Delhi High Court
Srinivas Pal vs Union Territory Arunachal Pradesh on 18 July, 1988
Equivalent citations: 1988RLR464
JUDGMENT S.M. Mukharji, J.
(1) On 20.11.76 the appellant was posted in the State of Arunachal Pradesh as an Executive Engineer (Elect). An accident took place in the jeep which was alleged to have been driven by the appellant. The accident took place within the Bomdilo Police Station in Ar. P. In the said accident one of the occupants, J.K, Jain, Asstt. Eng. died and another S. Karim, driver sustained grievous injuries. According to the police the accident is attributable to rash and negligent driving of the appellant. As per the case file, R.B. Singh, S.I. submitted a report to the Deputy Comm. Bomdila on 22.11.76 who according to the Magistrate took cognizance of the offence u/s 32(c) of Regulation I of 1945 and the police registered the case. The Magistrate held that cognizance was taken on 22.11.76. This finding, however, was not sustained by the High Court. I he police is alleged to have registered the case and took up investigations and submitted the chargesheet in Sept, 1977 which, however, appears to have been placed before the Deputy Comm. on 31.3.86 and it was on that date that the cognizance of the offence was taken, according to the High Court. The Magistrate in his order stated that the reason why report could not be placed before the Court promptly merited detailed probing, which showed that cognizance was taken on 22.11.76 by the competent authority but the court proceedings thereof commenced on 31 3 86. The appellant was chargesheeted u/s 279 read with section 304A/338 of the Indian Penal Code . According to the appellant cognizance was only taken on 31.3.86. The first question, therefore, in this case is : when was the cognizance taken. By the order of the Magistrate, the appellant was directed to appear on the next date of hearing, that is on 8.9.86 The order was passed on 14.7.86.
(2) Challenging the said order, appellant moved High Court of Gauhati u/s 482 of the Cr. P.C. read with Article 227 of the Constitution for quashing the charges. The High Court in its judgment dated 14.8.87. held that the investigations started on 22.11.76 on the registration of the case u/s 279, 304 A and 338 of the Indian Penal Code . and the investigation was completed on 8 9.77 and cognizance was taken on 31.3.86 when the Deputy Comm. passed the following order : "Records perused. Issue summons to the accused to appear at Kameng on 9.5.86. Therefore, the first question that arises is, when was the cognizance taken, on 22.11.76 or 31.3.86. High Court held that cognizance was taken on 31.3.86. The offence u/s 279 is punishable with imprisonment for a term not exceeding 6 months, or with fine, or with both. Offence u/s 304A is punishable with imprisonment for a term not exceeding 2 years, or with fine, or with both. Offence u/s 338 is punishable with imprisonment for a term not exceeding 2 years, or with fine or with both. In the aforesaid view of the matter, the period of limitation for taking cognizance of the offences would be three years u/s 468.
(3) There is, however, a provision for extension of the period of limitation in certain cases, where on the facts and circumstances of the case, the delay has been properly explained or it is necessary in the interest of justice to do so. This is provided in S. 473 of Criminal Procedure Code .
(4) It was contended before us that the first question that arises in this appeal is : when the cognizance of the offence was taken in this case. This Court in Tula Ram vs. Kishore Singh explained the meaning of the words "taking cognizance" and held that it means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. In this connection reference may also be made to the observations of this Court in Bhagwant Singh v. Comm. of Police . "Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate u/s 173(2)(i) comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses; (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police u/s 156(3)... But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part.... There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station u/s 173(2)(i) the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process."
(5) The High Court was of the view that really cognizance in this case was taken on 31.3.86. High Court has set out the facts on which it relied. The said finding of the High Court has not been challenged. The appellant before this Court has proceeded on that basis. Shri B. Datta, Additional Sol. Gen. contended that cognizance was taken at early in Sept. 1977. It was contended before us on behalf of the respondent, as it was said before the High Court that if the cognizance was taken in 1986, then it was clearly beyond the time. If the principles of the Cr. P.C. applied, the taking of cognizance of the offence was barred by S. 468 of the Cr. P.C. (6) It was submitted before the High Court and reiterated before us that the provisions of Cr. P.C. do not apply to Arunachal Pradesh. In this connection reliance was placed on S. 32 of the Assam Frontier (Administration of Justice) Regulation, 1945. S. 32 of the Regulation provides that the High Court, the Deputy Comm. and the Asst. Comm. shall be guided in regard to procedure by the principles of Cr. P.C. so far as these are applicable to the circumstances of the District and consistent withthe provisions of the Regulation. There are exceptions to S. 32. Those exceptions are irrelevant for the present purpose. The High Court held, and in our opinion rightly, that S. 32 of the said Regulation should be guided by the spirit of the Code and it will be proper to throw out a complaint if there was inordinate or undue delay, which was not explained. Indeed, this Court in State vs. Sarwan Singh observed that the object of the Cr. P.C. in puting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. This Court reiterated that the object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. Shri Ramachandran submitted that the exercise of the power u/s 473 of the Cr. P.C. extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking of cognizance of the offence. Reliance was placed on Kathamuthu vs. Balammal (1987 Crl L.J. 360). It was held by the P & H High Court in Ghansham Dass vs. Sham Sundar Lal (1982 Crl. L.J. 1717) that cognizance taken by the Magistrate without deciding the point of limitation was beyond his jurisdiction. In this connection, reliance may be placed to decision of this Court in Surinder Mohan Vikal vs. Ascharaj Lal where at page 407 of the report. while dealing wish S. 468 of Cr. P.C. this 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 taking of cognizance has been prescribed u/s 468 of the Cr. P.C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case. Our attention was also drawn to the case of Vijay Kumar Agarwalla vs. State (1986 1 Glr 421), where the Court held that taking of cognizance without condoning delay was bad and without jurisdiction.
(7) The High Court in the instant judgment under appeal held that this aspect of the matter was not considered by the Magistrate and the High Court quashed the charges against the appellant and remitted the case to the Magistrate for considering the case afresh. In the instant case, the broad facts that emerge are that the alleged offence took place in Nov. 1976, and until the High Court's order in August, 1987 no investigation had taken place. The offence is of rash and negligent driving. It is, as such, neither a grave and heinous offence against the community as such, though all criminal offences are crimes against society.
(8) It is not necessary in the facts and circumstances of the case to decide, whether cognizance was properly taken. It is also not necessary to decide whether the extension of period of limitation u/s 473 must precede taking of the cognizance of the offence. It is also not necessary to decide whether cognizance in this case was taken on 8.9.77 as held by the Magistrate or on 31.3.86 as held by High Court. Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution by the appellant-9 1/2 years for a trial for rash and negligent driving, is too long a time. Quick justice is a sine qua nun of Article 21 of the Constitution. Keeping a person in suspended animation for 9 1/2 years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us, cannot be with the spirit of the procedure established by law. In that view of the matter, it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed no further. We do so accordingly.