Kerala High Court
Naseer Ali vs State Of Kerala on 23 May, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1171 of 2011()
1. NASEER ALI, KUZHIKADAV HOUSE,
... Petitioner
2. PRADEEP PRABHAKARAN, PRADEEPA HOUSE,
3. PRADEEP C.K., CHENNATHATTUTUNNATH,
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.MANSOOR.B.H.
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/05/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.1171 of 2011
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Dated this the 23rd day of May, 2011.
ORDER
Petitioners are accused 3 to 5 in C.C.No.254 of 2009 of the court of learned Judicial First Class Magistrate-V, Kozhikode facing trial for offence punishable under Section 7(1)(b) of the Immoral Traffic (Prevention) Act (for short, "the Act"). Petitioners challenge cognizance and further proceedings against them mainly on the grounds that no offence as alleged is disclosed by the materials on record and that taking of cognizance against petitioners is barred by limitation under Section 468 (2)(b) of the Code of Criminal Procedure (for short, "the Code").I have heard learned counsel for petitioners and the learned Public Prosecutor.
2. Learned counsel pointed out that in the same case, cognizance taken against the eighth accused was quashed by this Court as per Annexure- II, order dated November 6, 2009 in Crl.M.C.No.2951 of 2009. It is contended that no justifiable reason is stated and the learned Magistrate also has not invoked the power under Section 473 of the Code to condone the delay. Learned Public Prosecutor submitted that unlike the case of eighth accused, this is a fit case where there are circumstances to extent the period of limitation as provided under Section 473 of the Code.
3. The offence was allegedly committed and detected on 18.04.2003 and indisputably, final report was submitted only on 25.02.2009. It is not Crl.MC No.1171/2011 2 disputed before me that having regard to the offence punishable under Section 7 (1)(b) of the Act the period of limitation for filing the final report is one year as provided under Section 468(2)(b) of the Code. If that be so, the final report ought to have been filed within one year from the date of commission of the offence/registration of the case. Obviously final report is filed on 25.02.2009 far beyond the period of limitation prescribed.
4. Learned Magistrate has taken cognizance against petitioner on 16.03.2009. By various decisions it has been held that period of limitation is not for taking cognizance but for submission of the final report. Hence the relevant dates to be reckoned are 18.04.2003 and 25.02.2009. According to the learned Public Prosecutor there are sufficient reasons to condone the delay under Section 473 of the Code. Learned Public Prosecutor pointed out that potency test of petitioners was conducted only on 07.02.2008. It is pointed out by the learned counsel that petitioners were not available after they were released on bail to facilitate conduct of potency test.
5. Assuming that potency test was conducted only on 07.02.2008, even that, is done after the period of limitation prescribed for filing final report has expired. It is not the case of prosecution that at the time petitioners sought bail, prosecution was not given notice of the application for bail so that they could not oppose the application and seek an opportunity to conduct potency test of petitioners. If the investigating agency kept idle at the time petitioners sought bail, allowed them to be released on bail even without conducting potency test, that cannot be a ground to condone the delay or extent the period Crl.MC No.1171/2011 3 of limitation. At any rate the final report does not say any such circumstances so that learned Magistrate could invoke power under Section 473 of the Code. I also find that though the eighth accused was absconding through out, this Court vide order dated November 6, 2009 in Crl.M.C.No.2951 of 2009 has quashed proceeding against him. There is no reason why a different stand should be taken in the case of petitioners. Final report filed against petitioners having been filed far beyond the period of limitation prescribed, cognizance taken is illegal and cannot be sustained.
6. In view of my above finding it is not necessary to go into the question whether petitioners have committed any offence punishable under Section 7(1)(b) of the Act.
Resultantly this Criminal Miscellaneous Case is allowed. Cognizance taken against petitioners/accused 3 to 5 in Crime No.140 of 2003 of Feroke Police Station and the proceeding against them in C.C.No.254 of 2009 of the court of learned Judicial First Class Magistrate-V, Kozhikode are quashed.
THOMAS P.JOSEPH, Judge.
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