IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.MC.No. 3299 of 2009() ------------------------------------ CC.527/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KOTTARAKKARA. CRIME NO.962/2000 OF KOTTARAKKARA POLICE STATION. .................... PETITIONER/ IST ACCUSED --------------------------------------- SOMAN, S/O.GOPALAN, ROHINIYIL, PALLICKAL MURI, MYLOM VILLAGE, KOTTARAKKARA,KOLLAM DISTRICT. BY ADV. MR.C.RAJENDRAN RESPONDENT(S): ------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO. 3299 OF 2009 ------------------------------------------ Dated 4th December 2009 O R D E R Petitioner is the accused in C.C.527/2007 on the file of Judicial First Class Magistrate-I, Kottarakara, taken cognizance for offences under Sections 56(b) and 15(c) of Abkari Act. Petition is filed under Section 482 of Code of Criminal Procedure contending that offence was allegedly committed on 7/12/2000 and though FIR was registered on 7/12/2000 itself, final report was filed only on 12/5/2007, and when learned Magistrate could not have taken cognizance of the offence in 2007 when under Section 468 of Code of Criminal Procedure, the court is barred from taking cognizance of the offence after the period of limitation prescribed therein. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel pointed out that under Section 468 of Code of Criminal Procedure, in any case Crmc 3299/09 2 final report should have been filed within a period of three years from 17/12/2000 and in any event in 2007 cognizance could not have been taken when the final report does not contain any averment to condone the delay, so as to attract Section 473 of the Code and therefore, the cognizance taken is to be quashed. Leaned counsel relying on the decision of the Apex court in Arun Vyas and another v. Anita Vyas (1999 (4) SCC 690) argued that power under Section 473, even if exercised could have been exercised only in the interest of justice and interest of justice is not that of the prosecution alone, but that of the accused also. 4. Learned Public Prosecutor pointed out that though Section 468 of the Code provides for limitation for taking cognizance in respect of offences punishable with imprisonment upto a term not exceeding three years, Section 473 of the Code enables the Magistrate notwithstanding anything contained in Section 468, to take cognizance of offences after condoning the delay, in the interest of justice and hence the cognizance taken cannot be quashed. Learned Public Prosecutor also argued that even if the learned Magistrate has not recorded reasons for taking Crmc 3299/09 3 cognizance, in spite of the provisions of Section 468 of the Code, cognizance taken can be quashed and the learned Magistrate could be directed to re-consider the same in the light of the provisions of Section 473 of the Code. 4. Offences alleged against the petitioner are under Section 56(b) and 15(c) of Abkari Act. Section 56(b) provides for a punishment of imprisonment for a term which may extent to six months or with fine which may extent to two thousand rupees or with both. Though Section 15(c) of the Act does not provide for separate punishment, Under Section 63, whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or rule which are not otherwise provided for, Act shall, on conviction before a Magistrate, be punished for each such wilful act or omission with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both. Therefore, while the maximum sentence provided under Section 56(b) is imprisonment for six months punishment for the offence under 15(c) which is punishable under Section 63 is imprisonment upto two years. 5. Section 468 of Code of Criminal Procedure Crmc 3299/09 4 provides the bar for taking cognizance, after lapse of period of limitation. Under Sub Section (1) except as otherwise provided elsewhere in the Code, no court shall take such offence of the category provided under Sub Section (2) after the expiry of period of limitation. Sub Section 2 provides the period of limitation. Under clause (a) if the offence is punishable with fine only the period is six months. Under clause (b), if the offence is punishable with imprisonment for not exceeding one year, the period is one year. Under clause (c) punishment for a period exceeding one year but not exceeding three years, the period is three years. When the maximum punishment provided for the offence under Section 56(b) is only six months, under clause (b) of Sub Section (2)of Section 468, period of limitation for taking cognizance of an offence under Section 56(b) is one year. As the maximum punishment for an offence under Section 15(c) could be imprisonment upto a maximum of two years, the period of limitation under clause (c) of Section 468(2) is three years. Both offences were allegedly committed on 17/12/2000. Therefore, the period of limitation is three years from that day. Annexure-A3 final report is Crmc 3299/09 5 seen filed before the Magistrate only on 7/2/2007, though cognizance taken only on 12/5/2007. It cannot be disputed that cognizance was taken beyond the period of limitation prescribed under Section 468(2) of Code of Criminal Procedure. 6. Then the question is whether the learned Magistrate can take cognizance of the offences beyond the period of limitation. Section 473 of the Code enables a Magistrate to take cognizance of offence beyond the period of limitation provided under Section 468 of the Code. 7. Section 473 reads, “Extension of period of limitation in certain cases:-Notwithstanding anything contained in the foregoing provisions of this Chapter, any court may make cognizance of an offence after the expiry of the period of limitations, 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.” Apex court in Arun Vyas's case (supra) had occasion Crmc 3299/09 6 to consider the ambit of Section 473 of the Code and held that Section 473 of the Code contains two parts and first part contains a non obstante clause and gives overriding effect to that section over Sections 468 to 472 and second part has two limbs. It was held, “The first limb confers power on every competent court to take cognizance of an offence after 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 and the second limb empowers such a court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression “in the interest of justice” in Section 473 cannot be interpreted to mean in the interest of prosecution. What the court has to see is “interest of justice”. The interest of justice demands that the court should protect the oppressed and punish the oppressor/offender.” It is thus clear that even if, in the final report there is no proper explanation for condoning the delay in Crmc 3299/09 7 filing the final report within the period of limitation, Magistrate can take cognizance of the offence invoking the power under Section 473 of the Code, if on the facts of the case and in the circumstances of the case, it finds that in the interest of justice, cognizance is to be taken. In such circumstances, for the sole reason that final report does not contain any explanation for the delay, it cannot be said that Magistrate has no jurisdiction to condone the delay. 8. Apex court in State of Himachal Pradesh v. Tara Dutt and another (AIR 2000 SC 297) considered the exercise of power under Section 473 and held that the Section confers bar on the court to take cognizance after expiry of the period and if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice cognizance could be taken. It was held, “Obviously, therefore, in respect of the offences for which a period of limitation has been provided in S.468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and Crmc 3299/09 8 satisfactory explanation of the delay is available and where the court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the court taking cognizance, wherever the court exercises this discretion, 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.” Apex court in Bhagirath and others v. State of M.P (AIR 1984 SC 1688) while considering Section 473 of the Code held, “That Section is in the nature of an overriding provision according to which, notwithstanding anything contained in the Crmc 3299/09 9 provisions of Chapter XXXVI of the Code, any court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair splitting argument as to whether the offence alleged against the appellants is of a continuing or non continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice son requires. We believe that in cases of this nature, courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in S.473 of the Code.” In the light of the settled legal position, when the learned Magistrate has taken cognizance of the offences without recording reasons to show that the question Crmc 3299/09 10 whether cognizance is to be taken after the period of limitation and whether the delay in not submitting the final report within the period of limitation is to be condoned and whether interest of justice warrants taking cognizance beyond the period of limitation as provided under Section 473 of the Code, were considered the cognizance taken by the learned Magistrate can only be quashed. Petition is allowed. The order of the Magistrate taking cognizance of the offences in C.C.527/2007 on the file of Judicial First Class Magistrate-I, Kottarakara is quashed. Learned Magistrate is directed to re-consider the question in the light of the guidelines given earlier and decide whether cognizance of the offences is to be taken beyond the period of limitation provided under Section 468 2(b) of the Code, invoking the power under Section 473 after recording reasons. M.SASIDHARAN NAMBIAR, JUDGE. uj.