IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.09.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.No.598 of 2009 and M.P.No.1 of 2009 V.N.Subramaniam .. Petitioner/Accused Vs. State rep. By The Inspector of Police, T I W, Salem, Salem. (Crime No.291 of 2004) .. Respondent/Complainant Prayer:- Petition filed under Section 397 r/w. 401 of Cr.P.C, against the order dated 26.05.2009 passed in Crl.M.P.No.5832 of 2008 in C.C.No.226 of 2008 by the learned Judicial Magistrate No.V, Salem. For Petitioner : Mr.S.Lakshmanasamy For Respondent : Mr.A.Saravanan, Government Advocate (Crl.Side) - - - - - ORDER The petitioner herein is an accused in C.C.No.226 of 2008 on the file of the learned Judicial Magistrate No.V, Salem. The respondent police had filed a final report against the accused for the alleged offences under Sections 279, 337 and 304(A) I.P.C. After appearing before the Court, the petitioner herein had filed a petition in Crl.M.P.No.5832 of 2008 before the trial Court seeking discharge on the ground that the respondent police had not filed the final report within the limitation period of three years as per Section 468(2)(c) of Cr.P.C. and the said petition was dismissed by the learned Magistrate. Aggrieved by the order of the learned Magistrate, the petitioner herein has preferred this Criminal Revision Petition before this Court. 2. The learned counsel appearing for the petitioner submits that the occurrence had taken place on 02.06.2004 at about 6.30 a.m. and the First Information Report also was registered on the https://hcservices.ecourts.gov.in/hcservices/ same day at about 7.30 a.m. The maximum period of punishment for the offence under Section 304-A I.P.C. is two years. As per Section 468(2)(c) of Cr.P.C., the final report ought to have been filed within a period of three years. But the final report was filed by the respondent police only on 08.04.2008, which was exceeding the period of three years. The final report also had been returned by the learned Magistrate and again, it was represented on 21.04.2008 with a letter from the Inspector of Police stating that there was a delay in obtaining the wound certificate of the victim. The learned Magistrate, without condoning the delay or passing any order, had taken the final report on file. The learned counsel appearing for the petitioner further submitted that taking cognizance of the complaint after the expiry of the period of limitation is illegal. The learned counsel has also relied on a decision of this Court reported in 2009 (3) MWN (Crl.) 26 (Vivekanandan Vs. The Inspector of Police, Central Crime Branch, Egmore, Chennai). 3. The learned Government Advocate (Crl.Side) submitted that though the final report was filed after the expiry of the period of limitation under Section 473 of Cr.P.C., the Court has power to take cognizance of an offence after the expiry of the period of limitation. 4. This Court has considered the submissions made by the learned counsel on either side and perused the materials available on record. 5. As per the Fist Information Report, the occurrence had taken place on 02.06.2004 and the First Information Report was also registered for the offences under Sections 279, 337 and 304(A) I.P.C. It appears from the original record, which was received from the trial Court that on 08.10.2007, the learned Judicial Magistrate No.V, Salem had passed an order stating that as final report was not filed within the period of limitation, the First Information Report was closed as barred by limitation under Section 468 of Cr.P.C. Subsequent to this order, the respondent police has chosen to file a final report on 08.04.2008 and it was returned on the same day by the learned Magistrate. On 21.04.2008, the final report was resubmitted by the respondent police with a letter stating that there was a delay in obtaining the wound certificate since the victim was in the hospital as in-patient for a long period. In the said letter, the date on which the victim was discharged and the date on which copy of the wound certificate received were also not mentioned. The learned Magistrate simply mentioned that on 21.04.2008, the final report was taken on file and posted the case to 23.04.2008 and issued orders for serving summons to the accused. The learned Magistrate has not passed any order under Section 473 of Cr.P.C., which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "473. Extension of period of limitation in certain cases.- Notwithstanding anything contained in the foregoing 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." 6. Before taking cognizance of the complaint, the learned Magistrate ought to have applied his mind and ought to have satisfied on the facts and circumstances of the case that the delay had been properly explained or the learned Magistrate ought to have observed that it was necessary to take cognizance of an offence in the interests of justice. In the absence of any specific order being passed by the learned Magistrate for extending the period of limitation as provided under Section 473 of Cr.P.C., the cognizance taken by the learned Magistrate in this case is illegal. 7. This Court had observed in the decision cited supra in paragraph Nos.10, 11 and 12, as follows:- "10. It is also decided by the Hon'ble Supreme Court in the case of State of Punjab Vs. Sarwan Singh, reported in 1981 SC 1054, that it is of the utmost importance that any prosecution, whether by the State or a private complainant, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. As the bar of limitation under Section 468 of the Code of Criminal Procedure has been included by the Hon'ble Supreme Court in the case of Sarwan Singh, within the guarantee or protection of personal liberty under Article 21 of the Constitution under which no person can be deprived of his life or personal liberty except according to the procedure established by law, in the humble opinion of this Court, the accused can raise the plea of limitation before the Court at any stage. 11. In this case, the observation of the learned Magistrate that "it will be proper to lead the evidence and decide the matter in the factual issue of limitation by giving an opportunity to the investigation Officer only after examination of witness in the trial" is erroneous. 12. As it is admitted by the prosecution itself that the cognizance taken by the learned Magistrate is barred by limitation and as the learned Magistrate also not invoked the provision under Section 473 of the Code of Criminal Procedure before taking cognizance, since condonation of delay should precede taking of cognizance https://hcservices.ecourts.gov.in/hcservices/ of the offence, this Court is to hold that the cognizance taken by the learned Magistrate in C.C.No.8085 of 2006 is illegal and the proceeding on the basis of such cognizance is non est." 8. In the result, the cognizance taken by the learned Judicial Magistrate No.V, Salem, in C.C.No.226 of 2008 is non est and the Criminal Revision Petition is allowed and the revision petitioner is discharged from the case. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jrl To 1. The Judicial Magistrate No.V, Salem. 2. -Do-Thro The Chief Judicial Magistrate Salem 3. The Inspector of Police, T I W, Salem, Salem. 4. The Public Prosecutor, High Court, Madras. 1 cc To Mr.S.Lakshmanasamy, Advocate, SR.65863 CRL.R.C.No.598 of 2009 BK(CO) sra 17/09/2010 https://hcservices.ecourts.gov.in/hcservices/