Delhi High Court
Saregama India Ltd. vs State Nct Of Delhi on 27 January, 2014
Author: Veena Birbal
Bench: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 149/2007
% Date of decision: January 27, 2014
SAREGAMA INDIA LTD. ..... Petitioner
Through: Mr. Jayant Bhushan, Sr. Adv. with
Mr. Ankur Sangal, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Yogesh Verma, APP for State.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
1. The petitioner filed the present petition u/s 482 of Code of Criminal Procedure seeking quashing of order dated 31st August, 2006 wherein learned M.M. has taken the cognizance and summoned the petitioner as well as for quashing of criminal complaint being case no.513/2006 pending before the Ld. M.M.
2. Briefly the case of the petitioner is as under:-
3. The petitioner is a company incorporated under the Companies Act, 1956 having its registered office at Kolkatta. It is stated that petitioner is a part of the RPG Group of Companies and is a leading manufacturer of music compact discs and audio video discs having leading name in the market through out the Crl.M.C.149/2008 Page 1 of 9 country. It is alleged that on 13th October, 2005, the Inspector, Legal Metrology, Government of NCT of Delhi from the Weights and Measures Department/Metrology Department, i.e., respondent herein inspected the premises of one of petitioner's distributor/seller i.e., M/s Music world at G-4, Deep Cinema, Central Market, Ashok Vihar, Delhi and seized a packed box of "5 CD collection of legend maestro Kishore Kumar melodies". It is alleged that the same did not bear the date of packing as required under the Standard of Weights and Measures (Packing Commodities) Rules, 1977 as such committed breach of Section 33 and 39 of the Standard of Weights and Measures (Enforcement) Act, 1985 (hereinafter referred to as the Act). The notice dated 10th January, 2006 was issued by the respondent to the petitioner. Petitioner sent a reply dated 20.01.2006 to the same seeking some more time to collect the relevant information and thereafter sent a detailed reply on 02.02.2006 alleging therein that no breach as is alleged has been committed. Further, the product Audio CDs are non-perishable item and due to nature of product no harm or prejudice is likely to cause to any consumer even if date of manufacturing is not disclosed. Not satisfied with the reply, a complaint was filed on 31st August, 2006 against the petitioner and its distributor Sh. Manish Aggarwal, M/s Music World for breach of Section 33 and 39 of the Act. The Ld. M.M. took cognizance on the same day and summoned the petitioner for 24.11.2006. The advocate of the petitioner company appeared. Thereafter, the matter was adjourned to 15th December, 2006. On that day, authorised representative of the company had appeared. The learned M.M. adjourned the matter to 19.01.2007 and directed for appearance of Director of petitioner Crl.M.C.149/2008 Page 2 of 9 before the court. Aggrieved with the order of taking cognizance/summoning, the present petition is filed.
4. Mr.Jayant Bhushan, learned Senior Counsel appearing for the petitioner has submitted that the complaint filed before the ld.Special M.M. was barred by limitation as the same was instituted much beyond the period of limitation as provided u/s 468 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.). It is contended that Ld. M.M. while taking cognizance and issuing the summoning order has failed to consider that the complaint filed by the respondent was time barred. It is contended that no application was filed before the Ld. M.M seeking condonation of delay. It is contended that taking cognizance in a complaint instituted after the period of limitation, can be taken only if the prosecution makes a request for condonation of delay or the Court is satisfied with the reasons for the delay and feels that it is in the interests of justice, none of which was done in the present case. In support of his contention, learned Senior Counsel has relied upon (i) State of Himachal Pradesh vs. Tara Dutt and anr: (2000)1 SCC 230; (ii)Anil Nanda vs. State and anr: 2008(104)DRJ154. Learned senior counsel has also relied upon Khalid Akhtar Latif Ahemi vs. The State of Maharashtra:
MANU/MH/0707/2010. It is submitted that complaint filed before learned M.M. is silent on this aspect. It is contended that in these circumstances, the learned M.M. could not have taken the cognizance of offence as is done in the present case.
5. Learned APP admitted that the offences alleged against the petitioner Crl.M.C.149/2008 Page 3 of 9 were punishable with fine only and the complaint was instituted beyond the period of limitation as prescribed u/s 468(2)(a) of the Code. It is also admitted position that no application for condonation of delay was filed along with the complaint. However, it is submitted that once the cognizance is taken, the delay is deemed to have been condoned.
6. I have heard learned counsel for both the parties.
7. Section 468 of the Cr.P.C. reads 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 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."
Section 473 of the Cr.P.C reads as under:-
"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 property explained or that it is necessary so to do in the interest of Crl.M.C.149/2008 Page 4 of 9 justice."
8. The plain and unambiguous language makes it clear that under sub- section (2)(a) of section 468 of Cr.P.C. where the offence with which the accused is charged is punishable with fine only, the prosecution must be launched within six months from the date of commission of the offence. Section 473 Cr.P.C confers the power on Court in 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 or that it is necessary so to do in the interest of justice.
9. The Supreme Court in State of H.P. vs. Tara Dutt and another:
(2000) 1 SCC 230 has held that the discretion conferred on the Court under Section 473 Cr.P.C. to take cognizance after the period of limitation under the conditions specified therein has to be exercised judicially and on well recognised principles. Wherever the court exercises the 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 was in the interest of justice. In the absence of a positive order to that effect, it is not permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance by condoning the delay. The relevant portion of judgment is as under:-
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 Crl.M.C.149/2008 Page 5 of 9 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, where-ever 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 was 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.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"
10. In Anil Nanda vs. State: 2008(104)DRJ154 wherein cognizance was taken by the Ld. M.M. in a time barring complaint without condoning the delay though application in this regard was pending, this court has held that the summoning order passed by the learned trial court reflects a complete non application of mind in as much as it does not even refer to the application of condonation of delay filed by respondent and the summoning order was set aside. The relevant part of the judgment is reproduced as under:-
13. In my opinion, when a complaint filed is ex-facie barred by limitation, the mere fact that the Magistrate has taken cognizance Crl.M.C.149/2008 Page 6 of 9 of the offence does not mean that the Magistrate has condoned the delay. Section 468 Cr. P.C. provides a bar on the court taking cognizance of offence after the period of limitation has lapsed. It is only Section 473 Cr. P.C. which extends the period of limitation. In my opinion, the trial court could have taken the cognizance of the present complaint only after it had condoned the delay by allowing the application filed by the Respondent No. 2.
The two judgments relied upon by Mr. Malhotra only give an opportunity to the prosecution to belatedly file application for condensation of delay, in case it realises subsequent to a cognizance having been taken that the complaint is barred by limitation. In the present case, the Respondent No. 2 had itself at the initial stage realised that the complaint is barred by limitation and, Therefore, itself filed an application for condensation of delay.
11. In Khalid Akhtar Abdul Latif Ahemi vs. State of Maharashtra:
MANU/MH/0707/2010, where charge sheet was filed after the expiry of period as prescribed u/s 468(2)(c) of the code. No reasons for delay were given in the charge sheet nor any separate application was moved for condonation of delay. The order of the Ld.J.M.F.C., Malagaon taking cognizance was set aside by the Bombay High Court by observing as under:-
"Taking into consideration all the facts and circumstances and the legal position, it is clear that as the prosecution never made a request for condonation of delay by giving any valid reason either in the charge-sheet or by separate application nor the learned Magistrate has indicated anywhere that was satisfied about the reasons for the delay or that it was in the interest of justice to take cognizance beyond the period of limitation, it cannot be said that the power under Section 473 to extend the period of limitation was actually exercised by the concerned Magistrate. If that power was not exercised and the period of Crl.M.C.149/2008 Page 7 of 9 limitation was not extended, the charge-sheet could not have been filed beyond the period of limitation of 3 years which had expired on 25.10.2005. Therefore, the Court could not take cognizance of the case beyond period of limitation in view of the specific provisions of Section 468(1) Cr. P.C. This aspect has not been considered by the learned Magistrate while rejecting the application Exhibit 7."
12. In the present case, it is admitted position that the complaint was filed before the Ld. Metropolitan Magistrate after expiry of period of limitation by the respondent. It is also admitted position that no application for condonation of delay was filed with the complaint or even thereafter. No reasons have been given in the complaint also for condonation of delay. The impugned summoning order does not reflect that delay aspect has been considered by the ld. M.M. before taking the cognizance. There is nothing on record to show that the trial court has considered it necessary to condone the delay in the interest of justice also. In these circumstances, it can't be said that the power under Section 473 to extend the period of limitation was actually exercised by learned M.M., as is contended. The learned M.M. could not have taken the cognizance as is done in the present case.
It may be mentioned that as per allegations, petitioner has committed breach of section 33 & 39 of the Act. The punishment for the said offences is Rs.5000/- each for the first offence. No previous violation is alleged against the petitioner. Petitioner is facing litigation for the past over six years.
13. In view of the above, the impugned order is set aside and the complaint Crl.M.C.149/2008 Page 8 of 9 case 513/2006 pending before Ld.M.M. is dismissed.
Petition stands disposed of.
VEENA BIRBAL, J JANUARY 27, 2014 ssb Crl.M.C.149/2008 Page 9 of 9