IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.02.2009 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA CRL.O.P.No.1730 of 2009 M.S.Jothimani ... Petitioner/Accused No.1 Vs. 1. State rep. by Inspector of Police, N.1 Royapuram Police Station, Chennai-600 013. (Crime No.1556 of 2005) 2. Tamizharasi ... Respondents/Complainants Prayer : Criminal Original Petition filed under Section 482 of the Criminal Procedure Code praying to call for the records relating to C.C.No.6031 of 2008 on the file of the learned XVI Metropolitan Magistrate, George Town, Chennai and to quash the same. For Petitioner : Mr.T.P.Sekar For 1st Respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) O R D E R The petitioner, who has been arrayed as A1 out of seven accused for the alleged offences under Sections 147, 341, 323 and 354 of IPC has come forward with this petition seeking for the relief of quashing the proceedings pending in C.C.No.6031 of 2008 on the file of the learned XVI Metropolitan Magistrate, George Town, Chennai. 2. Learned counsel appearing for the petitioner submitted that the charge sheet was filed in this case after the expiry of the period of limitation as per the provision under Section 468 (2)(c) of Cr.P.C. for the offences under Sections 341, 352 of IPC read with Section 4 of Women Harassment Act. It is further submitted by the learned counsel that as per the said provision, the charge sheet in this case ought to have been filed before the expiry of three years, but the same was filed only on 13.10.2008 after the expiry of three years as the First Information Report was registered in this case on 11.08.2005 and as such, there https://hcservices.ecourts.gov.in/hcservices/ was a delay of two months in filing the charge sheet in this case. It is also contended that though a condone delay petition was filed by the respondent police, the same was not filed properly in accordance with law and the respondent has not even filed any affidavit by assigning valid reasons for condoning the delay in filing the final report in this case. 3. The learned counsel appearing for the petitioner would further submit that even in the order passed by the learned Metropolitan Magistrate condoning the delay also does not disclose any valid reasons for passing such an order and it is only a non- speaking order and as such, the learned Magistrate has committed serious error of law in taking cognizance of the offences alleged against the petitioner. Therefore, the learned counsel for the petitioner contended that the entire proceedings pending against the petitioner is liable to be quashed. 4. Learned Government Advocate (Criminal Side) would submit that a condone delay petition was filed and after condoning the delay, the learned Magistrate has taken the final report on file and taken cognizance in this case. The learned Government Advocate (Criminal Side) would further submit that there is no illegality in the order passed by the learned XVI Metropolitan Magistrate, George Town, Chennai dated 13.10.2008 condoning the delay in filing the charge sheet as it is clearly stated by the learned Magistrate that the reasons stated in the condone delay petition are genuine and therefore, accepted. It is also stated by the learned Government Advocate that even in the condone delay petition, the respondent police has assigned reason to the effect that the earlier Investigating Officer was transferred and as such, there was a delay in filing the charge sheet in this case. 5. I have carefully considered the rival contentions put forward by either side and perused the materials available on record. 6. It is seen that the petitioner has been arrayed as A1 out of seven accused and he has been implicated for the alleged offences as stated above. The grievance of the petitioner is to the effect that the charge sheet in this case was filed beyond the period of limitation as contemplated under Section 468 of Cr.P.C. The fact remains that the petitioner has been charge sheeted for the alleged offences under Sections 341 and 352 IPC read with Section 4 of Women Harassment Act. It is pertinent to be noted that all the above said three offences are punishable with imprisonment for a period of three years. Section 468 of Cr.P.C. reads hereunder: "468. Bar to taking cognizance after lapse of the period of limitation : https://hcservices.ecourts.gov.in/hcservices/ (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitaltion shall be - (a) six months, if the offence is punishable with fine only; (b) ne year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.)" 7. A reading of the above said provision makes it crystal clear that as per Section 468 (2) (c), the period of limitation is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, there is no doubt that the charge sheet ought to have been filed before the expiry of the period of three years from the date of preferring the complaint. In this instant case, the complaint was preferred on 11.08.2005 and admittedly even as per the order of condoning the delay passed by the learned Magistrate, final report was filed only on 31.10.2008. Now it is seen that in view of such delay, the respondent police filed a petition to condone the delay in filing the charge sheet as contemplated under Section 473 of Cr.P.C. It is very unfortunate to note on perusal of the condone delay petition filed by the respondent herein that the petition was not filed properly and even the provision of Cr.P.C. also not stated or mentioned in the petition. The learned Magistrate has not sent any notice to the respondent/ accused and straight away passed an order dated 13.10.2008. Therefore, this Court is constrained to state that the learned Magistrate thought it fit to pass a creptic order without assigning any reasons. At this juncture it is pertinent to be noted that the Honourable Apex Court in AIR 1995 Supreme Court 231, State of Maharashtra V. Sharadchandra Vinayak Dongre and others has held as follows: "In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going https://hcservices.ecourts.gov.in/hcservices/ into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further to hold that the trial court could not have taken cognizance of the offence in view of the application filed by the prosecution seeking permission of the Court to file a "supplementary charge- sheet" on the basis of an 'incomplete charge sheet' and quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous." 8. In view of the above settled principle of law laid down by the Honourable Apex Court in the decision cited supra which is squarely applicable to the facts of this case as in this case also admittedly no notice was served to the accused before condoning the delay, this Court is constrained to set aside the order passed by the learned XVI Metropolitan Magistrate, George Town, Chennai dated 13.10.2008 condoning the delay and the learned Magistrate is hereby directed to consider the condone delay petition filed by the respondent police after affording opportunity to the accused by ordering notice to the accused and after hearing both sides pass orders on merits and in accordance with law. With the above directions, the Criminal Original Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. Tsi Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The XVI Metropolitan Magistrate, George Town, Chennai. 2.Do Through The Chief Metropolitan Magistrate, Egmore, Chennai 8. 3.The Inspector of Police, N.1 Royapuram Police Station, Chennai-600 013. 4.The Public Prosecutor, Madras High Court, Madras. + 1 cc to Mr. T. P. Sekar, Advocate SR No.6004 Crl.O.P.No.1730 of 2009 RSM(CO) SR/13.2.2009 https://hcservices.ecourts.gov.in/hcservices/