Delhi District Court
State vs Vipin Kumar Mehta on 23 January, 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. 31/17 (168/2017)
CNR No. DLST010034442017
State ... Petitioner
Versus
1. Vipin Kumar Mehta
S/o Sh. B L Mehta
R/o H16B, Saket
New Delhi.
2. V N Saini
S/o Sh. Chander Mohan
R/o B8 behind Press Enclave
Saket, New Delhi.
3. V P Sharma
S/o Sh. Roop Ram
R/o JG27A, Khirki Extension
Malviya Nagar, New Delhi. .... Respondents
Date of filing of revision : 12.05.2017
Date of allocation : 15.05.2017
Arguments concluded on : 16.01.2018
Date of order : 23.01.2018
Revision petition under section 397/399 Cr.P.C against the impugned
order dated 02.05.2017 passed by Ld. ACMM, (South) New Delhi in
case FIR No. 39/2014, U/S 304A IPC, P.S. Saket
State v. Vipin Kumar Mehta & ors
CR No. 31/17 (168/2017) 23.01.2018 Page no. 1/16
ORDER
1. This revision petition u/s 397 and 399 of the Code of Criminal Procedure is directed against the order dated 02.05.2017 passed by the ACMM, South District, New Delhi in the case FIR No. 39/14 registered at the Police Station, Saket, New Delhi whereby the proceedings against the respondents/accused persons were stopped in terms of Section 258 CrPC.
2. The facts relevant for the disposal of the present petition are that one Smt. Anju Devi was admitted in Dr. Mehta Nursing Home at H Block, Saket, New Delhi for treatment of Gall Bladder Stone on 18.09.2010. She was operated on 19.10.2010 by the team comprising of the respondents/accused persons. Her family was informed that the operation was done successfully. She complained of pain but the doctors did not attend her and she died in the nursing home on 20.09.2010. The matter was reported to the police on the same day vide DD 27A regarding the negligence of the respondents. It was referred to Delhi Medical Council. A report was received from the Council on 16.01.2013 inculpating the respondents. Copy of the order dated 16.01.2013 was received by SI Manoj Kumar pursuant to the reply dated 08.11.2013. Viscera Report was obtained from the FSL, Rohini on 06.04.2013. It was submitted to the department of Forensic Medicine, AIIMS for giving final opinion regarding probable cause of death of Smt. Anju. Final opinion of the doctors of AIIMS hospital was received State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 2/16 on 19.11.2013. After seeking formal approval, the FIR was registered on 20.01.2014. After the investigation, the chargesheet was filed on 06.01.2017. On the same day, cognizance of the offence punishable u/s 304A IPC was taken by the Court. The respondents/accused persons were summoned for 20.01.2017. On the applications and written submissions filed by the respondents for their discharge, an application for condonation of delay was filed by the IO.
3. Vide impugned order, it was observed by the Trial Court that as per Section 469 CrPC, the date, from which limitation period begins to run, is the day on which the offence comes into the knowledge of the victim or the police, which ever is earlier. It has been admitted by the IO in his application dated 14.04.2017 that order of Delhi Medical Council was received in January, 2013 meaning thereby the limitation period for filing the chargesheet expired in January, 2016. Reference was made of the case of State of Punjab v. Sarvan Singh AIR 1981 SC 1054 wherein it was held that the prosecution of an accused beyond the prescribed limitation period makes all the proceedings non est. It was observed that the Court while taking cognizance of the offence on 06.01.2017 did not condone the delay in filing the chargesheet in terms of Section 473 CrPC as no request for condonation of delay was made on or before the date of taking cognizance. Reference was made of the case of Jethmal Himmatmal Jain & Ors v. State of Maharastra 1981 Cr.L.J 1813 and Saregama India Ltd. v.
State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 3/16 State, NCT of Delhi MANU/DE/0284/2014 wherein 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. The Court vide impugned order stopped the proceedings in terms of Section 258 CrPC against the respondents/accused persons giving reference of the case of State of Punjab v. Sarvan Singh supra.
4. This order is assailed on the ground that the Trial Court has reviewed its own order which is not permissible as per the judgment in the case of Adalat Prasad v. Rooplal Jindal & ors (2004) 7 SCC 338; that the Trial Court had applied its mind before taking cognizance of the offence and later on, the Court has stated that it had not condoned the delay in filing the chargesheet; that the Trial Court did not mention any reason for not condoning the delay as no order was passed on the application moved by the IO for condoning the delay; that the Trial Court arbitrarily used the power u/s 473 IPC; that due to negligence on the part of the police officials, the victim cannot be allowed to suffer.
5. I have heard the arguments advanced by Sh. R S Negi, Ld. Addl.
PP for the State/Revisionist, Sh. I S Kapoor, Ld. Counsel for the respondent No. 1, Sh. Rohit Taliar, Ld. Counsel for the respondent No. 2 and respondent No. 3 in person. I have also gone through the written submissions filed on behalf of Respondent No. 2, Trial State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 4/16 Court Record and the impugned order.
6. Instant case was registered vide FIR No. 39/14 at the Police Station Saket on 20.01.2014 u/s 304A IPC. The maximum punishment prescribed for the said offence is imprisonment upto two years or with fine or with both.
7. 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 three years...
8. 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 State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 5/16 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.
9. Perusal of the record reveals that the matter was reported to the police on 20.09.2010 vide DD 27A regarding the negligence of the respondents. Since the case related to medical negligence, the matter was referred to Delhi Medical Council for opinion. The report from the Council was received on 16.01.2013. Record reveals that the Viscera of the deceased was sent to the FSL and the report was received on 06.04.2013. Final opinion as to the cause of the death of the deceased was received from AIIMS on 19.11.2013. The application for condonation of delay dated 14.04.2017 moved by the IO also finds mention of the receipt of report of the Medical Council in January, 2013. The chargesheet in the instant case was filed on 06.01.2017. The record also reveals that the action taken report from time to time was also called by the Trial Court in this matter.
10. It was rightly observed by the Trial Court that the limitation period would start from the day on which the offence came into State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 6/16 the knowledge of the victim/complainant or the police, whichever is earlier. In the instant case, the report of the Medical Council was received in January, 2013 inculpating the respondents. Thus, the limitation would start from January, 2013. The maximum punishment for the said offence is two years. As per Section 438 CrPC, the limitation for taking cognizance of the said offence is three years. It goes to show that the chargesheet was filed after the expiry of limitation period. Even when the chargesheet was filed, no application was moved by the IO for condonation of delay in filing the chargesheet in terms of Section 473 CrPC. The application for condonation of delay was moved for the first time on 14.04.2017 wherein it was pleaded that the limitation for filing the chargesheet is to be computed from the date of registration of the case i.e 20.01.2014, the chargesheet was filed on 06.01.2017 and thus, it was filed within limitation. Question arises, when the IO has stated that the chargesheet has been filed within limitation, what made him move the application for condonation of delay? Section 469 CrPC is very clear on this aspect. It provides that the limitation would start from the day on which the offence comes into the knowledge of the victim or the police whichever is earlier. In the instant case, the matter was reported to the police on 20.09.2010 and the report of the Delhi Medical Council inculpating the respondents is of dated 16.01.2013. Even the post mortem report was received on 19.11.2013. I am not in agreement with the submissions of the State/IO that the limitation State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 7/16 would start from the day the FIR was registered. In the instant case, matter was already in the knowledge of the IO before the registration of the case and the limitation would start from that day and not from 20.01.2014.
11. Admittedly, in the instant case, cognizance of the offence was taken on the chargesheet filed by the State but it does not imply that the Court has condoned the delay. A speaking order is required to be passed indicating that the delay was satisfactorily explained. In the instant case, no application was moved by the State or the IO for condonation of delay at the time of filing of the chargesheet nor there was notice in this respect to the accused persons/revisionists as to the delay in filing the chargesheet at the time of taking cognizance nor any order was passed by the Court condoning the 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. Thus, subsequent application moved by the IO for condonation of delay, after the cognizance of the offence was taken, would be non est in the eyes of law as held in the case of State of Punjab v. Sarvan Singh supra.
12. In the case of Kathamuthu v. Balammal decided on 04.10.1985 by the Madras High Court, a question came up "Where the launching of a criminal prosecution is after the lapse of period of limitation State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 8/16 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.
13. 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 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 State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 9/16 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.
14. 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, certain rights would accrue to the accused to the effect that there would be no prosecution thereafter.
15. The Court held that Section 468 (1) CrPC which prohibits every State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 10/16 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 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 State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 11/16 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.
16. 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?
17. 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 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.
18. In the case of Rajiv Kumar & ors v. Registrar of Companies NCT State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 12/16 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.
19. 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.
20. 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 of law.
21. Admittedly, in the instant case, the cognizance was taken but it would not be mean that the court had 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 State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 13/16 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. It was observed that in the present case, the process has just been reversed, the Magistrate takes the cognizance of the offence, directs process to be issued and later on proceeds to grant the application for condonation of delay. As such I feel no hesitation in holding that the Trial Court acted illegally and without jurisdiction in taking cognizance of the offence alleged in the present case.
22. 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.
23. The case of Adalat Parsad supra is distinguishable on facts. In the instant case, there is no recalling of the summoning order or review of the same. The trial court on considering the facts and the legal position, exercised the powers u/s 258 CrPC stopping the proceedings and the same cannot by any stretch of arguments be said to be of recalling of summons or review of the earlier order. Thus, the case of the Adalat Parsad supra would not stand in the way of the Trial Court to stop the proceedings because the discharge of an accused at the stage of framing of the notice u/s State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 14/16 251 CrPC would not amount to recall/review of summoning order as defined in Section 362 CrPC. The two stages in the criminal trial are different. The first is the stage of issuance of process under Section 204 CrPC, when the Magistrate has to satisfy that there are sufficient grounds for proceeding in the matter. The second is at the stage of framing of charge/notice when the Court has to be satisfied that a prima facie case is made out against the accused. Similarly under Section 258 CrPC, the Court can stop the proceedings at any stage, which is different from stage of issuance of process.
24. 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 been afforded an opportunity to contest the matter as a valuable right had already accrued to him.
25. For the aforesaid reasons and the case laws supra, I do not find any infirmity or illegality in the order of the Trial Court qua stopping of the proceedings in terms of Section 258 CrPC as in the instant case, the chargesheet was filed 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 the filing of the chargesheet nor the Court had condoned the delay in filing of the chargesheet. The Trial Court stopped the proceedings in view State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 15/16 of the law laid down in the case of State of Punjab v. Sarvan Singh supra.
26. The revision petition is accordingly dismissed with no orders as to the cost.
27. Trial Court Record be sent back with the copy of this order.
28. File of revision petition be consigned to Record Room.
Announced in the Open Court on 23.01.2018 (Sanjiv Jain) ASJ/Special Judge (PC Act) (CBI3), South, Saket Court New Delhi State v. Vipin Kumar Mehta & ors CR No. 31/17 (168/2017) 23.01.2018 Page no. 16/16