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3. Heard the learned counsel on either side.

4. Mr. R.Shanmugha Sundaram, learned senior counsel, for the petitioners submitted that the alleged occurrence had taken place admittedly on 25.02.1995 and in respect of that a complaint was filed sometime in October  November 1999, but the same was referred as mistake of fact and thereafter the third respondent had filed a complaint dated 03.03.2000 before the learned Judicial Magistrate No.I, Mayiladuthurai, which was referred under Section 156 (3) of the Cr.P.C., and a case in Crime No.307 of 2000 was registered for the offence under Section 384 IPC. After completing investigation, a final report was filed on 08.05.2000 referring the case as 'mistake of fact'. But on a protest petition filed by the third respondent, the same was allowed and a direction was issued to the Deputy Superintendent of Police to further investigate the case under Section 173 (8) of the Cr.P.C. After completing investigation, a final report was filed on 27.02.2004 since an offence under Section 384 IPC is barred by limitation, to over come that the offence under Section 420 IPC was included in the charge sheet. Therefore, the learned senior counsel for the petitioners, submitted that the cognizance taken in respect of the offence under Section 384 IPC is barred by limitation. He further submitted that the entire allegations in the complaint as well as in the statement of witnesses examined during the course of investigation do not reveal the ingredients of the offence under Section 420 IPC and as such the learned Magistrate erred in taking cognizance of the offence under Section 420 IPC. He further submitted that the attempt on the part of the third respondent is to unnecessarily harass the petitioners herein knowing that the cognizance is barred by limitation. In support of his contentions, the learned senior counsel for the petitioners, relied upon a decision reported in (2007) 13 Supreme Court Cases 165 (SANAPAREDDY MAHEEDHAR SESHAGIRI v. STATE OF A.P.). In the said decision, it has been laid down as under:-

"However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC."

Basing reliance on the above decision, the learned senior counsel for the petitioners submitted that the complaint does not disclose the commission of an offence under Section 420 IPC and the prosecution for the offence under Section 384 IPC is barred by limitation and therefore, the above quash petition has to be allowed.

14. Thus it could be seen that the discretionary power vested in the Court under Section 473 Cr.P.C., could be exercised by applying its mind to the facts and circumstances of the case and considering the reasons offered by the complainant in justification of his request for condonation of delay, which reasons can be made either in the complaint or the charge-sheet, as the case may be, or in a separate application filed for the purpose, or the Court itself may suo motu condone the delay on its being satisfied, on the facts and in the circumstances of the case, that it has become necessary so to do in the interests of justice. In any case, the exercise of the power under Section 473, extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking cognizance of the offence. Therefore, the contention of the learned senior counsel for the third respondent that the question of limitation can be considered at the stage of trial cannot be countenanced. As per the aforesaid decision, the question of limitation has to be considered before taking cognizance of the offence. There is no dispute that the offence under Section 384 IPC is punishable with imprisonment for three years and as such the period of limitation prescribed under Section 468 (2) IPC is three years. Admittedly, the complaint has not been filed within three years and therefore the trial court ought not to have taken cognizance of the offence under Section 384 IPC.

20. Since the taking cognizance of the offence under Section 384 IPC is clearly barred by limitation and there is no explicit order passed by the trial court condoning the delay in filing the charge sheet, the learned Magistrate erred in taking cognizance of the offence under Section 384 IPC and therefore the above Criminal Original Petition has to be allowed and accordingly the same is allowed.

21. In the result, all further proceedings in C.C.No.494 of 2004 on the file of the Judicial Magistrate No.1, Mayiladuthurai, is hereby quashed. Consequently, the connected Crl.M.P is closed.