IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Crl.MC.No. 2706 of 2008(A) -------------------------------------- PETITIONER/ACCUSED NO.2: ------------------------------------------ SUNIL KUMAR M.B., AGED 35 YEARS,'MARATHOOR, CHERAIL P.O., ERNAKULAM. BY ADV. MR.S.RAJEEV. RESPONDENT/STATE: -------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 325 OF 2007 OF MUNAMBAM POLICE STATION). BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2706 OF 2008 ------------------------------------------ Dated 1st March 2010 O R D E R Petitioner is the clerk of Pallipuram Grama Panchayat who is the second accused in C.C.109/2008 on the file of Judicial First Class Magistrate, North Paravur, taken cognizance for the offence under Sections 177 and 182 read with Section 34 of Indian Penal Code. Prosecution case is that in furtherance of the common intention, petitioner gave a report based on a petition filed by the first accused that his father Dasan died on 3/2/2004 and got registered the death on 17/2/2004 as 42/2004 in the Panchayat Death Register for the purpose of making use of the death certificate to get the Crmc 2706/08 2 property, which originally belonged to the father. Annexure-1 complaint was originally filed by the de facto complainant, Secretary of Pallipuram Grama Panchayat against first accused alone revealing that he filed a petition before the Panchayat on 17/2/2004 to register the death of his father Dasan and after following the procedure prescribed under the Rules, death was registered as 42/2004 in the Panchayat death register and in connection with the enumeration of Panchayat election 2005 it was found out that Dasam is alive and a notice was issued to the first accused on 10/8/2005 to show cause and he sent Annexure-V reply pleading guilty and seeking to condone the incident claiming that while he and his sister were children, Crmc 2706/08 3 the father committed murder of their mother and he was undergoing imprisonment and later when he was released from jail, he again involved in another case for inflicting injury on the sister of the first accused and was again imprisoned and before he had gone to jail he had created liability in the property and his whereabouts was not thereafter heard and to save the property death certificate was obtained and it was not with an intention to commit any offence. Annexure-1 complaint was sent for investigation under Section 156(3) of Code of Criminal Procedure, based on which crime No.325/2007 of Munambam police station was registered under Annexure-2 FIR on 28/9/2007. Annexure-1 complaint is dated 19/9/2007. Crmc 2706/08 4 After investigation Annexure-3 final report was submitted on 10/11/2007. It was taken cognizance for the offences under Sections 177 and 182 of Indian Penal Code, on 29/2/2008. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that petitioner is not involved in the offence and he had made proper enquiry and was misled by the first accused and a lady who was present in the house at the time of conducting enquiry based on which he submitted a report. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that statement recorded under Section Crmc 2706/08 5 161 of Code of Criminal Procedure, do not reveal that there was any common intention for the petitioner to commit the offences along with the first accused and he made proper enquiry, though he was misled by the first accused and in such circumstances, the cognizance taken against the petitioner is to be quashed. Learned counsel also pointed out that in any case when maximum sentence provided for the offence under Sections 177 and 182 of Indian Penal Code is imprisonment for six months apart from fine, as provided under clause (b) of Section 2 of Section 468 of Code of Criminal Procedure cognizance cannot be taken, after the period of one year of commission of the offence and as Annexure-1 complaint shows that offence was Crmc 2706/08 6 committed in February 2004 and notice was issued by the Secretary of the Panchayat on 10/8/2005 and even from that date within a period of one year no complaint was filed and therefore, learned Magistrate could not have taken cognizance of the offence on 10/2/2008. 4. Learned counsel appearing for the petitioner submitted that, fact that petitioner had conducted enquiry on the same day on which the first accused filed a petition, he did not make any proper enquiry even from the neighbours reveal that he submitted the report in furtherance of the common intention with first accused to get death registered, though father of first accused is alive and in such circumstances, the case cannot be quashed. Crmc 2706/08 7 Learned Public Prosecutor submitted that Section 471 of Code of Criminal Procedure enables the Magistrate to take cognizance, even beyond the period of limitation if the Magistrate is satisfied that it is necessary so to do in the interest of justice and therefore, the cognizance taken may not be quashed. 5. Clause (b) of Sub Section 2 of Section 468 provides that no court can take cognizance of an offence, when the maximum sentence provided is imprisonment for a period of less than one year, after the period of one year. As provided under Section 469, period of limitation,is to be computed from the date of commission of the offence, excluding the period when that fact was not known. Even if, it is taken Crmc 2706/08 8 that, fact that accused committed the offence was not known before the enumeration work for the panchayat election, 2005, as rightly pointed out by the learned counsel appearing for the petitioner a notice was sent by the Secretary on 10/8/2005 after the fact was known to him. Therefore, at least on 10/8/2005 period of limitation would start to run. As provided under Section 468(2)(b) no cognizance can be taken after a period of one year from 10/8/2005. Cognizance was taken only on 29/2/2008. It is illegal. Though Section 473 of Code of Criminal Procedure enables the Magistrate to take cognizance of an offence, even after the period provided under Section 468 of Code of Criminal Procedure, it can be done only Crmc 2706/08 9 if the Magistrate is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do so in the interest of justice. When the final report does not disclose any material explaining the delay, it cannot be said that learned Magistrate has taken cognizance of the offences on satisfying, on the facts and circumstances of the case, that delay has been properly explained. True, even when there is no proper explanation for the delay, Magistrate can take cognizance beyond the period of limitation, if it is necessary to do so, in the interest of justice. But when the cognizance was taken without taking note of the fact that it is already barred by time, it cannot be said Crmc 2706/08 10 that cognizance was taken as it was necessary so to do, in the interest of justice. In such circumstances, cognizance taken by the learned Magistrate on Annexure-2 report for the offences under Section 177 and 182 of Indian Penal Code, beyond the period of limitation provided under Section 468(2)(b) can only be quashed. Petition is allowed. Cognizance taken by the Judicial First Class Magistrate, North Paravur on Annexure-3 final report in C.C.109/2008 as against accused is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.