The State Of Maharashtra, Through ... vs Ramesh S/O Zinguji Sahare
2017 Latest Caselaw 6984 Bom

 apl.366.14                                      1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

          CRIMINAL   APPLICATION (APL) NO. 366 OF 2014


 The State of Maharashtra,
 Through District Government Pleader
 And Public Prosecutor, Akola,
 District-Akola                                                         ..... APPLICANT

       ...V E R S U S...

  
 Ramesh S/o Zinguji Sahare,
 Aged about 58 years,
 R/o Hingna Road, Khadan,
 District-Akola.                                               ... NON-APPLICANT
 -------------------------------------------------------------------------------------------
 Shri J.Y.Ghurde,A.P.P. for State-applicant.
 Shri N.R.Tekade,Advocate for non-applicant.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- SEPTEMBER 11,2017

ORAL JUDGMENT

The State of Maharashtra, being aggrieved by the

judgment and order passed by learned Additional Sessions

Judge,Akola in Criminal Revision No.91/2011 is before this Court.

2] Heard learned A.P.P. for applicant-State and learned

counsel for non-applicant-original accused.

3] By the impugned judgment learned Additional Sessions

Judge,Akola not only allowed the revision filed on behalf of the

non-applicant-accused before it but also stopped the proceeding of

S.C.C.No.803/2009 under Section 258 of Code of Criminal

Procedure.

4] The few facts to be narrated for deciding the present

case are as under:

The victim lodged a report with P.S.Civil Lines,Akola

on 21/8/2005 alleging therein that the non-applicant herein on

telephone asked her to keep illicit physical relations with him for a

night for the favourable consideration of candidature of her son

for his appointment in the police department. The non-applicant

herein at the relevant time was working as Sub-Divisional Police

Officer,Sub-Division,Akola. The complaint was lodged by the

victim on 21/8/2005 and since it disclosed commission of

cognizable offence an offence under Section 509 of the Indian

Penal Code was registered against the present non-applicant vide

Crime No.646/2005.

5] The Police Station Officer,P.S.Civil Lines, Akola

investigated the matter. After completion of the investigation, he

submitted the entire case papers to Superintendent of Police,

Akola for obtaining sanction to prosecute the non-applicant he

being a public servant under Section 197(2) of the Code of

Criminal Procedure.

The Superintendent of Police,Akola forwarded the

entire case papers to the State Government seeking sanction

against the non-applicant. By letter dated 2/1/2009 which was

addressed to the Superintendent of Police, by Office of the Special

Inspector General of Police,Amravati Division,Amravati that there

is no need for previous sanction to prosecute the non-applicant.

After receipt of this, Superintendent of Police, Akola vide his letter

dated 13/2/2009, directed the P.S.O.P.S.Civil Lines,Akola to file

chargesheet against the non-applicant. Accordingly, the

chargesheet was filed in the Court on 5/3/2009.

6] The learned Magistrate took the cognizance of the

challan presented by P.S.O.P.S.Civil Lines,Akola. The case was

registered as S.C.C.No.803/2009.

7] During the pendency of the said criminal case an

application for dismissing the chargesheet was filed for and on

behalf of the non-applicant on 14/2/2011. The said application is

at Exh.17 on the record of S.C.C.No.803/2009. As per the said

application(Exh.17) though the report is dated 18/8/2005 the

F.I.R. is dated 21/8/2005 and the chargesheet is filed on

5/3/2009. Thus, according to the learned counsel for non-

applicant the chargesheet is barred by limitation and no

cognizance of the said application should have been taken by the

learned Magistrate since according to non-applicant the offence

under Section 509 of the Indian Penal Code is punishable only for

one year therefore in view of Section 468 of the Code of Criminal

Procedure the limitation prescribed for filing the chargesheet is

one year.

8] The learned Magistrate on 19/5/2011 rejected the

application filed on behalf of the non-applicant. The revision

which was filed by the non-applicant was allowed and stopped the

proceeding under Section 258 of Code of Criminal Procedure

against the non-applicant.

Section 468 of Code of Criminal Procedure which falls

under Chapter XXXVI of the Code of Criminal Procedure reads as

under:

"468. Bar to taking cognizance after lapse of the periodof 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-

(a) 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 term exceeding one year but not exceeding three years.

[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

The offence registered against the non-applicant is under Section

509 of the Indian Penal Code and for that punishment is one year.

Therefore, as per the provision of Section 468 of the Code of

Criminal Procedure the limitation for presentation of the

chargesheet is one year.

9] However, in the present case, at the relevant time, the

non-applicant was working as Sub-Divisional Police Officer and

therefore he was a public servant. It appears that the investigating

officer has forwarded papers to the Superintendent of Police,Akola

for obtaining sanction to prosecute the public servant. Leave

apart, whether the sanction in the present case was necessary or

not, the investigating officer remitted the papers to the

Superintendent of Police, Akola presuming that sanction is

necessary.

10] It was communicated only on 2/1/2009 that the

sanction is not necessary to prosecute the non-applicant.

Therefore, immediately the chargesheet was filed. While

presenting the chargesheet, the note is also appended alongwith

the chargesheet pointing out the aforesaid facts. The learned

Magistrate found that by virtue of note the prosecution has in fact

satisfied Sub-section 3 of Section 470 of the Code of Criminal

Procedure.

11] The learned revisional Court has outlooked this note

which is appended to the chargesheet and has incorrectly

recorded the findings that there is no application for condonation

nor any note is appended.

12] This Court in Khalid Akhtar Abdul Latif

Ahemi..vs..State of Maharashtra, 2011 ALL MR(Cri)2574 has

ruled that it would be sufficient for supplying the reasons by the

prosecution either by putting a note in the chargesheet itself or by

making a separate application with requisition to condone the

delay.

13] A judgment is delivered by the Constitutional Bench of

the Hon'ble Apex Court in Mrs. Sarah Mathew..vs..Institute of

Cardio Vascular Diseases and others, AIR 2014 SC 448 and

paragraph no.41 of the said is as under:

" In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Cr.P.C."

14] In view of the aforesaid law as laid down by the Constitutional Bench of the Hon'ble Apex Court the present appliction is required to be allowed. The complaint is filed immediately after the occurrence. Therefore, it was incorrect on

the part of the learned revisional Court to hold that the cognizance was barred by limitation and therefore, the order passed by the learned revisional Court exercising the power under Section 258 of the Code of Criminal Procedure cannot stand to the scrutiny of the law. Consequently, the application is allowed. Hence, order.

                               ORDER
 I)             The application is allowed.


 II)            The order passed by the learned Additional Sessions 

Judge,Akola in Criminal Revision No.91/2011, dated 11/3/2014 is hereby quashed and set aside.

III) The order passed by learned Judicial Magistrate First Class (Court No.1),Akola in S.C.C.No.803/2009, below Exh.17, dated 19/5/2011 is restored to its file.

IV) S.C.C.No.803/2009 is restored to the file of learned Judicial Magistrate First Class(Court No.1),Akola and the learned Magistrate is directed to conduct the trial as expeditiously as possible.

Rule is made absolute.

JUDGE

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