Gujarat High Court
Pranavbhai Prabodbhai Joshi vs State Of Gujarat & on 17 February, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1011/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) No. 1011 of
2016
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PRANAVBHAI PRABODBHAI JOSHI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance :
Mr MANAN A SHAH, ADVOCATE for the Applicant(s) No. 1
Mr HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE Ms. JUSTICE SONIA
GOKANI
17th February 2016
ORAL ORDER
The petitioner has approached this Court seeking quashment of the Order dated 5th January 2016 passed by the learned 9th Addl. Sessions Judge, Surat in Criminal Revision Application No. 195 of 2015 as well as Order dated 11th August 2015 passed by the learned 13th Addl. Senior Civil Judge & JMFC, Surat below Application Exh. 35 in a private complaint No. 101053 of 2005.
The case of the petitioner in capsulized form is that a complaint came to be lodged against the petitioner before the learned JMFC, Surat for the offence punishable under Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER section 406, 420, 506 & 114 IPC and under Section 138 & 141 of the Negotiable Instruments Act. Summons came to be issued by the learned JMFC, Surat on 22nd June 2006 for the offence mentioned hereinabove. The said private complaint is pending for more than ten years. No evidence so far has been adduced. Neither charges are framed nor any cognizance is taken of the private complaint, and therefore, the petitioner moved the concerned Court under Section 468 CrPC, which provides that there would be a bar to taking cognizance, after lapse of the period of limitation. When the concerned Court rejected such application on 11th August 2015, the petitioner approached learned 9th Addl. Sessions Judge, Surat by preferring Criminal Revision Application No. 195/2015 and the Court confirmed such order by dismissing the Revision Application on 5th January 2016.
Aggrieved petitioner has approached this Court under Article 226 of the Constitution of India, inter alia, praying for quashing and setting aside the impugned Order dated 5th January 2016 passed by the learned 9th Addl. Sessions Judge, Surat in Criminal Revision Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER Application No. 195 of 2015 confirming the Order dated 11th August 2015 passed by the learned JMFC, Surat made on Application Exh. 35 in a private complaint No. 101053 of 2005.
Rule returnable today. Learned advocate Mr. Manan A Shah appearing for the petitioner and learned APP Mr. HK Patel appearing for the respondent-State waives service of notice of rule on behalf of respective sides.
Learned advocate Mr. Manan A Shah appearing for the petitioner has urged that almost ten years have passed, no evidence is recorded. He submits that Section 468 CrPC provides that no Court shall take cognizance of an offence beyond the period of six months, when the offence is punishable with fine only. He submits that the period of limitation prescribed is three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years. He has relied upon decisions of the Apex Court rendered in case of Srinivas Gopal vs. Union Territory of Arunachal Pradesh, reported in 1988 [4] SCC 36; Sirajul v. State of Uttar Pradesh and in case of S.R Sukumar v. S. Sunaad Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER Raghuram, reported in (2015) 9 SCC 201 and (2015) 9 SCC 609 respectively.
Learned APP Shri HK Patel has urged that Section 468 CrPC has no applicability in the instant case as the offence punishable prescribes punishment of maximum imprisonment of seven years one of the charge. He has further urged that this is at the most a case of delayed trial. He added that rest of the aspects are not to be gone into by this Court at this stage.
Heard learned advocates appearing for the respective sides. It would be apt firstly to reproduce Section 468 CrPC, which read thus-
"Section 468 : Bar to taking cognizance 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 Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER with more severe punishable, or as the case may be, the most severe punishment."
This section provides for limitation, making it imperative that taking of the cognizance in respect of offence categorized is within certain period of limitation. No Court is permitted to take cognizance of the categories specified, after expiry of the period of limitation. When the offence is punishable with fine, six months' period is prescribed and if the offence is to visit imprisonment for a term not exceeding one year, cognizance can be taken before expiry of one year. Whereas, in case of offence punishable with imprisonment for a term exceeding one year but not exceeding three years, the cognizance is required to be taken within the period of limitation of three years. Sub-section (3) of Section 468 CrPC provides that 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 punishable, or the most severe punishment; as the case may be. This would mean in otherwords that if there are different offences alleged which prescribe different period of limitation for taking cognizance, the one which is Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER prescribing the higher punishment, shall need to be regarded, while calculating the outer period of limitation. The maximum period of limitation permissible is 3 years, irregardless of the fact that other offence which have been tried prescribes punishment for a lesser term.
This certainly does not mean that any offence which prescribes punishment for a period of more than three years can also be included and can be considered under this provision. Admittedly, in the instant case, when the offence under Section 406 IPC read with Section 420 IPC prescribes the period of imprisonment for seven years, Section 468 CrPC would have not apply. The learned 13th Addl. Senior Civil Judge & JMFC, Surat vide Order dated 11th August 2015 made below Application Exh. 35 on this very ground has rejected the application preferred by the petitioner herein. This was, when challenged before the learned 9th Addl. Sessions Judge, Surat in Criminal Revision Application No. 195/2015, was confirmed by an Order dated 5.01.2016.
The Apex Court in case of Srinivas Gopal v. Union Territory of Arunachal Pradesh [Supra] was dealing with Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER offence punishable under Sections 279, 304A, 338 IPC. As the cognizance was not taken for nine years and the period of limitation would be three years, the Court had quashed the complaint. This would have no applicability as far as the present case is concerned because of the offence involved in the instant case. As far as decision in case of Sirajul v. State of U.P [Supra], the petitioner had approached the Court under Section 482 CrPC for quashment of the proceeding to prevent the abuse of process of the Court as the complainant stood convicted in a cross case at least for ten years after commencement of the trial, complainant did not even bother to seek simultaneous trial of the cross case. The Court, therefore, held that it would be unfair and unjust to permit the respondent no. 2 to proceed with a complaint filed 16 years after the incident, and therefore, the order was quashed.
One of the submissions made by the learned advocate Shri Shah is that the manner in which the cognizance is taken by the court concerned at the earlier point of time is just by putting a rubber stamp. There does Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER not appear to be any application of mind and therefore, it would amount to not taking the cognizance at all. It is to be noted that the Court has already taken cognizance way back in the year 2006, and therefore, this plea after all these years is untenable. The only grievance possibly as rightly putforth is of delay in the trial. It is given to understand by the learned APP that for four to five years, the records were not available due to shifting of the Court premises and during the pendency of Revision Application before the learned 9th Addl. Sessions Judge, Surat, one witness was examined, however, according to the learned advocate the Court has not started full fledged trial, as no evidence as yet is recorded.
Resultantly, Special Criminal Application fails and the same is dismissed. The trial Court is directed to complete the trial within a period of six months from the date of receipt of copy of this order.
Learned advocate Mr. Shah after dictation of this order has made a request to stay this order for sometime. There has been no interim relief operating at any stage, such a request therefore, deserves no consideration.
Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Feb 28 02:59:58 IST 2016 R/SCR.A/1011/2016 ORDER {Ms. Sonia Gokani, J.} Prakash* Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Feb 28 02:59:58 IST 2016