M.L. Mansoori Vs. State of M.P. - Court Judgment

Excerpt:
- - 473. extension of portion of limitation in certain cases--notwithstanding anything contained in the fore-going provisions of this chapter any court may take cognizance of an offence after the expiry of the period of limitation, if 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 interests of justice. the court also held that the satisfaction for purposes of extending the period of limitation must be done before the cognizance an offence is taken and not subsequently, if the court acted otherwise, it would be clearly acting without jurisdiction. ' (para 9) in sarwan singh case (1981 cri lj 722) (supra) the supreme court observed that the object of the criminal procedure code in.....ordergulab c. mehta, j.1. the applicant, an accused in cr. case no. 5/87 before the sessions judge ambikapur, surguja, invokes inherent jurisdiction of this court by filing this application under section 482 cr. p.c. to earn a discharge on the ground that the said prosecution has become barred by limitation.2. the collector, surguja, on receipt of a complaint from one jawaharlal gupta, against the applicant and others, to the effect that the labourers employed for construction of chalta-harra road were not being paid due wages and that muster rolls were being forged, made an inquiry through shri d. l. sharma, dy. collector. the inquiry revealed that the allegations were true and that one a. l. kori and ramdulare singh besides the applicant were involved in the crime. the collector.....

Judgment:
ORDER

Gulab C. Mehta, J.

1. The applicant, an accused in Cr. Case No. 5/87 before the Sessions Judge Ambikapur, Surguja, invokes inherent jurisdiction of this Court by filing this application under Section 482 Cr. P.C. to earn a discharge on the ground that the said prosecution has become barred by limitation.

2. The Collector, Surguja, on receipt of a complaint from one Jawaharlal Gupta, against the applicant and others, to the effect that the labourers employed for construction of Chalta-Harra road were not being paid due wages and that muster rolls were being forged, made an inquiry through Shri D. L. Sharma, Dy. Collector. The inquiry revealed that the allegations were true and that one A. L. Kori and Ramdulare Singh besides the applicant were involved in the crime. The Collector thereafter wrote to S. P. Surguja, on 17-7-1983 to proceed against the culprits in accordance with law. On the basis of the aforesaid letter, a crime was registered on 1-8-1983. During the investigation, the prosecution found no justification for allegations against Shri Kori. He was, therefore, made a prosecution witness. The other two, i.e. the applicant and Ramdulare Singh, according to the prosecution, were guilty of offence under Section 6 M.P. Vinirdist Bharast Acharan Adhiniyam, 1982 (hereinafter referred to as the Act) and filed charge sheet against them of 9-8-1986 in the Court of Chief Judicial Magistrate, Ambikapur. The Magistrate committed the case to Sessions Judge on 8-7-1987. The applicant appeared before the learned Magistrate but took no objection either on the ground of limitation or otherwise. There is, therefore, nothing in the proceeding before the Chief Judicial Magistrate to indicate how the matter of limitation was dealt with. Even before the learned Sessions Judge, the objection based on limitation was not raised in writing. It was, however, raised during the arguments before charge and dealt with by the learned Judge in the impugned order dated 24-2-1988. According to the learned Sessions Judge the period of limitation for offence punishable under Section 6 of the Act, was three years as prescribed under Section 488(2)(c) Cr. P.C. and therefore, there was delay of 9 days in filing the charge sheet. The learned Judge, however, was of the opinion that the case involved matter of public importance and, therefore, it would be in the interest of justice to ignore the said delay exercising powers under Section 473 Cr. P.C. That is how the question of limitation was decided against the applicant and hence this approach to this Court. It should, however, be noticed that the prosecution alleged that the facts disclosed in the charge sheet also indicate commission of offences punishable under Sections 468, 488, 471 I.P.C. which prescribe penalty of life imprisonment or rigorous imprisonment of 10 years. It was, therefore, submitted that no period of limitation was prescribed for such a case, and hence no such question should arise. Surprisingly enough though the submission was noticed, it was not dealt with by the learned Judge in the impugned order.

3. The submission of the learned counsel for the applicant, in the main, is that the Chief Judicial Magistrate before whom the charge sheet was filed had taken cognizance of the offence without deciding the question of limitation and has, therefore, committed the illegality which is sufficient to vitiate the trial. It is also submitted that the question of limitation can be considered only before the Court had taken cognizance of the offence and have neither the session nor this Court would have jurisdiction to condone the delay and regularise proceedings. Alternatively it is submitted that if this Court holds that the delay could be condoned either by the Sessions Judge or this Court after the matter has been proceeded for some time, the facts of the case do not justify such condonation and, therefore, the impugned order is illegal. It is, therefore, prayed that the proceedings be quashed and the applicant discharged. Reliance has been placed on Krishna Singhhai v. State of M.P. 1976 MPLJ 559. (1977 Cri LJ 90) R.C. Trivedi v. A H. Paranjape 1982 Cri LJ 869 (Bom) Kathamuthu v. Balammal 1987 Cri LJ 360 (Madras); Prakash Chandra Sharma v. Kaushal Kishore 1980 Cri LJ 578 (All); Panney Singh v. State of Rajasthan (1980 Cri LJ 339 (Raj); S.K. Bajaj and Ors. v. D.K. Bhattacharya 1982 Cri LJ 210 (Cal) K. Ch. Pandu Ranga Rao v. The Secretary, Agriculture Appellate, Committed Orgole 1985 Cri LJ 176 (Andh Pra) State of Punjab v. Sarwan Singh AIR 1981 SC 1054 : (1981 Cri LJ 722) Ghansham Dass v. Sham Sundar Lal 1982 Cri LJ 1717 (Punj & Har) and Srinivas Pal v. Union Territory if Arunachal Pradesh AIR 1988 SC 1729 : (1988 Cri LJ 1803). The learned Government Advocate, however, insisted that the facts appearing in the charge sheet also disclose commission of offences punishable under Sections 468, 469 and 471 I.P.C. for which no period of limitation is prescribed. He, therefore prayed that this Court should, in larger public interest direct these charges to be framed. Even, otherwise, it is submitted that Section 473 Cr. P.C. does not require any application and casts an obligation on the Court to consider whether the delay, if any, deserves to be ignored, and since, the question of wider public interest is involved in the instant case, the delay was rightly condoned.

4. Sections 468 and 473 Cr. P.C. which require consideration in the context of aforesaid submissions, read as under:--

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 any 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 purpose 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.

473. Extension of portion of limitation in certain cases-- Notwithstanding anything contained in the fore-going provisions of this Chapter any Court may take cognizance of an offence after the expiry of the period of limitation, if 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 interests of justice.

In Krishna Sanghi v. State of M.P. 1976 MPLJ 559 : (1977 Cri LJ 90) this court considered these provisions and held that Section 468 is mandatory and creates a bar for taking cognizance of time barred cases. But under Section 473 Cr. P.C. the Court has power to take cognizance of the offence after satisfying itself of the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. The Court also held that the satisfaction for purposes of extending the period of limitation must be done before the cognizance an offence is taken and not subsequently, If the Court acted otherwise, it would be clearly acting without jurisdiction. This Court also suggested the procedure to be followed by the Magistrate before whom the complaint or challan is filed. According to this Court, the Magistrate should first see whether Section 484 Cr. P.C. was attracted or not. If it was attracted, it should not register the case but give an opportunity to the person filing the challan to satisfy it on the point of limitation for purpose of condonation of delay. It is only when the delay is condoned by the Court by following the procedure as aforesaid that the case should be registered and process issued. Though the Court found no provision of giving notice to the accused person it suggested that a notice should be given to satisfy the demand of principles of natural justice. This decision seems to have been followed by the other of High Court in cases relied upon by the learned counsel for the applicant. It may, therefore, be accepted that the prevailing view is that the question of condonation of delay should be decided before the Magistrate takes cognizance of the offence and that while deciding the same the accused person should be afforded the opportunity to make submissions. The Supreme Court decisions referred to the above, however, do not lay down this law. In Sriniwas Pal's case (1988 Cri LJ 1803) (Supra) the Supreme Court observed that 'it is also not necessary to decide whether the extension of period of limitation under Section 473 must precede of taking of cognizance of the offence.' (Para 9) in Sarwan Singh case (1981 Cri LJ 722) (Supra) the Supreme Court observed that the object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The protection given to an accused person is, however, not absolute as subsequent provisions clothe the Court taking cognizance with power to extend the period of limitation in certain cases. Section 473 Cr.P.C. opens with 'non-obstante clause' which indicates that it prevails over all other provisions in the particular chapter including Section 468 Cr. P.C. Under the circumstances, the right of an accused person under Section 468 is subject to Section 473 Cr. P.C. and must be understood and appreciated as such. It is, therefore, clear that even in those cases where Court exercises powers under Section 473 it does not encroach upon any right of an accused person. Then there are bound to be some cases where question of limitation may be argued both ways. In such a case the Magistrate may not, on a prima facie view of the case, find a question of limitation involved and may proceed with the case after taking cognizance thereof. In such a case it could not be argued that no objection based on the ground of limitation can be raised only because the cognizance has been taken. Indeed preventing an accused person to raise such as objection would be violating principles of natural justice. Then there may also be case where the prosecution may count the limitation under one of the clauses of Section 469 (1) of the Code but the accused may not agree with the same. It would then be illegal and unjust to stop the accused person to challenge the opinion only because the cognizance of offence has been taken. These cases indicate that though the normal rule is to decide the question of limitation before taking cognizance but the said rule does not prevent an accused person to raise an objection based on period of limitation after the Court has taken cognizance. This Court's decision in Shri Krishan Sanghi's case (1977 Cri LJ 90) does not deal with this aspect of the matter as the same did not arise for consideration. This case cannot, therefore, be accepted to be the authority for the proposition that prosecution must necessarily be quashed only because the question of limitation was not considered before the Court took cognizance of the offence. If a Court takes cognizance of a case as soon as it applies its judicial mind to the facts and circumstances thereof, extension of period of limitation under Section 473 Cr. P.C. must always be the step subsequent to it. In this connection, the decision of Madras High Court in Sulochana v. State Registrar of Chits 1978 Cri LJ 116 would appear to be relevant as it lays down that power under Section 473 of the Code overriding power and not controlled by Section 468 Cr. P.C. Indeed, a fair reading of Section 473 Cr. P.C. indicates that the Court is entitled to take cognizance of an offence even after the expiry of period of limitation if it is satisfied that the delay was properly explained or that it was necessary so to do in the interest of justice. The exercise of this power cannot, however, prejudice an accused person who will because of the provisions of principles of natural justice and article 21 of the constitution, have the right to object to taking cognizance of an offence and submit that the delay was neither properly explained nor was there any question of justice involved in the case. On the same logic and rationale the prosecution power after it was pointed out that the cognizance was contrary to Section 468 Cr. P.C. Any other interpretation of the provision would, in the opinion of this Court, defeat the object and purpose of the provision. In this view of the matter, this Court finds no illegality in the procedure followed in the instant case.

5. A perusal of the record of the case shows that the applicant had been informed of the date of presentation of charge sheet in the Court and to remain present there. He, however, did not remain present on 9-6-1986 when the charge sheet was presented. The applicant, however, appeared in the Court on 9-10-1986 and start participating in the trial without any objection till 2-8-1987. The order sheet does not disclose that the Magistrate ever applied his mind to the facts and circumstances of the case. Indeed the order sheet shows that it was only on 8-7-1987 that the Magistrate perused documents and held that they disclose offence triable exclusively by the Sessions Court. He, therefore, acted under Section 209 Cr. P.C. and committed the case to the Sessions Court directing the applicant to appear before the said Court on 23-7-1987. These proceedings, therefore, clarify that even the applicant did not think that a question of limitation was involved in the case. There is no provision in the Criminal Procedure Code like Section 3 of the Limitation Act casting an obligation on the Court to consider the question of limitation even if it had not been set as a defence which indicates that it is also the obligation of an accused person to bring the matter to the notice of the Court. This is, however, not to say that the Court has no obligation to consider the question of limitation if the same is otherwise apparent from record of the case. Apparently, therefore, this is a case where the applicant has to share the responsibility for the delayed decision. As soon as the question was raised by the applicant, it was considered and decided in accordance with law. It is, therefore, not possible to accept the submission that question of extension of period of limitation under Section 473 Cr. P.C. could not, in the instant case, be considered only because the cognizance had been taken.

6. Then it is also not a case where the question of limitation was apparent on the face of record. The applicant is alleged to have prepared false muster rolls including names of non-existant persons and putting their false thumb impressions. It is also alleged that the accused persons used to prepare a correct muster rolls which contained correct names and another muster rolls containing fictitious names and the thumb impression of persons was taken not on the correct muster roll but on the fictitious muster roll. These allegations not only indicate forgoing documents but also making payment of an amount which is lower than the amount shown in the muster roll on which the thumb impression was taken. This without doubt, disclosed commission of offences punishable under Sections 467, 468 and 471 IPC. There is no dispute that the offences under Sections 467 and 468 are not covered by 468 and would not attract any question of limitation. It cannot be disputed that the Magistrate was not entitled to frame charges in this case as the matter was triable exclusively by the Sessions Court. It should not surprise anyone if in such a situation the question of limitation did not arise for consideration before the Magistrate either before or after taking cognizance of the case. This Court has, in its order dated 14-6-1988, noticed that the learned Sessions Judge has not framed charges under these provisions in spite of a request in that behalf and without rejecting the said request. Since, this defect can be corrected at any stage of the trial, the Court would, as soon as the record is available look into for such needful action, as may be deemed necessary.

7. In spite of, it may be examined if the prosecutions has become barred by limitation. The learned Sessions Judge has counted the limitation from the date of FIR i.e. dated 1-8-1983 and since the challan was filed on 9-8-1986, it was held that there was 9 days delay. Section 469 Cr. P.C. provides that the period of limitation commences either on the date of the offence; or, where the commission of the offence was not known to the police officer, the first day on which such offence comes to the knowledge of the police officer; or where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the police officer, making investigation into the offence. Three clauses of this provision are disjunctive and provide different commencement points of limitation depending on the facts and circumstances of the case. The facts of this case sufficiently show that the police officer was informed of the offence on the date when the letter dated 19-7-1983 was received by the S.P. If provision of Section 469 (1)(b) of the Code is applied, the period of limitation will commence from 19-7-1983 as the S.P. would be, without doubt, a police officer for the said purpose. But if it is held that the provision of Clause (b) of Sub-section (1) of Section 469 of the Code is attracted because it was not clear to the S.P. as to who had actually committed the offence, then the period of limitation would start not from 1-8-1983 on which date the FIR was recorded but would start on the date when the Investigating Officer felt that the identity of the offender was established. Apparently, therefore, the finding about commencement of the period of limitation from 1-8-1983 i.e. the date on which the offence was registered for investigation, is not correct. The facts indicate that the Collector recommended prosecution of three persons including Shri A. L. Kori which was not accepted by the Investigating Officer. The Investigating Officer only prosecuted the applicant and Ramdulare Singh and found nothing against Shri Kori. Apparently, therefore the identity of the real offender was required to be established and, therefore, the period of limitation would commence only after the same was established. Proceedings further indicate that the Investigating Officer had to obtain the opinion of hand writing expert to ascertain as to who was actually involved in forging muster rolls. This opinion was received on 24-12-1985 after which it became possible for the Investigating Officer to legitimately hold that the offence was committed by the applicant and the co-accused. In this view of the matter application of Section 469 (1)(c) of the code would bring the case within the period of limitation.

8. Even if it was to be accepted that the case had become barred by limitation, exercise of powers under Section 473 Cr. P.C. could not be said to be unjustified. It is well settled that the provision regarding condonation of delay is required to be liberally construed. This is, however, not to say that special efforts should be made to deny the benefit of this provision to an accused person. It only means that the Court should adopt a justice oriented-approach in such matters. Indeed Section 473 Cr. P.C. itself prescribes this approach by permitting extension of the period of limitation when it is necessary to do so in the interest of justice. The learned Judge has relied upon several decisions to support his conclusion. Allegations against the applicant relate to poor, illiterate and starving segment of the society which seek to survive by putting hard labour. Cheating such persons and prospering at their cost cannot be termed as an ordinary offence. Offences like these have wider social perspective involving the fate of hundreds and thousands others who seek their survival in the similar manner as persons cheated in this case. There is, therefore, apparent necessity of placing social interest above the interest of the applicant. In convenience of putting the applicant to trial would be far less than the consequences or not putting him on trial. This, therefore, is a case where the interest of justice is properly served by exercise of power under Section 473 Cr. P.C. This Court is, therefore, in full agreement with the conclusion of the learned Sessions Judge and is pleased to affirm that exercises of power by him was in accordance with law.

9. It should also be remembered that this Court is dealing with this case to ascertain whether there are good grounds for exercising its extra ordinary jurisdiction under 482 Cr. P.C. This power has to be sparingly used and only under compelling circumstances. This Court finds no such compelling circumstances in the instant case and is, therefore, unable to help the applicant.

The application fails and dismissed.