IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 281 of 2011() ----------------------------- CC.1229/2009 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... PETITIONER(S): ACCUSED NO.2 AND 3 IN CRIME --------------------------------------------------------- 1. K.ASIF, S/O. HUSSAIN KOYA, AGED 32 YRS, KOTTAKANDI HOUSE, NEAR LIGHT HOUSE, CHALIYAM, KOZHIKODE. 2. C.RIYAS, S/O. ALI, AGED 30 YEARS, KOTTAKANDI HOUSE, NEAR LIGHT HOUSE, CHALIYAM, KOZHIKODE. BY ADVS. SRI.K.M.FIROZ SRI.K.NAZEER RESPONDENT(S): STATE ----------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, BEYPORE POLICE STATION, KOZHIKODE. PUBLIC PROSECUTOR SRI.K.J.MOHEMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.281 of 2011 --------------------------------------- Dated this 07th day of March, 2011 ORDER Petitioners are accused Nos.2 and 3 in C.C.No.1229 of 2009 of the Court of learned Judicial First Class Magistrate-V, Kozhikode arising from the final report in Crime No.268 of 2002 of Beypore Police Station for offences punishable under Secs.379 and 411 r/w Sec.34 of the Indian Penal Code (for short, "the IPC”). Petitioners seek to quash proceedings against them on the ground that final report filed by the police is beyond the prescribed period of limitation and that there was no request to condone the delay. It is also contended that for the said reason, accused Nos.1 to 4, 9 and 11 were discharged by the learned Magistrate under Sec.239 of the Code of Criminal Procedure (for short, "the Code”) by Annexure-A2, order dated 16.12.2009 in C.C.No.119 of 2007. Learned counsel has placed reliance on the decisions in State of Punjab Vs. Sarwan Singh (1981 KHC 813), Joseph Vs. State of Kerala (1989 KHC 503) and Ramesh Chandra Sinha and Ors. Vs. State of Bihar and Ors. (2003 KHC 1528). It is contended that the alleged incident occurred on 19.10.2002, FIR was registered on 21.10.2002 but, though final report is dated 27.10.2006 it was filed only on Crl.M.C.No.281 of 2011 -: 2 :- 13.03.2007 and the learned Magistrate took the case on file on 21.03.2007. 2. The offence alleged is one punishable under Sec.379 and 411 of the IPC. Clause(c) of Sec.468 of the Code would apply since the maximum sentence that could be imposed for the offence punishable under Sec.379 is imprisonment up to three years. Hence the period of limitation is three years. Sec.469 of the Code speaks about the relevant date for reckoning the period of limitation. The accused including petitioners were arrested within a week of the date of occurrence as the learned Public Prosecutor submits. If that be so, it cannot be disputed that when the final report was filed on 13.03.2007, it was beyond the period of three years, be it from the date of occurrence or from the date on which petitioners were arrested. 3. It is true that in several of the decisions it has been held that limitation prescribed under Sec.468 of the Code is not for taking cognizance but for initiation of the proceeding. That is because no man shall be prejudiced by an act of Court. Under Sec.190 of the Code, proceedings are initiated before the Magistrate either on receiving a complaint of facts which constitute such offence, or upon receipt of a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has Crl.M.C.No.281 of 2011 -: 3 :- been committed. Here the proceeding has been initiated before the learned Magistrate on a police report (coming under Sec.190 (i)(b) of the Code). That report obviously is not first information report but the final report filed under Sec.173(2) of the Code stating details of the offence, offender etc. A reading of the decisions relied by the learned counsel and referred supra would indicate that. In State of Punjab Vs. Sarwan Singh (supra) final report was filed on 13.10.1976 and High Court in that case held that prosecution was time barred. In Joseph Vs. State of Kerala (supra) the date of occurrence was on 19.03.1980, registration of the case was on the same day and final report was filed on 10.03.1986. Accused faced trail for offences punishable under Secs.280 and 304A of the IPC. He was convicted under Sec.304A of the IPC but it was held that cognizance taken was illegal since final report was filed beyond the period of limitation (computed from the date of occurrence and till filing of final report). Similar is the situation in Ramesh Chandra Sinha and Ors. Vs. State of Bihar and Ors. (supra) also. Hence the expression initiation of proceeding under Sec.190 of the Code so far as petitioners are concerned must be taken as from the filing of final report on 13.03.2007 which is beyond the period of limitation be it from the date of occurrence or arrest. Crl.M.C.No.281 of 2011 -: 4 :- 4. It is true that the Court has power to extent period of limitation or condone the delay but, no material was placed before learned Magistrate to extent or condone the delay. I must also bear in mind that for the same reason learned Magistrate discharged accused Nos.1 to 4, 9 and 11 vide Annexure-A2, order dated 16.12.2009 and it is not shown that the said order has been challenged by the State so far. If that be so, there is no reason why the same treatment should not be given to the petitioners. It follows that final report filed against petitioners is beyond the prescribed period of limitation and hence cognizance taken by the learned Magistrate is illegal and liable to be quashed. Resultantly this petition is allowed. Final report against petitioners in Crime No.268 of 2002 of Beypore Police Station, cognizance taken thereon and proceeding against them in C.C.No.1229 of 2009 of the Court of learned Judicial First Class Magistrate-V, Kozhikode are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/-