IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2009 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Criminal Original Petition No.15445 of 2004 and Crl.M.P.No.5468 of 2004 1. A.V.S.Ganeshan 2. A.V.S.Balasubramanian 3. Meenakshi ... Petitioners -Vs.- 1. State, Rep. By the Superintendent of Police, District Crime Branch, Nagapttinam 2. The Inspector of Police, Mayiladuthurai Police Station, Nagapattinam (Crime No.307 of 2000) 3. Sheela Asokan (R-3 has been impleaded vide the order of this Court dated 06.12.2004 in Crl.M.P.No.10323 of 2004) ... Respondents Criminal Original Petition under Section 482 of the Criminal Procedure Code to call for the records relating to C.C.No.494 of 2004 on the file of the Judicial Magistrate No.1, Mayiladuthurai, and to quash the same. For Petitioners :Mr.R.Shanmugha Sundaram, Senior counsel, for, M/s. T.P.Manoharan For Respondents :Mr. N.Kumanan, Govt. Advocate (Crl. Side), for, R-1 & R-2. Mr. A.Natarajan, Senior counsel, for, M/s. C.K.M.Appaji, for R-3. O R D E R The petitioners herein, who are accused in C.C.No.494 of 2004 on the file of the learned Judicial Magistrate No.I, Mayiladuthurai, are facing trial for an alleged offence under Sections 384, 420 read with 34 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts which are necessary for the disposal of the above Criminal Original Petition are set-out below:- The third respondent, who is the defacto complainant, is the wife of one A.V.S.Asokan, who is the brother of petitioners 1 and 2 herein. It appears that the third respondent, Sheela Asokan, started business in the name and style of 'Ambika Jewellers' and 'Ashokan Abarana Maligai and Chit Fund Company' in Mayiladuthurai. She became a sub-tenant of one Chockalingam, who was the principal tenant of the premises of which, one Sabiullah was the owner. The Sub tenancy was recognised by the said Sabiullah. However, thereafter, she sustained heavy loss in the business and hence she sought the help of the brothers-in-law namely, petitioners 1 and 2 herein, as a result of which they had given Rs.30,00,000/- and had acquired 'Ambika Jewellers' and 'Ashokan Abarana Maligai and Chit Fund Company'. But the case of the third respondent is that petitioners 1 and 2 have threatened her and by coercion and extortion obtained her signature in blank papers and thereby grabbed the said Jewellery Shop from her and hence in order to take action against them, she filed a complaint, which was investigated by the Superintendent of Police and it is understood that the matter was closed. Thereafter, protest petition was filed by the third respondent on the basis of which the learned Magistrate gave a direction to the Inspector of Police to enquire into the matter. The Inspector of Police conducted enquiry and submitted final report stating that it is a 'mistake of fact'. The learned Magistrate also recorded as 'mistake of fact' by way of endorsement and this order has been passed on 08.05.2000. Thereafter, since no notice was given to the third respondent, she filed an application before this Court in Crl.O.P.No.3030 of 2000 for transfer of the investigation of the case from the file of the second respondent to the file of the other Police Officer. The said application was heard by His Lordship Mr. Justice S.Akbar Basha Khadiri, as He then was, and found that inasmuch as the referred notice has already been filed and accepted by the Magistrate, directed the petitioner in the said petition, namely, the third respondent to put forth her objection by way of objection petition and pursue the same. By virtue of the said order dated 29.11.2000 she had filed the petition dated 13.12.2000 raising her objection on the basis of which, the learned Magistrate has passed an order directing the Superintendent of Police, Nagapattinam, to investigate the matter and file a final report. Against the said order, the petitioners herein filed Crl.R.C.No.59 of 2001, but the said revision was dismissed by Mr. Justice A.Packiaraj, by an order dated 21.02.2003, but however, directed the investigation in Crime No.307 of 2000 on the file of the second respondent to be transferred to the file of the Superintendent of Police, District Crime Branch, Nagapattinam, who shall depute higher ranking officer to investigate into the matter and proceed in accordance with law. Pursuant to such direction, the Deputy Superintendent of Police, District Crime Records Bureau, Nagapattinam, took up the investigation, filed the charge sheet for the offence under Sections 384, 420 read with 34 IPC and the same has been taken on file as C.C.No.494 of 2004. Being aggrieved by that, the petitioners have filed the above Criminal Original Petition seeking to quash all further proceedings therein. https://hcservices.ecourts.gov.in/hcservices/ 3. Heard the learned counsel on either side. 4. Mr. R.Shanmugha Sundaram, learned senior counsel, for the petitioners submitted that the alleged occurrence had taken place admittedly on 25.02.1995 and in respect of that a complaint was filed sometime in October – November 1999, but the same was referred as mistake of fact and thereafter the third respondent had filed a complaint dated 03.03.2000 before the learned Judicial Magistrate No.I, Mayiladuthurai, which was referred under Section 156 (3) of the Cr.P.C., and a case in Crime No.307 of 2000 was registered for the offence under Section 384 IPC. After completing investigation, a final report was filed on 08.05.2000 referring the case as 'mistake of fact'. But on a protest petition filed by the third respondent, the same was allowed and a direction was issued to the Deputy Superintendent of Police to further investigate the case under Section 173 (8) of the Cr.P.C. After completing investigation, a final report was filed on 27.02.2004 since an offence under Section 384 IPC is barred by limitation, to over come that the offence under Section 420 IPC was included in the charge sheet. Therefore, the learned senior counsel for the petitioners, submitted that the cognizance taken in respect of the offence under Section 384 IPC is barred by limitation. He further submitted that the entire allegations in the complaint as well as in the statement of witnesses examined during the course of investigation do not reveal the ingredients of the offence under Section 420 IPC and as such the learned Magistrate erred in taking cognizance of the offence under Section 420 IPC. He further submitted that the attempt on the part of the third respondent is to unnecessarily harass the petitioners herein knowing that the cognizance is barred by limitation. In support of his contentions, the learned senior counsel for the petitioners, relied upon a decision reported in (2007) 13 Supreme Court Cases 165 (SANAPAREDDY MAHEEDHAR SESHAGIRI v. STATE OF A.P.). In the said decision, it has been laid down as under:- "However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC." Basing reliance on the above decision, the learned senior counsel for the petitioners submitted that the complaint does not disclose the commission of an offence under Section 420 IPC and the prosecution for the offence under Section 384 IPC is barred by limitation and therefore, the above quash petition has to be allowed. 5. Learned senior counsel for the petitioners also relied upon another decision of the Apex Court reported in (2003) 7 Supreme Court Cases 254 (RAMESH CHANDRA SINHA v. STATE OF BIHAR). In this decision, the Apex Court has laid down that taking cognizance of an offence when it is clearly barred by Section 468 of the Cr.P.C., is not permissible. For the proposition that if the complaint amounts to abuse of process of Court, then, it is open to this Court to exercise its power under Section 482 Cr.P.C., and quash all further proceedings, the learned senior counsel based reliance on a decision of the Apex Court reported in (2008) 11 Supreme Court Cases 520 https://hcservices.ecourts.gov.in/hcservices/ 6. Countering the said submissions, Mr. A.Natarajan, learned senior counsel appearing on behalf of the defacto complainant / the third respondent fairly submitted that a reading of the complaint as well as the statement of witnesses recorded during the course of investigation do not reveal the commission of an offence under Section 420 IPC, but the learned senior counsel submitted that even though taking cognizance of an offence under Section 384 IPC is barred as per the provisions contained in Section 468 Cr.P.C., the delay can be condoned by the trial court by exercising its powers under Section 473 Cr.P.C., and the power under Section 473 Cr.P.C., can be exercised by the trial court only during trial. According to the learned senior counsel for the third respondent, the delay need not be condoned before taking cognizance of the offence alleged. He further submitted that petitioners 1 and 2 herein, after obtaining the signature of the third respondent herein in blank stamp papers under coercion, have filed up the blank stamp papers and recorded the pahadi building of 'Ashokan Abarana Maligai and Chit Fund Company' in the name of the third petitioner and thereafter, have transferred the building to one Rajagopal and thereby have committed an offence under Section 468 IPC. Though the charge sheet has not been filed for the offence under Section 468 IPC, the trial court is empowered to frame a charge under Section 468 IPC at the time of framing the charges and therefore, according to the learned senior counsel, the cognizance taken is not barred by limitation. In support of his contentions, the learned senior counsel, based reliance on the following decisions:- (i)AIR 2000 SUPREME COURT 297 (State of H.P. v. Tara Dutt and another). (ii)III (2004) CCR 117 (SC) (HARNAM SINGH v. EVEREST CONSTRUCTION CO. & ORS.) (iii)1958 M.L.J. (Cri) 1231 (THIMMA REDDI v. STATE OF ANDHRA PRADESH) (iv)1985 (1) CRIMES 265 (Shankerlal Bhargava v. State of U.P.) 7. By relying upon the decision of the Allahabad High Court reported in 1985 (1) CRIMES 265 (referred to supra) the learned senior counsel for the third respondent contended that the overriding power under section 473 Cr.P.C., can also be exercised when full facts and circumstances are brought on record during the trial and the court after assessment of those facts and circumstances can conclude as to whether the delay has been properly explained or not or whether it is necessary to condone the delay in the interests of justice or not. 8. I have carefully considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 9. Since admittedly there are no allegations in the complaint as well as in the statement of witnesses examined during the course of investigation revealing the commission of an offence under Section 420 IPC, it has to be held that the cognizance taken by the learned Magistrate in respect of the offence under Section 420 IPC is bad in law and accordingly, the charge sheet filed for the offence under Section 420 IPC is quashed. https://hcservices.ecourts.gov.in/hcservices/ 10. Now it has to be seen as to whether the question of limitation has to be considered by the trial court before taking cognizance of the offence alleged or during the course of trial. 11. In the decisions reported in (2003) 7 Supreme Court Cases 254 (referred to supra) and (2007) 13 Supreme Court Cases 165 (referred to supra) the Apex Court has clearly laid down that if the prosecution is barred by limitation, the same can be quashed by exercising power under Section 482 Cr.P.C. In the decision reported in AIR 2000 SUPREME COURT 297 (referred to supra) it has been laid down that the language of sub-section (3) of Section 468 makes it imperative that the limitation provided for taking cognizance in Section 468 is in respect of the offence charged and not in respect of the offence finally proved and in the same decision it has also been laid down that whenever the Court exercises its discretion under Section 473 Cr.P.C., 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. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence. This decision in the considered view of this Court does not support the contention of the learned senior counsel for the third respondent. 12. Basing reliance on a decision reported in III (2004) CCR 117 (SC) (referred to supra) the learned senior counsel for the third respondent submitted that the question of delay in filing the complaint can be considered only at the stage of trial. I am unable to accept he said contention of the learned senior counsel for the third respondent. In the said decision, in paragraph 5, it is laid down as under:- "5. ... The bar against cognizance after the lapse of the prescribed period of limitation is laid down under Section 468 of Cr.P.C. It is within the parameters of that provision that the Court called upon to take cognizance of the offence should act. Most of the offences alleged against the respondents viz., Sections 420, 467, 471 & 474 IPC are punishable with imprisonment for a term exceeding three years and, therefore, as contended by the learned Counsel for the appellant, the bar of limitation under Section 468 is not attracted. The complaint cannot, therefore, be thrown out at the threshold on the ground of limitation. If, apart from the question of limitation, the effect of delay if any in instituting the complaint is necessary to be determined for considering the merits of the charge, that can only be done at the stage of trial on the basis of the evidence on record. ..." A careful reading of the aforesaid decision does not show that the Apex Court has laid down that the question of limitation can be considered at the stage of trial, but what has been laid down in the said decision is that if, apart from the question of limitation, the effect of delay if any in instituting the complaint is necessary to https://hcservices.ecourts.gov.in/hcservices/ be determined for considering the merits of the charge, that can only be done at the stage of trial on the basis of the evidence on record. What is considered at the stage of trial is the effect of delay in instituting the complaint, but not the question of limitation. 13. In this context it will be useful to refer to a Division Bench decision of this Court reported in 1987 CRI. L.J. 360 (Kathamuthu v. Balammal). In the said decision in paragraph 16 it has been laid down as under:- "16. For all the discussions made above, we hold that S. 468 (1) Cr.P.C. which prohibits every court from taking cognizance of the categories of offences in respect of which the periods of limitation have been prescribed under sub-sec. (2) of that section, after the expiry of such periods of limitation, vests a valuable right in the persons sought to be prosecuted. The main object of such a prohibition is to see that parties do not resort to dilatory tactics and to shut out belated and dormant claims in order to save the accused persons from unnecessary harassment but to seek their remedies within the statutory periods fixed by the legislature. As observed by the Supreme Court in State of Punjab v. Sarwan Singh, AIR 1981 SC 1054 : (1981 Cri LJ 722), this object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution. Therefore, it is of the utmost importance that any prosecution, whether by the State or by a private person, must abide by the letter of law and take the risk of the prosecution failing on the ground of limitation. This valuable right accrued to an accused person cannot be allowed to be taken away except by strictly satisfying the conditions prescribed under S. 473 and that too for proper reasons. Section 473, which is an exception to S. 468, empowers the Court to extend the period of limitation in certain cases, which power has to be exercised having regard to the facts and circumstances of those cases. As the discretion granted under S. 473 is wider, the very width requires a corresponding caution on the part of the court while exercising that power. Of course, it cannot be laid down by any hard and fast rule as to what constitutes sufficient reason to properly explain the delay occasioned or as to what is necessary so to do in the interests of justice. It must be determined with reference to the facts and circumstances of each particular case. In other words, the limitation of Court's jurisdiction must obviously be dictated by the exigency of the situation and fair-play and good sense have to be the only safeguard. This power must be exercised only in suitable cases where the court is satisfied that the delay has been properly explained or it is in the interest of justice, because the court, being the legal custodian and guardian of the rights of the citizens, has a primary obligation to protect them from vindictive or vexatious time-barred prosecutions, and the valuable vested right should not be easily brushed aside or whittled down by indiscriminately exercising this discretionary power. https://hcservices.ecourts.gov.in/hcservices/ When once the court is satisfied that the delay has been properly explained or that it is necessary for the court so to do in the interests of justice, then there cannot be any restriction or limit or fetter in the exercise of such power. Needless to say that the discretion should not be exercised in a capricious or arbitrary manner or for fanciful reasons. This discretionary power vested in the court can be exercised by applying its mind to the facts and circumstances of the case and considering the reasons offered by the complainant in justification of his request for condonation of delay, which reasons can be made either in the complaint or the charge-sheet, as the case may be, or in a separate application filed for the purpose, or the Court itself may suo motu condone the delay on its being satisfied, on the facts and in the circumstances of the case, that it has become necessary so to do in the interests of justice. In any case, the exercise of the power under S. 473, extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking cognizance of the offence. See Prakash Chandra v. Kaushal Kishore, 1980 Cri LJ 578 (All), Roshanlal v. State 1977 Cri LJ NOC 255 (All), Thanga Pillai v. Superintendent Regulated Market of South Arcot Market Committee, Kallakurichi, 1977 Mad LW Cri 19 : (1977 Cri LJ 1375), Manickam v. State 1984 Mad LW Cri 1 and Thambiran Achari v. State 1984 Mad LW Cri 175. While so exercising such discretionary power, the Court it obliged to records its order in writing, giving its reasons therefor. In our opinion, any proceeding culminating in the conviction of a person in a criminal case, the cognizance of which has been taken after the expiry of the period of limitation as prescribed under S. 468 (2) without first resorting to S. 472, is non est in the eye of law. ...." 14. Thus it could be seen that the discretionary power vested in the Court under Section 473 Cr.P.C., could be exercised by applying its mind to the facts and circumstances of the case and considering the reasons offered by the complainant in justification of his request for condonation of delay, which reasons can be made either in the complaint or the charge-sheet, as the case may be, or in a separate application filed for the purpose, or the Court itself may suo motu condone the delay on its being satisfied, on the facts and in the circumstances of the case, that it has become necessary so to do in the interests of justice. In any case, the exercise of the power under Section 473, extending the period of limitation by condoning the delay in launching the prosecution, should precede the taking cognizance of the offence. Therefore, the contention of the learned senior counsel for the third respondent that the question of limitation can be considered at the stage of trial cannot be countenanced. As per the aforesaid decision, the question of limitation has to be considered before taking cognizance of the offence. There is no dispute that the offence under Section 384 IPC is punishable with imprisonment for three years and as such the period of limitation prescribed under Section 468 (2) IPC is three years. Admittedly, the complaint has not been filed within three https://hcservices.ecourts.gov.in/hcservices/ years and therefore the trial court ought not to have taken cognizance of the offence under Section 384 IPC. 15. As laid down in the decision reported in AIR 2000 SUPREME COURT 297 (referred to supra) the language of sub-section (3) of Section 468 makes it imperative that the limitation provided for taking cognizance in Section 468 is in respect of the offence charged and not in respect of the offence finally proved. In this case, admittedly, the charge sheet was filed for the offence under Sections 384 and 420 IPC and not in respect of the offence under Section 468 IPC and therefore the question of limitation has to be considered only in respect of the offence under Sections 384 and 420 IPC. 16. Now that this Court has quashed the charge under Section 420 IPC, the only offence that remains is the offence under Section 384 IPC, which is punishable within the imprisonment for three years and the period of limitation prescribed under Section 468 (2) of the Cr.P.C., is three years and therefore, the taking of cognizance is barred by limitation. Since the offence under Section 468 IPC has not been charge sheeted, it cannot be contended by the learned senior counsel for the third respondent that the prosecution is not barred by limitation as the offence under Section 468 IPC is punishable with an imprisonment for seven years. Therefore, the said contention of the learned senior counsel for the third respondent cannot be countenanced. 17. Basing reliance on a decision reported in 1958 M.L.J. (Cri) 1231 (referred to supra) the learned senior counsel for the third respondent submitted that Section 190 Cr.P.C. does not make it incumbent that the provisions of any law should be quoted by a Magistrate in taking cognizance. The said observation has been made on a different context and further it is not the case of the learned senior counsel that some wrong provision of law has been quoted in this case. Therefore, the said decision is not applicable to the facts of this case. 18. In view of the Division Bench judgment of this court reported in 1987 CRI. L.J. 360 (referred to supra) it has to be held that the law laid down in 1985 (1) CRIMES 265 (referred to supra) is not correct. 19. Learned senior counsel for the third respondent further basing reliance on the Allahabad High Court reported in 1985 (1) CRIMES 265 (referred to supra) submitted that though the offence under Section 468 IPC is not alleged in the charge sheet yet the charge can be framed by the trial court after recording evidence and therefore the prosecution would not be barred by limitation. As stated above and as laid down by the Apex Court, the question of limitation has to be considered only in respect of the offence for which the charge sheet is filed and not in respect of the offence to be proved in the