Rajasthan High Court - Jaipur
Sanjay Choudhary vs State Of Rajasthan Through Pp on 10 January, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6133 / 2017
Sanjay Choudhary S/o Prakash Choudhary, Aged About 35 Years,
R/o Kewalpura House, Bari Sadri, Chittorgarh.
----Petitioner
Versus
State of Rajasthan Through PP.
----Respondent
_____________________________________________________ For Petitioner(s) : Mr. Sharad Purohit.
For Respondent(s) : Mr. V.S. Godara, PP _____________________________________________________ HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Order 10/01/2018 This criminal misc. petition has been preferred by accused-petitioner Sanjay Choudhary with the prayer to quash the proceedings of Criminal Case No.30/2011 titled as State Vs.Sanjay Singh & Ors. pending before the Court of Additional Chief Judicial Magistrate No.2, Srimadhopur, Sikar for the offence punishable under Section 18/54(E) read with Section 54-D, 64 & 68 of the Rajasthan Excise Act, 1950 ('the Act of 1950') arising out of FIR No.12/2010-11.
Heard learned counsel for the petitioner and learned Public Prosecutor and perused the relevant material available on record.
Facts in brief relevant for consideration of this misc. petition are that FIR No.12/2010-11 came to be registered on 10.01.2011 for the offence under Section 18/54(E) read with (2 of 6) [CRLMP-6133/2017] Section 54-D of the Act of 1950 by Abkari Circle, Srimadhopur allegning that M/s H.S.B. Agro Industries, Ringas has diverted 40000 BL ENA (Extra Neutral Alcohol) on the basis of forged documents and has caused loss to the Government revenue, which is punishable under the aforesaid provisions of the Act of 1950.
After investigation, a charge-sheet was filed against five persons namely Sanjay Singh, Pawan, Bhawani Singh, Mahal Chand and Durga Prasad. Later on, a supplementary charge-sheet came to be filed against six persons including the present petitioner Sanjay Choudhary on 28.04.2015 for the aforesaid offences. The trial court took cognizance of these offences against the petitioner and other accused-persons vide order dated 17.06.2015.
Learned counsel for the accused-petitioner has challenged the proceedings of Criminal Case No.30/2011 including the order of taking cognizance dated 17.06.2015 on many fold grounds inter-alia on the ground that the cognizance could not have been taken by the trial court in view of Section 67(2) of the Act of 1950 being barred by time prescribed therein. During the course of argument, learned counsel has laid emphasis on this ground alone to challenge the proceedings of the Criminal Case No.30/2011.
For the sake of convenience, Section 67(2) of the Act of 1950 is reproduced as below :-
"Except with the special sanction of the State Government no Magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution (3 of 6) [CRLMP-6133/2017] is instituted within a year after the date on which the offence is alleged to have been committed."
Learned counsel for the petitioner submits that for the offence was allegedly committed on or prior to 10.01.2011, the charge-sheet came to be filed against the present petitioner alongwith five other persons on 28.04.2015, which is certainly beyond a period of one year as prescribed under Section 67(2) of the Act of 1950.
His further argument is that the trial court proceeded to take cognizance against the petitioner on 17.06.2015 i.e. almost after 4½ years from the date of the occurrence of alleged offence, which is erroneous and legally impermissible in view of the explicit provision of Section 67(2) of the Act of 1950.
In support of his contention, learned counsel has placed reliance on the judgment in Gurcharan Singh vs. State of Rajasthan, reported in 2001(3) WLC 575, the Division Bench of this Court has held as under :-
"Provisions of special law, namely Rajasthan Excise Act, prescribing the period of limitation will prevail and it excludes the provisions of general law, namely Section 468 of Code of Criminal Procedure. Therefore, in our opinion, section 468 Cr.P.C. being of general law, the prosecution cannot take benefit of general provisions. We have already noticed that even at the time of presentation of the challan papers, limitation has expired, therefore, the Court was not authorised to take any cognizance or to accept the papers. The cognizance taken in this case is thus, clearly beyond the period of limitation, therefore, the revisional court cannot direct and should not have directed the trial Magistrate to take cognizance as has been done by the revisional court."
Learned counsel for the petitioner has also placed reliance on judgment of Co-ordinate Bench of this Court in Shanti Lal & Anr. vs. State of Rajasthan, reported in 2003(1) (4 of 6) [CRLMP-6133/2017] R.Cr.D.397 (Raj.), wherein it was observed as under :-
"3. .......................................However, the Trial Court could not take cognizance within a period of one year from the date of commission of offence though the charge sheet was filed within a period of one year from the date of commission of the offence. The Trial Court observed that unless there is a sanction from the State Govt. as envisaged in sub- sec.(2) of Sec. 67 of the Act, the Court cannot take cognizance of an offence punishable under sec. 16/54 after the expiry of period of one year from the date of commission of offence. .............................."
In the case of Lal Chand & Ors. Vs. State of Rajasthan, reported in 2004(2) WLC 182, wherein the Co- ordinate bench of this Court was observed as under :-
"5. Under general law of limitation, the power to condone the delay is vested in the court, but under the Act of 1973, the State has kept this power with itself, by providing exception clause of special sanction. Whether the power is to be exercised by the court or the State, it has to be exercised before the cognizance is taken. Thus, a decision to grant special sanction must be taken by the State before matter reaches to court for adjudication on the point of taking cognizance. If an officer fail in discharge of his duty in not completing the investigation within a period of one year, it is obligatory for him to report the matter to the State Government and seek permission by way of special sanction to file challan or complaint after the expiry of limitation. It is for the higher authorities in the State Government to fix responsibility on the person responsible for not filing the charge-sheet or complaint in time. In case there exists really good reasons the State Government is an appropriate case may consider to grant special sanction. Thus, it cannot be other way round that the police or the Excise Officer files the complaint or the charge-sheet on his own and then move to the State Government for grant of special sanction. ......................................................................................."
In the case of Manga Ram & Anr. vs. State of Rajasthan, reported in 2004(1) R.Cr.D. 10 (Raj.), the Co- ordinate Bench of this Court held as under :-
(5 of 6) [CRLMP-6133/2017] "4. In the instant case, the learned Magistrate has taken cognizance on 9.1.1998 i.e., beyond the period of one year in complete disregard to the provision of Sec. 67(2) o f the Rajasthan Excise Act.
The entire proceeding is illegal and deserves to be quashed."
In the case of Gulam Hussain vs. State of Rajasthan, reported in 2006(1) Cr.L.R. (Raj.) 21, the Co- ordinate Bench of this Court has held as under :-
"6. Thus, looking to the provision of Section 67(2) of the Rajasthan Excise Act, this special provision will also prevail over the provision of Section 469 Cr.P.C., also. There is specific mention that the prosecution should be instituted within one year from the date of commission of offence. Learned Magistrate has also taken the shelter of Section 469 Cr.P.C., and he has taken the cognizance, which is also not correct on the ground that under the provisions of Section 67 of the Excise Act, limitation commences from the date of commission of offence and not from the date of knowledge. Therefore, the special provision will prevail over the general provisions of Section 469 Cr.P.C.
.................................................................."
Learned counsel for the petitioner has also taken the plea that sanction for prosecution was also not filed alongwith the charge-sheet and in absence of which cognizance could not have been taken by the trial court, therefore, the order taking cognizance is vitiated on this count also.
Per contra, learned Public Prosecutor has tried to defend the cognizance order dated 17.06.2015 taking recourse to the provision of Section 469 Cr.P.C. But his attempt cannot be allowed to succeed in view of the legal proposition laid down in the aforesaid judgments.
In considered view of this Court, the order dated 17.06.2015 passed by the trial court taking cognizance against the (6 of 6) [CRLMP-6133/2017] accused-petitioner for the offence under Sections 18/54(E) read with Section 54-D, 64 & 68 of the Act of 1950 is bad in law in view of the explicit provision of Section 67(2) of the Act of 1950, which provides that no Magistrate shall take cognizance of any offence punishable under the Act of 1950 unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed.
In the matter in hand, even the charge-sheet was indisputably filed beyond the period of one year i.e. on 28.04.2015 and the cognizance was taken even thereafter on 17.06.2015. The charge-sheet was not accompanied by the sanction for prosecution. Section 469 Cr.P.C. can be of no avail for calculating the period of limitation in view of the provisions contained in Section 67(2) of the Special Act of 1950.
In view of the facts stated above, this Court is of the considered view that the cognizance order dated 17.06.2015 passed by the trial court is bad in law and cannot be sustained. Resultantly, the proceedings of Cr. Case No.30/2011 pending before the Court of ACJM No.2, Srimadhopur cannot be allowed to continue as it will be a mere abuse of process of law.
Accordingly, the misc. petition is allowed and the order dated 17.06.2015 and consequent proceedings of Cr. Case No.30/2011 are quashed and set-aside.
(DEEPAK MAHESHWARI) J.
Rm/25