IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Crl.Rev.Pet.No. 685 of 2008 ----------------------------- CMP.4181/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER: ACCUSED ------------------------- VALSAN, S/O.KUNHAPPA, EZHILODE, CHERUTHAZHAM VILLAGE, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: COMPLAINANT ------------------------ THE STATE OF KERALA, (SUB INSPECTOR OF POLICE, PERINGOME POLICE STATION, CRIME NO. 124/2001) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR MR. M.S. BREEZE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/03/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No. 685 of 2008 = = = = = = = = = = = = = = Dated this the19th day of March 2008 ORDER Petitioner, who is the accused in C.C.No.722/2007 on the file of the judicial First Class Magistrate court, Payyannur, challenges the order dated 21-11-2007 passed by the said Magistrate in C.M.P.No.4181/2007 condoning the delay in the interests of justice. 2, The case of the prosecution is that on 26-4-2001 the accused had exhibited obscene scenes by interpolating them into a cinematographic film which was exhibited in the theater belonging to the 4th accused where the revision petitioner/first accused was the projector operator. The offence alleged were those punishable under Section 292(2)(a) of the Indian Penal Code with imprisonment upto 2 years and under Section 7(1)(a)(i) of the Cinematographic Act, 1952 punishable with imprisonment upto three years. By virtue of Section 468 Cr.P.C, the prosecution had CRL.R.P.NO.685/2008 -2- time to file final report till 26-4-2004. The charge sheet in the case was filed on 12-11-2003 which was within the period of limitation. But it was returned on the ground that the charge was not accompanied by documents which were seized as per the search list. After rectifying the omissions, the final report was represented on 2-5-2007 with a petition (C.M.P.4181/2007) to condone the delay. As per the impugned order dated 21-11-2007, the learned Magistrate after hearing both sides condoned the delay. It is the said order which is assailed in this revision. 3. The learned counsel for the revision petitioner made the following submissions before me in support of the revision:- Even though the final report as initially filed on 5-11-2003 was within time, it was defective and the prosecution had taken four years for curing the defect and such an inordinate delay should not have been condoned particularly when the Magistrate was not fully satisfied with the explanation offered for the delay. In Eciyo Coconut Oils Pvt.Ltd. v. State of Kerala, 2002(1)KLT CRL.R.P.NO.685/2008 -3- 172 and Sasidharan Pillai v. State of Kerala, 2006(2)KLT S.N 63 this Court had taken the view that unless the delay has been satisfactorily explained, the court will not be justified in condoning the delay and taking cognizance of the offence. 4. I am afraid that I cannot agree with the above submission. Section 473 Cr.P.C. reads as follows: “Extension of period of limitation in certain cases,- Notwithstanding anything contained in the foregoing provisions of this Chapter, any court may take cognizance of an offence after the expiry of the 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 interests of justice”. Thus under the first part of Section 473 Cr.P.C. the court can condone the delay, if the court is satisfied that the delay has been properly explained. But even in a case where the delay has not been properly explained, the latter part of the provision confers discretion upon the court to condone the delay, if it finds that it is CRL.R.P.NO.685/2008 -4- necessary so to do in the interests of justice. The learned Magistrate has really observed in the impugned order that considering the facts and circumstances of the case including the social evil involved in exhibiting obscene films, it is necessary in the interests of justice to condone the delay. Such being the position, the discretion exercised by the Magistrate cannot be assailed on the ground that the Magistrate was not satisfied that the delay has not been properly explained. In any view of the matter, this court sitting in revision will be loathe to interfere with the discretion properly exercised by the learned Magistrate, I am not inclined to interfere with the order of the learned Magistrate. This Crl.revision petition is accordingly dismissed. V. RAMKUMAR, JUDGE ks.