IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.MC.No. 3479 of 2005 --------------------------------------- CC.99/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONERS/ACCUSED 1 TO 4: 1. K.PRADEEP KUMAR, S/O.NARAYANAN, MOOLIYIL VEEDU, CHALAD DESOM, PALLIKUNNU AMSOM. 2. M.K.LAKSHMANAN, S/O.BHARATHAN, AALLACKAL VEEDU, PALLIKUNNU AMSOM, CHALAD. 3. JITHIN SYAM YESUDASAN, S/O.YESUDASAN, K.V.HOUSE, AZHEEKODE AMSOM, CHALIL. 4. K.E.JAS, S/O.LATE K.P.MOHAMMED SALI, SAJINAS, WEST TALAP ROAD, KANNUR. BY ADV. SRI.T.A.SHAJI SMT.RAGAM.S.MOHAN RESPONDENT/COMPLAINANT: STATE OF KERALA, (SUB INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION) REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3479 of 2005 -------------------------- ORDER Petitioners, the accused in C.C.No.99/2005 on the file of Judicial First Class Magistrate's Court-I, Kannur, filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken for the offences under Section 292 of Indian Penal Code and Section 7(a)(i)(2) of Cinematograph Act on Annexure-A final report submitted by the Sub Inspector of Police, Kannur Town Police Station. Petitioner would contend that the materials furnished before the learned Magistrate will not constitute ingredients of an offence either under Section 292 of Indian Penal Code or under Section 7(a)(i)(2) of Cinematograph Act and in any case, learned Magistrate should not have taken cognizance of the offences in view of the bar provided under Section 468 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. The allegation raised against the petitioners in Annexure-A final report is that on 2.11.2001, CRMC 3479/05 2 petitioners had exhibited film “Kinnaram Cholli Cholli” in Saritha Theatre, Padannapalam at 9.05 p.m. containing obscene scenes, which are not there in the censored film and without the authority of the Censor Board and thereby committed the offences. 4. Argument of the learned counsel appearing for the petitioners is that the maximum sentence provided for the offence under Section 292 of Indian Penal Code is imprisonment which may extend to two years in addition to the fine and the maximum sentence provided for the offence under Section 7(a)(i)(2) of Cinematograph Act is three years and as provided under clause (c) of sub-section (2) of Section 468 of Code of Criminal Procedure, the period of limitation is three years. Though the offence was allegedly committed on 2.11.2001, the final report was filed only on 2.2.2005, after the expiry of three years. Therefore, the cognizance taken is illegal and is to be quashed. 5. Petitioners did not produce the order passed by the learned Magistrate taking cognizance of the offences. Though Section 468 of Code of Criminal Procedure provides for a bar to take cognizance after CRMC 3479/05 3 the lapse of the period of limitation and if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, the period of limitation is three years, Section 473 of Code of Criminal Procedure provides for extension of period of limitation in certain cases. Under the said Section, notwithstanding anything contained in Sections 468, 469 and 470, any court may take cognizance of an offence after the expiry of the period of limitation, if the court is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. Therefore, when final report was submitted, the period of three years, as provided under Section 468(1)(c) of Code of Criminal Procedure, had already expired. But, that will not prevent the Magistrate from taking cognizance, invoking the power provided under Section 473 of Code of Criminal Procedure. Section 473 of Code of Criminal Procedure enables the Magistrate to take cognizance after the expiry of the period of limitation, if the Magistrate is satisfied that it is necessary so to do in the CRMC 3479/05 4 interest of justice. As the order taking cognizance is not produced, it is not possible to hold whether learned Magistrate has exercised the power under Section 473 of Code of Criminal Procedure and taken cognizance. In such circumstances, petition is dismissed. Petitioners are at liberty to seek an order of discharge as provided under Section 239 of Code of Criminal Procedure raising all the contentions available to them, including the plea of bar of limitation under Section 468 of Code of Criminal Procedure. 21st June, 2010 (M.Sasidharan Nambiar, Judge) tkv