IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11585 of 2008 1. SANJAY SAHAY, SON OF LATE DAYANAND SAHAY, RESIDENT OF MOHALLA ANUGRAHPURI COLONY, P.S RAMPUR, DISTRICT GAYA 2. KRANTI SINGH @ KARANTI KUMAR SINGH, SON OF LATE RAM KARAN SINGH, RESIDENT OF GAURCHINI ROAD, NEAR SUDHA TAKIZ, P.S. MUFASSIL, DISTRICT GAYA. ---- PETITIONERS Versus 1. THE STATE OF BIHAR 2. WAKIL PRASAD SINGH, B.D.O.-CUM-ASSISTANT, ELECTION OFFICER, 232 GAYA TOWN ASSEMBLY AREA. ---- OPPOSITE PARTIES For the Petitioners :- Mr. Shakil Ahmad Khan, Senior Advocate Mr. Sajid Salim Khan, Advocate For the State :- Mr. Matloob Rab, A.P.P. ----------- 2 1.4.2010 Heard the parties. This application has been filed for quashing the order of cognizance dated 30.1.2008, passed in G.R. No. 2498 of 2005, Trial No. 1428 of 2008 by the Chief Judicial Magistrate, Gaya by which he has taken cognizance for offences under Section 3(2) of Prevention of Defacement of Property Act, 1985 (hereinafter referred to as „the act‟). An F.I.R. was lodged by the Block Development Officer-cum-Assistant Election Officer, 232 Gaya Town Assembly Area alleging that the petitioners who were candidates of the Congress (I) for the 2005 assembly election had fixed a banner and poster outside the Gaya college and thereby had violated the Code of Conduct. On the basis of the aforesaid allegation, investigation commenced and charge sheet was submitted. The First Information Report does not disclose details with respect to the date on which the banner or poster were placed. It also does not explain on which of the 2 buildings the poster was pasted. The allegations are rather vague except that they indicate that some banner and poster were put up by the Congress (I) candidate. However, learned counsel for the petitioners has not really gone into the merits of the case but has confined his arguments by submitting that the cognizance is barred by limitation in view of Section 468 (2) (b) of the Code of Criminal Procedure. On perusal of the order taking cognizance this Court finds that the Court has rejected the contentions raised on behalf of the petitioners on the ground that the petitioners did not have the locus to appear in the Court at the stage of taking cognizance. As far as that part of the order is concerned, there can be no doubt about the fact that the accused cannot appear at the stage of taking cognizance to make any submissions before the Court regarding the merits or legality of the case at all. In any event, since the accused petitioners appeared, the application was rejected also on the ground and submission of the District Prosecuting Officer (D.P.O.) that the delay should be condoned. Accordingly the Court condoned the delay and passed an order taking cognizance. I shall refer to the Bihar Prevention of Defacement of Property Act, 1985. Section 3 of the Act provides that: “Section 3. Penalty for defacement of property.-(1) Any body, who defaces any property in public view by writing or marking with ink, chalk, paint or any other material, except for the purpose of indicating the name and address of the owner or occupier of such 3 property shall be deemed to have committed an offence under this Act and he shall be punishable with imprisonment for a term which may extend to six months or with fine, which may extend to one thousand rupees, or with both.” It is further provided in Sub section 2 of Section 3 of the Act that : “(2) where any offence committed under sub-section (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then such other person or President, Chairman, Director, Partner, Manager, Secretary, Agent or any other officer or person concerned the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.” The main question that arises here is that punishment for committing the offence under the said Act is six months, with fine or with both. Section 468 of the Code of Criminal Procedure puts a bar on the Courts to take cognizance beyond the period of limitation. The period of limitation for offences aforesaid is punishable for six months or if the offence is punishable with fine only, the period of limitation for an offence in which the punishment is six months or is punishable with fine only, will come under sub-section 2A of Section 468 of the Code of Criminal Procedure. There is a procedure for condoning the delay. Section 473 of the Code of Criminal Procedure provides for extension of 4 period of limitation in certain cases. Section 473 of the Code of Criminal Procedure reads as follows:- “473. 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.” Therefore, the code provides that for good reasons, the Court may extend the time of limitation. The reasons must be explicit and explained, it cannot be condoned, as it has been done in this case on the oral statement of the D.P.O. that the Court should condone the period of limitation. There ought to be good reasons given an application explaining the delay. For instance if there is a delay because of stay order of the Court or the delay may be because of the fact that the prosecution could not gather evidence for one reason or the other, or that there may be procedural delays which led to the delay in investigation and submission of charge sheet, the Court would be well within its power condone the delay however, no such fact appears on record in the present case. Counsel for the petitioners refers to the judgment delivered in the case of State of Himachal Pradesh Vs. Tarachand. While dealing with Section 473 of the Code of Criminal Procedure the Apex Court has said that in respect of offence for which a period of limitation has been provided under Section 468 of the Code of 5 Criminal Procedure the power has been conferred on the Court taking cognizance to extend the said period of limitation, where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This is the discretion which has been conferred on the Court taking cognizance, whenever the Court exercises its discretion the same must be by a speaking order indicating the satisfaction of the Court that the delay was satisfactorily explained and the condonation of the same was in the interest of justice. In the present case the facts indicate that there is a vague allegation. The First Information Report does not reveal any date, time, it cannot be said that the offence was of such a serious nature that the Court could on perusal of the contents of the F.I.R./complaint come to a conclusion that it would be in the interest of justice to pursue the matter and condone the delay. Since the power is discretionary in nature, in appropriate cases the Court considering the reasons and being after satisfied with the reasons, proceed in the manner and take cogniazne. However, in this case all these facts are missing and as such I do not find that the Court was justified on an oral statement given by the D.P.O. to extend the period of limitation and condone the delay. In the result, the impugned order dated 30.1.2008 is quashed and this application is allowed. Sanjay/A.F.R. (Sheema Ali Khan, J.)