Gauhati High Court
Hemanta Boro vs State Of Assam on 13 February, 2008
Equivalent citations: 2008(2)GLT251, 2008 CRI. L. J. 3089, 2008 (3) AJHAR (NOC) 984 (GAU), (2009) 1 GAU LR 666, (2008) 2 GAU LT 251
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. How to compute the periods of limitation prescribed under Section 468 of the Code of Criminal Procedure (in short, "the Code"), which imposes bar to the taking of cognizance by the Court beyond the prescribed periods of limitation and how to construe the commencement of such a period of limitation under Section 469 read with Sections 471 and 472 of the Code are the two important questions, which this criminal petition, made under Section 482 of the Code, have raised. Can a Court suo moto invoke the provisions of Section 473 of the Code for the purpose of extending a period of limitation and for taking of cognizance of an offence after expiry of the period of limitation or whether an application, request or prayer is required to be made, in this regard, by the prosecution or the complainant? These are the questions, which have incidentally arisen for determination in this criminal petition.
2. Let me, first, take note of the facts and circumstances, which have led to the making of this criminal petition:
(i) Alleging, inter alia, that pursuant to the General Diary Entry No. 344, dated 21.07.1998, the enquiry, conducted, has revealed that on 21.07.1998, at about 12 noon, Hemanta Boro (i.e., the present petitioner) drove, on the National Highway No. 37, a truck, bearing registration No. AS-01C-4603, in rash and negligent manner, and dashed against one Upen Boro, who was coming from the opposite direction on a bicycle, knocked him down and ran over him. Having so injured Upen Boro, the accused driver took the injured to a nursing home for medical treatment, but the injured succumbed to his injuries some time after reaching the said nursing home. Based on the information, which was so lodged, in writing, by an Assistant Sub-Inspector of Police, Fatasil Ambari Police Station Case No. 95/1998 under Sections 279/304 IPC was registered against accused Hemanta Boro and, on completion of investigation, a charge-sheet was submitted, on 20.11.2001, seeking prosecution of the accused aforementioned for offences allegedly committed by him under Sections 279 and 304A IPC.
(ii) By order, dated 20.11.2002, learned Sub-Divisional Judicial Magistrate, Guwahati, took cognizance of the offences as reflected from the charge-sheet and directed issuance of summons to the accused. On appearance of the accused, particulars of offences under Sections 279 and 304A IPC were explained to the accused-petitioner, but the accused petitioner pleaded not guilty thereto. The trial, then, proceeded against the accused-petitioner. On 15.11.2006, the accused-petitioner made an application, in the case, stating to the effect, inter alia, that since the occurrence had allegedly taken place as far back as on 29.07.1998 and the cognizance had been taken as late as on 16.10.2002, the taking of cognizance by the learned trial Court, without condoning the delay and without extending the period of limitation in terms of Section 473 of the Code was wholly illegal and, hence, the case lodged against him may be dismissed and the accused may be acquitted. By the order, dated 28.12.2006, as the learned trial Court has rejected the accused-petitioner's prayer for dismissing the case and has fixed the case for evidence, the accused-petitioner has impugned the order, dated 28.12.2006, aforementioned, by making this application under Article 482 Cr.P.C.
3. I have heard Mr. M. Talukdar, learned Counsel for the petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam, appearing on behalf of the opposite party.
4. Presenting the case on behalf of the accused-petitioner, Mr. Talukdar, learned Counsel, has submitted to the effect, inter alia, that in the present case, the learned trial Court has taken cognizance of the offences aforementioned without application of mind inasmuch as the very filing of the charge-sheet against the accused-petitioner was beyond the period of limitation prescribed by law and, hence, the learned Court below could not have taken cognizance of the offences aforementioned without condoning the delay. As the delay was not condoned, the entire proceeding is, according to Mr. Talukdar, without jurisdiction and, hence, the learned trial Court ought to have closed the proceeding in terms of the prayer made by the accused-petitioner.
5. While resisting the submissions made on behalf of the accused-petitioner, Mr. Munir, learned Additional Public Prosecutor, does not contend that at the time, when the Court took cognizance, the taking of such cognizance stood barred by the period of limitation prescribed in this regard. What has, however, been contended, on behalf of the prosecution, is that though there was no specific prayer made by the prosecution for condonation of delay, the very fact that a charge-sheet had been laid in the learned Court below, seeking prosecution of the accused for the offences allegedly committed by him, reflected that the prosecution of the accused-petitioner had been sought by extending the period of limitation.
6. Before I deal with the relative merit of the rival submissions, made before me, it is appropriate to take note of the relevant provisions contained in Chapter -XXXVI of the Code, which imposes bar to the taking of cognizance upon lapse of the prescribed periods of limitation. The relevant provisions, contained in this Chapter, are, therefore, reproduced hereinbelow:
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 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.
469. Commencement of the period of limitation--(1) The period of limitation, in relation to an offence, 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 on which such offence comes to the knowledge of such person or to any police officer, whichever 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.
470. Exclusion of time in certain cases--(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded:
Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which suffers from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
(4) In computing the period of limitation, the time during which the offender--
(a) Has been absent from India or from any territory outside India which is under the administration of the Central Government, or
(b) Has avoided arrest by absconding or concealing himself, shall be excluded.
471. Exclusion of date on which Court is closed--Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens.
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 in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
7. A conjoint reading of Sections 468 and 473 of the Code shows that while Section 468 bars Courts from taking cognizance of the offences of the categories specified in Section 468 (2), whereunder time frames have been prescribed as the periods of limitation, Section 473 permits the Court to take cognizance of an offence even after the expiry of the prescribed period of limitation provided that the Court is satisfied, in the context of the facts and circumstances of a given case, that the delay has been properly explained or that it is necessary so to do in the interest of justice.
8. A closer look into the provisions of Section 473 of the Code clearly shows that this section starts with a non-obstente clause, which reads:
Notwithstanding to anything contained in the foregoing provisions of this Chapter". This, in turn, means that notwithstanding the bar, which stands imposed by Section 468 of the Code, on the Court's power to take cognizance of an offence beyond the prescribed period of limitation, a Court, may, in a given case, if satisfied, that 'the delay has been properly explained' or 'that it is necessary so to do in the interest of justice', take cognizance of an offence even after the period of limitation stands expired. The granting of such extension or taking of such cognizance beyond the period of limitation would obviously mean that the Court has invoked its powers under Section 473 and has condoned the delay provided, of course, that the order, taking such cognizance, reflects judicial application of mind by the Court to the question of delay, for, no exercise of judicial power can be mechanical or without application of mind.
9. What is, now, of utmost importance to note is that a microscopic reading of Section 473 indicates that it is permissible for a Court to take cognizance of an offence after expiry of the period of limitation under two different conditions. One condition is that before such cognizance is taken, the Court must be satisfied that the delay has been explained; whereas the other condition is that the Court shall be satisfied that it is in the interest of justice to condone the delay. Unless a different intent can be attributed to the provisions of Section 473, one has no option, but to construe the two expressions, "the delay has been properly explained' and 'it is necessary to do so in the interest of justice', disjunctively and not conjunctively. When construed in this light, it logically follows that though ordinarily, a Court can take cognizance of an offence only when the police or the complainant has explained the delay in not presenting the police report or complaint, as the case may be, within the period of limitation, the fact remains that in a given case, even if there is no formal application or prayer made for condonation of delay, the Court is not powerless in condoning the delay and taking cognizance of the offence if it is satisfied that the condonation of such delay is necessary in the interest of justice.
10. Coupled with the above, what is also imperative to note is that when a State launches prosecution against a person as an accused, the State also represents the interest of the person, who is aggrieved by the commission of such offence. Victomology has developed into a recognized aspect of criminal jurisprudence. Every provision of penal as well as procedural law has to take into account the interest of the victim, while construing or interpreting such aprovision. The expression, 'it is necessary so to do in the interest of justice' reflects the legislative concern for the unseen victim or for the unseen aggrieved party, the protection of whose interest becomes, undoubtedly, the duty of the Court too.
11. What surfaces from the above discussion is that though it is true that the prosecution or the complainant should be the one to seek condonation of delay in a case, where taking of the cognizance is barred by a prescribed period of limitation, the fact remains that it is the duty of the Court too to appreciate that when a charge-sheet or a complaint is filed after expiry of the period of limitation, there is an implied prayer for condonation of delay.
12. This apart, before the Court refuses to take cognizance of an offence on the basis of a belatedly filed police report (i.e., charge-sheet) or complaint, it is in the interest of the real victim, who may not be before the Court, that the Court looks into such materials, which may be available on record or collect such materials as may be warranted in a given case, and, then, determine for itself if the materials on record explain the reasons for the delay or if the interest of justice necessitates condoning of the delay in laying belatedly such police report or complaint.
13. While considering the above aspects of the case, it is pertinent to note that though Section 469 describes the point of time from when the period of limitation commences, the fact remains that in a given case, the police may not have been able to submit charge-sheet, because of the reason that forensic report has not been made available or some material articles could not be seized or effective interrogation of the accused had not been possible due to the fact that the accused had been evading police or absconding. In such circumstances, the perusal of the case diary may itself reflect the cause (s) of delay. In such a situation, it would be, contrary to the legislative intent expressed in Section 473, to contend that the Court is powerless to look into the causes of delay on its own motion and condone, suo moto, in a given case, the delay if the facts and circumstances of the case so warrant in the interest of justice.
14. It is worth pointing out that Chapter-XXXVI of the Code, which prescribes various periods of limitation, was introduced, for the first time, in 1973. Before the provisions, prescribing various periods of limitation, were incorporated in the Code, the delayed launching of prosecution was a relevant factor, while adjudging the truth or veracity of the prosecution's version of the occurrence. The need to prescribe a period of limitation was considered advisable for several reasons. Lapse of time has the effect of weakening and, at times, obliterating the memory of the witnesses and, sometimes, the evidence itself may disappear. Larger interest of peace in the society too requires that even an offender be left to rest after a reasonable lapse of time.
15. Deterrent and retributory punishments get denuded of their effect after a reasonable period of time. This apart, introduction of the period of limitation was considered necessary to put pressure on the prosecutors and/or complainants to expedite bringing of their grievances to the Court at the earliest. With these objects in view, Section 468 of the Code prescribes, six months, one year and three years limitation for offences punishable with fine, punishable with imprisonment for a term not exceeding one year and punishable with imprisonment for a term exceeding one year, but not exceeding three years respectively.
16. However, while making the special provisions as regards limitation, the Parliament has enacted Section 473 giving overriding effect over all earlier sections and vesting a discretionary jurisdiction in the criminal court empowering it to take cognizance of an offence despite expiry of the. period of limitation if the court is satisfied, in the facts and circumstances of a given case, that the delay has been properly explained or if it is satisfied that the interests of justice warrant taking of cognizance of the offence (s) even if the period of limitation stands expired. The legislature, in their wisdom, chose not to enumerate any circumstances or lay down concrete guidelines, which would enable the court to exercise its jurisdiction under Section 473.
17. The Parliament appears to have, even after prescribing various periods of limitation, considered it necessary that wider interest of the society or the citizens may, in a given case, justify taking of cognizance beyond expiry of a prescribed period of limitation. It is in this perspective that the provisions of Section 473 need to be considered.
18. Coupled with the above, it is also worth noticing that under the Limitation Act, which applies to civil proceedings, extension of the period of limitation or condonation of delay is possible only when the appellant or the applicant satisfies the Court, as embodied in Section 5, that he had sufficient cause for not preferring the appeal or making the application within the period of limitation. As against this, Section 473 gives absolutely no indication that a formal application has to be made by the police or the complainant, as the case may be, for the purpose of enabling the Court to take cognizance of an offence by extending the period of limitation. Far from this, Section 473 merely requires that the Court shall be satisfied, on the facts and the circumstances of the case, that the delay has been properly explained or that it is necessary so to do in the interest of justice.
19. Noticing the underlying difference between the provisions of Sections 468 and 473 of the Code, on the one hand, and Section 5 of the Limitation Act, on the other, the Apex Court, in Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy and Ors. , observed:
6. At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the court that there was sufficient cause for condonation of delay under Section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of the delay, whereas Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is applicable, the court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim vigilantibus, et non, dormientibus, jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty against women.
20. Thus, Section 473 does not contemplate making of any application by the prosecutor or a prayer being made to the Court. Section 473 is a discretionary jurisdiction, which the court can exercise suo moto and without, in a given case, being asked for. The legislative intent is that it is for the court, exercising criminal jurisdiction, to examine and ascertain if the delay has been properly explained or whether the interests of justice warrant extension of the period of limitation. Any other interpretation would defeat the legislative intents for incorporating the provisions of extension of the period of limitation in the Code with the help of Section 473. It may, however, be borne in mind that every order, whether extending the period of limitation or refusing to extend the period of limitation, must assign cogent reasons therefor.
21. In the present case, it is, to my mind, necessary to clarify that Chapter- XXXVI of the Code applies to the delay in instituting the prosecution and not to the delay in taking of cognizance. As a corollary, it becomes evident that when a complaint or a police report is filed within the period of limitation, the court will remain competent to take cognizance even after the period of limitation has expired, for, as already indicated hereinbefore, Chapter- XXXVI of the Code applies to the making of the complaint or filing of the police report. Though the language, appearing in Chapter-XXXVI of the Code, reflects that taking of cognizance is barred by the prescribed period of limitation irrespective of the fact as to whether the complaint or police report was filed within the period of limitation or upon expiry thereof, the Apex Court, in Bharat Damodar Kale v. State of A. P. , while elaborately dealing with this aspect of law, observed thus:
A cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescrihed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said chapter. This is clear from Section 469 of the Code found in the said chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded. The said section also provides in the explanation that in computing the time required for obtaining the consent or sanction of the government or any other authority should be excluded. Similarly, the period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence, the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase 'actus curiae neminem gravabit' which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the Legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra).
22. In the backdrop of the law discussed above, let me, now, consider the grievances of the petitioner in the present case. The present petitioner's prosecution, as an accused, has been sought under Sections 279 and 304A IPC. The offence, under Section 279, is punishable by imprisonment for a term of six months or fine of Rs. 500/- or both; whereas the offence, under Section 304A, is punishable by imprisonment of a term of two years or fine or both.
23. In the light of the provisions of Section 468(2)(c), the period of limitation for an offence, which is punishable with imprisonment for a term extending one year, but not extending three years, is three years. In the present case, since the prosecution of the accused-petitioner was sought not only under Section 279 IPC, but also under Section 304A IPC, it clearly follows that an offence, under Section 304A IPC, being punishable by imprisonment for a term of two years, the period of limitation for taking cognizance of such an offence is three years.
24. As far as Section 469 is concerned, it embodies the provisions as regards the commencement of the period of limitation. This Section (i.e., Section 469) shows that the period oflimitation commences, ordinarily, on the date of the offence or where the commission of the offence was not known to the person aggrieved by the commission of the offence or the police officer, then, on the first day on which such offence comes to the notice of such person or to any police officer, whichever is earlier, or where it is not known by whom the offence was committed, the first day on which the identity of the offender becomes known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
25. In the present case, since the offender was known on the very day of the alleged occurrence, it is clear that in the case at hand, the period of limitation commenced on the alleged date of the offence(s) itself, i.e., on 21.07.1998. Viewed thus, it is clear that cognizance, in the present case, could not have been, ordinarily, taken under Section 468 (2)(c) beyond the period of three years commencing from 21.07.1998. Thus, the last date for taking of the cognizance was 20.07.2001. In the present case, the charge-sheet was submitted on 20.01.2001. This shows that when the charge-sheet was laid, the taking of the cognizance already stood barred by the prescribed period of limitation.
26. The learned Court below could not have, therefore, taken cognizance of the offence without condoning the delay in terms of requirements of Section 473 of the Code. It appears to have escaped the attention of the learned trial Court that the taking of cognizance was barred by limitation. Oblivious of this primary necessity, the learned trial Court has allowed the case of proceed. Since the very taking of cognizance was without condoning the delay in terms of Section 473, the order, taking cognizance, cannot survive and must, therefore, be set aside.
27. What is, however, of immense importance to note is that notwithstanding the fact that the order taking cognizance of the offences, in question, needs to be set aside, the fact remains that an opportunity needs to be given to the learned trial Court to apply its mind to the facts of the case and decide for itself as to whether the delay has been properly explained or whether the interest of justice necessitates condonation of delay. If the Court is so satisfied as indicated hereinabove, there shall be no impediment, on the part of the Court, to take cognizance of the offences, which may appear to have been committed by the accused-petitioner. I may, at this stage, pause to point out that no such condonation of delay is possible without an opportunity of hearing having been accorded to an accused, who is sought to be proceeded against, for, on expiry of the period of limitation, a valuable right accrues to such an accused of not being prosecuted for commission of the offence (s), which he is alleged to have committed. Such right cannot be set at naught by refusing to give to such an accused the right to have his say in the matter of condonation of delay. A three Judge Bench of the Supreme Court has, therefore, laid down in State of Maharashtra v. Sharat Chandra Vinayak Dongre , that when the taking of cognizance stands barred by a prescribed period of limitation, notice needs to be issued to the person, who is sought to be proceeded against, offering him an opportunity to have his say in the matter of extension of the period of limitation. The relevant observations, made in Sharat Chandra Vinayak Dongre (supra), read thus:
(9) Since the Chief Judicial Magistrate condoned the delay for launching the prosecution, without notice to the respondents and without affording any opportunity to the respondents to have their say, the case deserves to be remitted to the Chief Judicial Magistrate for deciding the application filed by the prosecution seeking condonation of delay, if any, afresh in accordance with law after hearing both the parties.
28. I may also pause here to point out that in Bhagwant Singh v. Commissioner of Police and Anr. , a three Judge Bench of the Supreme Court, speaking through P. N. Bhagwati, J., (as his Lordship then was), has held that upon investigation, on the basis of a first information report, when the police submits a report that no offence appears to have been committed or that against one or some of the person (s) out of those, who were named in the first information report, no incriminating material was found, the Magistrate must, before accepting such a report and dropping thereby the proceedings against all or some of the accused named by the informant, give notice to the informant enabling him to have his say as to why the police report shall not be accepted. In Bhagawant Singh (supra), the Court has further clarified that though a Magistrate is not bound, under the Code, to give notice to the injured or relative (s) of a person, who was killed in an occurrence, the injured or the relative (s) of the deceased may appear and if he objects to the acceptance of such a police report, his submission shall be considered. The Court has further pointed out, in Bhagwant Singh (supra), that though not bound by law, a Magistrate may, in exercise of his judicial discretion, give, if he thinks necessary, such notice to the injured or any particular relative (s) of the deceased, as may be warranted by the facts of a given case, to have his/their say in the matter of acceptance of a police report as indicated hereinbefore.
29. The decision, in Bhagwant Singh (supra), thus, reflects, in effect, the principle that when an order, to be passed by a Court in a criminal proceeding, is likely to adversely affect the interests of an aggrieved person--who may be the informant, injured or relative (s) of the deceased--such an aggrieved person has the locus standi to appear in the criminal proceeding to object to the possibility of the Court not taking cognizance on the basis of a police report submitted under Section 173 (2) of the Code.
30. What logically follows from the decision, in Bhagwant Singh (supra), is that if, in a given case, a question arises as to whether the period of limitation shall, in terms of Section 473 of the Code, be extended for the purpose of enabling the Court to take cognizance of the offence (s) or not, the informant must be given by the court an opportunity of having his say in the matter and as far as the injured or relative (s) of the deceased is concerned, he has, in such a case, the locus standi to appear in the criminal proceeding and submit before the Court as to why it shall extend the period of limitation and take cognizance of the offence (s). This is more so, because there may be a case, where the aggrieved person has informed the police promptly and the evidence may be available against the offender, but the inaction of the police, on some aspect or the other, may have resulted into belated submission of the police report, (i.e., charge-sheet). In such circumstances, for the fault of the police, the informant, injured or the relative (s) of the deceased may not, in a given case, be made to suffer.
31. In order, therefore, to avoid miscarriage of justice, it is necessary for a Magistrate to give notice to the informant to have his say on the question of condonation of delay. This apart, though not bound by law, it is, indeed, permissible, in the facts and circumstances of a given case, for a Magistrate to give notice to the injured or the relative (s) of the deceased, while considering the question of extension of a prescribed period of limitation under Section 473.
32. Because of what have been discussed and pointed out above, this criminal petition partly succeeds. The impugned order, dated 20.11.2002, aforementioned, whereby the cognizance was taken, is hereby set aside and the case is remanded to the learned trial Court to consider the question of condonation of delay in the light of the provisions of law as indicated hereinabove.
33. In order to avoid further delay in the disposal of the case, it is hereby directed that the learned trial Court shall take up the case for consideration of the question of condonation of delay on 18.02.2008 and on that day (i.e. 18.02.2008), the accused petitioner shall appear in the learned Court below and he shall have the right to have his say on the question of condonation of delay. The learned Court below shall also serve notice on the informant enabling him to have his say on the question of condonation of delay.
34. With the above observations and directions, this criminal petition is disposed of.
Send forthwith a copy of this order to the learned Court below.