Supreme Court - Daily Orders
Johnson Alexander vs State By Cbi Acb on 26 February, 2015
Bench: V. Gopala Gowda, C. Nagappan
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1478 OF 2010
JOHNSON ALEXANDER ... APPELLANT(S)
VERSUS
STATE BY CBI, ACB ...RESPONDENT(S)
O R D E R
The correctness of the impugned order passed by the High Court of Karnataka at Bangalore (hereinafter called as the “High Court” in short), wherein it has declined to quash the proceedings for taking cognizance of the offence under Section 120-B of the Indian Penal Code (“IPC” for short) read with Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“P.C. Act” for short) in Criminal Petition No. 2216/2009, is under challenge before this Court, urging certain legal grounds with a prayer to quash the proceedings initiated against the appellant.
On the last date of hearing i.e. on 18th February, Signature Not Verified 2015 we have heard learned counsel for the parties Digitally signed by Sushil Kumar Rakheja Date: 2015.03.11 10:09:29 IST Reason: extensively. However, some clarifications were sought for from the learned senior counsel Mr. Amarendra 2 Sharan after dictating the Order on 18th February, 2015, hence, this matter is listed again today for further hearing/clarification from the appellant's counsel.
Heard Mr. Amarendra Sharan, learned senior counsel appearing for the appellant.
Learned senior counsel has invited our attention to sub-section (2) of Section 120-B of the IPC and Section 13(1)(d) read with Section 13(2) of the P.C. Act. He submitted that the alleged criminal conspiracy against the appellant and other accused in the case registered against the appellant and others falls within the ambit of sub-section (2) of Section 120-B inter alia contending that the said provision provides that a party to a criminal conspiracy to an offence committed under Section 120-B shall be punished with imprisonment for a term not exceeding six months or with fine or with both. He further invited our attention to the fact that the said complaint was lodged by the respondent-CBI before the Special Judge, CBI on the basis of credible information received by it on 21.09.1999, the alleged occurrence is of the year 1995, therefore, he submitted that it is beyond one year on the date of filing the complaint and 3 registering the FIR and taking cognizance of the aforesaid offences against the appellant and other accused. Learned senior counsel placed reliance on the judgments of this Court in the case of P. Nallammal & Anr. vs. State Rep. by Inspector of Police, (1999) 6 SCC 559, State of U.P. vs. Udai Narayan & Anr., (1999) 8 SCC 741 and State thr. C.B.I. vs. Jitender Kumar Singh, (2014) 2 SCALE 65 and submitted that the allegations made against the appellant is only with regard to criminal conspiracy. Allegation under Section 13(1)(d) of the P.C. Act is not applicable to the appellant as he is not being a public servant. It is not the case of the prosecution that the appellant has abetted the Government servant, who is the accused of committing an offence under Section 13(1)(d) of the P.C. Act. Then only, the provisions of Sections 8, 9, and 10 of the P.C. Act will be attracted against him. In the absence of the same, since the punishment provided under Section 120-B of the IPC is six months simple imprisonment, the provisions of Section 468 CrPC are attracted which is a clear bar for registering and initiating further criminal proceedings against the appellant beyond the period of one year as provided under clause (b) of sub-section 4 (2) of Section 468 of the Code of Criminal Procedure.
The said contention has been strongly rebutted by Mr. Rajiv Nanda, learned counsel for the respondent-CBI. Placing reliance on Section 473 CrPC to substantiate his contention that the Court may take cognizance after the expiry of limitation, if it is satisfied on the facts and circumstances of the case and the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice. The learned Special Judge, CBI in C.C. No. 115/2001 after satisfying that the delay in filing complaint and registered the FIR because the credible information was received by the CBI just few days prior to the date of lodging the complaint/FIR against the appellant i.e. on 21.09.1999, therefore, the delay caused in filing the complaint and registering the FIR has been satisfactorily explained by the respondent prosecution and rightly exercised the power by the learned Special Judge and taken cognizance of the offence against the appellant and others and proceeded with the matter. This contention of the learned counsel for the CBI cannot be accepted by this Court for the reason that if the complaint is filed beyond one year, the delay must be satisfactorily explained 5 by the complainant. The delay caused in filing such belated complaint by the respondent must be satisfactorily explained either in the complaint or by filing an application giving satisfactory reasons. Such explanation regarding the delay caused in filing the complaint is not given by the respondent prosecution along with the FIR, therefore, the contention urged on behalf of the learned counsel for the respondent in this regard cannot be accepted by this Court.
The case is registered against the appellant under Section 120-B IPC read with Section 13(1)(d) of the P.C. Act. The learned Magistrate has registered the FIR to continue the proceedings under Section 120-B against the appellant. In view of the clear bar under clause (b) of sub-section (2) of Section 468 CrPC, the complaint is barred by limitation, more so there is no application filed by the prosecution explaining the delay caused from the date of the alleged occurrence till the date of filing the complaint and registering the FIR against the appellant herein under Section 120-B read with Section 13(1)(d) of the P.C. Act, on this ground alone, the proceedings initiated against 6 the appellant are vitiated in law as there is an express bar under Section 468(2)(b) CrPC.
The aforesaid legal contentions are not examined either by the learned Special Judge or by the High Court while examining the correctness of taking cognizance against the appellant and other accused. Though there is a statutory bar under clause (b) of sub-section (2) of Section 468 CrPC to take cognizance after lapse of the period of limitation, the alleged occurrence is of the year 1995, FIR was lodged and the proceedings are initiated in the year 1999 and taken cognizance on 21.06.2001, therefore, the entire proceedings are vitiated in law. Hence, taking cognizance against the appellant by the learned Special Judge, CBI in C.C. No. 115/2001 is bad in law and liable to be quashed. Accordingly, we set aside the impugned order of the High Court insofar as this appellant is concerned. For the reason that the complaint and FIR is registered beyond one year, therefore, the proceedings are not maintainable in law. On this ground alone, these proceedings are liable to be quashed and we hereby quash the same. 7 In the result, the appeal is allowed in the above terms and the proceedings pending before the learned Special Judge, CBI in C.C. No. 115/2001 are quashed insofar the present appellant is concerned.
...........................J. (V. GOPALA GOWDA) ..........................J. (C. NAGAPPAN) NEW DELHI, FEBRUARY 26, 2015 8 ITEM NO.1 COURT NO.11 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 1478/2010 JOHNSON ALEXANDER Appellant(s) VERSUS STATE BY CBI ACB Respondent(s) (With appln.(s) for stay) Date : 26/02/2015 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE V. GOPALA GOWDA HON'BLE MR. JUSTICE C. NAGAPPAN For Appellant(s) Mr. Amarendra Sharan, Sr. Adv.
Mr. S.K. Kulkarni, Adv.
Mr. M. Gireesh Kumar, Adv.
Mr. Ankur S. Kulkarni,Adv.
Mr. Somesh Chandra Jha, Adv.
For Respondent(s) Mr. Arvind Kumar Sharma,Adv. (N.P.) UPON hearing the counsel the Court made the following O R D E R Heard learned senior counsel appearing for the appellant. The appeal is allowed in terms of the signed order.
(S. K. RAKHEJA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)