Orissa High Court
Rama Chandra Agarwalla vs Sri Bijay Ketan Sensarma on 18 June, 1991
Equivalent citations: 1991(II)OLR449
JUDGMENT L. Rath, J.
1. The sole question urged in this revision is that cognizance taken against the petitioner Under Section 406 IPC is liable to be quashed on the twin grounds of the prosecution being barred by limitation and even otherwise there having been gross delay in instituting the case. The brief facts are that the opposite party lodged an FIR on 1-3-1974 alleging mis- appropriation. The FIR having ended in a final report and the opp. party on being issued notice, filed a protest petition which was treated as a complaint case and in that case the cognizance was taken by the learned Magistrate on 7-9-1982.
2. Assailing the order it is contended on behalf of the petitioner that as the occurrences in respect of which the allegations have been made were of the years 1969-70 and 1970-71, the cognizance would not have been taken since Section 468 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C') prohibited taking of cognizance after expiry of the period of limitation which, in the instant case, is three years. The learned counsel appearing for the opp. party opposes the move contending that the order taking cognizance would inherently mean the learned Magistrate of having -condoned the delay and to have extended the period of limitation as provided Under Section 473 Cr.P.C. and hence the delay having been condoned, the present petition is not maintainable. It is his further submission that the learned Magistrate was correct in his view for which reliance was placed on 64 (1987) CLT 56 (Mahani Mohan Laha v. State).
3. Section 468 Cr.P.C. puts a categorical bar against taking cognizance after expiry of the period of limitation. It is as such necessary that before taking cognizance the satisfaction must be reached by the Court of the complaint or the charge as not being barred by limitation. For such reason the decision on the question of limitation must precede that of taking cognizance. Section 473 Cr. P. C. empowers the Magistrate to condone the delay and to extend the period of limitation if the delay is properly explained or if it is found that condonation of delay is in the interest of justice It thus stands to reason that in deciding the question of limitation the Court must make a conscious approach whether the grounds justifying the condonation of limitation exist. The fact of such consideration and decision of the Court must appear from the record itself. In the present case the cognizance was taken on 7-9-1982 in the following words :
"Perused the police papers and other documents seized by the police. Cognizance is taken Under Section 406 IPC. Summon the accused persons to 30-9-1982".
The order ex facie does not show the Court having been alive to the question of limitation and hence it can hardly be said that by such order the imitation must beheld to have been impliedly condoned Under Section 473 Cr.P.C. Such contention advanced by Mr. Nayak the learned counsel appearing for the opp, party was answered in 53 (1982) CLT 112 (Subash Chandra Mohapatra v. M.S. Jaggi) where the Court held :
"Of course Section 473 of the Code empowers the Court to take cognizance of an offence after the expiry of the period of limitation provided 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 interest of justice. In the present case the opp. party had not filed any petition before the Court for condonation of delay. In its order dated 23-4-1979 the Court has not recorded its satisfaction that in the facts and circumstances of the case the delay had been properly explained or that it was necessary to condone the delay in the interests of justice. On the contrary, the aforesaid order indicates that the Court was not at all alive to the question of limitation. The opp. party has submitted that the justification for condonation of delay has been indicated by the learned SDJM in his order dated 17-9-1979 passed on a review petition filed by the petitioner after cognizance had been taken against him. In his order dated 17-9-1979 the Court has observed that it was not the laches of the opp. party which delayed the taking of cognizance but it was the Court which had delayed the matter xxx xx This order is clearly illegal and the learned Magistrate acted in excess of his jurisdiction in condoning the delay retrospectively on 17-9-1979 after having taken cognizance on 23-4-1979."
So far as the present case is concerned, admittedly no petition for condonation of delay had been filed by the opp. party. The decision squarely meets the question urged by Mr. Nayak.
4. Such considerations apart, the submission of Mr. Nayak has otherwise also no force. In (1988) 1 OCR 612 (M/s. Orient Paper and Industries Limited and Anr. v. The Registrar of Companies, Orissa) this Court dealt with the question and held that since Section 468 Cr.P.C. confers a valuable right upon the accused, it is incumbent upon the Court to issue notice to him before deciding the question of condonation of delay Under Section 473 Cr.P.C. It was held that the principle of natural justice is not confined only to the constitutional remedies but takes within its ambit even judicial activities. In a recent decision, 71 (1991) CLT 238 (Shantilata Agarwalla @ Shanti Agarwalla v. State of Orissa) it was held by Hon'ble v. Gopalaswami, J. that whenever the question of taking cognizance after the expiry of the period of limitation arises before a Court the Court must apply its judicial mind to the facts of the case and expressly give its reasons as to how it is satisfied that the delay has been properly explaned or why it feels that it is necessary to take cognizance in the interests of justice. It was further pointed out that after expiry of the period of limitation the Court loses its power to take cognizance. In 32 (1990) OJD 571 (Criminal) (Nirendralal Chakraborty v. Laxrnikanta Mohapatra) similar conclusion was reached by the Hon'ble Mr. Justice S. C, Mohapatra that where cognizance is taken after expiry of the period of limitation is non-consideration of the question relating to the provision, the cognizance is vitiated and is liable to be quashed.
5. Mr. Nayak the learned counsel appearing for the opp. party has however placed the reliance on an unreported decision of this Court in Criminal Revision Nos. 408 to 410 and 443 of 1990, disposed of on 23-1- 1991 to support the view that the words "in the interests of justice" in Section 473 Cr.P.C are to receive a liberal construction and that the section does not prescribe filing of an application for condoning the delay. Relying upon the decision, it is also submitted that the Magistrate taking cognizance on perusal of the police report is also to take up the question of limitation which the prosecution may explain to to the Magistrate at the time of taking cognizance and that at the time the accused has no locus standi to be heard by the Magistrate. From the judgment it does not appear that the earlier decisions of this Court as referred to above had been brought to the notice of the Hon'ble Mr. Justice D. P. Mohapatra while deciding the case, in AIR 1981 SC 1C54 (State of Punjab v. Sarwarn Singh) it was observed :
"It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant must abide, by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the entire proceedings culminating in the conviction of the respondent herein is non est"
6. Even apart from the question of limitation the matter has otherwise become stale as the alleged offence against the petitioner relates to the years 1969-70 and 1970-71. The cognizance was itself taken more than eleven years after the occurrence. Long delay in prosecution has been held to be violative of the guarantees to a citizen under Art. 21 of the Constitution. There is a plethora of authorities of the Apex Court quashing criminal proceedings initiated long after the occurrence. Reference may be made to AIR 1979 SC 1360 (Hussainara Khatoon v. State of Bihar) AIR 1989 SC 1789 (State of M.P. v. Narayan Singh) and 1989 (I) SCC 678 (Triveniben v. State of Gujarat). In the meantime more than twenty years have elapsed after the occurrence. The trial also has not begun. Permitting the trial now to commence would otherwise become a travesty of justice.
7. In that View of the matter, the prosecution against the petitioner and the order taking cognizance are bad in law and hence are quashed.
8. In the result, the criminal revision is allowed.