State vs Deepan and Dr. K.P. Ramalingam

Pratap Singh, J.—The Investigating Officer in A.F.I.R. No. 1 of 19S8 on the file of the Additional Chief Metropolitan Magistrate, Egmore,

Madras has filed this petition u/s 482, Code of Criminal Procedure, praying to set aside the order of the Additional Chief Metropolitan Magistrate,

closing A.F.I.R. 1/88 on 1.3.91.

Brief facts are: Selvi Jayalalitha Jayaram, then a M.P. and present Chief Minister of Tamil Nadu had sent a telegram to the Chief Secretary to

Government of Tamil Nadu on 25.12.87, the contents of which are briefly as follows:

On 25.12.87, while she was getting into the truck which carried the body of the deceased Chief Minister, she was kicked and manhandled and

bodily thrown out by Mr. Deepan. She had suffered serious injuries due to the calculated physical assault on her by her political rivals. Despite her

oral protest to the Director General of Police of Tamil Nadu, no action seems to have been taken. Hence she lodges the complaint and has made a

request to take suitable action. On receipt of this telegram, the Special Commissioner and Secretary to Government, Home Department,

Government of Tamil Nadu had addressed a letter dated 28.12.87 to the Director General of Police, Madras, enclosing a copy of the aforesaid

telegram and making a request to have the matter investigated and send a report to the Government. The Director General of Police, in turn, had

directed the concerned police to register a case and investigate. On his direction, the case was registered in Crime No. 1563/87 of Central Crime

Branch, Egmore, Madras for offences under Sections 341, 354 and 323 I.P.C. The corresponding F.I.R. is A.F.I.R. 1/88 on the file of Additional

Chief Metropolitan Magistrate, Egmore. The F.I.R. was closed on 1.3.91 by the Additional Chief Metropolitan Magistrate on the ground that

F.I.R. is pending for a long time, that there was no representation from the police, that police had neither filed the charge sheet nor submitted the

final report so far, and the period of limitation for filing the charge sheet exceeds u/s 468 of the Code. While so, on 7.9.91, Dr. Ramalingam, who

was arrayed as accused No. 2 during the course of investigation was arrested and was produced before the Additional Chief Metropolitan

Magistrate and he was remanded to judicial custody till 29.9.91, but was later released on bail on 9.9.91. The other accused Ramachandran alias

Deepan had filed a petition for surrender and surrendered before the said Metropolitan Magistrate on 10.9.91. The Magistrate had passed an

order dismissing the petition for surrender, observing that the F.I.R. in the case was closed as early as on 1.3.91 on the ground that it became

barred by time u/s 468 Code of Criminal Procedure. He has also pointed out that before such closure, no requisition was received for altering the

offence. In the above back drop, the present petition is filed to set aside the above said order of the Additional Chief Metropolitan Magistrate,

dated 1.3.91.

Before considering the contentions put forth by the learned Counsel two other relevant circumstances need mention at this stage. The first

circumstance is that according to the Petitioner, on 18.3.88, the investigating officer had examined Dr. Chockalingam and recorded his further

statement in which he had stated that the injury suffered was ""grievous"" in nature in as much as she was in bed and was incapacitated from doing

normal work for 30 days and had also given a certificate on the same day that the injury was grievous and on the foot of the above statement and

Doctor Certificate, the investigating officer had sent a communication to the Additional Chief Metropolitan Magistrate, informing him that he was

altering the case as one under Sections 341, 325 and 354, I.P.C. For offence u/s 325. I.P.C. Section 468 Code of Criminal Procedure is not

applicable. Though the above three documents, dated 18.3.88 are found in the case diary, there is no record in the court of Additional Chief

Metropolitan Magistrate in this case bundle showing receipt of the communication, dated 18.3.88, altering the case as u/s 325 I.P.C. and other

offences. There is neither any record with the investigating officer to show that it was delivered in the Court of Additional Chief Metropolitan

Magistrate (whom I shall hereafter refer to as A.C.M.M.). The learned Public Prosecutor would state that it is the practice not to get any

acknowledgment. The other circumstance which was relied upon by the learned Senior Counsel appearing for the Respondents is that the

A.C.M.M. had submitted to the Chief Metropolitan Magistrate, Egmore, Madras a list of pending F.I.Rs. on the file of that court for the years

1981 and 1983 to 1990 including this F.I.R. In turn, the Chief Metropolitan Magistrate had sent to the Director General of Police, Madras and

Commissioner of Police, Egmore, Madras on 27.12.90 the list of pending F.I.Rs. on the file of Metropolitan Magistrate and had made a request to

give suitable instruction to the concerned either to send final report or to file charge sheet early as the F.I.Rs. are pending for a very long time. In

that list Item No. 189 in Crime No. 1563/87 viz. this crime. Though the Petitioner was given time for filing copy of any reply by the Commissioner

of Police, to the aforesaid letter of the Chief Metropolitan Magistrate, nothing was filed.

Mr. B. Sriramulu, the learned Public Prosecutor would contend that the closure of the F.I.R. by the A.C.M.M. on the ground that the period of

limitation for filing the charge sheet u/s 468. Code of Criminal Procedure had expired is without jurisdiction since the occasion for exercise of

power u/s 463 of the Code would come only at the time of ""taking cognizance of the offence"" and the stage of taking cognizance of the offence

would come u/s 190, Code of Criminal Procedure only upon receipt of a police report and as on 1.3.91, no police report was filed. So exercise of

the power u/s 468, Code of Criminal Procedure by the A.C.M.M. is without jurisdiction. Per contra, Mr. N. Natarajan, the learned Senior

Counsel, would contend that by virtue of the pronouncement of the Apex Court and this Court, the stage for exercise of power u/s 468, Code of

Criminal Procedure comes even prior to the filing of the police report and the A.C.M.M. is perfectly in order in closing the F.I.R. before the filing

of the police report, but after the period of limitation for offences under Sections 41, 324 and 354, I.P.C. had expired. Mr. B. Sriramulu, would

rebut this contention by stating that even in such a case, the closure of F.I.R. can be done only after giving notice to the investigation agency and

the complainant; and in the instant case, no such notice was given to either of them. He would add that only if such a notice is given, the

prosecution or the complainant can place before the court any later development, as in the case the alteration of the case for offence u/s 325,

1.P.C. and any other legitimate ground for not closing the F.I.R.

To have a better appreciation of the case, the impugned order, dated 1.3.91 needs extraction. It reads as follows:

F.I.R. is pending for a long time. No representation from police. Police has neither filed the charge sheet nor submitted final report so far. The

period of limitation for filing the charge sheet exceeds u/s 468 of Code of Criminal Procedure Hence, the F.I.R. is closed.

First, I shall consider the question as to whether this order can be sustained on the ground that the period of limitation for offences under Sections

341, 323 and 354 I.P.C. was over as on 1.3.91. The occurrence was on 25.12.87. On the same day, the complainant had sent a telegram to the

Chief Secretary of Government of Tamil Nadu. On 28.12.87, the Home Secretary had written to the Director General of Police, enclosing copy of

the said telegram with a requisition to have the matter investigated and send a report. On the direction of the Director General of Police, case in

Crime No. 1563/87 for offence under Sections 341, 323 and 354 was registered on 31.12.87. On that day, the accused were Deepan and

others. Dr. Ramalingam was implicated as an accused at a later stage. The investigating officer had not filed the police report u/s 173(2), Code of

Criminal Procedure or any final report. Period of limitation for offences under Sections 341, 323 and 354 are 1 1/2, 1 1/2 and 3 years

respectively. That period has expired. In the above circumstances, the impugned order was passed on 1.3.91, closing the F.I.R., observing that

period of limitation for filing the charge sheet exceeds u/s 468, Code of Criminal Procedure. For a better appreciation of the contention as to

whether the closure of the F.I.R. on this ground is correct, Section 468 Code of Criminal Procedure Code needs extraction. It reads as follows:

Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code. No court shall take

cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be--

(3) six months, if the offence is punishable with fine only:

(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purpose of this Section, the period of limitation, in relation to offence which may be tried together, shall be determined with reference to

the offence which is punishable with more severe punishment or, as the case may be the most severe punishment.

(Emphasis supplied)

Such a ""taking cognizance of the offence"" comes u/s 190(1) Code of Criminal Procedure. It reads as follows:

Cognizance of offences by Magistrates-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, any Magistrate of the

second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence.

(a) upon receiving a complaint of facts which constitute such offence:

(b) upon a police report of such facts:

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(Emphasis supplied)

The forwarding of a police report by the investigating officer is provided in Section 173(2), Code of Criminal Procedure. Section 173(1) and (2)

Code of Criminal Procedure read as follows:

Report of Police officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary

delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the

offence on a police report, a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom,

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody u/s 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if

any; by whom the information relating to the commission of the offence was first given.

(Emphasis supplied).

A reading of Section 468 and the language in it would clearly show that the power given u/s 468 can be exercised only at the time of taking

cognizance of the offence. The stage of taking cognizance of the offence would come only when a police report u/s 173(2) is forwarded to a

Magistrate, empowered to take cognizance of the offence u/s 190 of the Code. In the instant case, admittedly the Police report was not forwarded

to the A.C.M.M. as on 1.3.91. So the stage of taking cognizance of the offence had not at all come. As per Section 468 Code of Criminal

Procedure, the Court shall not take cognizance of the offence after expiry of period of limitation. When that stage has not at all come, the impugned

order of A.C.M.M. closing the F.I.R. on the ground that period of limitation had expired u/s 468 Code of Criminal Procedure cannot be sustained.

In Kathamuthu v. Balammal 1985 L.W. (Crl.) 252 Division Bench of this Court has considered the scope of Section 468 Code of Criminal

Procedure. Justice Ratnavel Pandian (as he then was) has observed as follows:

A plain reading of Section 468, Code of Criminal Procedure would show that except as otherwise provided elsewhere in the Code, such as the

periods prescribed under Sections 84(1), 96(1), 198(6), 199(5), 378(5) and 457(2) and the proviso to Section 25(3) no court shall take

cognizance of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. Therefore, Section 468 clearly bars

every court from taking cognizance of the categories of offences in respect of which the periods of limitation are prescribed under Sub-section (2)

of that section, after the expiry of such periods of limitation. In other words, if a prosecution is launched after the expiry of the period of limitation in

the above categories of offences, the Court cannot lake cognizance of the offence.

As pointed out by the learned Judges, if the prosecution is launched after the expiry of the period of limitation in the above categories of cases.

Section 468 Code of Criminal Procedure would stand as bar, Exercise of the powers u/s 4681, Code of Criminal Procedure at any earlier stage of

investigation is not contemplated in the language of the section.

The next question which falls for consideration is whether Section 468 Code of Criminal Procedure can be applied at any earlier stage, well

before the filing of the police report u/s 173(2) Code of Criminal Procedure. In this regard. Mr. N. Natarajan, would relay upon the ruling of the

Apex Court reported in Hussanaira Khatoon v. Home Secretary 1980 S.C.C. (Crl.) 35. In it, while examining the scope of Section 468 of the

Code, the Supreme Court has expressed its view as follows:

It is therefore, to be seen that the under-trial prisoners against whom charge sheets have not been filed by the police within the period of limitation

provided in Sub-section (2) of Section 468, cannot be proceeded against at all and they would be entitled to be released forthwith as their further

detention would be unlawful and in violation of their fundamental right under Article 21

In this case, the plight of the under-trial prisoners in various jails in Bihar came to light. An alarmingly large number of men and women, children

including, were behind prison bars for years awaiting trial in courts of law. The offence with which some of them were charged were trivial which,

even if proved, would not warrant punishment for more than a few months, perhaps for a year or two. But those under-trial prisoners were in jail

for a period of ranging from 3 to 10 years. This shocking state of affairs was brought to the knowledge of the Apex Court, the Apex Court has

expressed its view, as extracted above. In Jaganathan v. State 1983 L.W. (Crl.) 250 Justice Ratnavel Pandian (as he then was) had referred to the

heavy pendency of the Criminal cases in the F.I.R. stage and the steep escalation thereof from day-to-day. Then the learned Judge had given nine

suggestions out of which, suggestions 3 to 5 are relevant for our purposes and they are as follows:

By applying Section 468(2)(b), Code of Criminal Procedure all summons cases punishable with imprisonment for one year or less, not taken

cognizance of due to the non-filing of the charge sheets even after the expiry of one year from the date of the offence or any other relevant date

prescribed for the commencement of the period of limitation as provided for u/s 469 Code of Criminal Procedure should be struck off from the file

of the Courts, after giving short notice to the prosecution.

As pointed out by the Supreme Court in Hussainara Khatoon''s case 1980 S.C.C. (Crl.) 35 all the under trial prisoners against whom charge-

sheets have not been filed within the specified period of limitation as contemplated u/s 468(2) should be released consequent upon the striking off

of those cases.

Warrant cases which are punishable with imprisonment for a term exceeding one year but not exceeding three years and ail summons cases

punishable for more than one year, all of which are pending due to the non-filing of charge sheets beyond the period of limitation of three years

should be struck off from the file after giving a short notice to the prosecution and the accused, if in jail, should be set at liberty consequent upon

the striking off of those cases.

Mr. N. Natarajan, would contend that in the ruling first cited supra, the Apex Court had directed that the under-trial prisoner against whom

charge sheets have not been filed by the police within the period of limitation, provided under Sub-section (2) of Section 468 cannot be proceeded

against at all and they would be entitled to be released forthwith and in the second ruling cited above, this Court has held in suggestion No. 3 that

by applying Section 468(2)(b) Code of Criminal Procedure, all summons cases punishable with imprisonment for one year or less, not taken

cognizance of due to the non-filing of the charge sheets even after the expiry of one year from the date of offence or any other relevant date

prescribed for the commencement of the period of limitation as provided for u/s 469, Code of Criminal Procedure, should be struck off from the

file of the Courts, after giving short notice to the prosecution and in view of the above pronouncements of the Apex Court and this Court, on expiry

of period of limitation, the cases should be struck off without awaiting the stage of taking cognizance of the offence, u/s 190 Code of Criminal

Procedure. The view expressed by the Apex Court which I have extracted above was considered by the Division Bench of this Court in

Kathamuthu v. Balammal 1985 L.W. (Crl.) 252 . Justice Ratnavel Pandian (as he then was) had extracted the above passage of the Apex Court

and had observed as follows:

This observation shows that once the period of limitation has expired, the accused would be entitled to be released forthwith, as otherwise that

would be in violation of his fundamental right under Article 21 of the Constitution and also against the intendment of Section 468(2). This implies

that the moment the period of limitation comes to an end, the Court is prohibited from taking cognizance of the offence unless the period is

extended by condoning the delay by virtue of Section 473.

In Jaganathan v. State 1983 L.W. Crl. 250 as per suggestion No. 3 after giving short notice to the prosecution, by applying Section 468(2)(b),

Code of Criminal Procedure, after expiry of the period of limitation, summons cases should be struck off.

Mr. B. Sriramulu, would contend that even in such a case notice must also go to the complainant before the F.I.R. is closed. In Bhagwant Singh

Vs. Commissioner of Police and Another, the Apex Court has held that the first informant must be given opportunity of being heard in case the

Magistrate deciding not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R. and that Magistrate must give

notice and hear first informant. The Apex Court has expressed its view as follows:

There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section

(2)(i) of Section 173 the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity

of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are

accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to

take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the

persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at

the time of consideration of the report.

Thus even in a case where the police filed a final report u/s 173(2), if the case is being dropped, which will be an order adverse to the informant,

the Apex Court has laid that the informant must be given notice and that he must be given opportunity of being heard before an order is passed so

as to afford him an opportunity to persuade the Magistrate to take the case on file against all the accused; While so, it is all the more incumbent

upon the Magistrate to give notice to the informant before closing the F.I.R. at a time before the police, filed a final report u/s 173(2), Code of

Criminal Procedure.

From the above rulings, the following proposition emerges: After the expiry of a period fixed u/s 468(2), Code of Criminal Procedure and

before filing police report u/s 173, the cases to which Section 468(2) are applicable should be struck off from the file of the court, after giving short

notice to the prosecution and to the informant.

Mr. N. Natararajan, would contend that in this case notice was give to the prosecution. He would state that the letter addressed by the

A.C.M.M. to the Chief Metropolitan Magistrate on 3.12.90 and letter addressed by Chief Metropolitan Magistrate to the Director General of

Police and Commissioner of Police, Egmore, dated 27.12.90 sending list of F.I.Rs. on the file of Metropolitan Magistrates which includes this

F.I.R. and requesting him to give instructions to concerned to send final report or to file charge sheet early, would amount to a short notice to the

prosecution. In the said letter by Chief Metropolitan Magistrate to Director General of Police and Commissioner of Police, dated 27.12.90, list of

pending F.I.Rs. on the files of Metropolitan Magistrate are enclosed. The list was given in proforma under five headings i.e. Serial Number, Crime

Number, Name of the accused, Section and Name of the Investigating Officer. Regarding this case as against the aforesaid five headings, it is

entered as follows:

189-1563/87 - Deepan and others - 354, 323 IPC - Rajaram Mohan Rao"" is written. We have to see whether this letter addressed by Chief

Metropolitan Magistrate to the Commissioner of Police would amount to a short notice to the prosecution. The Investigating Officer in this case is

the Inspector of Police, Central Crime Branch, Mr. B. Sriramulu, would contend that the letter addressed by the Chief Metropolitan Magistrate to

the Director General of Police and Commissioner of Police, Madras, in pursuance of the letter of the A.C.M.M. to him giving the list of F.I.Rs.

inclusive of the F.I.R. concerned in this case and requesting him to give suitable instructions to the concerned either to send final report or file

charge sheet would not amount to a short notice to the prosecution. For contra, Mr. N. Natarajan, would contend that Inspector of Police, Central

Crime Branch, Egmore, Madras is under the control of Commissioner of Police as well as Director General of Police and notice to them would

amount to notice to the prosecution and that despite this notice, the Commissioner of Police had not taken any action whatsoever as evident from

not filing of any reply to this letter in court. No particular pro forma is prescribed regarding notice to be given to prosecution. The object of such a

notice is to point out that period of limitation has already come to an end, and that prosecution must file the final report or take other appropriate

steps for getting extension of period of investigation or inform the court whether any graver offence had come to light during the course of

investigation and put forth all relevant materials before the concerned court or otherwise the F.I.R. will be struck off. Such a notice must clearly

indicate that F.I.R. will be struck off in such circumstances. This letter of Chief Metropolitan Magistrate to the Commissioner of Police, listing the

F.I.Rs. pending without any final report and making a request to instruct concerned police officer to file final report early, cannot be construed as a

notice for striking off the cases from the file of the Court. So I am of the view that this letter to the Commissioner of Police does not satisfy the

requirements of short notice to the prosecution before striking off the case.

The other requirement viz., giving notice to the complainant is admittedly not complied with in this case, before closure of the F.I.R. The

complainant is vitally interested in the taking of the case on file, after completion of the investigation. The closure of the F.I.R., given by the

complaint, is certainly an order adverse to the complainant. That should not be done without giving an opportunity to the complainant to be heard

to enable her to persuade the Magistrate to hold otherwise in view of the materials which complainant can place before the Magistrate. In the

absence of notice to the prosecution and the complainant, the impugned order cannot be sustained.

Mr. B. Sriramulu, would contend that the impugned order cannot be sustained either as an order u/s 167(5) Code of Criminal Procedure.

Section 167(5) Code of Criminal Procedure reads as follows:

Procedure when investigation cannot be completed in twenty-four hours.

(5) If in any case triable by a Magistrate as a summons- case, the investigation is not concluded within a period of six months from the date on

which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the

investigation satisfied the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of

six months is necessary.

For invocation of this Sub-section, the following conditions should be satisfied:

(1) The case is to which the provision is to be applied should be one triable by the Magistrate as a summons case.

(2) The accused in that case should have been arrested;

and

(3) the investigation should not have been concluded within a period of six months from the date of arrest of the accused.

In the instant case, condition No. 2 was not satisfied in as much as none of the accused were arrested as on 1.3.1991, when the impugned order

was passed.

My discussion above would show that looking the case from any angle, the impugned order cannot be sustained and is liable to be set aside.

But before parting with this case, I would like to point out the two avoidable lapses on the part of prosecution. According to the prosecution, on

18.3.88, Dr. Chockalingam was examined and his further statement was recorded in which he had stated that the injuries sustained by the

complainant was grievous and on the same day he gave a Doctor Certificate to that effect. It is further said that on the strength of these news on

the very same date and communication thereof was sent to the court of ACMM but there is nothing in the records of the ACMM to show that any

such communication was received by the Court. The prosecution has got no record to show as to through whom and on which date the said

communication was sent by the investigating officer to the Court and to whom it was delivered. There is no acknowledgment for handing it over to

the court. When the case, which was registered for a lesser offence was altered as one for a graver offence, the consequences which flow from the

alteration are serious. While so, it is deplorable on the part of the prosecution to simply say without any particulars or records whatsoever that the

communication altering the case as one u/s 325 I.P.C. was handed over in a casual manner, exposing itself to criticism. Hence forth the

investigating officers shall have such particulars and acknowledgment in cases where offences are altered into graver offences, in the course of

investigation. Then again, when the Chief Metropolitan Magistrate had addressed the Commissioner of Police with a list of pending F.I.Rs. the

enormity of which is really alarming, requesting him to give suitable instructions to the concerned police officer either to send final report or to file

charge sheet, there appears to be absolutely no response on the part of the Commissioner of Police. There is nothing to show that he had initiated

any action after he was informed of the long pending F.I.Rs., inclusive of this F.I.R. If he had taken prompt and effective action, the investigating

officer would have placed before and A.C.M.M. the materials showing that the case was already altered as one u/s 325 I.P.C. and would have

also placed before the Court, the steps taken for completing the investigation early. Because of the virtual inaction on the part of the Commissioner

of Police, the A.C.M.M. in whose records there is nothing to show that the offence was altered as one u/s 325 I.P.C. had passed the impugned

order, which of course is being set aside for reasons given above. The police officers of the higher hierarchy are expected to spring into action on

communications forwarded by the Court. If only the superior officers had acted with promptitude, in issuing directions to the subordinates on

communications received from court, this unnecessary and avoidable episode would not have surfaced.

With the above observations, this petition is allowed and the order of the learned Additional Chief Metropolitan Magistrate, Egmore, dated

1.3.91, closing A.F.I.R.1 of 1988 is hereby set aside.