Delhi District Court
Lavpreet Singh Talwar vs State (Govt Of Nct Of Delhi) on 9 July, 2020
IN THE COURT OF SH. PARVEEN SINGH,
ADD L. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 776/2019
Lavpreet Singh Talwar,
S/o Sh. Satinder Pal Singh,
R/o J5/151, 2nd Floor,
Rajouri Garden, New Delhi110027 ....Revisionist.
Versus
State (Govt of NCT of Delhi).
.....Respondent.
Date of Institution : 15.11.2019.
Date of Arguments through VC: 02.07.2020.
Date of Pronouncement : 09.07.2020.
ORDER
The present is a revision petition u/s 397 Cr.P.C for setting aside the orders dated 21.09.2016 and 30.01.2019 passed by the court of Ld. MM whereby the ld. MM had allowed the application of the investigating officer seeking extension of time in completing the investigation and CR No. 776/2019 (Parveen Singh) Page No. 1 of 11 ASJ03/NDD/PHC: 09.07.2020 pursuant to filing of chargesheet, had taken cognizance.
2. The brief facts as per the complainant/ revisionist are, that on 07.06.2013, an FIR No. 90/2013 u/s 287/304A IPC was registered as PS Connaught Place. Pursuant to the FIR, investigation was carried out but no charge sheet was filed within the period of three years. It is further submitted that on 21.09.2016, an application seeking extension of time was moved by the IO. In the application, it was submitted by the IO that he was under the impression that accused were not arrested and thus, investigation would not be time barred. Thus, investigation could not be completed and one month time was sought. Vide order dated 21.09.2016, ld. MM had passed an order stating that benefit of the negligence of the investigating officer should not be given to the accused. Thus, one month time to complete the investigation was granted and further an order to initiate disciplinary action against the IO was passed. Thereafter, on 17.10.2016, charge sheet was filed in the court. Vide order dated 30.01.2019, cognizance was taken and accused were summoned. On 13.09.2019, the revisionist appeared before the trial court and furnished bail bond. However, copy of charge sheet was not supplied to him as it was not available on record. On 10.10.2019, copy of charge sheet and documents was supplied to the revisionist. After perusal, it was found that there were infirmities in the orders passed by the ld. trial court. Hence the present revision petition.
3. The grounds taken in the revision petition are, that the Ld. CR No. 776/2019 (Parveen Singh) Page No. 2 of 11 ASJ03/NDD/PHC: 09.07.2020 MM had not appreciated the entire facts and circumstances of the case and had passed the impugned orders in haste. It is further submitted that while passing the impugned order dated 21.09.2016, ld. MM had ignored the basic ingredients u/s 468 and 473 IPC. Section 468 Cr.P.C bars taking of cognizance of certain offences after the lapse of period of limitation prescribed therein. Section 473 Cr.P.C empowers court to extend the period of limitation in certain cases. It is further submitted that in view of section 473 Cr.P.C, the two essential conditions are :(i) a proper and satisfactory explanation of delay and (ii) the condition of delay should be in the interest of justice. However, in the present case, the IO had filed an application seeking extension of time stating that as the opinion of cause of death was awaited and he was under an impression that as the accused had not been arrested, there would be no limitation to conclude the investigation. It is further submitted that page no. 45 of the charge sheet revealed that the opinion regarding the cause of death was given on 23.12.2013. It is further submitted that the only reason given by the Ld. MM while allowing the application was that the accused should not be given benefit of the negligence of the IO, which is an incorrect preposition of law. It is further submitted that time and again, it has been held in various judgments that whenever a Magistrate invokes the provision and condone the delay, the order of the magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained. A further ground taken is that the application seeking condonation of delay CR No. 776/2019 (Parveen Singh) Page No. 3 of 11 ASJ03/NDD/PHC: 09.07.2020 was filed on 21.09.2016 and no notice of the application was issued to the accused. It is further submitted that the period of limitation had expired on 06.06.2016 and the application was filed on 21.09.2016 and that too without any charge sheet and thus, magistrate could not have condoned the delay in absence of the charge sheet. Either the application seeking extension of time should have been filed before the expiry of limitation period or if it was filed after the expiry, it should have been filed with charge sheet. It is further submitted that when the impugned order was passed, there was no material available to the magistrate to record his/ her satisfaction about the delay.
4. I have heard ld. counsel for the revisionist and perused the record very carefully.
5. Ld. counsel for the revisionist has contended that ld. MM while taking the cognizance of the offences in the present charge sheet had proceeded in haste and had completely ignored section 468 Cr.P.C and section 473 Cr.P.C. He has further contended that as the charge sheet was clearly time barred, the ld. MM u/s 468 Cr.P.C, could not have taken the cognizance of the offences unless, he had proceeded to condone the delay u/s 473 Cr.P.C. Even the order of condoning the delay for the period of investigation is unreasoned and is without the delay having been properly explained. The period of limitation had already expired on 06.06.2016 and the application for extension of time was moved on 21.09.2016. Even at that time, no charge sheet was filed and thus, ld. MM could not have CR No. 776/2019 (Parveen Singh) Page No. 4 of 11 ASJ03/NDD/PHC: 09.07.2020 condoned the delay in absence of the charge sheet. 6 Per contra, Ld. Addl. PP has contended that the ld. MM had condoned the delay for period of investigation as per section 167 (5) Cr.P.C and once that delay stood condoned that too after the period of limitation u/s 468 Cr.P.C, there was no requirement to further condone the delay in filing the charge sheet.
7. I have considered the rival submissions and perused the record very carefully.
8. Certain dates are very important in this case, which are being reproduced as under: Date of registration of FIR : 07.06.2013 Date of moving application for condonation of delay and seeking one month's extension of period of investigation : 21.09.2016 Date of impugned order allowing time for further investigation :21.09.2016 Date of filing of charge sheet: 20.10.2016 Date of impugned order of taking cognizance : 30.01.2019
9. In the present case, the FIR was registered on 07.06.2013 and it was registered for offences u/s 287/ 304A IPC. Thus, the offences were summons triable. After completion of investigation, the charge sheet was CR No. 776/2019 (Parveen Singh) Page No. 5 of 11 ASJ03/NDD/PHC: 09.07.2020 required to be filed in this case within a period of three years from the date of registration of FIR and thereafter, ld. MM would not have been empowered, unless powers u/s 473 Cr.P.C were exercised, to take cognizance of the offence in view of section 468 Cr.P.C. Section 468 Cr.P.C is being reproduced as under:
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 term exceeding one year but not exceeding three years.
(3) For the purposes 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.]
10. Therefore, when the charge sheet in this case was filed on 20.10.2016, the ld. MM had two options. Either the Ld. MM could have refused to take cognizance of the offences as the charge sheet was time barred in view of section 468 Cr.P.C or Ld. MM could have proceeded u/s CR No. 776/2019 (Parveen Singh) Page No. 6 of 11 ASJ03/NDD/PHC: 09.07.2020 473 Cr.P.C and after recording that the delay had been properly explained, could have condoned the delay and thereafter, as the bar u/s 468 Cr.P.C would have been removed, the ld. MM, if evidence before him/ her was sufficient, could have taken cognizance of the offences u/s 287/304A IPC
11. However, a perusal of the trial court records would reveal that no application u/s 473 Cr.P.C had been filed by the IO or the prosecution wherein the delay in filing the charge sheet had been explained.
12. Furthermore, the order of cognizance dated 30.01.2019 reflects that ld. MM had stated nothing about the delay in filing the charge sheet or whether such delay had been condoned by the MM or not. The order is a simple order of taking cognizance on the basis of the record available and thus, Ld M.M had failed to comply with the mandatory provision of section 468 Cr.P.C or to cover the delay by an order u/s 473 Cr.P.C.
13. Ld. Addl. PP has contended that once the delay in investigation was condoned u/s 167 (5)Cr.P.C, it would automatically amount to an extension of period of limitation for filing charge sheet.
14. A perusal of the of the section of the Code of Criminal Procedure makes me disagree with this contention of Ld. Addl. PP. Section 167 Cr.P.C deals with the procedure where investigation cannot be completed within 24 hours. Thus, section 167 Cr.P.C governs the activities, where after the arrest of the accused, the investigation cannot be completed within 24 hours. The relevant portion of 167 (5) Cr.P.C is as under: CR No. 776/2019 (Parveen Singh) Page No. 7 of 11 ASJ03/NDD/PHC: 09.07.2020
167. Procedure when investigation cannot be completed in twenty four hours.
.......
.....
5. If any case triable by a Magistrate as summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
15. The key words in this section are: "where investigation is not concluded within the period of six months from the date on which the accused was arrested." Therefore, if in summons trial case, the accused has been arrested and the investigation is not completed within six months, the MM is empowered to stop the further investigation. However, it would not be applicable to the cases where accused has not been arrested. In this regard, reliance has been placed on the judgment of Hon'ble High Court of Calcutta passed by Justice B Panigrahi in Kalyan Kumar Das v. The State of West Bengal decided on 13.07.1998 wherein it has been held as under: It must be noted that the purpose of the subsection is to impose a time schedule for completion of investigation and such time schedule is to commence either "from the date of arrest of the accused or the date when he made his appearance in court". It is pertinent to notice that the period of time is not CR No. 776/2019 (Parveen Singh) Page No. 8 of 11 ASJ03/NDD/PHC: 09.07.2020 commencing from the date of registration of the crime or the date of first information. Why the time is fixed to commence from the date on which "the accused was arrested or made his appearance"? The sublime idea is that the investigating agency who gets opportunity to question the accused under section 161 of the Code cannot be permitted to dodge with or further prolong the investigation without special reasons and in the interest of justice. In other words, the subsection alms at expeditious and effective completion of the investigation when once the accused concerned is available for interrogation by the investigating agency".
16. In the present case, the accused had not been arrested till 21.09.2016 i.e. the date on which the impugned order dated 21.09.2016 was passed and the application was moved seeking a condonation and permission to further investigate the matter for a period of one month. Hence, as the accused/ revisionist had not been arrested in this case, there was no requirement to seek a permission from the ld. MM u/s 167 (5) Cr.P.C and thus, the order upon this application giving a further one month's time to investigate the matter would not in any manner effect the requirements of section 173 (2) Cr.P.C, section 190 Cr.P.C and section 468 Cr.P.C.
17. Even otherwise, under section 167 (5) Cr.P.C, the permission is only given for continuing the investigation beyond specified period. This permission can never be taken to be a permission granted in advance in case the charge sheet is not filed within the period of limitation. The only CR No. 776/2019 (Parveen Singh) Page No. 9 of 11 ASJ03/NDD/PHC: 09.07.2020 purpose of an order u/s 167 (5) Cr.P.C is to allow the investigating agency to continue with the investigation and such an order cannot be considered to be an order u/s 473 Cr.P.C. I say so because a permission u/s 167 (5) Cr.P.C is granted prior to report u/s 173 (2) Cr.P.C is filed before the ld. MM and permission u/s 473 Cr.P.C is to be considered or given after the report u/s 173 (2) Cr.P.C has been filed and thus I find, that an order u/s 167 (5) Cr.P.C granting permission to continue with the investigation beyond the period of six months cannot be considered a sufficient compliance of section 473 Cr.P.C.
18. In the present case, as the situation emerges, report u/s 173 (2) Cr.P.C was filed beyond the period of limitation as prescribed u/s 468 Cr.P.C. Alongwith the report, no application had been filed by the IO or the prosecution explaining the delay in filing the charge sheet and seeking the condonation of such delay. The ld. MM had also not sought any explanation and had not recorded her satisfaction as required u/s 473 Cr.P.C. and had not condoned the delay. In absence of an order condoning of delay in filing the charge sheet u/s 473 Cr.P.C, section 468 Cr.PC barred the ld. MM from taking cognizance in this case as for both the offences, i.e. u/s 287 and 304A IPC maximum punishment provided was less than 03 years. Hence, I find that the impugned order of the ld. MM of taking cognizance suffers from illegality and cannot be sustained. The impugned order dated 30.01.2019 is hereby set aside. The revisionist is accordingly discharged.
CR No. 776/2019 (Parveen Singh) Page No. 10 of 11 ASJ03/NDD/PHC: 09.07.2020
19. File be consigned to record room. Copy of order be sent to the ld. trial court with trial court record.
Digitally signed by PRAVEEN PRAVEEN SINGH
SINGH Date: 2020.07.09
07:42:35 +0530
Announced in open court (Parveen Singh)
today on 09.07.2020 ASJ03, New Delhi Distt.,
(This order contains 11 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 776/2019 (Parveen Singh)
Page No. 11 of 11 ASJ03/NDD/PHC: 09.07.2020