IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 OP(Crl.).No. 1332 of 2011(Q) ---------------------------- CC.7/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT,RANNI CRIME NO.144/CR/KTM/07 OF CBCID, THIRUVANANTHAPURAM .................... PETITIONER: ------------------------------- JAYAMALA, AGED 52 YEARS, W/O.H.M.RAMACHANDRA, RESIDING AT NO.496, 6TH MAIN, DOLLARS COLONY, RMV II STAGE, BANGALORE-560 094. BY ADV. SRI.ANIL XAVIER SRI.M.SHAHEED AHMAD SRI.M.RISHIKESH SHENOY SMT.K.INDU (POURNAMI) SRI.GEORGE POTHAN POOTHICOTE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031. 2. SUPERINTENDENT OF POLICE, CRIME BRANCH CID, EOW-II, KOTTAYAM DISTRICT, KERALA-672131. BY ADDL.GOVT. PLEADER SHRI P.N.SUKUMARAN THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ------------------------------ O.P(Crl.) No.1332 of 2011 ------------------------------- Dated this the 12th day of April, 2011 J U D G M E N T This case was disposed of by dictating my judgment in open court on 07.04.2011. Before the judgment was signed, learned Public Prosecutor made a request for further hearing. Accordingly the matter was posted to be spoken to. I have heard learned Public Prosecutor and learned counsel for petitioner further. Since I propose to dispose of the case afresh, the judgment disposing of the case on 07.04.2011 is recalled. 2. Petitioner is the third accused in Crime No.144/CR/KTM/07 of the CBCID, Thiruvananthapuram for offence punishable under Sections 295A and 120B of the Indian Penal Code (for short, "the IPC”). That case was registered against accused 1 and 2 and one V.S Rajagopalan Nair @ Rajan on 14.06.2007 for offences punishable under O.P(Crl.)No.1332 of 2011 2 Secs.295 and 120B of the IPC. In the course of investigation the CBCID submitted Ext.P2, report dated 04.09.2010 deleting the said V.S. Rajagopalan Nair from the array of accused in the FIR and impleaded petitioner as accused No.3. That was followed by Ext.P4, final report dated 13.12.2010 against petitioner (accused No.3) and accused 1 and 2 alleging commission of offences punishable under Secs.295A and 120B of the IPC. Petitioner challenges the final report and cognizance taken against her for the said offences on various grounds including that the final report is submitted beyond the period of limitation prescribed under Sec.468 of the Code of Criminal Procedure (for short, "the Code”). Learned counsel for petitioner contends that the final report having been filed after three years of the date of offence is clearly time barred and based on that final report learned Magistrate could not have taken cognizance of the offence punishable under Secs.295A sand 120B of the IPC against petitioner. O.P(Crl.)No.1332 of 2011 3 3. So far as issue regarding limitation is concerned, it is submitted by learned Public Prosecutor that Ext.P4, final report was filed on 13.12.2010, it is for offences punishable under Secs.295A and 120B of the IPC while Ext.P1, FIR was for offences punishable under Secs.295 and 120B of the IPC. It is also contended by the learned Public Prosecutor that involvement of petitioner was revealed only in the course of investigation following which Ext.P2, report dated 04.09.2010 was filed. This Court in the various proceedings granted time to the CBCID to complete investigation and submit the final report. Further contention is that sanction of the Government was required to prosecute petitioner and other accused for offence under Sec.295A of the IPC and that sanction was granted by the Government only as per Ext.P3, order dated 04.01.2011. The said period is to be excluded in computing the period of limitation. In the circumstances, it is contended that no question of limitation is involved. 4. Section 468 of the Code prescribes period of O.P(Crl.)No.1332 of 2011 4 limitation for certain offences mentioned therein. Offence under Sec.295A of the IPC is punishable with imprisonment up to three years (while offence under Sec.295 of the IPC is punishable with imprisonment up to two years). Since conspiracy is alleged in the commission of offence under Sec.295A of the IPC, punishment for offence under Sec.120B must be the same as the main offence i.e, Sec.295A of the IPC. Hence punishment that could be awarded for offence under Sec.120B is imprisonment up to three years. 5. Section 468(2)(c) of the Code prescribes period of limitation for taking cognizance of an offence punishable with imprisonment exceeding one year but not exceeding three years as three years. Offence under Secs.295A and 120B being punishable with imprisonment only up to three years, (and as such, does not exceed three years) period of limitation for filing the complaint/final report for the said offence must be three years. It is by now settled that the period of limitation prescribed under Sec.468 of the Code is O.P(Crl.)No.1332 of 2011 5 not for taking cognizance but for initiating the proceedings which are condition precedent for taking cognizance. Section 469 of the Code prescribes the time from which period of limitation is to commence. Sub-sec.(1) states, “the period of limitation, in relation to an offence shall commence: (i) on the date of offence; or (ii) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (iii) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier”. O.P(Crl.)No.1332 of 2011 6 6. Question for consideration is whether learned Magistrate is justified in taking cognizance, as contended by learned counsel for petitioner beyond the period of limitation (if any). Section 190 of the Code deals with conditions requisite for initiation of proceedings. Under sub-sec(1), the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon 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 been committed. 7. In the present case it is based on a police report (Ext.P4) that learned Magistrate has proceeded to take cognizance of offences under Secs.295A and 120B of the IPC. That report is obviously one under Sec.173(2) of the Code. Hence for computing the period of limitation, what is relevant is not the date of registration of the case but submission of Ext.P4, final report. Therefore the date of submission of Ext.P4, final report has to be taken into O.P(Crl.)No.1332 of 2011 7 account as the relevant day for reckoning the period of limitation. 8. It is not disputed that Ext.P1, FIR was registered by the CBCID on 14.06.2007 though, initially against accused 1 and 2 and another (who was deleted from the array of accused as per Ext.P2, report dated 04.09.2010) for offences punishable under Secs.295 and 120B of the IPC. From Ext.P1, FIR it is seen that ‘Devaprashnam’ was conducted at Sabarimala Temple from 16.06.2006 to 19.06.2006 in which it was (allegedly) revealed that petitioner, who as per custom prevailing in that Temple is prohibited from entering the sanctum-sanctorium, violated the said custom by entering the said place and touching the idol of Lord Ayyappa and defiled the Temple and thereby committed offence punishable under Sec.295 of the IPC. It was (allegedly) disclosed in the Devaprashnam that accused 1 and 2 in the FIR and the final report had, for making fame for themselves contacted petitioner and got a message sent O.P(Crl.)No.1332 of 2011 8 by her by fax that she had done as above stated and that she is prepared to make penance for that. The said conduct of accused 1 and 2 (and the third accused in the FIR) according to the then President of the Travancore Devaswom Board (for short, "the Board”) which controls administration and management of the Temple was intended to defile the Temple and thereby injure the feelings of worshipers of Lord Ayyappa. It was also alleged that for the said purpose, accused 1 to 3 in the FIR entered into a criminal conspiracy and committed offences under Secs.295 and 120B of the IPC. The President of the Board gave a complaint to the Minister for the Devaswom, Government of Kerala on 11.07.2006. Some action was taken at the level of the Minister and ultimately the Government directed CBCID to register a case in the matter. It is accordingly that the CBCID registered case against accused 1 to 3 in the FIR on 14.07.2000 for offences punishable under Secs.295 and 120B of the IPC. O.P(Crl.)No.1332 of 2011 9 9. Learned counsel for petitioner contends that whether it is offence under 295 or 295A of the IPC as the case may be, the alleged incident was known to the aggrieved party, (the de facto complainant) when the Devaprashnam was conducted from 16.06.2006 to 19.06.2006 and at any rate on 11.07.2006 when he preferred the complaint to the Minister for Devaswom and hence the period of limitation must commence from the date of knowledge of the offence (under Sec.469(1)(a) of the Code), i.e., the dates of Devaprashnam (16.06.2006 to 19.06.2006) and at any rate from 11.07.2006 in which case Ext.P2, report dated 04.09.2010 submitted by the CBCID to implead petitioner as third accused itself is submitted beyond the prescribed period (three years), not to say about Ext.P4, final report submitted on 13.12.2010. Learned counsel contends that even if commencement of period of limitation is taken as the date on which the CBCID registered the case (i.e, on 14.06.2007), Ext.P2 and Ext.P4, final O.P(Crl.)No.1332 of 2011 10 reports are beyond the period of three years and hence learned Magistrate was not correct in taking cognizance of the offences against petitioner or accused 1 and 2 as well. Hence it is prayed that the order taking cognizance may be quashed. 10. Learned Public Prosecutor has invited my attention to the steps taken in the course of investigation which according to the learned Public Prosecutor delayed submission of Exts.P2 and P4, reports. Learned Public Prosecutor submitted that it was on 12.06.2007 that the Government vide letters dated 19.01.2007 and 12.06.2007 directed registration of the case and conduct investigation. It is pointed out that on 20.06.2007 the application for anticipatory bail preferred by the first accused was rejected by the learned Sessions Judge, Pathanamthitta. On 16.6.2009 this Court granted anticipatory bail to the first accused. On 22.07.2009 the third accused in the FIR was arrested and Sec.109 of the IPC was incorporated in the FIR. O.P(Crl.)No.1332 of 2011 11 On 05.08.2009 this Court granted anticipatory bail to the second accused. On 06.08.2009 the first accused filed Crl. M.C. No.2595 of 2009 to quash Ext.P1, FIR. That Crl. M.C was disposed of by this Court on 26.05.2010 directing submission of final report under Sec.173(2) of the Code within three months. On 28.07.2009 a report was submitted in the trial court to delete Secs.295 and 109 of the IPC. On 16.08.2010 the Investigating Officer submitted application for extension of time and this Court granted two months' further time as per order dated 02.09.2010 to complete investigation and submit final report. Again, there was a request to extent the time for submission of final report made on 20.09.2010. On 04.11.2010 this Court granted extension of time by another two months as a last chance. On 11.11.2010 the Investigating Officer submitted a letter requesting sanction to prosecute petitioner and accused 1 and 2 for offence under Sec.295A of the IPC. The final report was submitted on 13.12.2010 and on 14.12.2010 the O.P(Crl.)No.1332 of 2011 12 same was received by the learned Magistrate. On 05.01.2011 the Investigating Officer received sanction to prosecute petitioner and accused 1 and 2 as required under Sec.196(1) of the Code. 11. I have gone through Ext.P4, final report and find that learned Magistrate without adverting to the question whether the final report is submitted within the period of limitation has taken cognizance of offences under Secs.295A and 120B of the IPC. May be, question of limitation was not pointed out but, that did not absolve responsibility of learned Magistrate to decide, while taking cognizance whether the final report was submitted within the period of limitation prescribed under Sec.468(1)(c) of the Code. It is true that this Court granted time for submission of final report but, that by itself did not take away the period of limitation prescribed under Sec.468(1)(c) of the Code. For, like Sec.148 of the Code of Civil Procedure, there is no provision in the Code which permits the Court to extent the O.P(Crl.)No.1332 of 2011 13 time fixed by the Code for filing the complaint/final report. The period of limitation is governed by Sec.468 and commencement of that period is governed by Sec.469 of the Code. May be, on the facts and circumstances of a given case it is within the power of the Court taking cognizance to do so even after expiry of period of limitation if it is satisfied on the facts and circumstances of the case that delay has been properly explained or, that it is necessary to do so in the interest of justice as seen from Sec.473 of the Code. It is also within the power of the Magistrate to exclude certain period in computing the period of limitation under Sec.470 of the Code. 12. In the present case prosecution has a contention that sanction was applied for and it took time to get sanction. But, if the application for sanction was preferred beyond the period of limitation, question of excluding the time taken for obtaining sanction does not arise. Therefore it is for the learned Magistrate to decide whether the final report was O.P(Crl.)No.1332 of 2011 14 submitted within the period of limitation prescribed under Secs.468(1)(c) and 469 of the Code and if so, any exclusion of time as provided under Sec.470 or, whether cognizance has to be taken notwithstanding expiry of the period of limitation as provided under Sec.473 of the Code. 13. Since that issue involves questions of fact as well and since I found that the learned Magistrate has not applied mind to that question and entered a decision, I do not consider it proper or justifiable for this Court exercising supervisory jurisdiction under Sec.482 of the Code to enter a decision on questions of fact for the first time. That question has to be decided by the learned Magistrate. 14. So far as Sec.473 of the Code is concerned, it has to be borne in mind that it is within the power of the Magistrate if he is satisfied on the facts and in the circumstances of the case that delay has been properly explained or, it is necessary so to do in the interest of justice, to take cognizance of the offences notwithstanding that the O.P(Crl.)No.1332 of 2011 15 final report was submitted beyond the period of limitation. Decisions on the point say that for the exercise of that power, it does not require an application form the Investigating Officer and that it is within the power of the Magistrate to look into the materials on record and be satisfied whether in the interest of justice cognizance has to be taken notwithstanding that the final report is submitted beyond the period of limitation. Though the Code does not say so, if the learned Magistrate finds that the final report is submitted beyond the prescribed period, it is appropriate that before passing order under Sec.470 and/or Sec.473 o the Code, notice is given to the accused as well. 15. I stated that learned Magistrate has not applied his mind whether Exct.P4, final report is submitted beyond the period of limitation, not to say whether there should be any exclusion of time under Sec.470 of the Code or, notwithstanding that the final report has been submitted beyond a prescribed time, cognizance of the offences is to be O.P(Crl.)No.1332 of 2011 16 taken as provided under Sec.473 of the Code. In that view of the matter, cognizance taken of offences alleged against petitioner cannot stand and is liable to be quashed. 16. It is true that accused 1 and 2 in the final report have not approached this Court with a similar prayer. But, there is no reason why the benefit of this order should not be given to accused 1 and 2 as well. Hence cognizance of offences taken against accused 1 and 2 in the final report also is liable to be quashed and I do so subject of course to the observations I have made above. 17. Petitioner has raised certain other contentions also in this proceeding in support of her prayer to quash the final report against her. I am not adverting to those contentions in this proceeding in the light of the finding I have made above as to the cognizance taken by the learned Magistrate. This judgment is passed without prejudice to the right of petitioner to take up those contentions before the appropriate forum at the appropriate stage. O.P(Crl.)No.1332 of 2011 17 Resultantly this original petition is allowed in the following lines: (i) Cognizance taken by the learned Judicial First Class Magistrate-I, Ranni for offences against petitioner and accused 1 and 2 in Crime No.144/CR/KTM/07 of the CBCID based on Ext.P4, final report is quashed. (ii) Learned Magistrate is directed to decide whether Ext.P4, final report is submitted within the period of limitation having regard to Secs.468(1)(c) and 469 of the Code in the light of the facts and circumstances of the case. (iii) Learned Magistrate shall go into the question, consider the materials on record and pass a reasoned order in case learned Magistrate is of the view that final report is submitted within the period of limitation. (iv) In case learned Magistrate finds that final report is not submitted within the period of limitation and the learned Magistrate is of the view that having regard to the facts and circumstances of the case application of Secs.470 O.P(Crl.)No.1332 of 2011 18 and/or 473 of the Code is to be considered, learned Magistrate shall give notice to all the accused and hear them also before passing any order under the said provisions. (v) I make it clear that in case learned Magistrate is of the view that the final report is submitted beyond the prescribed period of limitation, it is open to the Investigating Officer to submit appropriate application, be it under Sec.470 and/or Sec.473 of the Code copy of which shall be given to the accused as well. (vi) It is made clear that this judgment is without prejudice to the right of petitioner to agitate other contentions raised in this original petition before the appropriate forum at the appropriate stage. THOMAS P JOSEPH (JUDGE) Sbna/