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Judgment
David Annoussamy, J.—This is a criminal miscellaneous petition praying for quashing the proceeding before the Sub Divisional Judicial Magistrate, Villupuram.
The Petitioners are the partners in a commercial concern. Their premises was inspected by the enforcement wing of the sales tax department on 8th May, 1980. Nothing some irregularities and discrepancies in the entries made in the registers maintained by the Petitioners in this petition, the Respondent herein filed a complaint on 4th July, 1981, launching a prosecution for an offence punishable u/s 45(2)(cc) of the Tamil Nadu General Sales Tax Act, 1959, for violation of Section 40(1) of the Act and Rule 23(1) of the Rules, for not maintaining true and proper accounts. The case was taken on file by the Magistrate on 6th July, 1981. Summonses to the Petitioners were issued to appear on 29th September, 1981 on which date the Petitioners took objection for the prosecution on the ground that it was barred by limitation as embodied in Section 468 of the Code of Criminal Procedure. On 21st October. 1981 a counter was filed on behalf of the prosecution praying for condonation of the delay in filing the complaint. On 24th November, 1981 the Court started the trial. At that stage the Petitioners came to this Court, had the proceedings stayed and prayed for quashing the proceedings on the ground that the prosecution was barred u/s 468 of the Code of Criminal Procedure.
The case of the Petitioners is that though there is power for the Court u/s 473 of the Code to take cognizance of the offence after the expiry of the period of limitation, which is six months in the present case, the Court should condone the delay before cognizance and not thereafter, and that the Court had no power to exercise its discretion after it has failed to do so at the time of taking cognizance. In support of this proposition he cited two decisions, one of Bombay High Court in R.C. Trivedi v. A.H. Paranjape, 1982 Cri.L.J. 869 and another of Punjab and Haryana High Court in Ghansham Dass Vs. Sham Sundar Lal, . Meeting this point, the learned Public Prosecutor contended that the delay may be condoned at any point of time even after taking cognizance and that the power of discretion vested in the Magistrate u/s 473 of the Code of Criminal Procedure, was not restricted as to the point of time, and relied on for that purpose on a decision of this Court in Sulochana v. State Registrar of Chits 1977 M.L.J. (Cri.) 547. In that case it was decided that the Magistrate can exercise his discretion to condone the delay u/s 473 of the Code of Criminal Procedure, even after having taken cognizance of the offence. Though I am not in full agreement with that view, I think that in the circumstances of the present case, this point has not much relevance. It is reported in the present case that though the objection was taken by the Petitioners-accused regarding the limitations and that though the prosecuting agency has filed a counter explaining the delay, the trial Court without deciding this point continued the proceedings and took up the trial. If not at the time of taking cognizance, at least when the attention is drawn to the fact, the magistrate should decide whether the delay has been properly explained or whether it was necessary to proceed further in the interest of justice, on the facts and circumstances of the case. It is only after recording his satisfaction that the magistrate can proceed further. In the present case the magistrate has failed to exercise his power u/s 473 of the Code of Criminal Procedure, and consequently the bar embodied in Section 468 of the Code of Criminal Procedure continues to operate. Therefore, the continuance of the proceeding is illegal and is necessarily to be quashed.
In the result ,the petition is allowed and the proceedings are quashed.