Indian Kanoon - Search engine for Indian Law

Delhi District Court

In Re vs State on 21 October, 2021

                                                   Crl. Revision No. 22/2021

                IN THE COURT OF MS. SMITA GARG,
         ADDITIONAL SESSIONS JUDGE-03, NORTH DISTRICT,
                     ROHINI COURTS, DELHI.

Criminal Revision No. 22/2021
CNR No. DLNT01-000980-2021

In re:
          Sh. Abhishek Lal
          S/o Shri Krishan Roop Lal
          R/o House No.31, New Deluxe Apartment,
          Sector-9, Rohini, Delhi-110085                     ...... Petitioner

                                   Versus
          State
          GNCT of Delhi                                     ...... Respondent

           Date of filing of revision petition          : 03.02.2021
           Date on which arguments were heard           : 11.10.2021
           Date of pronouncement of judgment            : 21.10.2021

           JUDGMENT:

1. Correctness, legality and propriety of order dated 21.01.2020, whereby the Ld. MM-04 (North), Rohini Courts, Delhi allowed the application u/s 473 CrPC seeking condonation of delay in filing the charge sheet in the state case arising out of FIR NO.1619/2015 under Sections 323/341 IPC P.S. Prashant Vihar, has been questioned in the instant revision petition u/s 397CrPC.

2. Factual matrix relevant for the disposal of the revision petition is that the above said FIR was registered against the petitioner herein on 22.12.2015 at the instance of the complainant Sh. Arun Kumar Sharma. After the completion of investigation, the charge sheet was filed on 24.05.2017 i.e after the expiry of the period of limitation of one year for the offences in question as prescribed under Section 468 CrPC. On 06.07.2017, an application under Section 473 CrPC seeking condonation of delay in filing the charge sheet was preferred on the grounds that the initial IO had been transferred and that there was heavy load of work of pending investigation cases with the other IOs of PS Prashant Vihar. Vide order dated 01.05.2018, Ld. MM allowed the application and condoned the delay. The petitioner preferred a revision petition against the said order before the Sessions Court. Vide order dated 02.08.2018, the revision petition was allowed by the Sessions Court and the matter was remanded with the directions to the Ld. MM to reconsider the application and pass a speaking order after hearing both the parties. Vide order dated 21.01.2020, the Ld. MM again allowed the application by observing as under:-

'The legal requirement of testing the matter as to sufficiency of cause has to be weighed and seen against the larger and prime concern called justice. One basic factor which comes into consideration in such like cases is prejudice to the other party owing to the judicial discretionary leniency towards one but it would be called Abhishek Lal vs State Page No. 2/ 11 Crl. Revision No. 22/2021 prejudice only when delay is attributable to negligence or in action on the part of state agency. The law does not call for banking upon hardship of any one to give any cause of benefit to other. Further, it is not about extending any benefit. In fact, it is only to give an opportunity so that the state gets a chance to proceed with the case which would finally end up in adjudication upon the merits of a case. Such allowance is only with respect to consideration of merits of a case which in my opinion would certainly not be cause of prejudice to others.

Basically, it is required to be seen whether the IO has been able to show that there is a sufficient cause in delay of filing of the charge sheet. It is derived from the arguments that the delay was due to MLC for which complainant did not turn up despite several efforts. It is clear from the case diary that IO was in constant touch with the complainant. Further, there is merit in the argument advanced by Ld. Counsel for the accused that mere statement that "IO was busy in other cases" is not a sufficient case. However, it is a matter of fact that investigating agency is a public authority and has responsibility of other investigation and official duties as well. Considering the discussion above, I deem fit to allow the application for condonation of delay. In view of this, the application stands allowed and delay in filing the charge sheet stands condoned'.

Aggrieved therefrom, the petitioner is before this court.

3. Before adverting to the revision petition on merits, it is pertinent to mention that since the impugned order had been passed on 21.01.2020 and the revision petition had been filed on 03.02.2021, an application seeking condonation of delay has also been preferred. In this regard, the counsel for the petitioner invited the attention of the court to the order dated 08.03.2021 passed by the Abhishek Lal vs State Page No. 3/ 11 Crl. Revision No. 22/2021 Hon'ble Apex Court in Suo Motu Writ Petition (Civil) No.3/2020 titled as In re: Cognizance for extension of limitation wherein taking suo moto cognizance of the situation arising out of the challenges faced by the lawyers/ litigants on account of COVID- 19 Pandemic in filing their petitions within the period of limitation prescribed under the general law of limitation, it had been directed that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Since the instant revision petition had been filed prior to 14.03.2021, the same is within the period of limitation in view of the order passed by the Hon'ble Apex Court in above said writ petition.

4. I have heard the counsel for the petitioner and APP for State. Trial court record as well as the case diary produced by the IO have also been perused.

5. The counsel for the petitioner submitted that upon the expiry of the period of limitation prescribed for filing the charge sheet, a valuable right of acquittal had accrued in favour of the petitioner and the said right could not have been taken away until and unless strong reasons and justifiable sufficient cause resulting in delay had been shown by the investigating agency. He argued that apart from the fact that the application under Section 473 CrPC had been Abhishek Lal vs State Page No. 4/ 11 Crl. Revision No. 22/2021 filed by the SHO in a casual manner citing transfer of the initial IO and heavy work load of the cases pending investigation with the other IOs as the reasons for delay, no documents had been produced on record in support of the application. He urged that since the Ld. MM allowed the application in a mechanical manner even though the delay had not been properly explained, the impugned order is arbitrary and bad in the eyes of law and thus, it deserves to be set aside. In support of his contentions, the counsel for the revisionist placed reliance on State (Delhi Administration) v. Anil Puri & Ors, ILR (1979) II Delhi 350 and General Manager Northern Railway v. Vishva Nath Nangia, 2005 (81) DRJ 190 (DB).

6. On the other hand, Addl. PP for the State submitted that there is no illegality or infirmity in the order passed by the Ld. MM and therefore, no interference is called for. He submitted that though the trial court observed that the mere statement that the IO was busy in other cases was not sufficient but it also took note of the fact that no prejudice should be caused to the complainant due to the negligence or inaction on the part of the investigating agency. He argued that Section 473 Cr. PC empowers the court to condon the delay not only if the same has been properly explained but also if it is necessary to do so in the interest of justice. He relied upon Abhishek Lal vs State Page No. 5/ 11 Crl. Revision No. 22/2021 Vanka Radha Manohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 and Arun Vyas & Anr v. Anita Vyas, (1999) 4 SCC 690 to buttress his argument.

7. In order to deal with the rival contentions of the parties, it would be beneficial to refer to the relevant provisions of law. Section 468 CrPC, which bars the taking of cognizance of an offence after the lapse of period of limitation, 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 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.

(3) For the purpose 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 Abhishek Lal vs State Page No. 6/ 11 Crl. Revision No. 22/2021 most severe punishment."

A perusal of the above provision shows that it mandates that no court shall take cognizance of an offence of the categories specified in Sub­Section (2) after the expiry of the period of limitation mentioned therein. This rule, however, is subject to the provisions of Section 473 Cr. PC, which extends the period of limitation. Section 473 reads thus:

"473. Extension of period of limitation in certain cases.­ Not withstanding 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."

In Arun Vyas's case (supra), while dealing with the scope of Section 473 CrPC, the Hon'ble Apex Court held:

"Section 473CrPC is in two parts. The first part contains a non obstante clause and gives overriding effect to that 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 fact and in the circumstances of the case that the delay has been properly Abhishek Lal vs State Page No. 7/ 11 Crl. Revision No. 22/2021 explained and the second limb empowers such 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 to so to do in the interest 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 oppressed and punish the oppressor / offender."

8. In General Manager Northern Railway's case (supra) relied upon by the counsel for the petitioner, the Hon'ble High Court of Delhi had observed that Law of Limitation remains the same whether it is a government or a private party but the said judgment is of no help to the petitioner. The above observation had been made by the Hon'ble High Court in context with an application under Section 5 of the Limitation Act for condonation of delay. In the case on hand, the aspect of applicability of Section 473 CrPC is under consideration. Analyzing the scope of Section 5 of the Limitation Act vis-à-vis Section 473 CrPC, the Hon'ble Supreme Court in the case of Vanka Radha Manohari (supra), observed as under:

"At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirements of satisfying the Courts that there was sufficient cause for condonation of delay under Section 5 of the Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For Abhishek Lal vs State Page No. 8/ 11 Crl. Revision No. 22/2021 exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of delay, whereas Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice."

9. In the case on hand, the condonation of delay in filing the charge sheet was sought on the grounds that the initial IO had been transferred and that there was heavy workload of pending investigation cases with the other IOs of P.S. Prashant Vihar. No doubt, no documents in support of the above grounds had been filed with the application but in order to satisfy itself regarding the same, the trial court called the case diary of the investigation in exercise of power under Section172(2) CrPC and noted the relevant dates. Case dairy produced by the IO has also been perused by this court. It shows that the previous IO HC Anand Prakash had been transferred on 08.05.2016 and the investigation of the case was then assigned IO HC Gordhan Singh on 05.10.2016. Since the complainant had alleged that he had been slapped on the ear by the petitioner herein which had affected his ability to hear, medical opinion was necessary to be obtained to ascertain the offences for which the petitioner was to be charge Abhishek Lal vs State Page No. 9/ 11 Crl. Revision No. 22/2021 sheeted. Upon receiving further investigation of the case, IO contacted the complainant on 06.11.2016 and 08.12.2016 requiring his presence for obtaining the medical opinion but on both the occasions the complainant was out of station. Thereafter, efforts were made but the complainant could not be contacted. Finally, the complainant met the IO on 15.04.2017 and made the supplementary statement that as he was not facing any difficulty in hearing, he did not get the Pure Tone Audiometry (PTA) test conducted. Investigation was concluded on 07.05.2017 and the chargesheet was filed in court on 24.05.2017. From the case dairy, it is apparent that primarily, the delay had been occasioned due to the non­availability of the complainant for final medical opinion. Even if there was lack of promptness on the part of the IO in concluding the investigation of the case, interest of justice required that the grievance of the complainant, being the victim of the offences in question, was adjudicated by the court. Considering the above, the trial court rightly allowed the application under Section 473 CrPC and condoned the delay in filing the chargesheet.

10. For the foregoing reasons, I find no illegality or infirmity in the order dated 21.01.2020 passed by the Ld. MM. Revision petition is without merits and is accordingly dismissed.

11. File be consigned to record room.

Digitally signed by SMITA SMITA GARG Date:

                                           GARG    2021.10.21
                                                   04:05:47
                                                   +0530

Announced in the open court                  (Smita Garg)
       on 21.10.2021                Addl. Sessions Judge-03, (North)
                                         Rohini Courts, Delhi.




       Abhishek Lal vs State                              Page No. 11/ 11