IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.Rev.Pet.No. 3614 of 2008() ------------------------------ CC.357/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... (CRIME NO.90/1997 OF EDAKKARA POLICE STATION) REVISION PETITIONER(S): ACCUSED: --------------------------------------------------------- SIDDIQUE, S/O. ABOOBACKER HAJI, PALEMPADIYIL KUDIYIRIKKAL HOUSE, KOOTTILANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): PETITIONER: ----------------------------------------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, EDAKKARA POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. Crl.R.P. 3614 of 2008 Dated, this the 6 th day of January,2009 ORDER Revision petitioner is the accused in Crime No.90/1997 on the file of Judicial First Class Magistrate, Nilambur. Revision is filed challenging the order passed by the learned Magistrate on 25.8.2008 taking cognizance of the offence condoning the delay invoking the power provided under section 473 of Code of Criminal Procedure. When the learned Magistrate had earlier taken cognizance of the offence, petitioner challenged that order before this court in Crl.M.C.57/2004 contending that when cognizance of the offences under section 279,379 and 338 of IPC is barred on the submission of the charge sheet on 24.6.2002, learned Magistrate should not have taken cognizance of the offence. This court as per judgment dated 31.7.2007 quashed the order passed CRRP 3614/2008 2 by the learned Magistrate taking cognizance of the offence and directed the Magistrate to hear both sides and consider whether the delay is liable to be condoned, holding that before taking cognizance after condoning the delay notice should have been issued to the accused. The impugned order was passed subsequently. 2. Learned counsel appearing for the revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel submitted that subsequent to the disposal of Crl.M.C.57/2004 a report was filed by the Sub Inspector of Police, Edakkara explaining the delay and as per the report, the delay was caused as the discharge certificate of CW17 could not be obtained and that was not found to be a sufficient cause to condone the delay by the learned Magistrate and instead reason that CW22 the doctor who treated CW13 is now working in Gulf is taken as the cause for the delay which was also not accepted as sufficient and the delay was condoned invoking the power under section 473 of Code of Criminal Procedure. Learned counsel argued CRRP 3614/2008 3 that the learned Magistrate was not justified in condoning the delay when the delay was not properly explained by the prosecution. Learned counsel also pointed out that learned Magistrate summoned all the injured witnesses and they appeared before the court and submitted that they have no objection for dropping the case and in such circumstance after a lapse of 11 years in view of the provision provided under section 468 of Code of Criminal Procedure learned Magistrate should not have taken cognizance of the offence. 4. Learned Public Prosecutor relied on the decision of the Apex Court in Vanka Radhamanohari v. Vanka Venkata Reddy (1993(3) SCC 4) and in State of Himachal Pradesh v. Tara Dutt (AIR 2000 SC 297) and argued that the criterion to be applied is not the one applicable to condone the delay under section 5 of the Limitation Act and instead the question is whether in the interest of justice the cognizance is to be taken after condoning the delay and the learned Magistrate has applied the provision in the proper perspective and there is no illegality in the order. CRRP 3614/2008 4 5. The legal position has been settled by the Apex Court in Vanka Radhamanohari's case (supra). Following the earlier decision of the Apex Court in Workmen, H.L. Ltd v. Hindustan Lever Ltd (AIR 1984 SC 1683) where it was held that Section 473 is in the nature of an overriding provision according to which any court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied that it is necessary so to do, in the interest of justice Their Lordships held that as distinct from Section 5 of the Limitation Act where the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of delay. Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of justice to condone or ignore such delay. It was held that while examining the question as to whether it is necessary to condone the delay, in the interest of justice, court has to take note of the nature of the offence , the class to which the victim belongs including the background of the victim. Apex Court in Tara CRRP 3614/2008 5 Dutt's case (supra) laid down the principle as follows:- “Obviously, therefore in respect of the offences for which a period of limitation has been provided in S.468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the court taking cognizance wherever the court exercises CRRP 3614/2008 6 this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice.” Therefore the paramount consideration while deciding the question whether cognizance is to be taken after condoning the delay as provided under section 473, is the interest of justice as found by the learned Magistrate. 6. But the facts of this case, as pointed out by the learned counsel appearing for revision petitioner prove that the incident was on 22.3.1997. The charge sheet was submitted before the court only on on 24.6.2002. After the direction of this court to reconsider the question in Crl.M.C.57/2004, granting opportunity to explain the delay by filing a proper petition, report filed by the Sub Inspector is to the effect that the delay was occasioned as the treatment CRRP 3614/2008 7 certificate of CW17 was not obtained. Learned Magistrate found that the reasons submitted at the time of argument is not the failure to get the discharge certificate of CW17, but certificate of CW22, the doctor who treated CW13, as the doctor is working in Gulf. Learned Magistrate also found that it is not a sufficient cause. But the delay was condoned in the interest of justice as the offence is relating to negligent driving. The records of the learned Magistrate shows that learned Magistrate issued notices to the injured witnesses who appeared before the court and submitted that they have nothing to say in the matter. The other eye witnesses, after service of notice, did not appear. In such circumstance, even if the cognizance is taken and the ordeal of a trial is completed no effective purpose will be served as in the nature of the conduct of the witnesses they will not support the prosecution case. In such circumstance, considering the fact that the incident occured more than a decade back, it cannot be said that interest of justice warrants taking cognizance after condoning the delay as CRRP 3614/2008 8 provided under section 473 of Code of Criminal Procedure, as it would result in unnecessary waste of valuable time of the court. For that reason the order passed by the learned Magistrate is set aside. Revision petitioner is discharged. Criminal Revision Petition is disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE Tpl/-