Mangu Ram and ors. Vs. the State of Rajasthan - Court Judgment

Excerpt:
criminal procedure code - section 438--anticipatory bail--injury on thigh--matter compromised and injured not interested to prorecute case--held, court is inclined to grant bail under section 438.;the injury is on the thigh. it further appears that the injured ram charan has submitted an application before the addl. sessions judge, hindaun to the effect that he has compromised the matter with the accused-persons and he is not interesting in prosecuting the case.;i am inclined to grant bail to the petitioner under section 438 cr.p.c.;bail granted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - are satisfied, the court can condone the delay.orderb.r. arora, j.1. this miscellaneous petition is directed against the order dated june 12, 1990, passed by the munsif and judicial magistrate, nawa, by which the learned magistrate took cognizance against the accused petitioners for the offences under sections 384 and 342, i.p.c.2. on sept. 25, 1986, an f.i.r. was lodged at police station, maroth, and a case under sections 384 and 342, i.p.c. was registered against the accused-petitioners. the police, after necessary investigation, presented the final report, but the learned magistrate did not accept the final report and took cognizance against the petitioners for the offences under sections 384 and 342, i.p.c. by its order dated june 12, 1990.3. as the limitation for taking the cognizance under sections 384 and 342, i.p.c. had already expired, therefore, the complainant filed an application for condoning the delay and the learned magistrate condoned the delay, and extended the period of limitation under section 473, cr.p.c. and took the cognizance against the accused-petitioners for the offences under sections 384 and 342, i.p.c.4. section 468 to 473, cr.p.c. deal with the limitation for taking cognizance of certain offences. section 468, cr.p.c. bars the taking of cognizance after a lapse of the period of limitation provided under sub-section (2) of section 468, whereas section 473, cr.p.c. empowers the court to take cognizance of the offences after the expiry of the period of limitation satisfying himself on the facts and in the circumstances of the case and to condone the delay if the delay has been properly explained or it is necessary so to do in the interest of justice. if the conditions for condoning the delay, as provided under section 473, cr.p.c. are satisfied, the court can condone the delay. it is an admitted position that in the present case, the cognizance has been taken by the learned lower court after the expiry of the period of limitation. though the court is competent under section 473, cr.p.c. to take cognizance against the accused after the expiry of the period of limitation if the delay in taking the cognizance is properly explained or the court, in the interest of justice, deems it necessary to condone the delay, but an opportunity of hearing is necessary to be given to the accused persons before extending the period of limitation, as the extension of the period of limitation without giving an opportunity of hearing to the accused affects a valuable right of the accused. if an opportunity of hearing is given to the accused-petitioners, they may be able to show that the delay sought to be condoned is not just and expedient at all and the interest of justice does not permit the extension of the period of limitation. the accused can, also, show to the court that the grounds alleged for the extension of the period of limitation are wholly unfounded and the condonation of the delay is wholly unwarranted. the extension of the period of limitation without giving an opportunity of hearing to the accused-persons affects the valuable rights of the petitioners. in the present case the order condoning the delay and taking cognizance after the expiry of the period of limitation, has been passed without giving an opportunity of hearing to the accused-petitioners and, therefore, the order, passed by the learned court below, deserves to be quashed and set aside.5. in the result, the miscellaneous petition, filed by the petitioners, is allowed. the order dated june 12, 1990, condoning the delay and taking cognizance by the learned munsif and judicial magistrate, nawa, is set aside and the case is remanded to the learned magistrate. it will be, now, open to the learned magistrate to reconsider the application for extension of the period of limitation after giving an opportunity of hearing to the accused-petitioners.

Judgment:
ORDER

B.R. Arora, J.

1. This miscellaneous petition is directed against the order dated June 12, 1990, passed by the Munsif and Judicial Magistrate, Nawa, by which the learned Magistrate took cognizance against the accused petitioners for the offences under Sections 384 and 342, I.P.C.

2. On Sept. 25, 1986, an F.I.R. was lodged at Police Station, Maroth, and a case under Sections 384 and 342, I.P.C. was registered against the accused-petitioners. The police, after necessary investigation, presented the Final Report, but the learned Magistrate did not accept the Final Report and took cognizance against the petitioners for the offences under Sections 384 and 342, I.P.C. by its order dated June 12, 1990.

3. As the limitation for taking the cognizance under Sections 384 and 342, I.P.C. had already expired, therefore, the complainant filed an application for condoning the delay and the learned Magistrate condoned the delay, and extended the period of limitation under Section 473, Cr.P.C. and took the cognizance against the accused-petitioners for the offences under Sections 384 and 342, I.P.C.

4. Section 468 to 473, Cr.P.C. deal with the limitation for taking cognizance of certain offences. Section 468, Cr.P.C. bars the taking of cognizance after a lapse of the period of limitation provided under Sub-section (2) of Section 468, whereas Section 473, Cr.P.C. empowers the Court to take cognizance of the offences after the expiry of the period of limitation satisfying himself on the facts and in the circumstances of the case and to condone the delay if the delay has been properly explained or it is necessary so to do in the interest of justice. If the conditions for condoning the delay, as provided under Section 473, Cr.P.C. are satisfied, the court can condone the delay. It is an admitted position that in the present case, the cognizance has been taken by the learned lower Court after the expiry of the period of limitation. Though the Court is competent under Section 473, Cr.P.C. to take cognizance against the accused after the expiry of the period of limitation if the delay in taking the cognizance is properly explained or the Court, in the interest of justice, deems it necessary to condone the delay, but an opportunity of hearing is necessary to be given to the accused persons before extending the period of limitation, as the extension of the period of limitation without giving an opportunity of hearing to the accused affects a valuable right of the accused. If an opportunity of hearing is given to the accused-petitioners, they may be able to show that the delay sought to be condoned is not just and expedient at all and the interest of justice does not permit the extension of the period of limitation. The accused can, also, show to the Court that the grounds alleged for the extension of the period of limitation are wholly unfounded and the condonation of the delay is wholly unwarranted. The extension of the period of limitation without giving an opportunity of hearing to the accused-persons affects the valuable rights of the petitioners. In the present case the order condoning the delay and taking cognizance after the expiry of the period of limitation, has been passed without giving an opportunity of hearing to the accused-petitioners and, therefore, the order, passed by the learned Court below, deserves to be quashed and set aside.

5. In the result, the miscellaneous petition, filed by the petitioners, is allowed. The order dated June 12, 1990, condoning the delay and taking cognizance by the learned Munsif and Judicial Magistrate, Nawa, is set aside and the case is remanded to the learned Magistrate. It will be, now, open to the learned Magistrate to reconsider the application for extension of the period of limitation after giving an opportunity of hearing to the accused-petitioners.