Delhi District Court
Shri Ashok Kumar Dhingra vs State Of Nct Of Delhi on 11 January, 2012
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No.176/11
Date of Institution :08.12.2011
Date of Arguments :09.01.2012
Date of Order :11.01.2012
Shri Ashok Kumar Dhingra
Revisionist
Versus
State of NCT of Delhi
Respondent
ORDER
This order will dispose off a criminal revision against the order dated 20.01.2011 and 07.09.2011 passed by Sh. Naveen Gupta, Ld. M.M., Karkardooma Courts, Delhi.
2. I have heard arguments of Ld. Counsels for revisionist and Ld. Additional Public Prosecutor for the State and perused file as well as trial court record.
3. On perusal of order dated 20.01.2011, I find that Ld. M.M. after hearing the arguments on the closure report submitted by police in the court on 16/01/2010 directed the SHO concerned to conduct the further investigation into the matter under the supervision of ACP and submit his report on 18.04.2011 and also to initiate inquiry against C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 1 of 8 the erring police officials if any. In compliance of that direction of Ld. M.M. police filed a charge sheet against the revisionist Sh. Gopal Das Dhingra and also against Sh. Gopal Das Varshney on 24.08.2011. Vide order dated 07.09.2011 Ld. M.M. took cognizance of the offence against the accused persons. Vide order dated 03.12.2011 Ld. M.M. ordered for framing of notice for the offence punishable u/s 304 A IPC against the accused persons.
4. Ld. Counsel for revisionist assailed the impugned orders on the grounds inter alia that Ld. M.M. erroneously passed direction on 21.01.2011 for further investigation of the case without appreciating the fact and circumstances of the case; there is no evidence against the revisionist for commission of offence. The impugned order is contrary to the law as the cognizance has been taken after the period of limitation. The period of limitation for filing the charge sheet against the accused persons/revisionist was only two years as the offence alleged against accused is punishable u/s 304A IPC.
5. On the other hand Ld. Additional Public Prosecutor for the State submits that provisions of Section 468 Cr.P.C. are not applicable in the present case as Ld. M.M. issued directions for further investigation of the case C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 2 of 8 and the period of limitation stood extended as per provisions of Section 473 of Cr.P.C.
6. It would be appropriate to reproduced provisions of Section 468 & 473 of Cr.P.C which runs as under:
"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 but not exceeding three years;
c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes 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 or, as the case may be, the most severe punishment.
473. Extension of period of limitation in certain cases.-Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make 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."
7. My attention goes to a case, Arun Vyas v. Anita Vyas, (SC), 1999(2) R.C.R.(Criminal) 828 : 1999 A.I.R. (SC) C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 3 of 8 2071 : 1999 Cri.L.J. 3479 : 1999(3) Crimes 90, the Apex Court observed that:
"12. A perusal of the provision, extracted above, shows that Sub- section (1) of Section 468 enjoins that no Court shall take cognizance of an offence of the categories specified in sub- section (2), after the expiry of the period of limitation mentioned therein. This rule is, however, subject to the other provisions of the Code. Sub- section (2) specifies the period of limitation of six months, if the offence is punishable with fine only, of one year, if the offence is punishable with imprisonment for a term not exceeding one year and of three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Sub-section (3) which is inserted by Act 45 of 1978 deals with a situation where offences are tried together and directs that for the purposes of that section the period of limitation shall be determined with reference to the offence which is punishable with the more severe punishment or as the case may be the most severe punishment.***
14. It may be noted here that Section 473 Cr.P.C. which extends the period of limitation is in two parts. The first part contains non obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. The first limb confers power on every competent court 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 interests of justice. It is true that the expression 'in the interest of justice' in Section 473 cannot be interpreted to 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 C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 4 of 8 oppressed and punish the oppressor/offender."
8. Clause (b) of Section 469 of Cr.P.C. deals with commencement of the period of limitation. It provides that the period of limitation, in relation to offender shall commence where the commission of offence was not known to the person aggrieved by the offence or to any police officer, the first date on which such offence comes to the knowledge of such person or to any police officer which ever is earlier.
9. Turning to the case in hand, I find that initially police filed a closure report on 16.01.2010. In compliance of order of Ld. M.M. dated 21.01.2011 police filed supplementary challan on 24.08.2011. On perusal of charge sheet and statement of witnesses appended with the charge sheet and particularly statement of Sh. Mukesh Kumar Jain, Dy. General Manager, Engineers Ltd., Sh. R.P. Sharma, Member, Sh. S.K. Jain, Joint Secretary, Sh. S.K. Jain Treasurer members of Cooperating Group Housing Society, Engineers Apartment, I.P. Extension, the police formed an opinion that revisionist and another person named Gopal Das Varshney were responsible for the death of deceased. Their statements were recorded after the direction passed by Ld. M.M. on 21.01.2011. Thus clause (b) of Section 469 C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 5 of 8 Cr.P.C. is applicable on the facts of present case. Therefore, it cannot be held that Ld. M.M. was not competent to take cognizance on 07.09.2011 or Ld. M.M. took the cognizance after expiry of period of limitation as laid down under section 468 Cr.P.C.
10. The other reason of my decision is that as per principles of law laid down in case Arun Vyas v. Anita Vyas, (supra), Ld. M.M. was having power to extend the period of limitation. In the present case Ld. M.M. had extended the period of Limitation when he passed direction on 21.01.2011 for further investigation of the case and submit a report.
11. The last decision of my decision is that Ld. M.M. has power to extend period of limitation under section 473 Cr.P.C. In the present case Ld. M.M. implidely extendted the period when he passed the direction on 21.01.2011 and again on 07.09.2011 when he took the cognizance of the offence.
12. Counsel for revisionist further argued that Ld. M.M. was not expected to pass directions as given on 21.01.2011. In support of his arguments Ld. Counsel for revisionist relied on a case Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 SC 117 wherein the Supreme C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 6 of 8 Court observed that:
"(19) The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit a final report, under section 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report and take suitable action, according to law, he cannot certainly infringe (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.
(20) Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial."
13. Turning to the case in hand, I find the Ld. M.M. did not issue any direction to the police to file a charge sheet against the accused person. He merely opined that there was some confusion as the report was vague. SHO was directed to make an inquiry into the lapses of the C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 7 of 8 investigating officer and submit the report after making inquiry about the persons responsible for maintenance of the lamp cost. Thus Ld. M.M. neither directed the police to file charge sheet nor he directed to file charge sheet against any particular person. Therefore, the case law laid down in case Abhinandan Jha and others v. Dinesh Mishra, (supra), is not applicable on the facts of present case and will not provide any benefit to the revisionist.
14. In view of the above reasons and discussion, I am of the view that there is no infirmity, illegality or inaccuracy or impropriety in the impugned order and there is no merit in the revision. Therefore, revision is dismissed.
15. Parties are directed to appear before the Court of Sh. Naveen Gupta, Ld. M.M.,/Successor Court on 16.01.2012 for further orders.
16. Trial court record be returned with copy of this order.
17. Revision file be consigned to record room.
Announced in the Open Court Dated:11.01.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02, East, Karkardooma Courts, Delhi C.R. No.176/11 Ashok Kumar Dhingra vs. State & Ors. Page 8 of 8