IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Crl.MC.No. 3358 of 2006() ------------------------- ST.4379/2003 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... PETITIONER(S): PETITIONERS/ACCUSED ---------------------------------- 1. VALLIKKADAN MAYINKUTTY, S/O.MOOSA HAJI, KALLENGALPADI, OORAKAM, MALAPPURAM DISTRICT. 2. VALLIKKADAN ABDUL LATHEEF, S/O.MAYINKUTY, KALLENGALPADI, OORAKAM, MALAPPURAM DISTRICT. 3. VALLIKKADAN MAMMUNNI, S/O.MOOSA HAJI, KALLENGALPADI, OORAKAM, MALAPPURAM DISTRICT. 4. CHALIL VALLIKKADAN AYAMU, S/O.KUNHUMOIDEEN, KALLENGALPADI, OORAKAM, MALAPPURAM DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THOTTASSERY MUHAMMEDKUTTY, S/O.KUNHAHAMMED, OORAKAM, KEEZHMURI, MALAPPURAM DISTRICT. PUBLIC PROSECUTOR SRI.MATHEW VADAKEL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31.3.2009, THE COURT ON 26/05/2009 PASSED THE FOLLOWING: C.T. RAVIKUMAR, J. ```````````````````````````````````````````````````` Crl. M.C. No. 3358 OF 2006 ```````````````````````````````````````````````````` Dated this the 26th day of May, 2009 O R D E R The petitioner herein is the accused in S.T. No.4379/2003 on the file of the Judicial First Class Magistrate, Malappuram which was taken into the file based on a private complaint by the 2nd respondent herein. To contend that the discontinuance of the said proceedings pursuant to Annexure-B complaint will result in abuse of process of the court, the petitioner has raised several legal contentions which in their very nature invite serious consideration by this court. The first petitioner herein was the de facto complainant in crime No.124/2000 of Vengara Police Station registered under sections 447 and 324 IPC against the 2nd respondent herein. Annexure-A is the F.I.R. in the said crime. It would reveal that it is registered based on an incident which had taken place on 28.6.2000. After conducting investigation, a final report in the said crime was filed before the Judicial First Class Magistrate, Malappuram and the said court had taken its cognizance and numbered the case as C.C. Crl.M.C.3358/06 : 2 : No.356/2000. Long later, when the said case was posted for trial and the evidence of the main witnesses were over, the 2nd respondent herein, who was the accused in C.C. No.356/2000, filed Annexure-B complaint against the petitioners herein alleging commission of offences punishable under sections 441, 425, 427 and 447 read with section 34 IPC. Annexure-B private complaint was filed on 6.11.2002. However, the 2nd respondent did not take any earnest efforts to pursue with the same. Subsequently, the learned Magistrate has taken cognizance on Annexure-B complaint and numbered it as S.T. No.4379/2003 only on 4.7.2003 which is after a period of more than three years. It is also pertinent to note that the said case was evidently, taken up for summary trial. The petitioners challenge Annexure-B and the continuance of proceedings based on the same on various legal and factual grounds. Though notice was served on the 2nd respondent herein, he did not enter appearance in this proceedings. 2. It is a fact that the 2nd respondent/ de facto complainant in S.T. No.4379/2003, who is the accused in C.C. Crl.M.C.3358/06 : 3 : No.356/2000, wherein the first petitioner herein is the de facto complainant, allowed the proceedings in the latter case to go on against him without filing any proper petition for a joint trial, and ultimately, C.C. No.356/2000 culminated in Annexure-C judgment. As per the same, the 2nd respondent herein was found guilty for offence punishable under section 447 IPC and was sentenced to undergo rigorous imprisonment for six months for the offence punishable under section 324 IPC. Though the said judgment was taken up in appeal, the conviction and sentence against the 2nd respondent herein was confirmed by the Sessions court. Annexure-C would reveal that the trial court had formulated whether the accused voluntarily caused hurt on CWs 1 and 2 with dangerous weapon as alleged and whether the accused is guilty for the offence and if so, what is the sentence or order, as points for consideration in C.C. No.356/2000. After considering the documentary and oral evidence adduced in the case, the trial court, vide Annexure-C judgment, found that the accused (2nd respondent herein) had caused hurt to PW 1 with MO1, which is a dangerous weapon. It was considering the said fact that the Crl.M.C.3358/06 : 4 : accused (2nd respondent herein) had caused hurt to PWs 1 and 2 (petitioners 1 and 2 herein) with a dangerous weapon, he was convicted and sentenced to undergo the punishment mentioned earlier. It is to be noted that Annexure-C judgment is dated 13.6.2003. Though Annexure-B private complaint was filed as early as 6.11.2002, the second accused herein, who was then facing trial in C.C. No.356/2000, did not take any prompt and appropriate steps by filing a proper application. Admittedly, cognizance on Annexure-B private complaint was taken only on 4.7.2003 which is after the pronouncement of Annexure-C judgment. That apart, the conviction and sentence made against the 2nd respondent in Annexure-C was confirmed in appeal by the Sessions court. It is true that on appropriate action taken by the 2nd respondent at the appropriate time, as is expected to be taken in situation of cross-cases, C.C. No.356/2000 and S.T. No.4379/2003 could have been and would have been tried together as case and counter case. As obvious from Annexure-B complaint, the complaint of the 2nd respondent herein is that on account of the action on the part of the accused/ petitioners herein Crl.M.C.3358/06 : 5 : he had suffered a loss of about Rs.5,000/-. Annexure-B would reveal that, according to him, the alleged incident occurred on 27.6.2000 at about 5 pm. Going by Annexure-B complaint itself, the date of occurrence of the incident is 27.6.2000 at about 5 pm and the cognizance thereof was taken only on 4.7.2003. The contention of the petitioners is that in respect of the same incident, the 2nd respondent herein was arrayed as an accused in crime No.124/2000 of Vengara police station and by Annexure-C judgment he was convicted and sentenced to undergo rigorous imprisonment for six months. However, a close scrutiny on Annexure-B complaint and Annexure-C judgment would reveal that the date of occurrence of the alleged incident as per Annexure-B is 27.6.2000 at about 5 pm whereas the 2nd respondent was found guilty and convicted and sentenced in respect of an incident occurred on 28.6.2000 at about 6.30 pm. Therefore, without proper materials on record, prima facie, it will not be possible to enter into a conclusion that the incidents referred to in Annexure-B complaint and Annexure-C judgment are one and the same. Therefore, I am unable to uphold of the Crl.M.C.3358/06 : 6 : contention of the petitioners that by virtue of Annexure-C judgment the proceedings in Annexure-B complaint are liable to be interfered with. At the same time, it is true that, the 2nd respondent who filed Annexure-B complaint long later to the institution of the proceedings based on crime No.124/2000, cannot seek for a joint trial of C.C. No.356/2000 and S.T. No.4379/2003 as case and counter case. How is it possible for the trial court to retrieve the entire steps and to reach the position to try jointly the said cases as case and counter case? As stated earlier, the second accused himself allowed the trial in C.C. No.356/2000 to proceed further and it culminated in his conviction and sentence and further the said conviction and sentence, as per Annexure-C, was confirmed in appeal by the Sessions court. Therefore, any consideration of C.C. No.356/2000 by the trial court now will be as good as sitting over the judgment in appeal of the Sessions court in C.C. No.356/2000 for which the trial court is legally incompetent. Therefore, there is absolutely no question of joint trial of C.C. No.356/2000 and S.T. No.4379/2003 now. Moreover, C.C. No.356/2000 seems to have attained finality and it is not clear as Crl.M.C.3358/06 : 7 : to whether the judgment in appeal preferred against C.C. No.356/2000 was taken up further by the 2nd respondent. As stated earlier, despite the receipt of notice, he did not appear in these proceedings. Therefore, no relevant information is available in this regard. Hence, this court can only hold that considering the situation as borne out from records it will not, now, be possible for a joint trial of C.C. No.356/2000 and S.T. No.4379/2003. 3. The next question that requires consideration is whether S.T. No.4379/2003 can be proceeded with independently. According to the petitioners, there is legal bar for its continuation. Annexure-B complaint is now taken in to the file as S.T. No.4379/2003. Section 261 of the Code of Criminal Procedure empowers the Magistrate to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding six months with or without fine and any abetment or attempt to commit any such offence. Section 262(1) provides that in trial under Chapter XXI the procedure specified in this Code for the trial of summons-case shall be followed except as mentioned thereafter. Then, section 262(2) lays down the limit of term of Crl.M.C.3358/06 : 8 : sentence of imprisonment in summary trials. As per the said section, no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. In the said background, the petitioners contend that further proceedings in S.T. No.4379/2003 is clearly barred by limitation. It is contended that though various sections in the IPC are mentioned in Annexure-B complaint, sections 447 and 427 are penal provisions. An offence under section 447 is punishable up to three months and an offence under section 427 is punishable up to two years or with fine. When the trial of latter offence is conducted in a summary manner, the maximum punishment which could be awarded is only three months. It is also contended that since the cognizance in S.T. No.4379/2003 is taken up after a period of three years the prosecution based on Annexure-B complaint is hit by section 468 of the Code of Criminal Procedure. Moreover, while filing Annexure-B private complaint, no application for condonation of delay has been filed and nor the court considered the delay and condoned the same, it is contended. 4. Section 468(1) of the Code of Criminal Procedure Crl.M.C.3358/06 : 9 : reads thus: “ 468(1). Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.” A perusal of section 468 would make it clear that it forbids taking cognizance of an offence specified in sub section (2) thereof, after the expiry of the period of limitation. Section 467 defines 'period of limitation' for the purpose of Chapter XXXVI. As per section 467 'period of limitation' means the period specified in section 468 for taking cognizance of an offence. A conjoint reading of Annexure-B complaint and section 468 Cr.P.C. would reveal the legal position. As per section 468(2)(b), if the offence is punishable with imprisonment for a term not exceeding one year, no court shall take cognizance of such offence after the expiry of the period of limitation of one year. The said provision will apply in respect of the offence under section 447 IPC alleged vide Annexure-B complaint. Admittedly, Annexure-B complaint was filed as against an incident which occurred on 27.6.2000 only on 6.11.2002 and the cognizance was Crl.M.C.3358/06 : 10 : taken only on 4.7.2003 which is undoubtedly beyond the period of limitation specified under section 468(2)(b) Cr.P.C. 5. With respect to the offence alleged to have been committed by the petitioners under section 427 IPC, the offence is punishable up to two years or with fine only. Therefore, section 468(2)(c) will apply in respect of the said alleged offence. As per section 468(2)(c), no court shall take cognizance of offence after the expiry of the period of limitation of three years if the offence punishable with imprisonment for a term exceeding one year but not exceeding three years. Though Annexure-B complaint was filed as early as on 6.11.2002, the 2nd respondent did not take any prompt and proper action for pursuing with the same and consequently cognizance on the same was taken and the case was numbered as S.T. No.4379/2003 only on 4.7.2003 in respect of an incident which had taken place on 27.6.2000 and that is after a period of more than three years. Therefore, going by section 468(1) and section 468(2)(c) it can only be said that cognizance in this case was taken only after the period of limitation. In Joseph Vs. State of Kerala [1989 (2) KLT 710], this Court held that the Crl.M.C.3358/06 : 11 : court is not competent to take cognizance of the offence barred under section 468 Cr.P.C. unless the delay is condoned under section 473 Cr.P.C. In State of Maharashtra Vs. S.V.Dongre [AIR 1995 SC 231], the Apex court held that the delay in launching prosecution cannot be condoned without notice to the accused. In this case no notice was seen issued and, in fact, it is evident that the court did not, actually, consider the question of delay in the light of section 468 Cr.P.C.. Section 473 Cr.P.C. enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As stated earlier, there is nothing on record revealing such consideration before taking cognizance. Section 468(3) Cr.P.C. also assumes relevance and the same reads thus:- “ 468(3). For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” Crl.M.C.3358/06 : 12 : Going by section 468(3) Cr.P.C., the period of limitation in relation to offence which may be tried together shall be determined with reference to the offence punishable with more severe punishment i.e., in this case, with reference to the offence alleged under section 427 IPC. As stated earlier, since the alleged incident had occurred on 27.6.2000 and admittedly the cognizance thereon based on Annexure-B complaint was taken only on 4.7.2003, it can only be held that the cognizance on Annexure-B complaint was taken only after the expiry of the period of limitation prescribed under section 468(2)(b) and (c). In the circumstances, section 468(3) Cr.P.C. also cannot save the situation for the 2nd respondent since the larger period of limitation was also over by 4.7.2003. The 2nd respondent did not enter appearance to controvert the said specific averments based on legal provisions. The counsel for the 1st respondent also did not controvert the aforesaid specific legally sustainable contentions raised by the counsel for the petitioners. In the said circumstances, the contentions advanced on behalf of the petitioners are only to be upheld. In the light of the above discussions, I am inclined to Crl.M.C.3358/06 : 13 : interfere with the proceedings pending before the Judicial First Class Magistrate, Malappuram in S.T. No.4379/2003. Accordingly, the entire proceedings in S.T. No.4379/03 on the file of the Judicial First Class Magistrate, Malappuram is set aside and consequently, no further proceedings shall be proceeded against the petitioners in S.T. No.4379/2003 based on Annexure-B complaint. The Crl. M.C. is accordingly, allowed. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. to Judge