Mohaseen Mohammed Khan vs The State Of Maharashtra
2021 Latest Caselaw 6365 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL WRIT PETITION NO. 259 OF 2021

      Mohaseen Mohammed Khan
      Age: 27 Years, Occ: Engineer
      R/o. Room No. 12, New Maulana                              ....Petitioner
      Parve Chawl, New Hall Road,
      Kurla (West), Mumbai - 400 070


             V/s.

      The State of Maharashtra
      (through Bandra Police Station)
      in C.C. No. 11/Misc/21017, pending                         .....Respondent
      on the fle of Ld. Metropolitan
      Magistrate's 12th Court, Bandra,
      Mumbai

      Mr. Shravan K. Giri a/w Mr. Vikas Mishra and Shubham Upadhyay
      for the Petitioner
      Mr. K. V. Saste, APP for Respondent-State

                               CORAM:   S. S. SHINDE &
                                        MANISH PITALE, JJ.

RESERVED ON: 01.04.2021 PRONOUNCED ON: 09.04.2021.

JUDGMENT: [PER: MANISH PITALE, J.]

1] Rule. Rule returnable forthwith. Heard fnally with the consent

of learned counsel appearing for the parties.

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2] The petitioner has approached this court, inter alia, for quashing

and setting aside of criminal proceedings and order of cognizance of

offence taken by the Court of Metropolitan Magistrate, on the ground

that such criminal proceedings stood barred by limitation prescribed

under section 468 of the Code of Criminal Procedure (Cr.P.C.).

3] A First Information Report (FIR) dated 03.03.2014 was lodged at

the behest of a police constable as informant wherein the petitioner,

along with 13 other persons, was arraigned as an accused for offences

under sections 279 and 336 read with 34 of the Indian Penal Code

(IPC). It was stated in the information leading to registration of the FIR

that the informant police constable was part of a team of police

personnel on duty when information was received that certain persons

were riding motorcycles in a rash manner, thereby causing risk to

themselves as well as other persons using the road on which they

were riding their motorcycles. According to the informant, the

inspector in-charge formed teams of police personnel to intercept and

apprehend such persons riding motorcycles in a rash manner. It is

stated that in pursuance of the action of the said police teams, 14

persons were apprehended, including the petitioner herein. It was

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specifcally stated by the informant that the accused persons,

including the petitioner, were driving in a rash and negligent manner

at high speed, thereby creating risk for not only themselves but others

and hence, they had committed the aforesaid offences.

4] Upon completion of investigation, charge-sheet was fled before

the Court of Magistrate. A perusal of the said document shows that

the date 27.07.2015 is affied on the last page of the report where the

signature of the senior inspector of the police station and that of the

Assistant Commissioner of Police is found. There is also a statement

on the said page that the charge-sheet was fled before the said Court

and cognizance of offence was taken against the accused for offences

under sections 279 and 336 of the IPC. On this endorsement there are

two dates found i.e. 13.01.2017 and 20.03.2017.

5] According to the petitioner, the case has remained pending at

this stage till date and even the Roznama has not been properly

maintained by the Court of the Magistrate. The petitioner has

specifcally stated in the Writ Petition that when the alleged incident

took place he was a student in engineering College and that thereafter,

he had obtained the degree of engineering. The petitioner had secured

job in a reputed organization and that he had been offered promotion

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due to his hard work, with an opportunity to work for the said

company in Muscat, Oman. But, due to the pendency of the aforesaid

criminal proceedings, the petitioner could not apply for a passport and

hence, he lost the said opportunity of promotion and working abroad.

The petitioner states that he had no option but to take up another job

in a company in which he is presently working since April 2019. It is

further stated that his earlier employer has kept the offer open.

6] It is in this backdrop that the petitioner fled the instant

petition, praying for quashing and setting aside of the aforesaid

criminal proceedings and also a direction to the Court of Magistrate to

follow the procedure and guidelines regarding maintenance and

issuance of copies of Roznama as laid down in chapter III of the

Criminal Manual.

7] Mr. Shravan K. Giri, learned counsel appearing for the petitioner

submitted that in the present case the Court of Magistrate could not

have taken cognizance of the said offences against the petitioner

because the same was barred by section 468 of the Cr.P.C. It was

submitted that the said provision specifcally pertained to periods of

limitation prescribed regarding minor offences. By relying upon the

said provision, the learned counsel for the petitioner emphasized that

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when the sentence prescribed for section 279 of the IPC is 6 months

and for section 336 of IPC is 3 months, cognizance taken by the Court

of Magistrate in the year 2017, when the offence was allegedly

committed on 03.03.2014, was clearly barred by limitation prescribed

under section 468 (2) of the Cr.P.C.. The learned counsel for the

petitioner relied upon the judgement of the Hon'ble Supreme Court in

the case of State of Himachal Pradesh Vs. Tara Dutt and Anr. [AIR

2000 SC 297] and judgement of Madras High Court in the case of M.

Chandran Vs. State and another (judgement and order dated

21.01.2020 passed in Criminal O.P. (MD) No. 79 of 2020).

8] On the other hand, Mr. K.V. Saste, learned counsel appearing for

the Respondent-State submitted that even if the period of limitation

was prescribed under section 468 of the Cr.P.C., section 473 thereof

provided for eitension of the period of limitation in certain cases. It

was emphasized that the said provision started with a non-obstante

clause and that therefore, the Court of Magistrate did have power to

eitend the period of limitation in order to take cognizance of the

offence. On this basis, the learned APP submitted that the matter

could be remanded to the Court of Magistrate for consideration of the

aspect of eitension of limitation in the interest of justice.

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9] Heard learned counsel for the rival parties and perused the

material on record. Section 468 of the Cr.P.C. pertains to bar to taking

cognizance after lapse of the period of limitation. This pertains to

minor offences for which the maiimum prescribed sentence does not

eiceed 3 years. The said provision reads as follows:

"468. Bar to taking cognizance after lapse of the period of limitation.- (1) Eicept as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specifed in sub-section (2), after the eipiry of the period of limitation.

(a) sii months, if the offence is punishable with fne only;

                (b)      one year, if the offence is punishable with
                imprisonment for a term not eiceeding one year;
                (c)      three years, if the offence is punishable with

imprisonment for a term eiceeding one year but not eiceeding 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.]"

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10] Section 469 of the Cr.P.C. pertains to commencement of the

period of limitation and section 473 thereof gives power to the Court to

take cognizance of an offence beyond the period of limitation, if it is

satisfed in the facts and circumstances of the case that the delay has

been properly eiplained or that it is necessary so to do in the interest

of justice.

11] In the present case offence was registered and charge-sheet

stood fled against the petitioner along with others for offences under

sections 279 and 336 of the IPC. It is undisputed that the maiimum

sentence prescribed for offence under section 279 of the IPC is 6

months and for the offence under section 336 thereof is 3 months.

Applying the period of limitation prescribed in section 468 (2) of the

Cr.P.C., cognizance of offence under section 279 of the IPC could have

been taken only up to 1 year from the date of commencement of

limitation and for the offence under section 336 of the IPC, the period

of limitation would also be the same. Thus, it needs to be eiamined,

in the facts and circumstances of the present case, as to whether the

criminal proceedings against the petitioner deserve to be quashed on

the ground that such proceedings stood barred by limitation under

section 468 of the Cr.P.C.

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12] In this regard it would be necessary to refer to the relevant

dates. As per the FIR, the offences were allegedly committed on

03.03.2014. As per section 469 of the Cr.P.C., the period of limitation

commences on the date of the offence. Therefore, in the present case

the period of limitation commenced from 03.03.2014. Hence, the

criminal proceedings could be continued only if they were undertaken

and followed up in accordance with law within the prescribed period

of limitation of one year from the date of the offence, as specifed in

section 468 (2) of the Cr.P.C. A perusal of the documents on record

shows that while the offences were registered on 03.03.2014, the last

page of the charge-sheet submitted before the Court of Magistrate

shows three dates. The date 27.07.2015 is found affied below the

signature of the senior inspector of the police station who submitted

the charge-sheet before the Court of Magistrate. An endorsement by

the Magistrate states that the charge-sheet was submitted and

cognizance of offence was taken against the accused under sections

279 and 336 of the IPC. The date 13.01.2017 is written below the

signature of the Magistrate and the date 20.03.2017 is written in front

of the endorsement that cognizance of offence under sections 279 and

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336 of the IPC was taken against the accused .

13] Learned counsel appearing for the Petitioner vehemently

submitted that in the present case, Court of Magistrate took

cognizance of the offence under Sections 279 and 336 of the IPC on

20.03.2017, while offences were allegedly committed as far back as on

03.03.2014. On this basis, it was submitted that by applying Section

468(2) of the Cr.P.C., the Court of Magistrate could not have taken

cognizance of the said offences and that the act of taking cognizance

by the Court of Magistrate was barred by limitation. The maiimum

sentence prescribed for offence punishable under Section 279 of the

IPC is 6 months imprisonment and for Section 336 of the IPC is three

months imprisonment. Applying Section 468 (2) (b) of Cr.P.C. it

becomes clear that limitation period prescribed for taking cognizance

of the said offences is one year. If the date 20.3.2017 is taken into

consideration, there can be no doubt about the fact that when the

offence was allegedly committed on 3.3.2014, such cognizance taken

by the Court of Magistrate was much beyond the period of limitation

of one year prescribed under the said provision.

14] But, the position of law as regards the manner in which the

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period of limitation is to be calculated has been authoritatively laid

down in the Constitution Bench Judgment of the Hon'ble Supreme

Court in the case of Sarah Mathew V/s. Institute of Cardio Vascular

Diseases by its Director Dr. K. M. Cherian and Others [(2014) 2

Supreme Court Cases 62]. In the said Judgment, conficting views

were taken into consideration and it was laid down that delay on the

part of the Court in taking cognizance of offence ought not to be the

basis for holding that limitation period prescribed for minor offences

under Section 468 of the Cr.P.C. had eipired. This was held on the

basis of the legal maiim Actus curiae neminem gravabit, which means

the act of God shall prejudice no man. It was held that if complaint in

respect of offence was submitted before the competent Court within

the period of limitation prescribed under Section 468 of Cr.P.C.,

merely because the Court took time beyond the period of limitation for

taking cognizance of the offence, it could not be held that the period of

limitation had eipired. The Hon'ble Supreme Court referred Sections

190, 193, 200 to 204 and Sections 467 to 473 of the Cr.P.C. to give

such fndings.

15] In the present case, since criminal proceeding was initiated on

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the basis of information furnished by police constable on duty,

resulting in registration of F.I.R. dated 3.3.2014, for the purpose of

calculating limitation, the relevant dates are the date of the alleged

offence and date when the report was submitted by the investigation

offcer before the jurisdictional Magistrate after completion of

investigation. The time period between fling of such report/charge-

sheet and actual order of taking cognizance by the Magistrate cannot

be taken into consideration for ascertaining whether limitation period

prescribed under Section 468 of Cr.P.C. had eipired.

16] In the present case, as noted above, last page of the charge-sheet

shows that senior police inspector of the concerned police station had

signed and forwarded the charge-sheet on 27.7.2015. The endorsement

on the said page signed by the Magistrate states that charge-sheet was

fled and cognizance of offence was taken under Sections 279 and 336

of the IPC. There are two dates mentioned at the places where such

endorsement is given by the Magistrate i.e. 13.1.2017 and 20.3.2017.

As per the law laid down by the Hon'ble Supreme Court in the

aforesaid judgment in the case of Sarah Mathew [cited supra] even if

the endorsement by the Magistrate records that cognizance of offence

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of Section 279 and 336 of the IPC was taken on 13.1.2017 or

20.3.2017, the relevant date would be the date when the investigation

offcer signed and is stated to have submitted the charge-sheet before

the Magistrate.

17] Even if the said date i.e. 27.7.2015 is taken into consideration, it

is found that the same is well beyond the period of one year from

3.3.2014 when the alleged offence was committed by the Petitioner.

Applying Section 468(2)(b) of the Cr.P.C. to the facts of the present

case, it becomes clear that the period of limitation concerning offence

under Sections 279 and 336 of the IPC is one year. Since the charge-

sheet itself was presented well beyond period of one year before the

Court of Magistrate, it is correctly contended on behalf of the

Petitioner that the Court of Magistrate could not have taken

cognizance due to the bar of limitation. In this conteit, learned

counsel for the Petitioner is justifed in relying upon the Judgment of

the Madras High Court in the case of M. Chandran Vs. State and

another [cited supra] wherein said High Court held that criminal

proceedings initiated against the Petitioner could not be continued

because charge-sheet was not fled by the Investigating Offcer even

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after the period of limitation prescribed under Section 468 of Cr.P.C.

had eipired. In fact, in that case, charge-sheet was not fled even

when the Writ Petition was pending and taken up for fnal disposal by

the High Court.

18] Insofar as the contention raised by the learned APP in respect of

Section 473 of the Cr.P.C. is concerned, in the facts and

circumstances of the present case, matter does not deserve to be

remanded to the Court of Magistrate.

19] In the case of State of Himachal Pradesh [cited supra] in the

conteit of Section 473 of Cr.P.C., Hon'ble Supreme Court has held as

follows:

"7. Section 473 confers power on the Court taking cognizance after the eipiry of the period of limitation, if it is satisfed on the facts and in the circumstances of the case that the delay has been properly eiplained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in S. 468, the power has been conferred on the Court taking cognizance to eitend the said period of limitation where a proper and satisfactory eiplanation of the delay is available and where the Court taking cognizance fnds that it would be in the interest of

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justice. This discretion conferred on the Court has to be eiercised judicially and on well recognized principles. This being a discretion conferred on the Court taking cognizance, wherever the Court eiercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily eiplained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence."

20] The said position of law makes it clear that discretion available

to the Court under Section 473 of the Cr.P.C. has to be eiercised while

granting eitension of period of limitation by a speaking order,

indicating satisfaction of the Court that delay was satisfactorily

eiplained and that condonation of the same was in the interest of

justice. It is further laid down that in the absence of a positive order,

condoning such delay, it may not be permissible for a superior court

to conclude that the Court must be deemed to have taken cognizance

by condoning the delay whenever the cognizance was barred and yet

the Court took cognizance and proceeded with trial of the offence.

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21] Hence, applying the said position of law to the facts of the

present case, it becomes abundantly clear that request made by the

learned APP for remanding the matter back to the Court of Magistrate

cannot be granted. There is nothing to show that Court of Magistrate

either applied its mind to the aspect of eipiry of limitation or for

eiercising power for eitending the period of limitation or condoning

the delay by eiercising power under Section 473 of Cr.P.C. In these

circumstances, the only conclusion that can be arrived at is, that the

Court of Magistrate could not have taken cognizance of the offence

under Sections 279 and 336 of the IPC against the Petitioner in the

facts and circumstances of the present case. The impugned

endorsement/order passed by the Court of Magistrate in the facts and

circumstances of the present case, is wholly unsustainable.

Accordingly, it is found that further continuance of criminal

proceedings against the Petitioner cannot be sustained.

22] In view of aforesaid fndings, we are not inclined to consider the

other prayers in the Writ Petition. This is because, further

continuance of criminal proceedings in pursuance of F.I.R. dated

3.3.2014 is found to be unsustainable.

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23] In view of the above, the Writ Petition is allowed and criminal

proceeding bearing C.C. No. 11/MISC/2017 pending before the Court

of Magistrate, Bandra, Mumbai (12th Court) is quashed and set aside

in respect of the Petitioner.

24] Rule made absolute and the Writ Petition stands disposed of.

25] We direct the Commissioner of Police, Mumbai to initiate an

appropriate inquiry against the concerned Investigating Offcer who

took more than one year for fling the report in such a trivial matter.

Such inquiry report to be submitted to this Court within three

months.

26] List for compliance of aforesaid direction on 19/07/2021, under

caption "For compliance".

      [MANISH PITALE, J.]                    [S. S. SHINDE, J.]