Orissa High Court
Pradeep Kumar Mohanty & vs State Of Odisha & Others .... Opp. ... on 30 November, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4490 of 2024
Pradeep Kumar Mohanty & .... Petitioners
others Mr. Lalitendu
Mishra,
Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr.Siba
Narayan
Biswal, ASC
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 30.11.2024
01.
1.The petitioners are aggrieved by the order dated 05.03.2024 passed by the learned J.M.F.C., Banarpal in C.T. Case No.358 of 2006, whereby their application under Section 239 of the Cr. P.C., seeking discharge from the case, has been rejected on merits. Hence, they have assailed the said order in this petition.
2. On 25.02.2006, the F.I.R. in connection with Banarpal P.S. Case No.21 of 2006 was registered against the petitioners for the alleged commission of the offence punishable under Section 286/34 of the IPC read with Section 9 B(b) of the Explosive Act, 1988.
3. After the investigation, the charge sheet has been submitted before the Court below on 31.10.2009 for the alleged commission of the offence as mentioned above.
4. On 12.01.2010, the learned S.D.J.M., Angul had taken the cognizance of the said offences against the petitioners. The petitioners had moved an application seeking discharge from the said offences on the ground that the cognizance order is barred by limitation prescribed under Section 468 of the Cr. P.C.
5. Mr. Mishra, learned counsel for the petitioners, submitted that admittedly, the incident pertaining to which the F.I.R. has been registered, had occurred on 25.02.2006 and the learned trial Court has taken cognizance of the offences vide order dated 12.01.2010 much beyond the prescribed limitation period under Section 468 of the Cr.P.C. He emphasized on the provision of Section 468 of the Cr. P.C. and submitted that, both the offences, of which the cognizance has been taken, namely the offence under Section 286 of the I P.C. as well as the offence under Section 9B(b) of the Explosive Act, 1884, attracts maximum sentence of two years. Therefore, he submitted that, under sub- section (c) of Section 468 (2), three years limitation is prescribed for taking cognizance of those offences from the date of alleged incident.
6. For ready reference the text of both the offences for which the petitioners are sought to be put to trial and the code provision prescribing limitation are reproduced:
"9. B. Punishment for certain offences.--(1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules--
(a) manufactures, imports or exports any explosive shall he punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case, with fine which may extend to one thousand rupees.
Section- 286 IPC:
"Section 286 IPC :- Negligent conduct with respect to explosive substance Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Section 468 Cr. P.C. "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."
7. Since the maximum sentence prescribed for the alleged offence under Section 9B(b) of the Explosive Act for which the petitioners are sought to be tried, attracts the sentence of maximum two years, the cognizance ought to have been taken for the said offence within three years period from the alleged incident as contemplated under Section 468 of the Cr. P.C. Similarly, the offence under Section 286 of the IPC attracts maximum sentence of six months, the limitation provided for taking cognizance is one year as per sub-section 2(c) of Section 468 Cr. P.C.
8. Mr. Mishra, learned counsel for the petitioners, besides relying upon the provision of law as quoted above, has further relied upon the order of the Hon'ble High Court of Punjab and Haryana in the case of T. Amudha Sidhanathan and others vs. Union Territory, reported in MANU/PH/1054/2007. Emphasis supplied to Paragraphs- 2, 4 & 6, which reads as under:
"2 . The facts in the background of the case are that the occurrence In this case took place on 23-10-1995 when the crackers were burst and damaged the eyes of one Gaganjit Singh Bal. A complaint in this regard was filed by his uncle on 29-5-1999 on the basis of which FIR No. 299 was registered on 28-11-1999. The report was submitted on 31-7-2000 by the Director Central Forensic Science Laboratory, Chandigarh, on the basis of which untraced report was submitted on 11 -11 - 2000. Pursuant to the filing of the untraced report, Station House Officer, Police Station South, submitted an application for destroying the case property on 27-4-2001, upon which under the orders of Judicial Magistrate 1st Class, Chandigarh, the said case property was destroyed on 9-5-2001. However, on 18-5-2002, Mr. G.S. Bal, complainant moved an application under Section 482 of Cr. P.C. before the Judicial Magistrate 1st Class, Chandigarh for getting the crackers in question to be tested again from any other laboratory other than from Central Forensic Science Laboratory, Chandigarh, over which the Judicial Magistrate 1st Class, Chandigarh vide order dated 10- 7-2002 called for the crackers but it was reported that the crackers have already been destroyed. However, he allowed the application vide order dated 21-3-2003. Since the crackers had already been destroyed, the complainant on 9-10-2004 undertook to produce the crackers manufactured prior to the year 1995. After obtaining the report over the said crackers by the complainant, again a cancellation report was submitted on 7-9-2005.
4 . The prime question raised before me at the cognizance of the case being taken beyond the period of limitation as prescribed under Section 468, Cr. P.C. the Court could not take cognizance of the case. In this regard it would be appropriate to reproduce the provisions of Section 9-B and 9-C of Explosive Substances Act and Section 286, IPC.
9-B. Punishment of certain offences:
(1) Whoever, in contravention of rules made under Section 5 or of the conditions of a licence granted under the said rules:
(a) manufactures, imports or exports any explosive shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(b) possess, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case, with fine which may extend to one thousand rupees.
(2) Whoever in contravention of a notification under Section 6, manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.
(3) Whoever:
(a) manufactures, sells, transports, imports, exports, or possesses any explosive in contravention of the provisions of Clause (a) of Section 6A; or
(b) sells, delivery or dispatches any explosive in contravention of the provisions of Clause (b) of that section.
shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or
(c) in contravention of the provisions of Section 8 fails to give notice of any accident shall be punishable
(i) with fine which may extend to five hundred rupees or;
(ii) if the accident is attended by loss of human lite, with imprisonment for a term which may extend to three months or fine or with both.
9-C, Offences by companies.- (1) Whenever an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, or was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub- section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in Sub- section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of; or is attributable to any neglect on the, part of, any director, manager, secretary off other officer of the company, such direction manager, secretary or other officer shall also, be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation - For the purpose of this section:
(a) "company" means any body corporate, and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
286 IPC. Negligent conduct with respect to explosive substance.- Whoever, does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.
6. As per Sub-section 2(c) of Section 468, Cr.P.C. the period of limitation for launchthe prosecution is three years, where the offence is punishable with imprisonment for one year but not exceeding three years. Here in this case, the occurrence took place as far back as in the year 1995 and the challan was presented in the year 2006. Therefore. apparently the prosecution has been launched against the petitioners beyond the period of limitation as prescribed under the statute. Even otherwise, nothing could be pointed out by the learned Counsel for U.T. Chandigarh as to which are the basis for accusing the petitioners for the offence under Section 9-B and 9-C of the Explosive Substances Act and Section 286 of IPC. Consequently, I accept the petition, set aside the impugned order dated 30-4-2007 and quash the proceedings pending before the Chief Judicial Magistrate, Chandigarh."
9. Relying upon the aforementioned judgment of the High Court of Punjab and Haryana and the provisions of law, Mr. Mishra, learned counsel contended that the learned trial Court has not taken into consideration limitation aspects of the matter while taking cognizance of the offences. Hence, the impugned order is liable to be set aside.
It's apparent on record that the F.I.R. was registered on 25.02.2006 and after more than three years, the charge sheet came to be filed on 31.10.2009 by the I.O. of the case, whereas the cognizance of the offence was taken by the Court below on 12.01.2010. On the basis of the timeline as mentioned above, the submission of Mr. Mishra seems to be correct that the prosecution against the petitioners is barred by limitation.
10. In the light of the above discussion, I set aside the order dated 05.03.2024 passed by the learned J.M.F.C., Banarpal in C.T. Case No.358 of 2006 granting liberty to the petitioners to move application under Section 239 of the Cr. P.C., afresh before the Court below specifically taking the precise point, besides all other points as has been taken in the present petition. If such application is moved by the petitioners, the same shall be considered by the learned Court below on its own merit without being influenced by the observation of this Court in the present order.
11. The CRLMC is accordingly disposed of.
(S.S. Mishra) Judge Subhasis Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 16-Dec-2024 19:31:11