Gauhati High Court
K. Vikheho Sema vs State Of Nagaland on 20 August, 2007
Equivalent citations: 2007CRILJ4266, 2007(4)GLT130, 2007 CRI. L. J. 4266, (2008) 2 GAU LR 686, (2008) 63 ALLINDCAS 708 (GAU), 2008 (60) ALLCRIC 69 SOC, (2007) 4 GAU LT 130
ORDER B.D. Agarwal, J.
1. The petitioner is a Government employee. He is presently serving as a Ranger in the Forest Range Office, Chumukedima under Divisional Forest Officer, Dimapur Division. The revision petitioner has been charged with misappropriating a sum of Rs. 8,40,668/-, which he had allegedly collected as forest revenue but not deposited in the treasury. It is the prosecution case that the alleged defalcation misappropriation of Government revenue was done during the period 1991 to 1995.
2. The FIR was lodged by the DFO, Phek Division on 17-11-2005 with an allegation-that the accused had misappropriated a sum of Rs. 10,78,901/-, which was collected by him as forest revenue but the same was not deposited in the treasury, despite repeated reminders. The FIR was registered as Meluri P.S. Case No. 6 of 2005 Under Section 406 of the Indian Penal Code. After investigation, the charge-sheet was submitted on 21-7-2006, wherein the amount of alleged misappropriation was shown to be Rs. 8,40,666/-. On the basis of this charge-sheet, the accused was summoned and formal cognizance of the FIR was taken by the learned Additional Deputy Commissioner (Judicial), Phek on 28-2-2007. Being aggrieved with this order of cognizance, this revision application has been filed by the accused.
3. I have heard Shri N. K. Luikham, learned Counsel for the petitioner and Mrs. Lucy, learned Public Prosecutor for the State of Nagaland. I have also perused the impugned order and the FIR.
4. Learned Counsel for the petitioner submitted that the learned ADC ought not to have taken cognizance of the charge-sheet since the FIR was lodged after more than 10 years of the detection of the alleged offence as the same is hit by Section 468 of the Code of Criminal Procedure. Learned Counsel also submitted that the cognizance has been taken without production of sanction order of the Government, as required under Section 197 Cr PC and this is another flaw in taking cognizance of the case.
5. On the other hand, the learned PP submitted that since the offence was a continuing one, the learned ADC has rightly extended the period of limitation exercising his power conferred Under Section 473 Cr. PC.
6. Admittedly, an offence Under Section 406 IPC invites maximum imprisonment for three years. Under Section 468(2)(c) of the Code of Criminal Procedure a Court can take cognizance of an offence, punishable with imprisonment for a term not exceeding 3 years, if the criminal action is set in motion within a period of three years. The learned PP did not dispute the legal position that in the present case, three years period is applicable for initiating a criminal action.
7. Section 468 Cr. PC has laid down different periods of limitation for a Court to take cognizance of a complaint. Sections 470 and 471 have specified certain circumstances under which the period of limitation, prescribed in Section 468 can be extended. In addition to these relaxation provisions Section 473 has given extraordinary jurisdiction to the Courts to extend the statutory period of limitation for taking cognizance of an offence. For ready reference provisions of Sees. 468 and 473 Cr. PC are reproduced below ;-
468. Bar to taking congnizance 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 most severe punishment.
473. Extension of period of limitation in certain cases.- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice.
8. From the impugned order, I find that the learned ADC has condoned the delay primarily on two grounds. Firstly, the learned ADC has held that Under Section 470, a Court can exclude the time taken for obtaining sanction, inter alia, on other grounds. However, the impugned order is totally silent to say whether any sanction was at all obtained by the complainant. Today also, the learned PP failed to apprise this Court whether any steps were taken to obtain sanction for prosecution, far less, producing any sanction order. In this way, the learned trial Judge has inappropriately invoked the provisions of Section 470 Cr. PC.
9. The second ground for extending the period of limitation is that the offence was a continuing one. This was also the submission of the learned PP. It is true that the offence might have been committed on an unspecified date during the period 1991 to 1996. At the same time, it might not have been possible for the department to detect the offence immediately i.e. either in the year 1991, 1992 and so on. However, at least, in the present case, the initial offence was detected in the year 1991 itself and the accused was asked to deposit the Government revenue vide letter dated 19-8-1991. Thereafter, the accused was reminded at a regular interval to deposit the collected revenue. The last reminder was given on 13-6-199(3.
10. Section 472 Cr PC deals with the question of limitation period in case of continuing offences. In the present case, the limitation period could have at best been stretched till 1996. Hence, the argument of the learned Public Prosecutor that the case can be considered as a continuing one till the date of filing of the complaint in the year 2005 can not be accepted. On this ground also, the impugned order is unsustainable in law.
11. Section 473 Cr PC, no doubt, has given discretionary powers to the Courts to take cognizance even after the lapse of statutory period. However, this discretion can be exercised only after fulfillment of preconditions laid down therein. The conditions are that the Court must be satisfied on facts that the delay has been satisfactorily explained by the prosecution or extension of time is necessary in the interest of justice. These two prerequisites are sine qua non to extend the period of limitation.
12. The law in this regard has been lucidly laid down in the case of State of Punjab v. Sarwan Singh . The relevant observations of the Apex Court made in this case can be fruitfully extracted below for guidance:
The object of the Criminal Procedure Code in putting 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. 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 of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the. prosecution failing on the ground of limitation.
13. Again in the case of State of H.P. v. Tara Dutt and Anr. . the Apex Court has held that the discretion conferred on the Court has to be exercised judicially and on well recognized principles. Their Lordships have further observed that if the Court exercises its discretion, it should be by a speaking order indicating satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice,
14. In the case before me, the only explanation for not filing the complaint in time is that the accused was given sufficient opportunity to deposit the Government revenue and only on his failure, the FIR had to be lodged. I have already noted earlier that the offence was detected as early in the year 1991 and thereafter, the concerned head of the office was unilaterally giving reminders to the accused 1o deposit the money. Technically, the FIR ought to have been lodged in the later part of 1994 since the first letter to the accused was written on 19-8-1991. Even if the subsequent period of reminders, i.e. till 13-6-1996 is also ignored, the FIR ought to have been lodged on or before 12-6-1999. However, there is no satisfactory explanation for not filing the complaint for the next 9 years. In this way, it is a case of gross negligence and laches on the part of the complainant in initiating the criminal action, which is unpardonable on facts as well as in law. Keeping in mind the gross delay, it can be said that if the criminal proceeding is allowed to continue, it would amount to gross abuse and misuse of the criminal justice system.
15. It is needless to say that prosecution of a person in a criminal Court somehow curtails fundamental and human rights of the accused inasmuch as the accused comes within the judicial command of the Court and during the period of criminal trial the free movements of such accused persons are eclipsed and remains under the shadow of Court orders. Such accused persons are bound to attend judicial proceedings, keeping aside their profession, business and personal engagements. Keeping in mind these indirect restrictions in the otherwise free life of accused persons, the Courts are duty bound to apply the rigour of limitation law in its proper perspective. In other words, Courts cannot be totally oblivious to the intention of the legislature in fixing certain mandatory periods of limitation Under Section 468 CrPC. In my considered view, while exercising discretionary powers given Under Section 473, Courts are bound to act within the contours of the law and subject to fulfilling pre-conditions set out therein. Any inappropriate and injudicious exercise of discretionary powers would offend the fundamental rights of the accused persons enshrined under Article 21 of the Constitution of India.
16. In a plethora of judgments, the Hon'ble Supreme Court has held that the accused persons have fundamental right of fair and speedy trial. In the case of Common Cause v. Union of India , the Hon'ble Supreme Court has empowered the Courts to discharge or acquit accused persons if there is inordinate delay in the commencement of the trial, at least in those cases where the offence is punishable up to 3 years of imprisonment. Similarly, in the case of Rajdeo Sharma (II) v. State of Bihar , the Apex Court has emphasized and has restated the right of accused persons to a speedy trial. It is true that the aforesaid directions relating to speedy trial are not explicitly applicable in the present case but still the underlying message is that a person should not be harassed or put under threat of impending punishment for an indefinite period. This lurking threat can also be held out under the guise of criminal prosecution and it is not necessarily confined to a pending case. Since a criminal prosecution is intrinsically connected with fundamental and human rights of citizen, the Courts have an onus duty to examine/ascertain whether the prosecution is genuine and bona fide or it is accentuated with malice and mala fide intention.
17. In the case at hand, the petitioner has been prosecuted long after 14 years of alleged commission of an offence, which is denied by the accused. If this case is allowed to proceed, it will not only be in violation of the law of limitation but it would also keep the petitioner under duress of uncertain punishment.
18. Above all, the forest department has not yet initiated any departmental proceeding against the petitioner. However, they are interested to prosecute the petitioner in a criminal Court. This is certainly a strange. attitude on the part of the State. I fail to understand the motive behind the criminal prosecution of an officer after 14 years without taking any disciplinary action. No cogent explanation was also forthcoming from the side of the respondent. On this ground also, the criminal prosecution cannot be allowed to continue.
19. For the reasons alluded hereinabove, I hold that the impugned order is unsustainable in law and on facts. Consequently, the criminal proceeding is hereby dropped. The revision application stands allowed.