BEFORE HON'BLE THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (_CR) NO 1587 OF 2011 PETITIONER :— Akshay Jain, aged about 36 years S/o Shri R.K.Jain Owner Firm M/s Mahamaya Agency, Stockist Dabur India Ltd. Ware House Road, Behind g Sales Tax Office, Bilaspur (C.G.) Residence ofHouse No. MIG - 29, Sharda Sadan, Nehru Nagar, Bilaspur (Chhattisgarh) Versus RESPONDENTS :- 1 . State ofChhattisgarh Through Principal Secretary Department ofPublic Health D.K.S. Bhawan Mantralaya, Raipur (C.G.) 2. Controller, KhadyaAvam Aushadhi Prashashan Chhattisgarh Raipur 1 3. Deputy Director, Khadya Avam Aushadhi Prashashan, Bilaspur, Chhattisgarh 4. Deputy Director, Khadya Avam Aushadhi Prashashan, District Janjgir Champa, Chhattisgarh 5. Food Inspector, Khadya Avam Aushadhi Prashashan, Chhattisgarh, Through Shri Sangharsh Kumar Mishra, Food Inspector, Khadya Avam Aushadhi Prashashan, § 2 Kalibadi, Raipur, Chhattisgarh 6. Food Inspector, Khadya Avam Aushadhi Prashashan, Chhattisgarh, Through Shri V.K.Jain Food Inspector, Khadya Avam Aushadhi Prashashan, Kalibadi, Raipur Chhattisgarh WRIT PETITION UNDER ARTICLE 226/ 227 OF THE CONSTITUTION OF INDIA ' HIGH COURT OF CHHAITISGARH : BILASPUR WRIT PETITION (CL) NO. 1587 OF 2011 ‘ Akshay Jain Versus State of Chhattisgarh & Others (Writ Pétition under Atticle 226/227 of the Constitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Shri Ashok Verma, AdvoCate for the petitioner. Shri Aja Dwivedi, Dy. Govt. Advocate for the State. y ' I (Passed on this 6 day of May, 201 1) 1. By thi petition, the petitioner seeks'a direction to quash the riminal complaint case No.18/2011 (State v. Jai Bhagwan Agrawal & Others) pending in the Court of Judicial-Magistrate First Class, Sakti and cognizance taken by tl.e trial Court in the said criminal case, which was supported by an application under Section 473 of ' the Code of Criminal Procedure, 1973 (for short "the Cr.P. C. "). The facts, in narrow compass, are that the respondent No.5 filed a complaint against the petitioner on 10-1—2011 after a delay of 5 years from the date of taking samples, before the Court of Judicial Magistrate First Class, Sakti, under Section 473 of the Cr.P.C,, which was taken cognizance by the Judicial Magistrate. 3. According to the learned counsel appearing for the petitioner, the ’ petitioner is the stockiest of Dabur products. On 18-2-2006, the respondent No.6/Food Inspector visited the shop of Jai Bhagwan Agrawal to purchase 'the‘“sample of Dabur Anmol Shudha Nariya/ _Te/ for analysis. 3 packets were purchased and receipt thereof was given to Jai Bhagwan Agrawal. Thereafter, the panchnama was prepared vide Annexure — P/5. Jai Bhagwan Agrawal filed an affidavit before the respondent No.3 on 16-5-2006 stating that he had purchased the said product from Mamta PETITIONER RESPONDENTS ORDERXOIRAL) ‘ s c General Stores, Vyapar Vihar, Bilaspur. Subsequently, the complaint was flled by the respondent No.5, which was taken cognizance by the Court of learned Judicial Magistrate First Class, Sakti, District Janjgir-Champa. Thus, the complaint case as well as the order taking cognizance of the case on the basis of the complaint, may be dismissed on the ground that the same was filed after a period of 5 years. Shri Vema, learned counsel appearing for the petitioner, submits that under Section 468 of the Cr.P.C. there is a bar to take cognizance of an offence punishable for 3 years after a period of 5 years. 5 The issue for consideration before this Court is asto whether the High Court can interfere and quash the criminal proceedings in exercise of its power under Article 226 of the Constitution of India wherein the complaint has been lodged and cognizance has been taken after 5 years from the date of taking of the sample of the goods. lt is for the trial Court to consider the issue of limitation, as it depends on the nature of offence and punishment thereon. The petitioner, without appearing before the trial Court, had straightaway approached this Court, which cannot be entertained at this stage. The trial Court has to consider other factors also except the period of limitation i.e. when the date of incident has been taken and what steps have been taken by the officers on the basis of samples collected from Jai Bhagwan Agrawal. Thus, on a simple ground that there was a delay of 5 years from the date of taking sample is not sufficient to decide the period of limitation having regard to the above stated facts. 8. The Supreme Court in Bharat Damodar Kale and Another v. State of A.P.’, in respect of taking cognizance after the alleged period of limitation, observed as under: 1 (2003) 8 SCC 559 ”1 O.,. ..All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates that the ‘ limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation :prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase “actus curiae neminem gravabit" which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the earlier decision of this Court in the case of Rashmi Kumar.". 9. It is well settled proposition of law that the writ jurisdiction is not available for quashing the criminal investigation/proceedings unless there is error apparent on the face of the record or the proceedings can be termed to be mala fide in nature. Mere lapse of time ought not to be permitted to be meant for intervention of the writ court to quash a proceeding. (See : State of Maharashtra v. Narain Singh Yadav and Anotherz). 10. The Supreme Coutt in State through CBI v. Dr. Narayan Waman Nerukar and’AnotheP. observed as under: ”8‘ As was observed in P. 'Ramachandra Rao case at the most periods of time prescribed in those decisions can be taken by the courts in seisin of theitrial or proceedings to act as reminder when they may be persuaded to appiy their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration severai relevant factors as pointed in A.R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be gelled oppressive and unwarranted. Such time-limits cannot and will not be treated by any court as a bar to further trial 'or proceedings and as mandatorily obliging the court to terminate the same 'and acquit or discharge the accused.” 1 1. There is no error apparent on the face of record and also there is no allegation of mala fide in nature. Thus, on the ground of alleged lapse of time in filing the’complaint and the cognizance being taken thereafter, the High Court should be loath to quash the criminal proceedings. 12. lt is for the trial Court wherein the complaint has been tiled and the cognizance of the same has been taken to apply judicial mind to the facts and circumstances of the case and also to the substance & contents of the complaint and to take decision thereon, in accordance with law. 13. For the reasons mentioned hereinabove, the writ petition is dismissed. However, the petitioner is at liberty to raise the issue before the trial Court where the trial is pending consideration, if so advised. Sd/— Satish K. Agnihotri Judge 2 3 (2009) 16 scc 392 (2002) 7 scc 6