Delhi District Court
State vs . Shiv Charan Goel on 12 October, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II,
Patiala House Courts, New Delhi
Criminal Case : 13085/2018
STATE Vs. Shiv Charan Goel
FIR No. : 71/2015
Police Station : Moti Nagar
Under section : Delhi Prevention of Defacement of
Property (DPDP)Act
12.10.2018
ORDER
1. The present charge-sheet has been filed against the accused Shiv Charan Goel in FIR No. 71/2015 police station Moti Nagar for commission of offence under section 3 of the Delhi Prevention of Defacement of Property (DPDP) Act. The case of the prosecution is that on 28.12.2014, the complainant Surender Kumar, Secretary, The New Moti Nagar & Karampura Refugees Resident Welfare Association, Delhi made a complaint to the police about certain posters of the accused which were affixed at some places and he alleged that by these posters, the accused defaced the public property. Along 1/12 with his complaint he has filed black and white xerox copies of some of the photographs of those posters. On this complaint, the FIR was registered on 20.01.2015. The investigating officer recorded the statement of the complainant. When the investigating officer demanded the original photographs, the copy of which he annexed with his complaint, the complainant did not gave the original photographs to the investigating officer and said that he will produce them in the Court. Then, the investigating officer filed the present charge-sheet in the Court stating that there is no direct evidence against the accused that he affixed those posters but he was the beneficiary of those posters. The charge-sheet was filed in the Court on 07.01.2016.
2. The case is at the stage of framing of notice.
3. The offence alleged in the charge-sheet is section 3 of the DPDP Act. Section 3(1) provides that whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner 2/12 or the occupier of such property, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extent to fifty thousand rupees or both.
4. The present charge-sheet has been assailed by the defence firstly on the ground that it has been filed beyond the period of limitation.
5. The date of commission of offence is not clear from the charge-sheet. In the FIR, in column 3 relating to commission of offence, it is written "unknown date and time". Further this column is blank. Therefore, atmost it can be presumed that the offence occurred prior to making of the complaint and not after that. The complaint was received on 28.12.2014 vide DD No. 34 B. Therefore, the period of limitation will start from 28.12.2014. The charge-sheet was filed on 07.01.2016.
6. Section 468 of the Code of Criminal Procedure prescribes the period of limitation for taking cognizance with respect to certain kinds of offences depending the 3/12 punishment prescribed for them.
7. 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.
8. Section 3 of the Delhi Prevention of Defacement of Property Act prescribes the maximum punishment of imprisonment for one year. Therefore, the charge-sheet was to be filed on or before 27.12.2015. But it was filed on 07.01.2016. There was no application for condonation 4/12 of delay nor there is any order for condonation of delay. Therefore, the cognizance of the offence was not as per law because the cognizance could have been taken only after condonation of delay and that too after hearing the accused and prosecution.
9. However, even if a police report is filed after the period of limitation, then also the court can entertain the same by condoning the delay in filing that report under section 473 of Cr.P.C. It reads as under-
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.
10. Therefore section 468 provides a period of limitation prescribed for taking cognizance of an offence. Chapter 5/12 XXXVI was introduced in the new Code prescribing the period of limitation for launching of a criminal prosecution in certain categories of cases. S. 467 defines "period of limitation" as the period specified in section 468 for taking cognizance of an offence. Under section 473, the Court may take cognizance of the 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. This new Chapter was apparently introduced in the Code in the interest of administration of justice with a view to put pressure on the organs of the criminal prosecution to make all efforts to ensure the detection and punishment of the crime quickly and also to shut out belated prosecutions and save the accused from unnecessary harassment and from the risk of facing a trial at a time when his evidence might have been lost due to the delay on the part of the prosecution. On account of the inordinate delay in the prosecution, the evidence of witnesses becomes weaker and uncertain due to the lapse of memory. One of the grounds given by the Law Commission for introducing this Chapter is that 6/12 the sense of social retribution which is one of the purports of criminal law loses its edge after the expiry of the longer period. It is thus clear from the language of section 468 of the Code that there is a legislative interdiction against taking cognizance of the offences in the category specified in sub-section (2) after the expiry of the period of limitation except as otherwise provided elsewhere in the Code. Thus, protection has been given to an accused person under section 468(1) of the Code against belated and time-barred prosecutions and this is certainly a benefit given in favour of the accused. It cannot, therefore, be said that section 468 does not confer a right on the accused persons to plead that an offence or offences disclosed in a complaint filed against him should not have been taken cognizance of as the prosecution was barred by limitation. The Court is duty bound on the 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 the limitation has expired or not. In case the limitation has expired, it has no jurisdiction to take cognizance and if in disregard to the provisions the Court takes cognizance, the order of the 7/12 Court would be without jurisdiction.
11. 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.
12. The statute of limitations 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 Surrender Mohan Vikal v. Aschraj Lal Chopra, 1978 Cr.L.J. 764).
13. 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 CrPC enjoins the court to condone such delay, if 8/12 sufficient cause is shown or the interests 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.
14. Now coming to the facts of the present case. As discussed, the delay can be condoned only if it is necessary so to do in the interests of justice. The expression i'n the interest of justice' does not mean in the interest of prosecution. What the Court has to see is `interest of justice'. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. The court has also to see the nature of offence committed and the reasons of delay. Guidance may be taken from the judgment of Srinivasa Gopal vs Union Territory Of Arunachal 1988 AIR SC 1729, where the Hon'ble Supreme Court refused to condone the delay in an accident case observing that having regard to the nature of offence there was enormous delay in proceeding with the criminal prosecution by the 9/12 respondent that is 91/2 years for a trial for rash and negligent driving, which is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for long time without any cause at all cannot be with the spirit of the procedure established by law.
15.Now in the present case, since the maximum punishment provided for the offences alleged is one year, therefore the limitation period for filing the chargesheet will be one year from the date of commission of offence. The offence in the present case is not very serious in nature and is not an offence against any person. Meaning thereby there is no victim in this case, whose rights can be said to suffer if the delay is not condoned. The delay can be condoned only if the delay has been satisfactorily explained having regard to the facts and circumstances of the case or in the interest of justice. The delay in this case has not been properly explained and the lapses on the part of investigation officer has been admitted in the application of condonation of delay. Further, since the offence is not against any individual or 10/12 is not against the society and even in the interest of justice, the delay does not deserves to be condoned. There is no allegation in the chargesheet that any of the accused was absconding or concealing himself so as to exclude that period under section 470 (4) Cr.PC.
16.Further, the investigation in the present case is not upto the mark. The investigating officer has only placed on record the black and white photostate copies of the photographs of the posters by which the defamation is alleged. It is not clear from the charge-sheet whether the investigating officer has done any field investigation in this regard to find out that whether the posters were actually affixed at those places as alleged by the complainant. He has also not collected the original photographs of the posters nor had made any investigation as to by which device these photographs were taken and whether these photographs are genuine or not.
17.In these circumstances, proceeding with the case will be a futile exercise as the charge-sheet has been filed on 11/12 the basis of inadmissible evidences and without any proper investigation. Therefore, in the facts and circumstances of the case instead of proceeding further by framing of notice, it will be in the fitness of things that the proceedings of this case be stopped under section 258 Cr.PC.
18.Proceedings are accordingly stopped and the accused is discharged.
Announced in the open court this 12th day of October 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC 12/12