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Judgment
Heard Mr. G. Sardessai, learned Counsel for the Petitioners in both the writ petitions, Mr. Menezes, learned Counsel for Respondent No. 1 in both the writ petitions and Mr. C. A. Ferreira, learned Public Prosecutor for Respondent No. 2 in Criminal Writ Petition No. 117/2009 and for Respondent No. 3 in Criminal Writ Petition No. 79/2010. None for Respondent No. 2 in Criminal Writ Petition No. 79/2010.
Rule was issued on 11th January, 2010 in Criminal Writ Petition No. 117/2009. By consent of the learned Counsel for the parties, Criminal Writ Petition No. 79/2010 is taken up for final disposal along with Criminal Writ Petition No. 117/2009. Hence, Rule. Heard forthwith.
The Petitioners in both the petitions are accused in Private Criminal Case No. 563/OA/2005/C filed by Respondent No. 1 in both the petitions alleging commission of offence u/s 135B of The Representation of the People Act, 1951 (''the Act'' for short).
By these petitions, the Petitioners challenge the judgment and order dated 21st November, 2009 passed by the Sessions Judge, North Goa, Panaji in Criminal Revision Application No. 3/2009 as well as the order dated 8th February, 2008 passed by the learned Magistrate issuing process against the Petitioners for the offence punishable u/s 135B of the Act.
Respondent No. 1 filed the above private complaint on 28th November, 2005 alleging that the Petitioners in contravention of Section 135B of the Act had called upon the workmen of M.R.F. Limited to report for work on 5th September, 1999 and 30th May, 2002 on which days, the Parliamentary elections to South Goa and Assembly elections to State of Goa respectively were held. In paragraph No. 33 of the complaint, the complainant stated that if the Court were to conclude that the complaint was filed beyond the period of limitation as prescribed u/s 468 of Code of Criminal Procedure (''the Code'' for short), the period of limitation be extended under the provisions of Sections 470 and 473 of the Code and thereafter, cognizance of the offence be taken as against the Petitioners.
It has not been seriously disputed by all the parties that the learned Magistrate did not give any specific finding condoning the delay nor passed any order condoning the delay and issued process against all the Petitioners on 8th February, 2008 for the offence punishable u/s 135B of the Act.
The order issuing process passed by the learned Magistrate was challenged by all the Petitioners by filing Criminal Revision Application No. 3/2009 before the Sessions Judge, North Goa, Panaji. In the memo of appeal, the Petitioners took a ground that the complaint filed by Respondent No. 1 was barred by limitation. However, the record discloses that such a point was not specifically urged at the time of final hearing of the revision application. The learned Sessions Judge by judgment and order dated 21st November, 2009 dismissed the revision application. Aggrieved by the said judgment and order, the Petitioners have filed the present two writ petitions under Article 227 of Constitution of India.
Mr. Sardessai, learned Counsel appearing for the Petitioners submitted that although the point that the complaint was barred by limitation was not specifically urged before the learned Sessions Judge, the Petitioners are entitled to urge this ground before this Court since it goes to the root of the matter and in the absence of any finding by the learned Magistrate that he had applied his mind and was satisfied that there was sufficient cause for condoning the delay, the learned Magistrate could not have issued process against the Petitioners after the period of limitation had expired. Mr. Sardessai further submitted that in terms of Section 468 of the Code, the period of limitation for taking cognizance is six months since the offence u/s 135B is punishable with only fine. Mr. Sardessai further submitted that the complainant had not filed separate application seeking condonation of delay which was necessary to be filed and in any case, the complainant had not made out a case for extension of time in terms of Section 470 of the Code and as such, the learned Magistrate could not have issued process against the Petitioners. Mr. Sardessai, therefore, submitted that both the orders passed by the learned Sessions Judge as well as by the learned Magistrate deserve to be quashed and set aside and the matter be remitted to learned Magistrate to afford an opportunity to the Petitioners of being heard on the aspect of limitation. In support of his submissions, Mr. Sardessai placed reliance upon the judgment of the Apex Court in the case of State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Others, and Hemanta Boro Vs. State of Assam, .
Mr. Menezes, learned Counsel appearing for Respondent No. 1 / complainant fairly conceded that the matter deserves to be remitted to the learned Magistrate for giving a finding on the issue of limitation.
Mr. Ferreira, learned Public Prosecutor submitted that the Magistrate ought to have given an opportunity of being heard to the Petitioners before passing an order issuing process which could have been passed only after being satisfied that the complainant had made out a case for condoning the delay in terms of Section 470 and/ or Section 473 of the Code. In support of his submissions, Mr. Ferreira placed reliance upon the judgment of this Court in Jethmal Himmatlal Jain v. State of Marashtra and Ors. 1981 criminal Law Journal 1813.
I have carefully considered the rival submissions and perused the record and the judgments relied upon.
In view of the submissions made by the learned Counsel for the parties and the orders passed by both the Courts below, the question which arises for consideration is whether the learned Magistrate was legally justified in issuing process against the Petitioners without passing a specific order condoning delay in filing the complaint in as much as ex-facie the complaint was filed by the complainant after the period of limitation prescribed u/s 468 of Code of Criminal Procedure
In the case of Jethmal Jain (supra) relied upon by the learned Public Prosecutor, learned Single Judge of this Court has clearly held that before delay in filing complaint is condoned and before the Magistrate takes cognizance of the offence/ offences alleged against the accused, the Magistrate must be satisfied that there was sufficient cause for condoning the delay and such an exercise can be undertaken only after giving an opportunity of being heard to the accused.
In the case of S. B. Dongre (supra), the Apex Court while dealing with the chargesheet filed after a period of limitation, held that this High Court was justified in holding that the Chief Judicial Magistrate could not have condoned delay in launching the prosecution without notice to the accused and without affording any opportunity to the Respondents to have their say. Although the said case was in relation to chargesheet filed u/s 173 of the Code, by analogy the same principle should apply in relation to the private complaint filed u/s 190 of the Code. Therefore, in my view, the learned Magistrate clearly erred in issuing process against the Petitioners without recording a finding that the case was made out for condoning the delay either u/s 470 and/ or Section 473 of the Code and that too without giving an opportunity of being heard to the Petitioners. On this ground alone, the order dated 8th February, 2008 issuing process against the Petitioners deserves to be quashed and set aside. For the very same reason, the order of the revisional Court also deserves to be quashed and set aside since the order issuing the process against the Petitioners was passed without passing a separate order on the aspect of condonation of delay sought by the complainant/ Respondent No. 1. However, in my opinion, mere fact that the complainant had not filed a separate application seeking condonation of delay would not be fatal and the complaint could not have been dismissed on account of a technicality.
In the result, therefore, the order dated 8th February, 2008 passed by the Judicial Magistrate, First Class, Ponda issuing process against the Petitioners and judgment and order dated 21st November, 2009 passed by the Sessions Judge, North Goa, Panaji are quashed and set aside. The learned Judicial Magistrate First Class, Ponda is directed to pass an order on the prayer made by the complainant in paragraph No. 33 of the complaint seeking condonation of delay after giving an opportunity of being heard to the Petitioners and depending upon the said order proceed in accordance with law.
Since the Petitioners have been already summoned, it would not be necessary for the learned Magistrate to issue fresh notices to the Petitioners. The Petitioners and the complainant to appear before the learned Judicial Magistrate, First Class, Ponda on 5th March, 2011 at 10.00 a.m. It is made clear that till the learned Magistrate passes an order on the issue of limitation, the Petitioners will be entitled to be represented by Advocate/ Advocates.
It is made clear that I have not expressed any opinion on the rival contentions in the petition and the said contentions are kept open.
Rule is made absolute in both the petitions in aforesaid terms with no order as to costs.