Delhi District Court
Dr Shakuntala S. Jaiman vs The State on 11 July, 2018
IN THE COURT OF SH. SANJIV JAIN:
ADDL. SESSIONS JUDGE /SPECIAL JUDGE: CBI03 (PC ACT)
SOUTH DISTRICT: SAKET COURTS: NEW DELHI
Criminal Revision No. 12/18 (173/2018)
CNR No. DLST010031722018
1. Dr Shakuntala S. Jaiman
W/o Dr Rohit Jaiman
R/o CSKM, AEC,
Satbari, New Delhi.
2. S K Thakur
S/o Late Sh. Mahender Thakur
R/o CSKM, AEC,
Satbari, New Delhi.
3. Ravi Prasad
S/o Late Sh. Rajesh Prasad
R/o CSKM, AEC,
Satbari, New Delhi.
4. Rajender Saini
S/o Late Sh. Beg Raj Saini
R/o CSKM, AEC,
Satbari, New Delhi.
5. Om Prakash Tanwar
S/o Ch. Tek Ram
R/o CSKM, AEC,
Satbari, New Delhi.
6. Sunil Kohli
S/o Late Sh. Jagdish Chandra Kohli
R/o C123, JVTS Garden,
Himalayan Lok
Chhattarpur Extension, New Delhi.
Dr Shakuntala S. Jaiman & ors v. State & Anr
CR No. 12/18 (173/2018) 11.07.2018 Page no. 1/19
7. Surender Prasad
S/o Sh. Sukhdev Prasad
R/o CSKM, AEC,
Satbari, New Delhi.
8. Madan Jha
S/o Pramod Jha
R/o B25, Rajpur Khurd,
Chhattarpur, New Delhi.
9. Jai Chand
S/o Dharam Dev Sharma
R/o CSKM, AEC,
Satbari, New Delhi. .... Revisionists
Versus
1. The State
2. Smt. Kiran Thakur
W/o Late Sh. Kunendara Singh Thakur
R/o Not known
Faridabad, Haryana. .... Respondents
Date of filing of revision : 08.05.2017
Date of allocation : 09.05.2017
Arguments concluded on : 04.06.2018
Date of order : 11.07.2018
Revision petition under section 397/399 Cr.P.C against the
impugned orders dated 09.11.2017 passed by Ld. MM, (South)
New Delhi in case FIR No. 1186/2014, U/S 426/448/506/34 IPC,
P.S. Mehrauli
Dr Shakuntala S. Jaiman & ors v. State & Anr
CR No. 12/18 (173/2018) 11.07.2018 Page no. 2/19
ORDER
1. This criminal revision u/s 397/399 of the Code of Criminal Procedure (CrPC) is directed against the order dated 09.11.2017 passed by the MM05, South District whereby complaint case No. 26/2/14 dated 21.03.2014 titled Kiran Thakur v. State & ors, was directed to be tagged with the file of the chargesheet and the matter was listed for 12.12.2017 and in the case registered vide FIR No. 1186/14 at Police Station Mehrauli, on the complaint, the cognizance of offences under Section 448/426/506/34 IPC was taken against the accused persons/revisionists and they were directed to be summoned for 12.12.2017.
2. Briefly, the facts as disclosed in the complaint are that the complainant/respondent No. 2, a widow, used to live at CSKM School, Khasra No. 929, Satbari, Chhatar Pur, New Delhi with her children. She had gone to meet her sister. In her absence, accused persons/revisionists came at her premises on 11.01.2014, got opened the lock forcibly and took away all her household articles. When they were removing the articles, her two children objected for their illegal activities. They used unparliamentary language, slapped the children and asked them to go away from there. Her children called the police at 100 number. Although the Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 3/19 police came but no action was taken. Accused Oman @ Om Prakash/revisionist No. 5 put a lock on the premises. The accused persons /revisionists also threatened her children and gave them merciless beatings stating that they would not allow them to live in the area. She lodged the complaint at the police station Mehrauli. She also asked accused No. 2/revisionist No. 1, Principal of the school, to return her articles but she threatened her with dire consequences. She also reported the matter to the senior officers giving the details of the articles stolen from her premises but no action was taken which made the complainant/respondent No. 2 file the complaint in the court on 21.03.2014.
3. On the complaint, an action taken report was called by the Court. Vide proceedings dated 15.07.2014, it was reported by the SHO that the complaint alongwith the enquiry report was sent to the prosecution branch for seeking legal opinion whether any cognizable offence was made out or not. On 21.07.2014, it was reported by the SHO that FIR No. 1186/14 on 20.07.2014 has been registered against the accused persons u/s 446/448 IPC. On 28.01.2015, it was submitted by the complainant that although in the complaint, the offences u/s 380/323/341/387/506/34 IPC have been alleged but no investigation has been conducted by the IO on these offences. Status report was called by the Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 4/19 Court. The chargesheet was filed on 19.08.2017 u/s 448/426/506/34 IPC. Vide proceedings 09.11.2017, the Court directed the complaint case to be tagged with the chargesheet, took cognizance of the offences as disclosed in the chargesheet and summoned all the accused persons/revisionists for the aforesaid offences.
4. The order dated 09.11.2017 is assailed on the ground that it is against the law and facts. The maximum punishment for the above offences is less than three years, therefore, by virtue of Section 468 CrPC, the limitation period for taking cognizance of the above offences was three years from the date of occurrence of the offence viz 11.01.2014. It is stated that as per the respondent No. 2/complainant, the offence took place on 11.01.2014, the enquiry was conducted by the IO on the same day, complaints were sent to the senior police officials on 15.01.2014, however, the chargesheet was filed on 19.08.2017, cognizance on which was taken on 09.11.2017 i.e ten months after the expiry of period of limitation. It is stated that the IO did not file any application for condonation of delay in filing the chargesheet and the order taking cognizance does not state that the delay has been condoned. It is stated that section 468(1) CrPC prohibits the Court from taking cognizance of the offences after the expiry of period of limitation since valuable right Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 5/19 has accrued to the accused persons sought to be prosecuted. It is stated that the main object of such prohibition is that the parties do not resort to dilatory tactics. It is stated that valuable right accrued to an accused cannot be allowed to be taken away except by strictly satisfying the conditions prescribed u/s 473 CrPC which empowers the Court to extend the period of limitation in certain cases which should precede the taking of cognizance of offences.
5. With the petition, an application u/s 5 of the Limitation Act has been moved for condonation of delay in filing the revision petition. It is stated that the complete chargesheet was not supplied to the revisionists. Revisionist No.1 had applied for the certified copy of the entire chargesheet on 31.01.2018 which was supplied on 27.03.2018. From the documents, the revisionists came to know that the IO had not moved an application for condonation of delay in filing the chargesheet. It is stated that the delay caused in filing the revision petition was beyond the control of the revisionists/petitioners and in case, the delay is not condoned, the revisionists/petitioners would suffer irreparable loss.
6. I have heard the arguments advanced by Sh. Soham P. Verma, Ld counsel for the revisionists, Sh. Santosh Kumar Suman, Ld counsel for respondent No. 2 and Ld. APP for the Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 6/19 State/respondent No. 1. I have also perused the trial court record.
7. In the instant case, the trial court after taking cognizance of the offences, summoned the revisionists through the IO for 12.12.2017. On 12.12.2017, the revisionists had appeared and the copy of the chargesheet was supplied to them. The revision petition has been filed on 23.04.2018. The revisionists have stated that since the copy of the charge sheet supplied to them was incomplete, they applied for its certified copy and they came to know on 27.03.2018 when they got the certified copy that no application was moved by the IO for condonation of delay. I am of the view that the revisionists have satisfactorily explained the delay. I, therefore, condone the delay.
8. Perusal of the record would show that although the complaint was filed u/s 452/380/323/341/387/506/34 IPC but the SHO, P.S Mehrauli after seeking the legal opinion from the prosecution registered the FIR under section 446/448 IPC on 20.07.2014. The alleged incident happened on 11.01.2014. The complainant had reported the matter on the same day to the police. She had also reported the matter to the senior officers by sending them the complaints on 15.01.2014. The chargesheet was filed u/s 448/426/506/34 IPC on 19.08.2017. The Court took Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 7/19 cognizance of the offences on the chargesheet on 09.11.2017.
9. Perusal of the order dated 09.11.2017 would reveal that when the Court took cognizance of the offences, the complainant was present. The complainant never challenged the order of the Court qua taking cognizance of the offences u/s 448/426/506/34 IPC on the chargesheet.
10. The maximum punishment prescribed for the offence u/s 448 IPC is upto one year or fine which may extend to Rs.1,000/ or both. The maximum punishment prescribed for the offence u/s 426 IPC is upto three months, or fine or both. The maximum punishment prescribed for the offence u/s 506I IPC is upto two years or fine or both.
11. Section 468 CrPC provides bar to taking cognizance after lapse of the period of limitation. It reads as :
(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in subsection (2), after the expiry of 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 Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 8/19 three years...
12. Section 469 CrPC talks about the commencement of the period of limitation. It reads as :
(1) The period of limitation, in relation to an offender, shall commence,
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, which ever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded.
13. Although the complainant has claimed to have reported the matter to the police on the same day i.e 11.01.2014, the day on which the alleged incident took place but as per the record, the endorsement of the police station Mehrauli on the complaint is of dated 27.01.2014.
14. In the instant case, detailed status report was filed by the SHO on 29.03.2014 inter alia that during the course of enquiry on the complaint, it was revealed that the husband of the complainant was using one portion of the school to wash and Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 9/19 iron the clothes of the students on piece rate basis. After his death, the complainant had been working as laundry contractor. The Management stopped her contract due to unsatisfactory work and issued her notice to vacate the premises. Finally, on 11.07.2013, the Management terminated her contract and issued her notice to vacate the school in 15 days but she did not comply the notice. The complainant filed a Civil Suit No. 222/13 in August, 2013 which the court dismissed on 11.12.2013 with the order that no prima facie case is made out in her favour. On 11.01.2014, the school authorities constituted a committee and went to the premises of the complainant where the committee found that the complainant was not present in her house but her sons were present there. Her son opened the room and in his presence her household articles were shifted from one room to another room which were received by her sons. On the next day, i.e. on 12.01.2014, a meeting was held by the school management with the complainant wherein it was decided to sort out the matter amicably. The complainant also filed a Civil Appeal No. MCA 03/14 against the order of the Civil Judge which was dismissed vide order dated 19.03.2014.
15. The investigating agency had also taken legal opinion from the prosecution branch on the complaint. It was opined by the prosecution that since the room in question was got vacated without due process of law and without the consent of its Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 10/19 occupant, offence u/s 426/448 IPC is made out. This opinion of the prosecution was received on 16.07.2014. The FIR was registered under section 426/448 IPC on 17.07.2014. The documents were collected and after the investigation, the chargesheet was filed u/s 448/426/506/34 IPC on 19.08.2017.
16. The maximum punishment for the above offences is upto two years or fine or both. As per section 468 (2) CrPC, the period of limitation for taking cognizance is upto three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. In the instant case, the case was registered on 17.07.2014 though the offence was committed on 11.01.2014. The documents would show that the offence had come to the knowledge of the police officials on 27.01.2014. As per the provisions of the Act, the limitation would start from the day the offence was committed or where the commission of the offence was not known to the police, the first day on which such offence comes to the knowledge of the police. Thus, in the instant case, the limitation period for taking cognizance of the offences expired on 26.01.2017. For the sake of arguments, even if it is assumed that the limitation period would start from the day the case was registered i.e on 17.07.2014, even then, cognizance taken by the Court i.e on 19.08.2017 the day on which the chargesheet was filed or 09.11.2017 the day on which the cognizance was taken, was Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 11/19 barred by limitation. It is pertinent to mention that the State at the time of filing chargesheet did not file any application for condonation of delay nor the order of the trial court dated 09.11.2017 finds mention that it was orally requested by the State to condone the delay and the delay was condoned. In the case of State of Punjab v. Sarvan Singh AIR 1981 SC 1054, it was held that the prosecution of an accused beyond the prescribed limitation period makes all the proceedings non est. In the case of Jethmal Himmatmal Jain & Ors v. State of Maharastra 1981 Cr.L.J 1813 and Saregama India Ltd. v. State, NCT of Delhi MANU/DE/0284/2014 it was held that merely because the Court has taken cognizance of the offence, it will not imply that it has deemed to have condoned the delay. Delay cannot be condoned after taking cognizance. A speaking order is required to be passed indicating that the delay was satisfactorily explained.
17. Admittedly, in the instant case, cognizance of the offences was taken on the chargesheet filed by the State after the expiry of period of limitation but there is no order as condonation of delay. No doubt, the Court at the stage of taking cognizance has power to condone the delay but speaking order is required to be passed indicating that the delay was satisfactorily explained which was not done in this case.
18. In the case of Kathamuthu v. Balammal decided on 04.10.1985 by the Madras High Court, a question came up:
Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 12/19 "Where the launching of a criminal prosecution is after the lapse of period of limitation prescribed u/s 468 CrPC, can the Court condone the delay after taking cognizance of the offence or whether such condonation of delay should precede the taking cognizance of the offence.
19. The Court considered the relevant provisions of CrPC and referred the case of State of Punjab v. Sarvan Singh supra wherein it was held that the object of section 468 is in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. Any proceeding culminating in the conviction in a criminal case, which has been taken cognizance of after the expiry of the period of limitation, is non est. The Court also referred the case of Jagmohan v. State, 1980 Cri.L.J 742 wherein it was held that once the cognizance is barred in favour of a person, he acquires a valuable right, this right cannot be taken away except under law. The case of Krishna v. State of M.P, 1977 Cri.L.J 90 was also referred wherein it was held that in view of the mandatory bar contained in S.468 to the court taking cognizance of the offences after the lapse of the period of the limitation, the overriding powers granted in S.473 of the Code can be brought into play only before cognizance of an offence is taken and not subsequently. If the court acts otherwise, it would be clearly acting without jurisdiction. The case of Jagannathan v. State 1983 Cri.L.J 1748 was referred wherein it Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 13/19 was held that a court can take cognizance of the offence after the period of limitation only after condoning the delay. In other words, the condonation of the delay must precede the taking cognizance of the offence. It is incumbent upon every Magistrate before taking cognizance of a complaint to apply his mind to the question of limitation and if prima facie the complaint is out of time, to decide the question of limitation after due notice to the complainant and to the accused.
20. The Court held that unless the complainant who launches the prosecution after the expiry of period of limitation, seeks the extension of period of limitation by invoking Section 473 CrPC, Section 468 CrPC will come into play and the condonation of delay should precede the taking cognizance of the offence. This implies that the moment, the period of limitation comes to an end, the Court is prohibited from taking cognizance of the offence unless the period is extended by condoning the delay by virtue of Section 473 CrPC. Case of Panney Singh v. State of Rajasthan, 1980 Cri. L.J339 was referred wherein it was held that the Court could not, subsequent to the passing of the order taking cognizance, condone the delay and extend the period of limitation. Reference was also made to the case of Bharat Hybrid Seeds & Agro Enterprises v. State 1978 Mad.L.J Cri 659 wherein it was held that once the period of limitation prescribed under the Code or any other law for launching a prosecution has expired, Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 14/19 certain rights would accrue to the accused to the effect that there would be no prosecution thereafter.
21. The Court held that Section 468 (1) CrPC which prohibits every court from taking cognizance of the categories of offences in respect of which the periods of limitation have been prescribed under subsection (2) of that section, after the expiry of such periods of limitation, vests a valuable right in the persons sought to be prosecuted. The main object of such prohibition is to see that parties do not resort to dilatory tactics and to shut out belated and dormant claims in order to save the accused persons from unnecessary harassment but to seek their remedies within the statutory periods fixed by the legislature. As observed by the Supreme Court in State of Punjab v. Sarvan Singh supra, this object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. Therefore, it is of the utmost importance that any prosecution whether by the State or by a private person, must abide by the letter of law and take the risk of the prosecution failing on the ground of limitation. This valuable right accrued to an accused person cannot be allowed to be taken away except by strictly satisfying the conditions prescribed under Section 473 and that too for proper reasons. Section 473, which is an exception to S.468, empowers the court to extend the period of limitation in certain cases, which power has to be exercised having Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 15/19 regard to the facts and circumstances of those cases. In any case, the exercise of the power under Section 473, extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking cognizance of the offence. While so exercising such discretionary power, the court is obliged to record its order in writing, giving its reasons therefore. In our opinion, any proceeding culminating in the conviction of a person in a criminal case, the cognizance of which has been taken after the expiry of the period of limitation as prescribed under S.468(2) without first resorting to S.472, is non est in the eye of law.
22. In the case of Arun Vyas v. Anita Vyas, 1999 SCC 247, two questions came up for consideration before the Supreme Court: (1) whether a Magistrate can discharge the accused after taking cognizance of the offence by him but before the Trial of the case? (2) whether the Magistrate was right in discharging the appellant on the ground that complaint is barred by limitation u/s 468 CrPC?
23. It was held that where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law like Section 468 CrPC, the complaint being barred by limitation, he cannot frame the charge and he has to discharge the accused. Where the Magistrate takes cognizance of the offence without taking note of Section 468 CrPC, the most appropriate stage at which the accused can plead for his Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 16/19 discharge is the stage of framing of the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.
24. In the case of Rajiv Kumar & ors v. Registrar of Companies NCT of Delhi Crl. M C No. 23/2005, decided on 05.05.2009, it was held that if a complaint is prima facie barred by time, when it is filed, it becomes necessary for the prosecuting agency to explain the delay and seek condonation of the same. Unless the delay is condoned, the court cannot take cognizance of the complaint. It is highly doubtful that the court can condone the delay and thus extend limitation subsequent to taking of the cognizance of the offence.
25. In the case of Vipin Kalra & anr v. State, 95 (2002) DLT 863, the police submitted the chargesheet on 23.03.1998 i.e after the expiry of limitation period. The prosecution also did not file any application for extension of the period of the limitation u/s 473 CrPC. It was held that the cognizance could not be taken after the lapse of period of limitation. The order of the MM framing charge against the petitioner was quashed.
26. In the case of Dr L B Singh v. Registrar of Companies, NCT of Delhi, Crl. M C No. 138/2005 decided on 25.05.2009, it was held that an accused person acquires a valuable right the moment his prosecution is barred by limitation. That right cannot be taken away except in accordance with the provisions Dr Shakuntala S. Jaiman & ors v. State & Anr CR No. 12/18 (173/2018) 11.07.2018 Page no. 17/19 of law.
27. Admittedly, in the instant case, the cognizance was taken but it would not be mean that the Court has condoned the delay. It was held in the case of Sharad Chandra Vinayak Dongre and Ors v. State of Maharashtra 1991 Cri.L.J 3329 that the Magistrate has no power or jurisdiction to take cognizance of an offence which is time barred Under Section 468 of the Code. That being the position, there is no scope for condonation of delay after taking cognizance of the offence. Such delay has to be condoned in accordance with the provisions of the Criminal Procedure Code, 1973, prior to the taking of the cognizance of the offence.
28. The case of State of Punjab v. Sarvan Singh supra, makes it crystal clear that no proceeding can continue with respect to the time barred chargesheet thus in the present case the entire proceeding emanating out of the time barred chargesheet would be non est.
29. In the case of Suresh Rai v. State of M.P 1999 (1) MPJR 167, the Magistrate held that once the cognizance was taken, it was to be presumed that the period of limitation was extended in exercise of power under Section 473 of the Code. The High Court held that this observation is totally erroneous in as much as the accused should have been afforded an opportunity to contest the matter as a valuable right had already accrued to him.
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30. For the aforesaid reasons and the case laws supra, I am of the view that the chargesheet was filed by the investigating agency after the expiry of period of limitation. Neither any request for condoning the delay in filing the chargesheet was made on or before the date of filing of the chargesheet nor the court had condoned the delay in filing of the chargesheet. The cognizance taken by the trial court was barred by limitation.
31. I, therefore, set aside the impugned order of the trial court qua taking cognizance of the offences against the revisionists/petitioners and allow the revision petition with no orders as to cost.
32. Trial Court Record be sent back with the copy of this order.
33. File of revision petition be consigned to Record Room.
Announced in the Open Court on 11.07.2018 (Sanjiv Jain) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court Digitally New Delhi signed by SANJIV SANJIV JAIN JAIN Date:
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