1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: JUDGMENT ::: Ishwar Lal Khatri vs State of Rajasthan F.B. Cr. Misc. Application No.1905/2009 under Section 96 of the Cr.P.C. agaisnt the Notification published in the Gazette of Rajasthan, Home Department on 5th Auugst, 1957 by which the State Government in exercise of power under Section 95 Cr.P.C. Has forfeited the books namely Jagat Hit Karni and Atmapuran. DATE OF ORDER :: 9th February, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE H.R. PANWAR HON'BLE MR. JUSTICE DINESH MAHESHWARI REPORTABLE Mr.Vijay Purohit, for the petitioner. Mr.BK Mehar, Public Prosecutor. <><><> BY THE COURT [Per Hon'ble Tatia, J.] Heard learned counsel for the petitioner. The State Government by exercising power under Section 99A of the Criminal Procedure Code, 1808 (which 2 was in force at relevant time) forfeited two publications namely, 'Jagat Hitkarini' and 'Atm Puran' after opining that the said publications (books) are intended to promote the feelings and hatred in different classes of citizen of India and are berately and maliciously intended to outrage religious feelings of the Jain (Bania) community by insulting the religion and the religious of that class and the publication of work punishable under Section 153A and 295 of Indian Penal Code. To give effect to the intention of the State Government to forfeit the said publication (books) a notification was published in gazette of the Rajasthan dated 5.8.1957, copy of which has been placed on record by the petitioner. The petitioner has challenged the said notification dated 5.8.1957 after about 45 years from the date of the said notification, whereas as per Section 99A which was in force at time of publication of notification dated 5.8.1957 as well as under sub-section (1) of Section 96 of the Code of Criminal Procedure (which is in force now), the period of limitation for challenge to such notification is two months from the date of publication of notification in official gazette. The petitioner was well aware that period of limitation is two months only and the petitioner took a plea that prescribing period of limitation of two months for 3 challenge to said notification in Section 96(1) Cr.P.C., 1973 is arbitrary and unreasonable and violative of Article 14 of the Constitution of India and submitted this petition without any application for condonation of delay under Section 5 of the Limitation Act for codoning the delay of about 45 years. To meet with the objection of the bar of limitation, learned counsel for the petitioner submitted that the court may look into the broader aspect and may ignore the period of limitation prescribed in sub-section (1) of Section 96 of the Code of Criminal Procedure, 1973. Learned counsel for the petitioner though took this plea but could not substantiate it by his own arguments nor with the help of any precedent on this point. We may observe here that it is not necessary that every new plea based on the point of law must find support from judicial precedent, but if entirely new plea is taken in arguments then there must be some reasons and justification for the new plea which may find support from law express or may have even implied support of law or at least must stand to logic. However, learned counsel for the petitioner frankly stated that he has nothing more than to state that court may look into broader aspect of freedom of speech, expression and right to trade protected by law and because of issue involved in this petition the period of 4 limitation prescribed by law may be ignored. It will be beneficial to quote sub-section (1) of Section 3 of the Indian Limitation Act, 1963: “3. Bar of limitation: (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defense,” Sub-section (1) of Section 3 of the Indian Limitation Act, 1963 mandates that if the suit, appeal or application is submitted after prescribed period of limitation then such suit, appeal or application, as the case may be, is required to be dismissed even when objection of period of limitation has not been set up as defence. The Hon'ble Privy Council in the case of Maqbul Ahmad & Ors Vs. Onkar Pratap Narain Singh & Ors reported in AIR 1935 Privy Council 85 considered the issue whether any judicial decision would enable the court to relieve the parties from the operation of the Limitation Act. The Hon'ble Privy Council held as under: - “.....In their Lordships' opinion it is impossible to hold that in a matter which is governed by Act, an Act which is some limited respects given the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its 5 provisions. It is to be noted that this view is supported by the fact that S.3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings.” (emphasis supplied) Therefore, the law based on public policy as well as the judgment on the point referred above is just opposite to the argument advanced by learned counsel for the petitioner and it is clear that no court has power to ignore the law. We are also of the same view and hold that no court has power to ignore the law and, therefore, the petitioner cannot succeed with the help of the said plea, may it has been taken by projecting that the larger interest is involved and, therefore, the period of limitation may be ignored. Learned counsel for the petitioner submitted that objection of bar of limitation is an objection of technical nature and, therefore also, this court may ignore the bar of limitation. The question whether bar created by Limitation Act is a only technical matter or it is a policy in the interest of public, came up for consideration before Hon'ble the Supreme Court in the case of Rajendra Singh and others v. Santa Singh & ors. (AIR 1973 SC 2537). The Hon'ble 6 Supreme Court in Rajendra Singh's case(supra) considered the Halsbury's Laws of England Vol. 24 p. 181( para 330), in para no. 17 of the judgment which is very relevant and hence quoted here:- “330. Policy of Limitation Acts. The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” Then Hon'ble Supreme Court held that:- “The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches.” Therefore, the petition of the petitioner cannot be entertained by treating bar of limitation to be an objection of technical nature. Some times, question of bar of limitation and court's power to condone the delay are so mixed up that inference is drawn that plea (objection) of bar of limitation is in the nature of a technical objection. In fact, order of condoning of delay even by taking liberal view also recognizes the proposition of law that the court cannot ignore the period of limitation for an action and court in appropriate case 7 condones the delay so as to extend the period of limitation and will not ignore the law of limitation. No law provides nor there can be any justification for any court of law to reach to the conclusion that petition, suit or appeal has been presented beyond the period of limitation, yet it can be entertained without condonation of delay. Prescribing of period of limitation for seeking relief from courts, is a policy in the interest of public so that the public at large may presume with certainty that there is no more any dispute in relation to the subject matter. If bar of limitation is treated as mere technical objection then the consequence will be grave, as there will be no certainty. As observed in Halsbury's Laws of England, that long dormant claims have more of cruelty than justice in them. Hon'ble the Supreme Court in the judgment of Rajendra Singh's case (supra) clearly held that the object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. As stated above, condonation of delay in appropriate cases is also a well recognised policy in the interest of public. There may be persons who are not negligent and who may have been, for valid reason, prevented by 8 sufficient cause for not taking action in time, then those bona fide persons may not suffer, therefore, the Limitation Act provided reliefs to those bona fide persons governing almost all possible situations by enacting Section 4 to 24 of the Indian Limitation Act. It is true while interpreting the issue of condonation of delay, it has been observed in number of cases that technicalities of law if are pitted against the justice then justice should prevail. This proposition is confused to the extent as has been done in this case when plea has been raised that where larger interest is involved, the court may ignore the statutory period of limitation even in a case where the petitioner challenged the action of the respondents after 45 years in a case where period of limitation is only 2 months and consciously and knowing, did not disclose any material facts in the petition like any cause for condonation of delay. At this juncture, it will be worthwhile to mention here that the period of 2 month's allowed by the statute for challenge to the said notifications are in force since last more than 100 years as it was provided under the Code of Criminal Procedure, 1898 and kept and continued by the Code of Criminal Procedure, 1973, which is in force now. If the pleas raised by the learned counsel for the petitioner is accepted then the Court is required to look into the merit 9 first and then to the period of limitation, which would be in violation to statutory prohibition created by Section 3 of Limitation Act, 1963. In our humble opinion, this type of proposition may cause more harm to justice and to the public and can result into chaotic situation as no one will be safe even when he has enjoyed the right and property since decades and centuries, as in this case, almost delay of half century is sought to be ignored. In view of specific mandatory statutory provisions of law in Section 3 of Limitation Act, 1963 and in view of the reason given in the judgments referred above, we are unable to do so. With above plea to ignore the law or ignore the period of limitation as being objection of technical nature, learned counsel for the petitioner in alternate submitted that petitioner may be permitted to now submit an application under Section 5 of the Limitation Act for codoning the delay. The petitioner knew it well from the time he submitted present petition before this Court that the period of limitation for filing this petition is two months from the date of publication of the notification in gazette which is under challenge. The petitioner also knew it well that limitation expired decades ago before filing this petition. The petitioner did not choose to submit any application for condonation of delay under Section 5 of the Limitation Act, 10 when he submitted the petition. The petitioner then did not submit any application for condonation of delay in last six years by now. The petitioner though took the plea in the petition itself that period of limitation prescribed in Section 96(1) Cr.P.C. of two months is arbitrary and ultra vires did not seek any relief in the present petition for declaring part of Section 96(1) as ultra vires obviously for the reasons that the petitioner was knowing it well that he cannot claim such relief in petition under Section 96 Cr.P.C. Therefore, it is not a case where the petitioner mislead by some mistake, but he did not choose to file any application for condonation of delay intentionally and voluntarily. The petitioner's prayer that he may be permitted to file application under Section 5 of the Limitation Act cannot be entertained in view of the conduct of the petitioner. Firstly, the petitioner failed to explain when he was knowing it well that there is delay of more than 45 years in filing the petition, why he did not file the application of condonation of delay with the petition itself. Secondly, petitioner has sought time to file application under Section 5 of the Limitation Act after 6 years from the filing of this petition and learned counsel could not give any explanation for not filing application for condonation of delay in last 6 years. Lame excuse submitted for it is that since this petition was 11 not listed before the Bench, therefore, the petitioner did not submit the application under Section 5 of the Limitation Act. The plea deserves to be rejected as plea has no bonafides in it. This matter was listed in court on 18th July, 2003 also and at that time neither the petitioner submitted application under Section 5 of the Limitation Act nor the petitioner sought time for filing application under Section 5 of the Limitation Act and after 6 years when matter was taken up for consideration by the Special Bench constituted for hearing the petition of the petitioner, then only, the learned counsel for the petitioner prayed for time which is not a bonafide request in view of the facts referred above in detail. The Hon'ble Supreme Court in the case delivered in Azizul Haq Kausar Naquvi & Anr. Vs. The State reported in 1980 Cri. Law Journal 448 as relied upon by learned counsel for the petitioner held that Section 29(2) of the Limitation Act of 1963 lays down that Sections 4 and 24 of the Limitation Act would apply even in the case of a special or local laws, unless their application is expressly excluded by such special or local law. The result, therefore, is that while under the Limitation Act of 1908 the High Court would have been incapable of extending the period of limitation by having recourse to the provisions of Section 5 of the Limitation Act, 1963 position now is totally different and 12 period of limitation prescribed under Section 96(1) of the Code of Criminal Procedure can now be extended by the High Court in an appropriate case. The position of law was settled by the Hon'ble Supreme Court as back as in the year 1980 that the court has power to extend the period of limitation under Section 5 of the Limitation Act, yet the petitioner did not choose to file any application under Section 5 of the Limitation Act for condoning of delay of about 45 years and further did not choose to file application under Section 5 of the Limitation Act since last 6 years i.e., after filing of this petition before this Court. In the facts of this case, this case cannot be said to be appropriate case wherein the delay can be condoned by exercising powers under Section 5 of the Limitation Act. Learned counsel for the petitioner also relied upon the judgment of the Full Bench delivered in the case of Sangharaj Damodar Rupawate & Ors Vs. Nitin Gadre & Ors reported in 2007 Crl. Law Journal 3860 in support of his plea that petitioner has locus standi to challenge the notification as citizen of India having interest in right to be informed, which entitles the petitioner to read, use and publish the forfeited publications, but this issue is irrelevant because of the reason that question of locus standi comes later on and the petitioner required to satisfy the court that the petition filed 13 by the petitioner is well in time. Therefore, these judgments are of no help to the petitioner in any manner. In view of the reasons mentioned above, the present petition is dismissed as has been filed after inordinate delay of about 45 years. [DINESH MAHESHWARI], J. [H.R. PANWAR], J. [PRAKASH TATIA,J. cpgoyal/-