Delhi District Court
State vs . Rajan Gupta on 25 February, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE
05, SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Rajan Gupta
FIR NO: 372/98
P. S. Shriniwas Puri
U/s 448/380/411 IPC
ORDER
This order will dispose off an issue whether the charge has to be framed against the accused or whether he is to be discharged for the offences for which the chargesheet has been filed against him. The decision of this issue shall rest upon the material collected by the investigation agency as well as on the points of law raised on behalf of the defence .
Before proceeding to decide this issue, it would be pertinent to pen down the history of this case. This FIR pertains to the year 1998 and still on the issue of charge awaiting the trial. The charge sheet was filed by the police in this case on 10.11.1999 on the allegations that on 9.11.1997 the accused committed house trespass and committed theft in the first floor of the disputed property i.e 56B, Friends Colony, East. The offence of committing theft in dwelling house punishable u/s 380 IPC and that of receiving and retaining stolen property were added at the time of filing of the charge sheet on the ground that theft of certain articles was also committed during that illegal trespass. The accused was summoned and for the first time the charge was framed on 11.9.2000 against the accused for offence u/s 380/448 IPC. Against that order the accused had filed a revision in Hon'ble High Court of Delhi where the charge was set aside and the accused was given liberty to raise his contentions which were raised in the same petition which also prayed for quashing the FIR STATE VS RAJAN GUPTA 1/18 FIR 372/98 before trial Court. Again the matter was argued and the charge was framed against the accused on 17.01.2011 for offence u/s 448/380/411 IPC. The accused again preferred revision against that order and the Court of Ld. District Judge & Additional Sessions Judge I/C, South District set aside the order of framing of charge with the direction to consider the issue of dishonest intention also. After that the matter was remanded to this court for fresh consideration for charge. Arguments heard again from both the sides and in consequence of which the present order is passed.
Now coming to the facts of this case, an undisputed chronology of the facts will reveal that the accused was the landlord of the complainant A.F. Ferguson and company. There was a dispute of the tenanted premises which will include the first floor of the house no. 56B, Friends Colony. On 9.11.1997 a complaint was made by Sh. T.K. Dey, representative of the A.F Fergusan & Company with the ingredients which are reproduced as under;
To, Police Post, New Friends Colony, New Delhi65.
From A.F. Ferguson and Co.
9, Scinida House, New Delhi110001.
Report of illegal and forced entry and occupation of first floor 56B, Friends Colony, East.
Dear Sir, STATE VS RAJAN GUPTA 2/18 FIR 372/98 This company is a tenant of the subject premises for several years. This company has appointed DAO security service to provide a 24 hours guard and such guard was provided by them over a year back. The owner Mr. Rajinder Gupta lived in the ground floor. On 9th Nov, 97, i.e today morning at about 1100 am, Mr. Rajinder Gupta and his servants forced their way into the said premises under our occupation and threw out the properties of this company alongwith the belonging of the two guards by over powering them and have illegally occupied at the first floor rented to us. Early action to restore possession to our guards is requested.
(T K Dey) for FERGUSION &Co.
On the basis of this initial complaint FIR was registered for offence u/s 448 IPC only for house trespass. Investigation started. It appears that one more complaint was given to the police regarding the list of articles which were removed from the tenanted premises while committing house trespass. On the completion of investigation, the charge sheet was filed by the police for offences u/s 380/448/411 IPC.
Now Ld. Counsel for accused has virulently argued that from the facts of this case the only offence which can be said to have been committed by the accused was that of house trespass punishable u/s 448 IPC and it is also argued that after preliminary inquiry, a case was registered only u/s 448 IPC on 4.5.1998. There are no allegations of offence of theft u/s 380/411 IPC. Even in the statement u/s 161 Cr.PC of the witnesses no witness has been cited by the prosecution who had seen the accused committing the offence as alleged in the charge sheet. The security guards who were allegedly guarding the premises have not been produced by the complainant and not cited as a witness of this case. The statements of Sh. T.K. Dey and Sh. M.L. Wahi relating to the incident are inadmissible in evidence, the same are STATE VS RAJAN GUPTA 3/18 FIR 372/98 hearsay as they have not seen the accused committing the theft of the articles. During the investigation the accused has produced all the articles of the complainant on 4.4.99 which were lying intact in store room and were left by the complainant. It is also argued that it was the complainant who left the articles and in case there would have any malafide intention on the part of accused, he would not have retained those articles for over a year and would have disposed them off. It is also argued that the charge sheet was for commission of offence u/s 448/380/411 IPC but sections 380/411 IPC have been malafidely added by the police to circumvent the provisions of section 468 Cr.PC because the charge sheet u/s 448 IPC was barred by limitation. Section 380/411 IPC were added only to give jurisdiction to this Court to proceed with this case and therefore, at the time of framing of the charge, the Court has to come to the conclusion that actually the offence of theft has been committed or not.
For the purpose of dishonest intention, Ld. Counsel for accused has relied upon the judgment titled as Chandi Kumar Dey Vs. Abavindhar Roy 1965 (1) Crl. J 496 to show mere removal of the goods from the possession of others is not sufficient to constitute an offence of theft. The person so taking the property must intend to cause wrongful gain to himself or wrongful loss to the other in respect of the property and the provision of section 411 IPC can be invoked only when the offence u/s 380 IPC is made out. Counsel for accused has also relied upon the judgment of Hon'ble Kerala High Court in Kesavan Nair Vs. State of Kerala 2005 (3) KLT 391 where in the similar facts and circumstances section 380/451 IPC was held to be not made out. He has also relied upon the judgment of Mohar Singh and others Vs. State of Rajasthan 1981 SCC (Co) 552 wherein it was observed that where the accused snatched the revolver from the other person to disarm him, there was no question of removal/taking of the revolver with intent to steal. To show that mere adding sections of the IPC in the chargesheet for which there is no limitation, will not give the jurisdiction to the court STATE VS RAJAN GUPTA 4/18 FIR 372/98 to try the offence barred by limitation, the counsel for accused has relied upon the judgment of Hema Bhalla Vs. State 2003 (1) JCC 115. Lastly he relied upon the judgment of Onkar Nath Mishra Vs. State 2008 (1) JCC 65 where the Hon'ble Supreme Court of India held that framing of charge affects a person's liberty substantially. At the stage of framing of charge the Court is required to evaluate the material and document on record with a view to finding out if the facts taken at their face value, disclose the existence of all the ingredients constituting the alleged offence.
On the other side, the matter was argued by the complainant's Ld. Counsel in this case directly. It is argued by complainant's counsel that complainant has also filed a complaint in the year 2000 in court. The delay was due to the inaction of the police in not prosecuting and investigating the case diligently and for that purpose complainant has to file writ petition in the Hon'ble High Court of Delhi for registration of case as well as for the purpose of proper investigation. It is also argued by him that the police was hand in glove with the accused and proper action could not have been expected from the police. This is also proved by the fact that the second part of the complaint was not recorded by them. There is no dispute regarding the fact that the complainant was the tenant of the accused and the eviction petition filed by the accused against the complainant on bonafide requirement was dismissed . Later on, the accused withdraw his suit for eviction in Hon'ble High Court of Delhi which shows his malafide intention as he was having an intention to commit house trespass and immediately after withdrawal, he has actually committed house trespass and threw out the goods of the complainant company. It is also argued that the plea of the accused is technical in nature and should not be given a thought. The articles were recovered by the police and it was not handed over to the police. The store from which the articles were recovered belonged to the complainant. With a view to gain wrongfully in respect of those STATE VS RAJAN GUPTA 5/18 FIR 372/98 goods as well as tenancy, the articles which were in the tenanted premises were taken out without the consent and due to this the complainant has lost his possession of tenanted premises and tenancy rights and therefore it will amount to theft as those tenancy rights constitutes wrongful loss to the complainant. It is also argued by him that offence u/s 411 IPC is also made out because it was a stolen property as the seizure memo was duly prepared by the police. The accused has misguided the police that the complainant has left its articles at the time of shifting. It is also argued that on the ground of limitation, the accused should not be discharged as already a complaint case was filed within the period of limitation and therefore since the investigation was totally manipulated, the accused should not be discharged.
In reply it was argued by counsel for the accused that even the possession of the tenanted premises was in dispute at the time this incident occurred and the case is still pending in Civil Court and the issue of possession is dependent only upon the outcome of the civil proceedings of that case.
Having heard, Ld. Counsel for both the parties, the first issue to be decided is what offences are committed by the accused in the present case. The accused is charged with the offences punishable under section 448/380/411 IPC. The counsel for the complainant would say that charge for all the three ofences be framed on the strength of his aforesaid arguments. The counsel for the accused, however for the purpose of framing charge only, does not agitate on the issue of the commission of the offence under section 448 IPC on merits. He however submits that the court has no jurisdiction to try the accused for section 448 IPC as the same is barred by limitation. He argued that other offences punishable under section 380/411 not made out on aforesaid arguments. Therefore before deciding the issue of limitation,it is essential to adjudicate first upon the issue of law that whether on the facts as STATE VS RAJAN GUPTA 6/18 FIR 372/98 stated the accused can be charged for offence under section 380/411 IPC or not because this issue will substantially decide the future course of action in this case.
The offence of theft is defined u/s 378 IPC;
TheftWhoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Therefore, in view of the aforesaid definition, the essential ingredients of the offence of theft would be;
1. dishonest intention to take the property,
2. Property must be moveable,
3. it should be taken out of the possession of another person,
4. it should be taken without the consent of that person,
5. there should be some removal of the property.
As far as ingredient no. 2,3 4 & 5 are concerned, the counsel for the accused has not disputed nor these ingredients are agitated upon for the purpose of framing of charge.
The only issue left to be considered is regarding the dishonest intention to take property. During the arguments in Ld. Sessions Court, the Ld. Chief Public Prosecutor conceded that dishonest intention is essential ingredient for the offence of theft as defined in section 378 IPC. If the material on record does not reveal such dishonest intention, criminal Court cannot proceed to frame charge for the said offence of theft or its ancillary offence punishable u/s 411 IPC. To show that in such cases where there is dipsute in respect of the property and if some person committed trespass, the only offence which can be made out is that of trespass and not theft , counsel for accused has relied upon the judgment of Kesavan Nair Vs. State of Kerala 2005 (3) KLT 391 dated 20.1.2005 in which the Hon'ble Kerela High STATE VS RAJAN GUPTA 7/18 FIR 372/98 Court in similar circumstances has found that the offence of theft is not made out.
In the instant case the issue before the Hon'ble Court was "If articles which are in possession of a person are removed by another with intention to evict the former from a building in which the articles are kept, will an offence under section 380 IPC of the Indian Penal Code be attracted."
The answer was " Therefore, a mere removal of a movable property by a person from possession of another without the consent of latter with the sole intention to evict him from a building will not be sufficient to make out an offence under section 380 IPC."
And the court in the instant case was pleased to quash the chargesheet. Therefore where there is a dispute of property, and allegation of theft are made, the issue of dishonest intention is to be construed strictly .
As far as wrongful loss or gain is concerned, the term wrongful loss or gain has to be seen in respect of any benefit which would have arose to the alleged offender in respect of the goods which are subject matter of the offence. Goods in the present case were recovered intact. The contention of counsel for complainant that by the removing of those goods, the complainant has lost possession and tenancy which caused wrongful loss to the complainant is not tenable because what is to be seen in such kind of cases is that whether the wrongful loss is caused due to the loss of goods which is the subject matter of the theft. Only movable property can be subject matter of theft. Possession is an abstract concept and therefore there can be no theft of possession. Therefore loss of possession by virtue of loss of the articles in tenanted premises would not come in the category of wrongful loss for the purpose of dishonest intention and therefore not theft. That being so if the essential ingredient of dishonest intention is not made out, the offence of theft cannot be said to be committed This is further evident from other circumstances of this case. In the initial complaint STATE VS RAJAN GUPTA 8/18 FIR 372/98 reproduced above the only contention of the complainant was that the accused forced their way into the tenanted premises and threw the goods of the complainant. It is also mentioned that early action to restore possession to their guards be restored. It means the first and unembellished version/ complaint of the complaint to the police was only with respect to trespass in there tenanted premises. The initial complainant shows that the allegations were that the goods were thrown and not stolen. The records of this case does not reveal that the accused had any intention to cause wrongful gain or wrongful loss in respect of any movable property. The complaint reflect that accused has removed the movables if any then with intention to evict the complainant. The recovery of goods from accused also shows that the intention of the accused was only to trespass and not to steal as there is no consumption or misappropriation of the alleged goods . If a person steals the goods with a wrongful intention in respect of them , it is difficult to imagine that the goods can be found with him that too after around one and half year of the incident as happened in the present case.
Otherwise also on merits, there is no direct evidence of theft or trespass. Not even a single witness has been cited by the prosecution who can say that he saw accused committing theft. The guard on duty who could have proved this fact are not made witness, not even their names so disclosed. This is sufficient to draw adverse inference against the prosecution that these witnesses which could have been produced are deliberately withheld. The witnesses cited have not seen the accused committing the alleged offence and are hearsay, whose testimony will be not admissible on this point. The counsel of accused also argued that looking at the goods which are all dumped goods, it will be very difficult to ascertain an dishonest intention. It was also argued that the accused was not in Delhi on the date of incident and was in Jammu and Ludhiana for business tour. It was also argued that the complainant had abandoned the tenancy and left the premises after taking away his articles STATE VS RAJAN GUPTA 9/18 FIR 372/98 and left only old and waste article in the store room of the accused with the ulterior motive.
Therefore, in the present case, I agree with the counsel for accused that the only intention of the accused is to commit house trespass and to take unlawful possession of the property and not to commit the theft and when the offence of theft is not made out, there is no question of offence retaining stolen property u/s 411 IPC. Not only this, if the goods is found in possession of the accused who is charged with the commission of theft of those articles, he cannot be charged with offence u/s 411 IPC. As far as the offence u/s 411 IPC is concerned, it prescribes penalty for dishonest receipt or retention of stolen property knowingly or having reasons to believe the same to be stolen property.
This section is not directed against the principal offenders example a robber but against the class of persons who trade in stolen articles or are receivers of stolen property. Principal offenders are outside the scope of this section. In the present case, the accused is alleged to be the principal offender and therefore, he cannot be charged for offence u/s 411 IPC on this reason also.
In the complaint filed by the complainant the offence under section 392/403 and 445 IPC are also stated to have been mentioned apart from those mentioned in the chargsheet. Needless to say all these offences are not made out in the facts of the present case. Section 392 punishes the offence of robbery. Robbery is aggravated form of theft and is caused when the offender uses force or coercion to effect the commission of theft or to carry away the property .In the present case no such allegation is there. Section403 punishes criminal misappropriation of the property, but the property was simply shifted from one place to another and regained to the complainant. The dishonest intention again will be sin qua non for the offence of criminal misappropriation , which is discussed to have been lacking. Section 445 IPC is a substantive section and only defines the offence of house breaking. It does not STATE VS RAJAN GUPTA 10/18 FIR 372/98 punish. Nor are there any allegation of house breaking in the complaint. The allegations only pertains to house trespass and throwing away the goods kept therein.
Now left with offence of trespass under section 448 IPC.
As far as section 448 IPC is concerned, counsel for accused has relied upon section 468 of Criminal Procedure Code to show that its cognizance was barred by limitation which provides that:
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 the offence of the category specified in subsection (2), after the expiry of 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 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.] Therefore, under clause (b) of section 468 Cr.PC, the period of limitation is one year, if the offence is punishable with imprisonment for a term not exceeding one year. The offence u/s 448 IPC is punishable with imprisonment which may extend to one year and therefore, the period of limitation shall be one year from the date of commission of offence. As per section 469 of Cr.PC, the period of limitation in relation to an offender shall commence on the date of the offence. The date of offence is not disputed which is 9.11.1997. The challan was filed on 10.11.99 i.e after more than two years and thereafter cognizance of offence u/s STATE VS RAJAN GUPTA 11/18 FIR 372/98 448 IPC was clearly barred by section 468 Cr.PC.
One more aspect of the matter which was raised by counsel for complainant is that it was the apathy of the police in the investigation of this case which gave benefit to the accused. I am of the view that the complainant is not helpless in such situation and if there was any apprehension that due to delay in the police investigation, the offence may become time barred, he would have filed a criminal complaint which is actually done in the present case. Under section 210 of CrPC such a complaint would be stayed and on filling of chargesheet both of them will be treated as if instituted on police report. The filing of seperate complainant in court would save the offence from becoming time barred. The criminal complaint filed by the complainant is of 5.7.2000 i.e after filing of the charge sheet and therefore, the criminal complaint is also barred by the period of limitation because as discussed above the offence committed is only of house trespass.
The matter was remanded back for the purpose of deciding the issue of intention.
On the basis of overall facts discussed above, it is clear that the intention was to trespass the house and not to steal the property. The arguments of counsel for complainant that if the accused is discharged, he will take advantage of his own wrongs is not tenable because if the law provides certain procedural advantage to any accused, the accused cannot be deprived of them. Otherwise the purpose of this benedictory provision for accused will become otiose simply by mentioning any offence in the chargesheet which may on merits and after hearing the accused may not found to exist. At the time of framing of charge, it has to be seen whether there was grave suspicion against the accused or not. The present case comes in the category of some suspicion and not the grave suspicion and therefore, where two views are possible one favouring the accused and other not then the one favouring the accused STATE VS RAJAN GUPTA 12/18 FIR 372/98 should be taken unless there is strong suspicion that the accused committed the offence the accused can be given benefit in view of the judgment of Hon'ble Supreme Court of India in Union of India vs Prafulla Kumar Samal 1979 AIR 366. Therefore, section 380/411 IPC are not made out against the accused and regarding offence u/s 448 IPC, this charge sheet as well as the complainant was clearly time barred.
That brings me to the last limb of this discussion. Whether the accused at this stage can be discharged or not. The answer lies in the judgment of Arun Vyas& Anr. Vs. Anita Vyas V (1999) SLT 184 where Hon'ble Supreme Court on the issue that whether the Magistrate can discharge an accused after taking cognizance of an offence by him but before the trial of the case was pleased to observe that where a Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C., the complaint being barred by limitation, he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify. In order to further strengthen his submissions the counsel for the accused has relied upon the judgment of Hon'ble High Court of Delhi titled as " Hema Bhalla Vs. State" (2003) JCC 115. The issue seems to be the same in this case and Hon'ble Court was pleased to observe " Ld. Counsel for the petitioner states that the Ld. MM did not consider his arguments that the cognizance for the offence under Section 448 IPC cannot be taken after 3 years which is the period of limitation nor did he refer to the authorities cited by him in this regard. The STATE VS RAJAN GUPTA 13/18 FIR 372/98 matter was taken to the Ld. ASJ by way of revision petition. However, the Ld. ASJ did not touch the order of the Ld. MM whereby the petitioner was discharged for the offence under Section 380 IPC and banked under the charge sheet wherein offence under Section 448 IPC figured. Admittedly the state did not prefer any revision against the order of Ld. Magistrate, discharging the petitioner so far as offence under Section 380 IPC is concerned. That being so the Ld. ASJ was only concerned with the proposition whether charge for the offence under Section 448 IPC could be framed or congnizance for the said offence can be taken beyond the period of three years as prescribed under Section 468 (3) Cr. P. C. Admittedly charge sheet including both the offences under Section 448 and 380 IPC was filed and, therefore, the plea that the cognizance beyond the period of three years could not be taken was not available to the petitioner as no limitation has been prescribed for taking cognizance for the offence under Section 380 IPC.
Once the Ld. MM had come to the conclusion that the offence under Section 380 IPC was not made out against the petitioner, it was incumbent upon the Magistrate to see whether charge for the said offence after the period of limitation. It appears that both the Courts below did not take his aspect of the matter into consideration and proceeded on the presumption that once charge sheet has been filed for the offences for there is no limitation prescribed not only for the cognizance but the charge can be STATE VS RAJAN GUPTA 14/18 FIR 372/98 framed was apparently erroneous presumption they proceeded on.
Merely in the charge sheet certain offences are such cognizance for which is not subject to any limitation does not mean that the court is empowered to take cognizance beyond the period of limitation for the offence which is found to have been actually committed. It is that Court which is required to peruse and scan the material and the facts of the case to arrive at conclusion which particular offence is made out for the purpose of framing charge and trial and not to follow blindly as to the offence referred to or resorted to in the charge sheet filed by the police.
Having once come to the conclusion that the offence which the petitioner can be accused of or tried is punishable under Section 448 IPC, there was no option open to the Magistrate and for that purpose Ld. ASJ than to resort to the provisions of Section 468 Cr.P.C. As subclause (c) of SubSection (2) provides that the period of limitation shall be three years, if the pffence is punishable with imprisonment for a term of one year but not exceeding three years.
Perusal of the impugned order passed by LD. ASJ shows that the LD ASJ proceeded on erroneous presumption that when the case is tried for severe offences, period of limitation in relation to the offences which is punishable with more severe punishment would be the period of for taking cognizance. The petitioner was ordered to be tried for the offence under Section 448 IPC alone and not for the offence under Section 380 IPC which involves more severe, punishment. STATE VS RAJAN GUPTA 15/18 FIR 372/98
Thus, both the Courts have erred not only on factual matrix but on legal proposition also.
In view of foregoing reasons, petition succeeds and the proceedings against the petitioner stand quashed".
On the other hand the counsel for the complainant has relied upon the jedgment of "Pawan Kumar Aggaarwal Vs. Govt. Of NCT of Delhi" 186 (2012) Delhi Law Times 441 to show that the subsequent discharge of the petitioner for a serious offence would not entitle the accused to get benefit of the reduced period of limitation and to contend that the cognizance was taken beyond the period of limitation.
After considering the judgments in both the cases passed by Hon'ble High Court I am of the view that the facts of the judgment on which the counsel for the accused has relied are quite similar to the facts of the present case. Not only this, the Sections of IPC involved in both the cases are also same. Therefore, it will be fitness of the things to rely upon the judgment of Hema Bhalla in the facts and circumstances of the present case. The judgment on which the complainant relies pertains to a hoax call made by the accused regarding a bomb in flight bound from Delhi to Bangalore. The Hon'ble Court observed Section 505 IPC to be a heinous offence by not given any relief to the petitioner from trial for offence u/S 341 IPC.
In Arun Vyas& Anr. Vs. Anita Vyas(supra) The Hon'ble court also observed that any finding recorded by a Magistrate holding that the complaint to be barred by limitation without considering the provisions of Section 473 Cr.P.C will be a deficient and defective finding, vulnerable to challenge by the aggrieved party. Under section 473 the delay can be condoned and this section 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 STATE VS RAJAN GUPTA 16/18 FIR 372/98 circumstances of the case that the delay has been properly explained or 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. The expression `in 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. There is no application on behalf of the prosecution or for that matter even on behalf of the complainant to condone the delay in this case. The parties have a history of litigation and are duly assisted by the legal advise at each and every stage of litigation. The accused is facing this case for last around 1213 years for the offence of house trespass for which, in case, accused is convicted, the maximum punishment shall extend to one year and the charge is still not framed. The offence committed is not of very serious nature considering the dispute of tenancy between the parties nor the damage to the complainant was such that cannot be compensated . The civil litigation to restore the possession is still pending and in case the accused is found at fault he may be liable to pay damages for wrongful dispossession of the complainant. It is, as such, neither a grave nor heinous offence nor an offence against the community and in this connection, reliance is placed on the decision of this Court in Surinder Mohan Vikas Vs. Ascharaj Lal Chopra,1978 AIR 986, where, while dealing with the provisions of section 468 of the Code of Criminal Procedure, Hon'ble Court observed that " it is hardly necessary to say that statutes of limitation 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. As has been stated, a bar to the STATE VS RAJAN GUPTA 17/18 FIR 372/98 taking of cognizance has been prescribed under section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case." Guidance may also be taken from the judgment of Srinivasa Gopal vs Union Territory Of Arunachal 1988 AIR SC 1729, where the Hon'ble 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 respondent ie. 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 91/2 years without any cause at all cannot be with the spirit of the procedure established by law.
It was held by the Punjab and Haryana High Court in the case of Ghansham Dass v. Sham Sundar Lal, [1982] Crl. L.J. 1717 that cognizance taken by the Magistrate without deciding the point in limitation was beyond his jurisdiction.
Therefore in the fact and circumstance of the case there is no valid reason to condone the delay for offence under section 448 IPC. That being so and the fact that offence under section 380/411/IPC are not found to be made out and offence punishable under section 448 IPC barred by limitation, I deem it fit not to proceed with the prosecution of the accused.
The accused stands discharged accordingly for the offences mentioned in the police report.
Announced in the open court (Samar Vishal)
on 25.2.2012 Metropolitan Magistrate 05
South East, New Delhi
STATE VS RAJAN GUPTA 18/18 FIR 372/98