Delhi District Court
Girish Chand Joshi & Ors vs State Of Nct Of Delhi on 28 March, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03 (SOUTH), SAKET COURTS, NEW DELHI
Crl. Revision No. 8463/16
Girish Chand Joshi & Ors.
.... Petitioners
Versus
State of NCT of Delhi
.... Respondent
Date of Institution : 23.12.2016
Final arguments heard on : 28.03.2017
Order pronounced on : 28.03.2017
ORDER
1. Present revision petition has been filed against impugned order dated 18.10.2016 passed by Sh Vipin Kharb, MM- 01, South vide which the application moved by the prosecution for condonation of delay in filing the charge sheet was allowed and after taking cognizance for the offences punishable U/S 332/461 DMC Act, accused were ordered to be summoned with notice to their sureties.
2. The impugned order has been assailed mainly on the ground that the charge sheet was hopelessly barred by limitation as the period of limitation prescribed U/s 471 of DMC Act is six months from the date of commission of offence or from the date on which the commission or existence of such offence was first brought to the notice of the complainant. Whereas, in the instant CR No.8463/17 1/7 Girish Chand & Ors.vs. State case FIR No. 1380/14 U/S 332/461 DMC Act was registered against the accused on 14.08.2014 and as such the period of six months expired on 14.02.2015, but the charge sheet was filed by the IO on 25.06.2016 i.e. within the delay of around ten months. It is further urged on behalf of accused that Section 471 DMC Act clearly sets the time limit of six months for filing the charge sheet and Ld. MM has fallen into grave error by invoking the provision of Section 473 Cr.P.C for condonation of delay in filing the charge sheet and while doing so Ld. MM failed to appreciate when a special legislation prescribes a limitation period, the general provisions of Cr.P.C conferring powers to condone the delay cannot be invoked. In support of his argument, counsel also relied upon the judgment of Hon'ble Delhi High Court in MCD Vs Ravinder Kumar Mahindra 42 (1990) DLT 13 and another judgment of MCD Vs Sunil Sabarwal 1995 (33) DRJ 538 (DB). It is further contended that Ld MM failed to appreciate that DMC Act being a special Act therefore, the provisions of DMC Act would prevail over the provisions of code of criminal procedure and thus, committed a grave error in condoning the delay by invoking Section 473 Cr.P.C.
3. I have given my thoughtful consideration to the submissions made by Ld. Addl. PP for the State representing the respondent as well as Ld. Counsel for appellant. I have also carefully perused the trial court record.
4. For appreciating the respective contentions of the parties, it is necessary to go through the relevant provisions of law. Section 471 of DMC Act provides limitation period for all the offences against DMC Act or any rule, regulation or by laws made there under and same reads as under:-
CR No.8463/17 2/7Girish Chand & Ors.vs. State Section 471:- No person shall be liable to punishment for any offence against this Act or any rule, regulation or bye-law made thereunder, unless complaint of such offence is made before a Municipal Magistrate within six months next after--
(a) The date of commission of such offence, or
(b) the date on which the commission or existence of such offence was first brought to the notice of the complainant.
Whereas, Section 473 Cr.P.C. provides for extension of period of limitation and the same reads as under:-
Section 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 limitation, if it is satisfied on the facts and in the circumstances of the cases that the delay has been properly explained or that it is necessary so to do in the interests of justice.
5. The question that falls for consideration before this court is whether in view of the specific provision of Section 471 DMC Act, providing limitation period for the offences under DMC Act and the rules and regulations made thereunder, the provision of Section 473 Cr.P.C. can be invoked for taking cognizance on a time barred complaint/charge sheet by condoning of delay in filing the charge sheet.
6. For deciding above question, it is also necessary to go through Section 4 & 5 of Cr.P.C. and the same read as under:-
Section 4 Cr.PC. - Trial of offences under the Indian Penal Code and other laws- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(1) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enachment for the time being in force regulating the manner or place of investigating, inquiring into trying or otherwise dealing with such offences.
Section 5 Cr.PC. - Saving- Nothing contained in this Code shall, in the CR No.8463/17 3/7 Girish Chand & Ors.vs. State absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
7. It is urged on behalf of appellant that as per Section 4 & 5 Cr.P.C., all the offences under IPC has to be investigated, inquired, tried and dealt with according to the provisions of Cr.P.C and all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. Likewise, as per Section 5 Cr.P.C., the specific provision contained in the special act which are contrary to the provisions of Cr.P.C. shall prevail over. It is further argued that a special procedure has been prescribed under the DMC Act for proceeding before Municipal Magistrate u/s 469, 470, 471 & 472 and same will prevail over the provisions of Cr.P.C. Further that, since as per Section 471 DMC Act a period of limitation has been prescribed as six months from the date of actual commission of offence or when the commission of offence was first brought to the notice of complainant, the same will prevail over the provisions of Section 468 to 473 of Cr.P.C.
8. Per contra, it is argued on behalf of respondent that Section 473 of Criminal Procedure Code would be applicable as no contrary provision has been provided in DMC Act in this regard.
9. The conjoint effect of Section 4(2) and Section 5 is that all the offences, whether under Indian Penal Code or under any other law have to be investigated, inquired into, tried and CR No.8463/17 4/7 Girish Chand & Ors.vs. State otherwise dealt with according to the provisions of Cr.P.C. unless there is any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences in which case special enactment will prevail over the Criminal Procedure Code i.e. the provisions of Special or local law will prevail over the Criminal Procedure Code, unless there is a specific provision to the contrary.
10. Here, a distinction has to be drawn that section 468 Cr.P.C. bars the powers of the court to take cognizance of the offence after expiry of period of limitation prescribed in sub- section 2, whereas section 471 DMC Act bars the very imposition of punishment for any offence against DMC Act or under any rule, regulation or bye laws made thereunder unless, the complaint of such offence is made before Municipal Magistrate within six months after the date of commission of offence or from the date on which the commission or existence of such offence was first brought to the notice of the complainant. Hence, by virtue of Section 471 DMC Act, when a bar has been created over the powers of Municipal Magistrate to award any punishment for the offences under the Act on a time barred complaint, no purpose would be served even if the cognizance is taken of the offence by condoning the delay in filing the complaint.
11. Under section 468 Cr.P.C. the limitation has been prescribed for the purpose of taking cognizance and therefore, section 473 Cr.P.C.has the applicability as the same empowers the court to condone the delay in taking cognizance. But, considering the fact that section 471 DMC Act creates a bar on the powers of the court to award any punishment for any offence against the Act CR No.8463/17 5/7 Girish Chand & Ors.vs. State or against any rule, regulation or bye laws made under the Act unless the complaint in respect of such offence is made before the Magistrate within the period of limitation prescribed in said section, the question of applicability of section 473 Cr.P.C. does not arise as the same only deals with the extension of period of limitation prescribed for the purpose of taking cognizance by the court. In this regard, I also draw support from the judgment MCD vs. Ravinder Kumar Mahindra (supra) relied upon by the counsel for the appellant wherein the Hon'ble Delhi High Court has held as under:-
"The provision clearly sets out the scope. Even though section 466A does not make certain offences under the DMC Act cognizable and has permitted their investigation to be done as if these offences were cognizable. The offences do not cease to be offences under the DMC Act and section 471 clearly lays down the period of limitation within which action for offences under the DMC Act shall be initiated. It, therefore, clearly bars prosecution beyond a period of six months from the date of the commission of the offence or from the date when the existence of such offence was brought to the notice of the complainant. In our view, therefore, section 468 of the Code of Criminal Procedure is not applicable as the offence under the DMC Act will be covered by the provisions regarding limitation made in the Act itself."
12. Furthermore, section 470, 471 & 472 DMC Act are under the heading "Magistrate and proceeding before Magistrate", which clarifies the position that DMC Act is a special Act which deals with the special offences committed under the Municipal Law and also prescribes special procedure which has to be followed for dealing with said offences committed under DMC Act for taking cognizance, limitation and powers of Magistrate to hear and decide said cases. Therefore, with regard to the proceedings before the Magistrate u/s 469, 470, 471 & 472 of DMC Act, provisions of DMC Act would prevail over the provisions of Cr.P.C. That being so, the cognizance in respect of the offences against CR No.8463/17 6/7 Girish Chand & Ors.vs. State DMC Act can be taken only in accordance with the provision of section 471 DMC Act, 1957.
13. In the instant case, undisputeably, the FIR no. 1380/14 u/s 332/461 DMC Act was registered on 14.08.2014 whereas, the complaint of such offences in the form of charge sheet was made before the Magistrate on 25.06.2016. Thus, for the charge sheet having been filed beyond the period of limitation prescribed u/s 471 Cr.P.C., the cognizance of the complaint/charge sheet was liable to be declined. As section 473 Cr.P.C. has no applicability for the reasons discussed above, Ld. Trial court has fallen into grave error in taking cognizance of the charge sheet by invoking said provision for condoning the delay. In view thereof, I feel no hesitation in holding that impugned order suffers from illegality, infirmity and cognizance taken by Ld. Magistrate is bad in law.
14. Accordingly, the revision is allowed. The impugned order dated 18.10.2016 is set aside.
15. Trial court record be sent back along with copy of this order.
16. Revision file be consigned to Record Room.
Announced in open Court (Sunena Sharma)
Additional Sessions Judge-03 (South)
Saket Courts/New Delhi/28.03.2017
CR No.8463/17 7/7
Girish Chand & Ors.vs. State