IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 2686 of 2008() ------------------------------ ST.283/2008 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVISION PETITIONERS/ACCUSED: ------------------------------------------------------ 1. P.V. NIDISH, MANAGING PARTNER, K.T.C. MOTORS, KTC BUILDING, Y.M.C.A. ROAD, KOZHIKODE. 2. SIYAB K., S/O. MUSTAFA, BAITHUL SAFA PARODI MEETHAL, POKKUNNU, KOZHIKODE. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------- 1. B.SAJU, MOTOR VEHICLES INSPECTOR, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2009 ALONG WITH CRRP NO. 3014 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.8148/2008 IN CRL.R.P.NO.2686/2008 DISMISSED 20/01/2009 SD/- M.SASIDHARAN NAMBIAR,JUDGE /TRUE COPY/ P.A.TO JUDGE M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.Nos.2686, 3014, 3015, 3019, 3026, 3027, 3029, 3030 AND 3031 OF 2008 -------------------------------------------------- Dated this the 20th day of January, 2009 O R D E R Revision petitioners are the accused in nine cases, which were taken cognizance by Judicial First Class Magistrate-IV, Kozhikode on the charge sheets submitted by Motor Vehicle Inspector, Kozhikode alleging that they committed offence under section 39 read with section 192 of Motor Vehicles Act. First revision petitioner is the managing partner and second petitioner an employee of M/s. K.T.C. Motors, a dealer of Hyundai vehicles at Kozhikode. The prosecution case is that with the consent and permission of the first revision petitioner, second revision petitioner took the vehicles involved in these cases, making use of the trade certificates which had been expired prior to the respective dates and they thereby committed the offence under section 39 read with section 192 of Motor Vehicles Act. Learned Magistrate took cognizance of the CRRP 2686/08 & Connected Cases 2 offences on different dates. The order taking cognizance is challenged in these revision petitions contending that learned Magistrate should not have taken cognizance of the offences without condoning the delay with notice to the revision petitioners, as the charge sheets were filed more than six months after the date of commission of the offences as the offence is punishable by fine only and the period of limitation under section 468 of Code of Criminal Procedure is only six months. 2. Learned senior counsel appearing for revision petitioners and the learned Public Prosecutor were heard. 3. The argument of the learned senior counsel appearing for revision petitioners is that as provided under section 468 of the Code of Criminal Procedure, period of limitation is six months and cognizance in all the cases were taken after expiry of the period of six months without condoning the delay. Relying on the decision of the Apex Court in State of Maharashtra Vs. Sharadchandra Vinayak Dongre and others (AIR 1995 SC 231) it was argued that without notice to the accused the delay should not have been condoned and for that sole reason the orders taking cognizance of the offence are to be set aside. CRRP 2686/08 & Connected Cases 3 Learned senior counsel also argued that on the materials, cognizance should not have been taken as no offence under section 39 read with section 192 of Motor Vehicles Act was committed. 4. Learned Public Prosecutor submitted that if the cognizance taken by the learned Magistrate after the period of limitation provided under section 468 of Code of Criminal Procedure is bad, learned Magistrate is to be directed to reconsider the question. It was also argued that an offence under section 39 read with section 192 of Motor Vehicles Act was committed as without a registration certificate or valid trade certificate the vehicles could not have been taken for registration to the office of the Regional Transport Officer. 5. Section 192 of Motor Vehicles Act provides for a sentence of fine which may extend to five thousand rupees for the first offence and imprisonment which may extend to one year or fine for subsequent offences. Under section 468 of Code of Criminal Procedure, the period of limitation is six months, if the offence is punishable with fine only and one year, if the offence is punishable with imprisonment for a term not exceeding one CRRP 2686/08 & Connected Cases 4 year. If the offence is punishable with fine alone, the period of limitation is six months. If that be so, learned Magistrate could not have taken cognizance without condoning the delay as provided under section 471 of Code of Criminal Procedure. There is no case in the charge sheets that the offence is either the first offence or second offence. If with the very same expired trade certificate the vehicles were driven more than on one occasion, it could be a case of second offence and if so offence is punishable with imprisonment and fine. As declared by the Supreme Court in Dongre's case (supra) before condoning the delay notice must be sent to the accused. No order condoning the delay could be passed behind the back of the accused and without recording reasons for condonation of the delay. The position is settled in paragraph 5 of the decision. It reads. “ In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, CRRP 2686/08 & Connected Cases 5 having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. ” 6. It is clear that learned Magistrate should not have taken cognizance of the offence, after the expiry of the period of limitation without notice to the accused and recording reasons for condoning the delay. In such circumstances the orders taking cognizance of the offences are bad in law. They are to be set aside. As the cases are to go back to the learned Magistrate for fresh consideration it is not necessary to consider the question whether section 39 read with section 192 of Motor Vehicles Act is attracted or not. Revision petitioners are entitled to raise all the questions raised herein before the Magistrate. Revision petitions are allowed. Orders taking cognizance of offences in all S.T. 283/2008, 278/2008, 277/2008, 279/2008, 285/2008, 281/2008, 280/2008, 284/2008 and 282/2008 are set CRRP 2686/08 & Connected Cases 6 aside. Judicial First Class Magistrate-IV, Kozhikode is directed to reconsider the charge sheets afresh after hearing the prosecution and the accused. It is for the Magistrate to decide the period of limitation prescribed for the offence in each case is barred under section 468 of Code of Criminal Procedure and if so whether the delay is to be condoned after notice to the accused. The parties are directed to appear before the Magistrate on 17.3.2009. M. SASIDHARAN NAMBIAR, JUDGE okb