IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 Crl.MC.No. 4414 of 2010() ------------------------- CC.208/2010 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... PETITIONER(S): ACCUSED 1 TO 3: -------------------------------------------------- 1. SREEKUMAR.P, REGIONAL MANAGER, ICICI PRUDENTIAL SKYLINE CITADEL,KANJIKUZY,KOTTAYAM (RESIDING AT ATTAKANAL CHERIYAMADOM,MONIPPALLY). 2. SHIYAS.T.M, ZONAL MANAGER,THOMSON TOWERS,M.G.ROAD,NORTH END,KOCHI(RESIDING AT SHEEJA MANZIL,FATHIMAPURAM,CHANGANACHERRY). 3. K.S.MAHESH,FORMERLY VICE PRESIDENT, ICICI PRUDENTIAL,RESIDENCY ROAD,BANGALORE, (RESIDING AT NARAYANEEYAM,KUZHIMATTOM PO, KOTTAYAM). BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE, BY ADV.SRI.S.MANU, SMT.K.DEEPA (PAYYANUR). RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IMPLEADED: R2. GANESH.P., PALLIYALIL HOUSE, VAIDYARANGADI PO, RAMANATTUKARA, KOZHIKODE - 673 633. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 29/11/2010 IN CRL.M.A.NO.7441/2010 IN CRMC.NO.4414/2010) R1 BY PUBLIC PROSECUTOR SRI.V. MANU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.4414/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE COMPLAINT SUBMITTED THE PETITIONERS BEFORE THE COMMISSIONER OF POLICE, KOZHIKODE AND FORWARDED TO NADAKKAVU POLICE STATION. ANNEX.II: COPY OF THE F.I.R. IN CRIME NO.414/2009 OF NADAKKAVU POLICE STATION. ANNEX.III: COPY OF THE LETTER SENT BY MR. GANESAN THROUGH E-MAIL DTD. 13/02/2009. ANNEX.IV: COPY OF THE SHOW CAUSE NOTICE ISSUED TO MR.HANEESH RAM. ANNEX.V: COPY OF THE E-MAIL LETTER DTD. 31/03/2009 FROM MR.HANEESH RAM. ANNEX.VI: COPY OF THE LETTER OF TERMINATION DTD. 18/05/2009 ISSUED TO MR. HANEESH RAM. ANNEX.VII: COPY OF THE COMPLAINT DTD. 22/05/2009 SUBMITTED BEFORE THE SUB INSPECTOR OF POLICE, NADAKKAVU. ANNEX.VIII: COPY OF THE COMPLAINT BEFORE THE REVENUE DIVISIONAL OFFICER DTD. 25/05/2009. ANNEX.IX: COPY OF THE INTERIM ORDER IN WP(C) NO.14608/2009 DTD. 28/05/2009. ANNEX.X: COPY OF THE JUDGMENT IN WP(C) NO.14608/2009 DTD. 2/06/2009. ANNEX.XI: COPY OF THE AD-INTERIM INJUNCTION ORDER ISSUED IN O.S.NO.512/2009 OF THE MUNSIFF'S COURT, KOZHIKODE. ANNEX.XII: COPY OF THE LETTER OF TERMINATION ISSUED TO MR.GANESH. ANNEX.XIII: COPY OF THE FINAL REPORT IN CRIME NO.414/2009 OF NADAKKAVU POLICE STATION. ANNEX.XIV: COPIES OF THE SUMMONS ISSUED TO THE PETITIONERS. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4414 of 2010 --------------------------------------- Dated this 23rd day of June, 2011 ORDER Petitioners are accused 1 to 3 in Crime No.414 of 2009 of Nadakkavu Police Station and C.C.No.208 of 2010 of the court of learned Judicial First Class Magistrate-IV, Kozhikode for offences punishable under Sec.341 and 294(b) r/w Sec.34 of the Indian Penal Code. Cognizance taken and proceeding against petitioners are challenged on the ground that the final report was submitted beyond the period of limitation prescribed under Sec.468 of the Code of Criminal Procedure (for short, "the Code”). Learned Senior Advocate contends that it is without application of mind that learned Magistrate has taken cognizance of the said offence. I have heard learned Public Prosecutor also. 2. Annexure-1 is the complaint the de facto complainant had preferred to the Commissioner of Police, Kozhikode on July 10. 2009. Final report is submitted as seen from the endorsement on the final report on 24.02.2010. As per sec.468 (2)(b) of the Code period of limitation should be one year since the offences attributed to the petitioners are punishable only with imprisonment for less than one year. In view of Sec.469 (1)(a) of Crl.M.C.No.4414 of 2010 -: 2 :- the Code, the period of limitation must commence from the date of the offence since the de facto complainant himself could have preferred a complaint and the date of incident (January 02, 2009) was known to him as revealed from Annexure-1, complaint. If that be so, the period of limitation must commence from January 02, 2009. It follows that the final report filed on 24.02.2010 is beyond the period of one year and hence is barred by limitation. It is also seen that learned Magistrate has not applied mind in the matter while taking cognizance on the complaint which is otherwise barred by limitation. 3. Under Sec.473 of the Code, it is within the power of learned Magistrate to extend the period of limitation if he is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is not necessary to do so in the interest of justice. 4. Learned Public Prosecutor submitted that Annexure-I, complaint itself gives the reason for delay. But there could be no condonation of delay by implication. It must be by an order in writing. 5. This Court in Valsan v. State of Kerala (2003(2) KLT 1050) has stated that the decision taken by the learned Magistrate under Sec.473 of the Code without notice to the Crl.M.C.No.4414 of 2010 -: 3 :- accused is adhoc in nature, it is open to the accused even after cognizance is taken to point out before the learned Magistrate that the delay ought not have been condoned and it is within the power of learned Magistrate to consider that and if necessary, drop the proceeding. It is held that it is advisable to give notice to the accused before exercising power under Sec.467 of the Code. There is no reason why that principle shall not apply to the facts of the case. Hence, it is made clear that it is open to the learned Magistrate to consider, if circumstances warranted whether the delay is to be condoned, after giving notice to the petitioners as well. Resultantly this criminal miscellaneous case is allowed. Cognizance taken by learned Magistrate on the final report in Crime No.414 of 2009 of Nadakkavu Police Station and further proceeding against petitioners in C.C.No.208 of 2010 of the Court of learned Judicial First Class Magistrate-IV, Kozhikode are quashed. Learned Magistrate shall consider whether on the facts and circumstances of the case it is necessary to invoke power under Sec.473 of the Code, after giving notice to the petitioners also. (THOMAS P JOSEPH, JUDGE) Sbna/-