IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 1929 of 2009() ------------------------------ CC.128/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER(S): IST ACCUSED -------------------------------- DAVIS.P.V.,PALATTY HOUSE,KOTTAMAM, NEELEESWARAM (P.O.),KALADY VILLAGE,ALUVA. BY ADV. SRI.P.C.BABU RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. THE SENIOR INSPECTOR,LEGAL METROLOGY (VEHICLE TANK),ERNAKULAM. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1929 of 2009 -------------------------------------- Dated this the 31st day of July, 2009. ORDER Heard counsel for petitioner and Public Prosecutor. 2. Question raised in this revision is whether court below was justified in condoning the delay in filing the complaint. Respondent No.1 preferred a complaint against petitioner and another under Section 63 of the Standards of Weights and Measures (Enforcement) Act, 1985 (for short, “the Act”) alleging violation of Section 37 of the Act. That offence is punishable with imprisonment upto three years. Though the offence was detected on 20.11.2000 sanction for prosecution was sought from the Controller of Legal and Metrology only on 14.12.2005 and complaint was filed, according to the learned counsel for petitioner on 3.5.2006. Based on that complaint cognizance was taken and summons was issued to the petitioner and accused No.2. Petitioner appeared in court and contended that cognizance taken is illegal since complaint was barred by limitation. Learned magistrate heard both sides and as per impugned order condoned the delay in filing the complaint exercising power under Section 473 of the Code of Criminal Procedure (for short, “the Code”). That order is under challenge. Learned counsel contends that though power of the court to condone delay in appropriate cases cannot be disputed, there was no sufficient materials on record to condone the delay. Learned counsel placed reliance on Crl.R.P.No.1929/2009 2 the decision of the Supreme Court in State of Maharashtra v. S.V.Dongre (AIR 1995 SC 231). According to the learned Public Prosecutor there is no reason to interfere with the order under challenge. 3. There can no doubt that court has power to condone delay in appropriate cases under Section 473 of the Code. That power has been upheld by this Court in GTC Industrial Ltd. v. Abdurahimankutty (1193(1) KLT 290) and again in Venugopalan v. State of Kerala (2003(1) KLT Short Note 25). In State of Maharashtra v. S.V.Dongre referred supra it is observed is that the High Court was justified in holding that delay if any for launching prosecution could not have been condoned without notice to the respondents and behind their back and without recording reasons for condonation of delay. In this case learned magistrate has observed that even if delay is not explained, court will be justified in taking cognizance of the complaint after the period of limitation if it is satisfied and if it is found necessary to do so in the ends of justice. Learned magistrate ought to have stated in what way interest of justice required that delay involved is to be condoned. Since that is not done the order under challenge cannot be sustained. However I am not going into the question whether on the facts delay ought to be condoned since that is a matter to be decided by learned magistrate after referring to the materials on record and after giving an opportunity to the petitioner and Crl.R.P.No.1929/2009 3 prosecution to raise their contentions. I make it clear that it will also be open to the prosecution to provide further materials, if found necessary for condoning the delay. Resultantly this revision is allowed setting aside the order under challenge and remitting the matter to the court below for fresh consideration and decision after hearing both sides and in the light of the observations made above. Petitioner shall appear in the court below on 28.8.2009. THOMAS P.JOSEPH, Judge. cks