CR.A/668/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 668 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT - Appellant(s) Versus MANGALABEN MUKUNDRAI SINDHAV & 1 - Opponent(s) ====================================== Appearance : MR M.R.MENGDE, A.P.P. for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 2. MR BD KARIA for Opponent(s) : 1 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 19/02/2008 ORAL JUDGMENT By virtue of the impugned order passed by learned Chief Judicial Magistrate ('ld.Magistrate', for short) Panchmahal at Godhra on CR.A/668/1999 2/8 JUDGMENT 21.11.1998 below the application at Exhibit-5 in Criminal Case No.539 of 1989, the ld.Magistrate dismissed the complaint of the complainant, which order has given rise to this appeal under Section 378 of the Code of Criminal Procedure, 1973 ('Code', for short). By impugned order, the ld.Magistrate held that the said criminal complaint filed by the original complainant against the present respondent-accused persons was time- barred and the complaint was dismissed. 2. The original complainant Mr.K.V. Pandya who was serving as P.C.R. Inspector under the Weight & Measurement Act, 1985 ('Act', for short), had visited the shop of the accused on 22.2.1996. The complainant upon inspection of a packet, the same was found closed, and no selling price was mentioned, no name etc. of the manufacturer, and description of the content of the packet was shown on the packet. The complainant seized one packet in presence of Panch. Necessary sanction was obtained by the complainant for launching the criminal prosecution against the accused persons. Thereafter, the complainant lodged the private complaint against the respondent-accused persons in the Court of ld.Magistrate for the offence punishable under Section 33 and 28 of the Standard of Weight & Measurement (Enforcement) Act, 1985, read with P.C. Rules 6(1), and the said offence was punishable under Section 52 and 48 of the Act, and the punishment prescribed was fine to the extent of Rs.5,000/- and to the extent of Rs.1,000/-, and for the breach of Rule 39 of the P.C. Rules, fine to the extent of Rs.2,000/-. After receipt of the complaint, ld.Magistrate issued summons to both the accused persons. The accused through their ld.Advocate filed an application at Exhibit-5 inter-alia stating that the offence alleged against them were punishable only with fine. That as per the compliant, complainant Mr.K.V. Pandya inspected the shop of the accused and seized the packet on 22.02.1996. Despite this, the complaint was filed on CR.A/668/1999 3/8 JUDGMENT 17.4.1998. That as provided under Sub-Section 2 of Section 468 of the Code, the period of limitation prescribed for filing said complaint from the date of commission of offence is 6 months. Whereas in the present case, after the date of commission of the so-called offence, the complaint was filed after about 2 years and 2 months i.e. on 17.4.1998. That thus the complaint was time-barred and requested to dismiss the same. The ld.Magistrate, considering the complaint and the relevant papers, and the provisions of law, and after hearing both the sides, by virtue of the order dated 21.11.1998, held that the complaint was outright time- barred, and there was no just and sufficient ground even for condonation of delay, and ultimately he was pleased to dismiss the complaint. 3. Learned A.P.P. Mr.Mengde for the appellant-State submitted that the impugned order passed by the ld.Magistrate is contrary to law and facts on record. That it is true that the offence alleged against the respondent-accused is punishable with fine only, and therefore, it is true that as per Sub-section-(2) of Section 468 of the Code, the period of limitation is 6 months from the date of offence for the purpose of filing criminal complaint and for the Court to take cognizance thereof. However, before filing complaint for any offence under the provisions of the Act, the complainant was required to obtain sanction of competent authority, and the period which was undergone for the purpose of obtaining sanction was required to be excluded as provided under Sub- section-(3) of Section 470 of the Code. That even otherwise, considering the nature of the complaint and the offence committed by the accused, this was a fit case for the ld.Magistrate to exercise his discretion as contemplated under Section 473 of the Code, and should not have dismissed the complaint on such technical ground of limitation. Therefore, it is submitted that the appeal be allowed and the impugned order passed by the ld.Magistrate be set-aside, and the criminal case be CR.A/668/1999 4/8 JUDGMENT remanded to the concerned Court with direction to proceed further with the case in accordance with law. 4. As against this, learned counsel Mr.B.D. Karia for the respondent-accused fully supported the impugned order passed by the ld.Magistrate. It is submitted that as per the complaint, the alleged offence took place on 22.2.1996, the day on which the original complainant Mr.Pandya visited the shop of the accused. Thereafter, the complainant instituted the private complaint against the accused in the Court of ld.Magistrate on 17.4.1998 i.e. approximately after 2 years and 2 months. That in the complaint, nowhere the complainant stated as to when he sent report to the competent authority for the purpose of obtaining sanction, and when he received such sanction from the competent Officer. That in the impugned order, the ld.Magistrate took into consideration the provisions contained in Sub-section-(3) of Section 470 of the Code and observed that even in the so-called sanction, no date of issuing sanction is mentioned. On the contrary, it transpires that the matter was referred to the competent authority for the purpose of according sanction on 22.2.1996 i.e. the day on which the complainant visited the shop of the accused and the so-called offence took place. Thus, the ld.Magistrate rightly observed that the complaint was outright time-barred. Therefore, it is submitted that the appeal be dismissed. 5. A very short issue is involved in this matter. As per the complaint lodged in writing in the Court of ld.Magistrate by the complainant Mr.K.V. Pandya, it is stated that in his official capacity, he visited the shop of the accused on 22.2.1996, and during his visit, he found certain irregularities amounting to offence under this Act. In the complaint, it is stated that thereafter after he received the sanction for launching the prosecution against the accused, the complaint was filed. CR.A/668/1999 5/8 JUDGMENT The date of filing complaint is 17.4.1998. There is also no dispute that the offence alleged in the complaint against the accused is punishable with fine only, as in paragraph – 9 of the complaint itself, this is clearly stated. Section 468 of the Code pertains to bar to take cognizance after the lapse of the period of limitation. As per Sub-clause-(a) of Sub-section –(2) of Section 468 of the Code, it is clearly stated that the period of limitation shall be 6 months, if the offence is punishable with fine only. As per Sub-clause-(a) of Sub-section-(1) of Section 469 of the Code, it is provided that the period of limitation in relation to an offence shall commence on the date of the offence. In the instant case, the date is 22.2.1996. Therefore, the complaint should have been filed within 6 months from the date 22.2.1996. However, as provided in Sub-section- (3) of Section 470 of the Code, it is stated as under:- “470. Exclusion of time in certain case - (1)..... (2)..... (3)Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation – In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.” 6. Thus, the time consumed by the complainant for obtaining valid sanction from the competent authority shall have to be excluded while computing the period of limitation. In this connection, considering the impugned order passed by the ld.Magistrate, together with the complaint, it is crystal clear that in the complaint, nowhere the CR.A/668/1999 6/8 JUDGMENT complainant stated as to on which date he sent report to the competent authority for obtaining the sanction, and on which date the sanction was given, and on which date he received the original sanction order. The original complainant had filed a detailed objection in writing at Exhibit-6 before the Trial Court, wherein about the sanction, it is stated that the same was received by him on 17.11.1997. It is in paragraph – 5 of the reply, Exhibit-6, that the offence took place on 22.2.1996, and the sanction was received on 17.11.1997, and therefore, the complaint filed on 17.4.1998 i.e. within 6 months from the date of receipt of sanction i.e. within 6 months from 17.11.1997, is within the prescribed period of limitation as per Section 468 of the Code. However, first of all in the reply at Exhibit-6, it is nowhere stated that on which date the complainant applied to the competent authority for the purpose of obtaining sanction. Furthermore, as stated above, as per Sub-section-(3) of Section 470 of the Code, the period which can be excluded would be period between the date on which the application was made for obtaining the sanction and the date of receipt of the sanction, such period only can be excluded. Now as stated in paragraph – 5 and the reply at Exhibit-6, the complainant tried to say that as sanction was received on 17.11.1997, therefore, the period commencing from the date of offence itself dated 22.2.1996, till the date of receipt of sanction i.e. 17.11.1997, should be excluded. His request is contrary to what is provided in the statute. Therefore, it was incumbent on the part of the prosecution to state exactly the date on which the complainant applied for obtaining the sanction. Nothing whatsoever was done in this case by the complainant. 7. In the aforesaid background, if the impugned order passed by the ld.Magistrate is considered, it clearly transpires that the ld.Magistrate took into consideration in paragraph 4 of the order the CR.A/668/1999 7/8 JUDGMENT above aspects of the matter. He even considered relevant papers produced by the complainant before him, and observed that the papers disclose that the sanction was asked for, but on which date the sanction was accorded was nowhere mentioned. The ld.Magistrate therefore observed that no primafacie evidence was produced to show as to on which date the complainant applied for the sanction and on which date it was actually accorded, and on which date the complainant received the original sanction letter. Likewise, in the impugned order, the ld.Magistrate observed that the complainant had sent a letter dated 22.7.1996 to the accused, wherein the accused were permitted to plead guilty or to compound the offence as stated by the complainant in paragraph 3 of the reply at Exhibit-6 before the Trial Court. But, the ld.Magistrate observed that even in the said letter it was specifically stated that if within 10 days, no reply would be received from the accused, then it would be presumed that they do not want to either plead guilty or to compound the matter and the complainant shall be constrained to file complaint before the Court of law. It is further observed that thereafter the accused in writing stated before the complainant that they do not want to plead guilty. Therefore, the say of the complainant that the complainant waited for the reply of accused cannot be accepted. 8. It is stated that as provided in Section 473 of the Code, the Court may take cognizance of an offence after the expiry of the prescribed period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. In the instance case, vide reply at Exhibit-6, the complainant tried to justify the time consumed for obtaining sanction, and further alleged that the time was also consumed because the accused did not reply as to whether they CR.A/668/1999 8/8 JUDGMENT wanted to compound the matter or to plead guilty or not. As stated above, in connection with both the above grounds, no satisfactory explanation is forthcoming; about the time consumed for obtaining sanction, no primafacie material is produced. In the impugned order, ld.Magistrate clearly observed that even the accused replied in writing that the accused did not want to compound the matter or to plead guilty. Even in the notice issued by the complainant to the accused dated 22.7.1996, it was stated that within 10 days, if no reply is received, then the complainant shall be constrained to file criminal complaint before the Court of law. Therefore, in the so-called explanation furnished by the complainant, there was no force. 9. In light of the above discussions, it can safely be said that in the impugned order, the ld.Magistrate assigned cogent and convincing reasons while coming to the conclusion that the complaint was outright time-barred. 10. In the result the appeal deserves to be dismissed, and the same is dismissed. (J.C. Upadhyaya, J.) binoy