Gujarat High Court
Maneklal G. Sons And Ors. vs K.A. Patel And Anr. on 8 March, 1996
Equivalent citations: (1996)2GLR737
JUDGMENT S.M. Soni, J.
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 ('Code' for short) to quash the Criminal Case No. 681 of 1985.
2. One of the grounds made out is that the complaint filed is barred by limitation prescribed under Section 468 of the Code. It is also contended that in view of this fact, Court had no jurisdiction to take cognizance and issue process and, therefore, issuance of process is bad and should be quashed.
3. Learned A.P.P. contended before the Court that in the complaint itself, a prayer for condoning the delay is made out and no doubt there is no specific order condoning the delay, but issuance of process by the Court should be read as delay being condoned and process is issued after application of mind.
4.Mr. Tirmizi, learned Counsel, contended that assuming that the delay is presumed to have been condoned in view of the order of issuance of process, then also it is bad inasmuch as the delay is condoned without hearing the accused. Mr. Tirmizi further contended that when a law of limitation is prescribed for filing complaint and the complaint is filed beyond the period of limitation, a right is created in favour of the accused and that right cannot be determined or taken away or extinguished by condoning the delay without hearing the accused. In view of this fact, the order of issuance of process on assumption that the delay is condoned is bad.
5. my opinion this application is required to be allowed on the ground that issuance of process, no doubt presumes that the delay is condoned, but the delay is condoned without hearing the accused. No delay can be condoned without hearing the other side or the person who is to be adversely affected thereby. In the instant case, offence took place on 27-10-1983. The complaint is filed on 4-4-1985. No doubt, necessary sanction to file a complaint was required to be obtained and that has been obtained and that sanction is accorded on 15-3-1985. If from the date of the sanction the period of limitation to file the complaint is to be counted then the complaint can be said to have been filed within the period of limitation, but the period of limitation is required to be counted from the date of offence and not from date of according sanction. However, the complainant may be entitled to exclusion of time spent in obtaining the necessary sanction in view of Sub-section (3) of Section 470 of the Code. What is the time spent in obtaining sanction and whether on exclusion of time spent in obtaining sanction the complaint is filed within the period of limitation are the questions of fact, which can be considered by the trial Court.
6. In view of this fact, to decide the question whether the complaint is filed within the period of limitation on exclusion of period spent in obtaining sanction, some evidence is required to be led, as the complaint itself is not that eloquent. In view of this fact, the process issued by the Court is required to be quashed and set aside. However, the matter is required to be remanded back to the learned Magistrate, who shall first consider the question of limitation and if the complaint is found to have been filed within the period of limitation after exclusion of the period spent in obtaining sanction and if a sufficient cause is shown for the delay, if any, the learned Magistrate may proceed further in the matter in accordance with law.
7. In view of the above observation, the application is allowed. The order of issuance of process is set aside. Criminal case is remanded back to the learned Magistrate, who shall first decide the question of limitation, keeping in mind the provisions of Chapter 36 of the Code and pass necessary orders in accordance with law. Rule is made absolute accordingly.