| This Judgment has been overruled by : Japani Sahoo Vs. Chandra Sekhar Mohanty, |
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A.S. Naidu, J.@mdashOn the basis of a complaint petition filed by the opposite party on 5.2.1996 I.I.C. No. 45 of 1996 was registered in the Court of S.D.J.M., Bhubaneswar. In the said complaint petition it was, inter alia, alleged that the petitioner, who was an Officer of the Police Department had committed offences punishable under Sections 161/294/323/506 of the I.P.C. Learned S.D.J.M., Bhubaneswar by order dated 8.8.1997, on being prima facie satisfied that materials are available, took cognizance of the offences under Sections 294 and 323 of the I.P.C. only. The said order is assailed before this Court invoking inherent jurisdiction mainly on the ground that the case had become barred by limitation as on 8.8.97 and as such the order taking cognizance was hit by Section 468 of the Code of Criminal Procedure and is liable to be quashed. It was also contended that the allegations levelled were false and frivolous and the complaint petition was filed with an avowed oblique motive of harassing the petitioner. Admittedly, as would be evident from the complaint petition, the alleged occurrence took place on 2.2.96 and the complaint petition was filed on 5.2.1996. But then cognizance of offences under Sections 294 and 323 of the I.P.C. was taken only 8.8.97, i.e., after lapse of more than one year from the date of alleged commission of the offences.
2. Mr. Bijan Ray, learned Senior Advocate, relying upon Section 468 of the C.P.C. forcefully submitted that the Magistrate lacked authority to take cognizance of the offences under Sections 294 and 323 of the I.P.C. after expiry of the period of limitation, i.e. one year. It is further submitted that taking cognizance of offences after period of limitation, without condonation of delay was illegal and it is a fit case where the order impugned cannot be sustained and as such the same may be quashed. In support of the aforesaid submission, Mr. Ray has relied upon a number of decisions, but then as there is no quarrel with regard to the legal proposition, there is no necessity of citing all the decisions at this stage.
3. Mr. G. Rath, learned Counsel appearing for the complainant-opp. party, at the other hand, while not disputing the fact, that the order of cognizance was taken after the period of limitation, forcefully submitted that the basic objective of introducing the provisions for limitation for taking cognizance of different offences is meant to protect a person from being harassed by any vexatious allegations/cases. According to him in the present case the complaint petition was filed with utmost promptitude within the period of limitation. Therefore, the delay in taking cognizance would not be fatal to the case and the Court below on being prima facie satisfied that there were materials with regard to commission of the offences has rightly taken cognizance of offences under Sections 294 and 323 of the I.P.C. According to Mr. Rath, the order is just, legal and suffers from no infirmity and as such the same may not be interfered with. He has relied upon the decision of Patna High Court in the case of
4. It is well settled that the object of Criminal Procedure Code in putting a bar of limitation on prosecution was to prevent litigants from filing vexatious complaint cases or petitions or F.I.Rs. after long lapse of time. There is no dispute that by efflux of time material evidence may disappear and it would be really tough for a person to defend himself by adducing suitable evidence. This object is clearly in consonance with the concept of fairness of trial as enshrined under Article 21 of the Constitution of India. It should, therefore, be kept in mind that any prosecution whether by the State or private complainant must abide by law in letter and spirit or take the risk of rejection on the ground of limitation.
5. In the Code of Criminal Procedure 1973, Chapter XXXVI has been added prescribing limitation for taking cognizance of certain offences with a view to expedite the process of detection and investigation of crimes and also to ensure observance of the principle of fairness in the trial of the offences by barring belated and vexatious prosecution. Delay in prosecution of cases causes undue hardship as it keeps the sword hanging on the head of the accused persons and it also results in the material evidence getting vanished. This chapter applies to all such offences for which punishment prescribed is less than three years. But it does not apply to offences for which punishment prescribed is more than three years and to economic offences under various Acts, which are excluded under Central Act 12 of 1974 or any State Act. It contains seven Sections being Sections 467 to 473. Section 467 defines ''period of limitation'' used in the Chapter. Section 468 creates a bar for taking cognizance of offences after lapse of period of limitation. Section 473 vests power upon the Court to take cognizance of an offence after the expiry of the period of limitation if it is satisfied in the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Thus in a given case where the Court is satisfied in the facts and circumstances of the case that in the interest of justice the delay in the prosecution may be condoned, it can do so but then by giving reasons. It has been held by the Supreme Court in the case of State of Himachal Pradesh v. Tara Dutt and Anr. reported in AIR 2000 SC 207 that the power of taking cognizance by Court after expiry of period of limitation has to be exercised by speaking order. The discretion conferred upon the Court, has to be exercised judiciously and on well recognized principles. It is well settled that the bar u/s 468 is not in respect of filing/initiation of prosecution but in respect of taking cognizance and that the Court before condonation of delay, in all fairness should issue notice to the accused.
6. The impugned order clearly reveals that though the Court has taken cognizance of the offences much after the period of limitation it has neither dealt with nor applied its mind as regards the bar imposed u/s 468, nor has it given any reasons much less any satisfactory reason in consonance with Section 473 of the Cr.P.C. It is well settled that the Court has no power to take cognizance after the period of limitation unless the delay has been condoned by a speaking order in consonance with Section 473 of the Cr.P.C. The said provision has not been adhered to by the learned Magistrate.
7. In view of the aforesaid infirmities in the impugned order, the same cannot be sustained. Even otherwise the incident was alleged to have taken place in the year 1996. More than ten years have passed in the meanwhile. In the aforesaid scenario, this Court feels that continuance of the complaint case would not be in the interest of justice and fair play and rather may amount to abuse of process of law. Accordingly, the impugned orders 8.8.1997 and 23.9.1998 passed by learned S.D.J.M., Bhubaneswar in 1996 I.C.C. 45 are quashed.
The CRMC is thus allowed.
