Delhi District Court
Birender Sangwan vs State Of Delhi on 1 November, 2012
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
CRIMINAL REVISION No. 23/12
In the matter of
Birender Sangwan
S/o Sh. Rajpal Sangwan
R/o B-5/27, Sector-11, Rohini,
Delhi.
......... Petitioner/Revisionist
Versus
State of Delhi
Through its Addl. PP.,
At:- Department of Prosecution,
Rohini Courts, Delhi-85.
.....................Respondent
Order reserved on : 12.10.2012
Order pronounced on : 01.11.2012
ORDER
1. This criminal revision petition under section 397 Cr.P.C filed by the petitioner takes exception to the order dated 23.03.2012 passed by the court of Ld. Metropolitan Magistrate, Rohini, Delhi arising out of the case FIR No. 165/2008 registered at police station Prashant Vihar under section 354/509/34 IPC whereby the delay in filing the challan was condoned and the accused were ordered to be summoned.
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2. Briefly stated the facts giving rise to the filing of the present revision are that on the complaint dated 18.03.2008 of Smt. Gurvinder Kaur police registered a case vide FIR No. 165/08, 354/509/34 IPC and carried out the investigation. After completion of the investigation a chargesheet for the offences u/s 354/509/34 IPC against petitioner/accused Birender Sangwan and accused Rajesh Kumar was filed in the Court. Since the chargesheet so filed was time barred, the Ld. Trial Court vide order dated 23.03.2012 on the oral prayer of the Investigating Officer (IO) condoned the delay in filing the chargesheet and summoned the accused. It is against the said order dated 23.03.2012 the present revision petition has been filed.
3. After filing of the revision, notice of revision was given to the respondent/State and the trial court record was also summoned.
4. Ld. counsel for the petitioner/accused Birender Sangwan submitted that the impugned order dated 23.03.2012 is wrong and contrary to law and is not legally sustainable. He further submitted that the delay is not of one or two days but it is of more than four years. He further submitted that the concerned IO even did not move any application for condonation of said huge delay but only upon the oral submissions of the IO the Ld. Trial Court illegally took the cognizance against the petitioner/accused. He further submitted that it is settled legal position that the applicant seeking Birender Sangwan Vs. State, CR No. 23/12 Page no.2/10 condonation of delay must have to explain each and every day's delay and he has to satisfy that all because of the genuine and unavoidable reason, he could not file the concerned petition/challan within limitation period. He further submitted that if the Ld. Trial Court has condoned the said huge delay period even then she must not have taken cognizance against the petitioner because of the reason that the petitioner was not involved in the present case in any manner and has not committed the alleged offences against the complainant. He further submitted that the taking of cognizance against the petitioner/accused is against the interest of justice and the impugned order is illegal and is liable to be set aside.
5. Ld. APP respondent/State on the other hand supported the order of the Ld. Trial Court and submitted that it does not suffer from any infirmity or illegality which calls for any interference. As such revision petition deserves to be dismissed.
6. I have heard Ld. counsel for the petitioner/accused Birender Sangwan and Ld. APP for the respondent/state and have also carefully perused the entire record.
7. Section 468 Cr.P.C bars a court from taking cognizance of an offence where the complaint was filed beyond the prescribed period of limitation. But sec. 473 Cr.P.C lays down two exceptions:
Birender Sangwan Vs. State, CR No. 23/12 Page no.3/10 (1) where a proper and satisfactory explanation of the delay is available; and (2) where it is in the interests of justice. The discretion conferred on the court is to be exercised judicially and on wellrecognised principles - Shakuntala AIR 1961 Punj 184, 186.
And the court may decline to exercise this discretion in favour of a person seeking condonation of delay if he is found guilty of antecedent negligence or inaction or is lacking in bona fides, even though he may succeed in explaining the delay from the date of expiry of the period of limitation - Bhagwat AIR 1961 All 379, 381.
If the period of limitation has already expired, the court should see whether there are sufficient grounds for extension of the period of limitation by condoning the delay. Explanation of delay or grounds for extension may be stated in the chargesheet, or extension may be sought by a separate application.
8. "In the interest of justice". The first limb of sec. 473 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 property explained and the second limb empowers such a court to take cognizance of an offence if it is satisfied on Birender Sangwan Vs. State, CR No. 23/12 Page no.4/10 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 sec. 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 Venkata Radhamanohari v Vanka Reddy (1993)3 SCC4.
9. The discretion conferred on the court has to be exercised judicially and on well recognized principles by a speaking order indicating its satisfaction that the delay has been satisfactorily explained State V Tara Dutt (2000)1 SCC 230: 2000 Cr LJ 485.
10. Even though there is no rule of law requiring the court to issue notice to the accused to give him an opportunity of meeting the case of the complainant in regard to the extension of time, interest of justice and natural justice require that the condonation of delay and extension of time must be done only after giving a reasonable opportunity to the accused. Reference, in this connection, may incidentally be made to S.M. Vikal v A. L. Chopra AIR 1978 SC 986, 988.
11. Formal application seeking condonation of delay, if requires Birender Sangwan Vs. State, CR No. 23/12 Page no.5/10 to be filed alongwith complaint. A formal application to excuse the delay is not held necessary to attract the application of the section Mela Singh 63 Punj LR 919; K. Manumantha Rao v K. Narasimaha Rao 1982 Cr LJ 734; Panney Singh v State 1980 Cr LJ 339 (Raj); Sarker v M.R.T & Special Maintenance 1980 Cr LJ 948 (Pat).
12. In a plethora of decisions the Supreme Court has held that the accused persons have fundamental right of fair and speedy trial. Though some of those decisions like Common Cause v Union (1996)4 SCC 33: 1996 Cr LJ 2380, Rajideo Sharma v State (1997)7 SCC 604: 1999 Cr LJ 45, have been overruled by a larger Bench, the mandate of Art. 21 of the Constitution remains. So, delay in making complaints should not be condoned in a routine manner without considering the valuable right that has enured to the benefit of the accused by lapse of time.
The Hon'ble Supreme Court of India in case titled State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors. AIR 1995 SC 231 has held that respondents to be given opportunity to have their say as to whether condonation of delay to be awarded or not.
12. Undisputably, the petitioner Birender Sangwan and coaccused Rajesh Kumar have been challaned by the police for the offences u/s Birender Sangwan Vs. State, CR No. 23/12 Page no.6/10 354/509/34 IPC and have been sent up for trial.
It is also not in dispute that offence u/s 354 IPC is punishable with imprisonment for a terms which may extend to two years; and the offence u/s 509 IPC is punishable with imprisonment for a term which may extend to one year.
In the circumstances, as per Section 468 (2) (c) Cr.P.C the period of limitation for the said offences for taking cognizance shall be three years.
As per the material on record, the case was registered on 18.03.2008 on the complaint of Smt. Gurvinder Kaur. The petitioner/accused Birender Sangwan was arrested on 10.02.2009 and co accused Rajesh Kumar was arrested on 24.05.2008.
In the circumstances, as per Section 468 (2) (c) Cr.P.C the period of limitation for the said offences u/s 354/509/34 IPC for taking cognizance was upto 17.03.2011.
Undisputably, the chargesheet was filed on 23.03.2012 in the Ld. Trial Court with an oral plea by the IO that challan is time barred and with the prayer for condoning the delay which was condoned by the Ld. Trial Birender Sangwan Vs. State, CR No. 23/12 Page no.7/10 Court (u/s 473 Cr.P.C) on 23.03.2012 itself and ordered for the summoning of the accused.
It is pertinent to reproduce the order dated 23.03.2012 of the Ld. Trial Court, which reads as under: "23.03.2012 Fresh challan filed. It be checked and registered.
Present: Ld. Substitute APP for state.
IO SI Bal Kishan in person.
IO submits that present challan is time barred and prayed for condoning the delay.
Heard the arguments. Perused the record. It is well settled that accused persons should not get free because of lack on the part of the prosecution.
Hence, in the interest of justice, I condone the delay.
Accused be summoned through IO for 31.08.2012.
XX XX XX"
From above, it is clearly indicated that on the oral plea of IO, the delay was condoned; no notice before condoning the delay was issued to the accused; the delay has been condoned in the interest of justice that accused persons should not get free because of lack on the part of the Birender Sangwan Vs. State, CR No. 23/12 Page no.8/10 prosecution. Undisputably 'the lack on the part of prosecution' means filing of delayed challan on 23.03.2012, beyond the period of limitation which expired on 17.03.2011. For such long delay no reason has been explained by the IO nor the delay has been explained by the IO, nor any satisfaction for condonation of delay on the facts and circumstances of the case recorded by the Ld. Trial Court that it is necessary to do so in the interest of justice except mentioning , "that accused persons should not get free.........".
13. In view of above, the order dated 23.03.2012 passed by the Ld. Trial Court condoning the delay for launching the prosecution, without affording any opportunity to the petitioner/accused and without recording any reasons, calls for interference and is therefore set aside. Matter is remanded back to the Ld. Trial Court with the direction to decide the plea of condonation of delay afresh in accordance with law after hearing both the parties. It is after the decision on the said plea for condonation of delay that the Ld. Trial Court shall proceed further in the matter in accordance with law.
The Trial Court record alongwith a copy of this order be sent back.
Birender Sangwan Vs. State, CR No. 23/12 Page no.9/10 Petitioner/accused is directed to appear before the Ld. Trial Court on 20.11.2012.
A copy of this order be supplied both the parties free of costs. The criminal revision file be consigned to record room. Announced in the open Court (MAHESH CHANDER GUPTA) on the 1st Day of month of November, 2012 Addl. Sessions Judge - IV (Outer) Rohini, Delhi.
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