of Madhya Pradesh.............................Respondent
For the petitioner : Mr. Sourabh Tiwari and Mr. Gaurav
Tiwari, Advocates.
For the respondent: Mr. Arvind Singh, Government
Advocate.
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Present: HON'BLE SHRI JUSTICE ATUL SREEDHARAN
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ORDER
(18.1.2018) The present petition has been filed by the petitioner herein against the order passed by the trial court dated 19.7.2010 in Criminal Revision No.277/2009. The order was passed by the learned Second Additional District Judge, Khurai, District Sagar, in Vinay Sapre Vs. State of Madhya Pradesh (Forest Department through Forest Range Officer, Khurai, District Sagar). By the impugned order, the learned Court of Sessions upheld the order dated 31.8.2009 passed by the learned Judicial Magistrate First Class, 2 Khurai, District Sagar, by which delay in taking cognizance was condoned under Section 473 Cr.P.C. By this petition, the petitioner has sought quashment of the proceedings pending before the lower court.
2. The brief facts essential to appreciate the instant case are as follows. It is alleged by the respondent that on 25.6.2002, at the Sagar Naka barrier in Khurai, the petitioner herein was carrying wood in his tractor- trolley without licence. The forest authorities registered POR No.1272/2011 on 25.6.2002 itself against the petitioner herein. The charge-sheet was filed on 10.8.2007 after a passage of five years from the registration of the POR against the petitioner herein. On 10.8.2007 itself, the case was registered against the petitioner and notice was issued to him for deciding an application under Section 473 Cr.P.C, filed by the respondent for condonation of delay in taking cognizance of the offences. The offences against the petitioner herein were under Sections 41 and 42 read with Section 76 of the Indian Forest Act, 1927 and under Sections 5 and 16 of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969. The petitioner appeared before the learned trial court and opposed the application for condonation of delay and 3 vide order dated 31.8.2009, the learned Court of the Judicial Magistrate First Class, Khurai, condoned the delay. The maximum punishment that the petitioner herein could have faced for the said offences was two years imprisonment.
3. Learned counsel for the petitioner has argued that cognizance ought to have been taken latest by 25.6.2005 as the period of limitation provided under Section 468(2)(c) Cr.P.C is three years, where the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The commencement of the period of limitation as per Section 469(1) Cr.P.C, is from the date of the offence or where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer. The undisputed fact in this case is that, the date of the offence, the knowledge about the commission of the offence and the identity of the offender were all known on 25.2.2002 itself.
4. Learned counsel for the petitioner has drawn the attention of this court to the order dated 10.8.2007 4 passed by the Court of the learned Judicial Magistrate First Class, Khurai, District Sagar. The order clearly reflects that the case was filed before it on 10.8.2007 and it had directed that the case be registered on the same date. In fact, the learned court below had taken cognizance of the offence on 10.8.2007. In order to further strengthen this contention, the learned counsel for the petitioner has drawn the attention of this court to the order dated 31.8.2009 at page 76 in which the learned court below, while deciding the application under Section 473 Cr.P.C., has categorically held that the cognizance was taken on 10.8.2007 itself.
5. Learned counsel for the State, while opposing the instant petition, has argued that the issue raised by the petitioner herein can be decided by the trial court itself in the course of the trial. He has further argued that the impugned order dated 19.7.2010, clearly observes that the petitioner herein was given notice by the respondent-State of the date on which they were going to file the charge-sheet before the trial court and despite that, the petitioner herein did not appear before the trial court to challenge the taking of cognizance on the grounds of delay.
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6. Heard the learned counsels for the parties and perused the documents filed along with the petition. The undisputed facts in this case are that the incident occurred on 25.6.2002 and the respondent-State was well aware of the offence and the offenders on 25.6.2002 itself. It is also undisputed that the charge- sheet was filed on 10.8.2007 after a delay of five years. It is also undisputed that cognizance was taken on the same day on which the charge-sheet was filed i.e. 10.8.2007 as it is borne out in the order of the trial court dated 31.8.2009. Lastly, it is undisputed that the opportunity to oppose the application under Section 473 Cr.P.C. was granted to the petitioner herein only after the cognizance was taken.
7. The short point that arises for consideration before this court is whether the procedure adopted by the learned Judicial Magistrate First Class, Khurai, District Sagar, of taking cognizance first and thereafter hearing the parties and condoning the delay under Section 473 Cr.P.C. was appropriate. If the said procedure is adopted was not appropriate then, should the matter be remanded to the trial court following the judgment of the Supreme Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre (1995) 1 SCC 42 or 6 should the case against the petitioner herein be quashed, if the interest of justice so demands?
8. Section 468 Cr.P.C. provides for a balance between the right of an aggrieved victim to prosecute the offender and the right of the offender to a speedy trial. Section 468 Cr.P.C. commences with a negative mandate that, no court shall take cognizance of an offence specified in sub-section (2) after the expiry of the period of limitation. The period of limitation is provided in sub- section (2) of Section 468 and, in the light of the factual circumstances of the petitioner's case which is covered by Clause (c) of sub-section (2), cognizance ought to have be taken within a period of three years, as the offence alleged against the petitioner herein is punishable with imprisonment for a maximum term of two years. Section 473 Cr.P.C. provides for the extension of the period of limitation in certain cases, which can be exercised by the learned trial court, under two circumstances. Firstly, where the trial court is satisfied that in the facts and circumstances of the given case the cause of delay has been properly explained and, secondly, that it is necessary to do so in the interest of justice. Thus, the delay can be condoned in either of the two situations. This legal proposition 7 has rightly been appreciated by the learned Judicial Magistrate First Class, Khurai, District Sagar, as is reflected in his order dated 31.8.2009. However, where the Ld. Court below erred was that it had taken cognizance of the offence, before condoning the delay under Section 473 Cr.P.C. This, in the humble opinion of this Court, fell foul of the mandate of Section 468 Cr.P.C.
9. In this regard, it would be relevant to refer to the judgment of the Supreme Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre
- (1995) 1 SCC 42, where the Supreme Court dealt with the ambit, scope and the procedure to be adopted by the trial court, where it is called upon to take cognizance of an offence beyond the period of limitation. In the case of Sharadchandra Vinayak Dongre, the officers of the Excise Department of the State of Maharashtra, along with the officers of the Sales Tax and Income Tax Departments, had carried out surprise raids at the brewery of M/s. Doburg Lager Breweries Pvt. Ltd., on the ground that the brewery had committed offences relating to manufacture and sale of beer without payment of excise duty. The cases were registered against the brewery on 22.11.1985 and five 8 charge-sheets were filed on 21.11.1986 before the Chief Judicial Magistrate, Satara. The prosecution filed an application for condonation of delay, if any had occurred in taking cognizance. The respondent challenged before the High Court, the order of the Chief Judicial Magistrate, Satara, allowing the condonation of delay on 21.11.1986 and taking cognizance on the same day. The High Court quashed the proceedings against the brewery on the ground that the delay could not have been condoned under Section 473 Cr.P.C. without notice to the accused and behind their back and also without recording any reason for the condonation of delay. The Supreme Court held that the appreciation of the law by the High Court was correct. However, it held that the High Court erred in quashing the proceedings and that it would have been appropriate for the High Court to have remanded the matter to the trial court to decide the application under Section 473 Cr.P.C afresh, after giving an appropriate notice to the accused.
10. The judgment of the Supreme Court in Sharadchandra Vinayak Dongre (supra), was followed by the Supreme Court in Sara Mathew Vs. Institute of Cardiovascular Diseases (2014) 2 SCC 62. In that 9 case, the Supreme Court was dealing with the issue of condonation of delay in a complaint case. In paragraph 35, the Supreme Court held that if the complaint is filed after the period of limitation, then it is open to the complainant to make an application for condonation of delay under Section 473 Cr.P.C and that, the court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not.
11. In the present case, it is undisputed that cognizance of the offence itself was taken on the date on which the charge-sheet was filed without considering the application under Section 473 Cr.P.C., which could not have been done in view of Section 468 Cr.P.C. The opportunity given to the accused to oppose this application under Section 473 Cr.P.C. after cognizance was taken was grossly misplaced as the court could not have reviewed its order of taking cognizance and summoning the accused/petitioner even if it had come to the conclusion, that the application under Section 473 Cr.P.C deserved to be dismissed. In such a case, it would have led to anomalous situation, where the trial court, though was of the opinion that the delay ought not to be condoned, could not reverse its order taking 10 cognizance in view of Section 362 Cr.P.C. which prohibits review of its previous order.
12. Thus, where taking of cognizance in a particular case is delayed on account of the delay in filing of the charge- sheet by the police or in filing of the complaint case by the complainant, the court without taking cognizance of the offences, must first of all issue notice to the prospective accused and hear him on the issue of condoning the delay in taking cognizance. It is trite law that a case where Section 468 Cr.P.C. becomes applicable, the accused gets a valuable entitlement not to be prosecuted for the said offence. That entitlement, before it is waived by resorting to procedure under section 473 Cr.P.C., the prospective accused must be heard. Else, it would be a violation of natural justice. This right is quite akin to the right of an accused to be heard in a revision petition preferred by a complainant where the complaint has been dismissed under Section 203 Cr.P.C. by the trial court without issuing process to the accused.
13. The only question now remaining before this court is whether, under the circumstances, it should remand the case to the trial court to commence afresh from the 11 stage of issuing notice to the petitioner herein, and hear him on the issue of condonation of delay before taking cognizance, as has been suggested by the Supreme Court in the case of Sharadchandra Vinayak Dongre (supra) or should the case be quashed completely? In the case of Sharadchandra Vinayak Dongre (supra) the factual aspects go to show that the offence came to the notice of the agency in the year 1985 and the charge-sheet was filed in the year 1986 itself and that the period between the investigation and the filing of the charge-sheet was not inordinately long. However, in the instant case, the case was registered against the petitioner herein in the year 2002 and the charge-sheet was filed in the year 2007. The application under Section 473 Cr.P.C. was decided in the year 2009 and in the year 2010 the petitioner herein has filed the present petition for quashing in which the proceedings before the trial court were stayed in the year 2013. This court fails to see how the interest of justice would best be served in sending the petitioner back to stand trial from the stage of consideration of the application under Section 473 Cr.P.C, after the passage of 15 years, in an offence related to the transportation of wood without licence. 12
14. Under the circumstances, the petition filed by the petitioner herein succeeds and the proceedings pending against him in Criminal Case No.759/2007 before the Court of the Learned Judicial Magistrate First Class, Khurai, District Sagar, stands quashed.
(Atul Sreedharan) Judge ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2018.01.25 13:34:19 +05'30'