Sachin Yadav & Ors vs Rajendra Kumar

By this petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred as 'the Code') the applicants are praying for quashment of the proceedings initiated and for quashment of cognizance dated 20th June, 2016, passed by the Chief Judicial Magistrate, Jhabua, in Criminal Case No.1056 of 2016 and the complaint. The learned Magistrate committed a grave error of law in taking cognizance of the offence under Section 379, IPC, after expiry of the period of three years from the date of alleged incident against the mandatory provisions of Section 468 of the Code, which provides that no Court should take cognizance of any offence after expiry of the period of three years.

The facts of the case are that on 14.10.2014, a private complaint was filed by the respondent complainant against the applicants. It was alleged in the complaint that the respondent purchased a Mini-door Tempo from Kisan Automobiles on 25.11.2015, by getting it financed from Shriram Finance Company. On 24.08.2006, when the vehicle was given for servicing to Kisan Automobiles show room, Applicant No.2 and 3 who were employees of Sai Automobile at the instructions of applicant No.1, took forcible possession of the vehicle. On notice by the respondent to Sai Automobile, the vehicle was not return back to the complainant hence, a private complaint was filed by the complainant against the applicants on 14.10.2014 for the offence punishable under Sections 406, 409, 420, 467 and 468 / 34, IPC, after approximately 8 (eight) years. Para 1, 2 of the complaint is relevant,

which reads as under :-

1- ;gfd] ifjoknh us Jh fdlku vkVks eksckbZYl ls xzkgd dh gsfl;r ls ,d feuhMksj VsEiks fnukad 25-11-2005 dks [kjhnk gSA ftldk psfpl uEcj& Vh05152451Mh05 rFkk baftu uEcj&Mh 22016823 gSA ftl ij ifjoknh us Jhjke QkbZusUl dEiuh }kjk QkbZusUl djok dj Jh fdlku vkVks eksckbZYl >kcqvk dks mDr feuhMksj VsEiks dk Hkqxrku fd;k gSA

2- ;gfd] ifjoknh us mDr feuhMksj dks Jh fdlku vkVkseksckbZYl ds >kcqvk fLFkr 'kks:e ij lfoZflax ds fy;s j[kk FkkA ftls okil ysus ds fy;s ifjoknh us lEidZ fd;k rks irk pyk fd bl feuhMksj VsEiksa dks lkbZ vkVkseksckbZYl us vius vf/kdkjh@deZpkjh vkjksih iz'kkUr vkSj vkjksih nsosUnz ds ek/;e ls fnukad 24-08-2006 dks gk;Vsd dj ¼tcju½ vius vf/kir; esa ys fy;k gSA ;g dk;Z lkbZ vkVkseksckYl ds ekfyd vkjksih lfpu ;kno ds dgus ij fd;k x;kA

orZeku esa mDr VSEiksa vkjksih lfpu ;kno ds vf/kiR; ea gSA bl dk;z ds fy;s vkjksihx.k us ifjoknh dh vuqefr Hkh ugh yh gSA

The cognizance was taken by the trial court only for offence under Section 379 of IPC against the applicants vide order dated 20.6.2016. On 25.7.2017, the trial Court issued a perpetual arrest warrant against the applicants.

Learned counsel for the applicants submits that the trial Court committed a grave error of law in taking cognizance under Section 379, IPC, beyond the limitation prescribed under Section 468 of the Code. He has drawn my attention to the complaint and submitted that the act of theft is alleged to have been committed on 24.8.2006 and the instant compliant was filed on 14.10.2014, ie., approximately after eight years from the date of the act of theft, which is beyond the period of limitation and prays for its quashment.

As per Section 468 of the Code, no Court shall take cognizance of the offence after the expiry of the period of limitation. Clause (c) of sub-section 2 of Section 468, the period of limitation shall be three years, if the offence is punishable with the imprisonment for a term exceeding one year but not exceeding three years for an offence under Section 379 IPC, the period of sentence is three years. The language of Sub-Section (3) of Section 468 of the Code made its imperative that the limitation provided for taking cognizance in Section 468 in respect of offence charged and not in respect of offence finally proved. Here in the present case in hand, the learned Magistrate vide order dated 20th June, 2016, taken a cognizance only for offence under Section 379, IPC and thus in any case, the complainant has to file a complaint within a period of three years from the date of the alleged offence dated 24.8.2006.

If the date on which the complaint is filed is taken to be material, then if the complaint is filed within a period of limitation, there is no question of it being time barred. If it is filed after a period of limitation, the complainant can make an application for condonation of delay under Section 473 of the

Code. The Court will have to issue notice to the accused and after hearing the accused and the complainant whether to condone the delay or not. If the date of cognizance is considered to be relevant then, if the court takes cognizance within a period of limitation, there is no question of time barred.

If the court takes cognizance after a period of limitation, the question is how will Section 473 of the Code work ?. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr. Luthra, learned A.S.G. submitted that use of disjunctive ‘or’ in Section 473 of the Code suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the later part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 of the Code has to be bifurcated or

not. But, we do find this situation absurd. It is absurd to hold that the Court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass order condoning or not condoning the delay. Law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Section 473, 469 and 470 of the Code is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable (see 2014 (2) SCC 62).

For the purpose of computing the period of limitation under Section 468 of the Code, the relevant date is the date of filing of the complaint or the date of institution of the prosecution and not the date on which Magistrate takes cognizance. In the present case, no application for condonation of delay along with the complaint has been filed by the complainant. The Rajasthan High Court in the case of Chaina Ram & Ors.V/s.State of Rajasthan, 1986 (1) WLN 169 has held as relying on Apex Court judgment :-

“8. Section 468 of the Code prohibits the Magistrate from taking congnizance after expiry of the period of limitation. If the charge-sheet is filed after the expiry of the period of limitation prescribed under Section 468(2), the Magistrate has no power to take cognizance. There is no other alternative and the prosecution is bound to fail. The object of the legilature is putting a bar of limitation for taking cognizance was to prevent harassment to the accused caused by facing trial after lapse of long time after the offence. It minimises the chances of apprehension in the mind of a person that he may have to face the trial at any time. Similarly the chances of tampering with the witnesses or the witnesses themselves changing their version, because of the lapse of memory due to passsage of time, are minimised. Delayed trial may many a times cause prejudice to the accused in his defence which he could have availed earlier.

The question of bar of limitation came for consideration before their Lordships of the Supreme Court in the case of Surinder Mohan Vikal V/s.

Ascharaj Lal Chopra, AIR 1976 SC 988 and their Lordships were pleased to observe that, it is hardly necessary to say that statutes of limitation have legislative policy behind them. That, they shut out related and dormant claims in order to save the accused from unnecessary harassment. That, it also saves the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay, on the part of the Prosecutor.

Dealing with the question of limitation and the provisions of Sections 468 and 469 of the Code, their Lordships of the Supreme Court in the case of State of PunjabV/s. Sarwansingh, 1982 LR (SC) 5 were pleased to hold that the object the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation, the conviction and sentence of the respondent was held to be non-est because of the cognizance being taken beyond the expiry of the period of limitation.

Applying the principle enunciated in the two cases referred to above and keeping in view the object of enacting Section 468, I am inclined to hold that so far as Chainaram is concerned, the court had no power to take cognizance when his identity was know to Police in the year 1972. The filing of the challan in the year 1980 raises the question of limitation and the answer would go in favour of Chainaram and he is entitled to the benefit of

Section 468 of the Code.”

The power under Section 482 of the Code, is wide and has to be exercised with great care and caution. Interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.

From the averment made in the complaint, it is not in dispute that employees of Sai Automobile forcibly taken the vehicle of the non-applicant on 24.8.2006 and admittedly the complaint was filed on 14.10.2014 and thus as per sub-Section (2) of Section 468 of the Code, the complaint is not filed within a period of three years, thus, the same is being barred by time.

In the present case, the contents of the complaint can certainly be taken into account. Admittedly, the complaint at least for eight years from the date of incident did not even bother to take effective step to file a complaint within 3 years.

Having regard to the nature of allegations and entirety of circumstances, it will be unfair and unjust to permit the respondent to proceed with a complaint filed 8 (eight) years after the incident against the applicants.

Hence, the impugned order of the learned Judicial Magistrate dated 20.6.2016 is set aside and proceedings in the aforesaid complaint are quashed.

Accordingly, M.Cr.C.No.5317 of 2018 is allowed and disposed of.