IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Crl.MC.No. 4021 of 2009() ------------------------- AGAINST THE ORDER IN CRMP 339/2009 IN ST.12/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT, AMENI. .................... (CRIME NO.10/2006 OF AMENI POLICE STATION) PETITIONER(S): ----------------------- AJAY KUMAR SINGH,S/O.JAYA PRASAD SINGH, AGED 28,IRBN CONSTABLE,HATHADI VILLAGE.P.O, HATHADI BAZAAR,VARANASI DISTRICT,UTTAR PRADESH. BY ADVS. MR.JINU JOSEPH, MR.SHIJU VARGHESE (WAYANAD). RESPONDENT(S): --------------------------- 1. UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE,(STATION HOUSE OFFICER),AMINI POLICE STATION, AMINI,UNION TERRITORY OF LAKSHADWEEP. BY ADV. MR.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4021 OF 2009 ------------------------------------------ Dated 5th January 2010 O R D E R Accused in S.T.12/2008 on the file of Judicial First Class Magistrate, Ameni filed this petition under Section 482 of Code of Criminal Procedure to quash the cognizance taken for the offences under Section 3(a) of Lakshadweep Prohibition Regulation, 1979. Prosecution case is that petitioner was found in possession of five bottles of Indian Made Foreign Liquor on 26/12/2006 at about 5.35 p.m. Final report after completing the investigation was submitted before the court on 20/2/2008. Cognizance was taken by the learned Magistrate on 26/3/2008. Case of the petitioner is that when punishment provided Crmc 4021/09 2 for an offence under Section 3(a) of Lakshadweep Prohibition Regulation, 1979 is one year, as provided under clause (b) of Sub Section 2 of Section 468 of Code of Criminal Procedure, no court shall take cognizance of an offence after a period of one year from the date of commission of the offence and as the offence is punishable with imprisonment for a term not exceeding one year and as the offence was allegedly committed on 26/12/2006, learned Magistrate could not have taken cognizance of the offence on 26/3/2008 when the final report was submitted and therefore, cognizance taken is to be quashed. Petitioner had earlier filed Crl.M.P.339/2009 before the learned Magistrate raising the contentions that cognizance taken is barred by time. But by Annexure-A3 order it was dismissed for the reason that the offence Crmc 4021/09 3 is one which affects the entire society and therefore, it is not in the interest of justice to drop the proceedings. 2. Learned counsel appearing for the petitioner and learned Special Prosecutor appearing for Lakshadweep Administration were heard. 3. Learned counsel appearing for the petitioner relied on the decisions of this court in Eciyo Coconut Oils Pvt. Ltd. v. State of Kerala (2002 (1) KLT 172), Valsan v. State of Kerala (2003 (2) KLT 1050) and that of the Apex court in State of Punjab v. Sarwan Singh (1981 (3) SCC 34) and argued that as the cognizance was taken beyond the period of limitation, and without a speaking order as provided under Section 473 of Code of Criminal Procedure, proceedings is to be quashed. Crmc 4021/09 4 Learned Special Prosecutor submitted that even if, learned Magistrate has not given reasons for condoning the delay in taking cognizance invoking powers under Section 473 of Code of Criminal Procedure, learned Magistrate may be directed to re-consider the question and pass appropriate decisions. 4. It cannot be disputed that when offence was allegedly committed on 26/12/2006 on 26/3/2008 when the cognizance was taken by the learned Magistrate in view of clause (b) of Sub Section 2 of Section 468, cognizance should not have been taken. True, Section 473 of Code of Criminal Procedure empowers the Magistrate to take cognizance of an offence even after the expiry of period of limitation, if he satisfies on the facts and circumstances of the case that the delay has been properly explained and Crmc 4021/09 5 that it is necessary so, to do in the interest of justice. 5. As declared by the Apex court in State of Himachal Pradesh v. Tara Dutt and another (AIR 2000 SC 297) in respect of an offence for which, a period of limitation has been provided under Section 468, power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of delay is available, if the court taking cognizance finds that it would be in the interest of justice to take cognizance. But court has to exercise the discretion judicially and on well recognised principles. Wherever the court exercises the discretion conferred under Section 473, the same must be by a speaking order indicating the satisfaction of the court that the delay was Crmc 4021/09 6 satisfactorily explained and condonation of the same was in the interest of justice. 6. In the instant case, there is no explanation for the delay in the final report, much less a proper and sufficient explanation. was explained in the final report. In the absence of any explanation for the delay, learned Magistrate could not have taken cognizance of the offence beyond the period of limitation unless, it is found that in spite of the failure to offer an explanation for the delay, in the interest of justice condonation of delay is warranted. Considering the nature of the offence, I do not find that at this belated stage, the learned Magistrate is to be directed to reconsider the question especially when the final report does not explain the delay. When cognizance was taken beyond the Crmc 4021/09 7 period of limitation and final report does not disclose any reason for the delay the cognizance taken can only be quashed. Petition is allowed. S.T.12/2008 on the file of Judicial First Class Magistrate, Ameni is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.