Sanjay Gupta And Ors. vs State And Anr.
2002 Latest Caselaw 1748 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This petition under Section 482 of Cr.P.C. is filed for quashing of the criminal proceeding emanating from FIR No. 253/1995 registered at P.S. Gandhi Nagar for offences under Section 39 and 44 of the Indian Electricity Act and Section 379 of IPC pending before a Metropolitan Magistrate at Karkardooma Courts.

2. The question that arises for determination in this case is whether the Magistrate has rightly exercised his power given under Section 473 of Cr.P.C. (the Code) in extending the limitation prescribed under Section 468(2)(c) of the Code of taking cognizance of the offence in a criminal proceedings instituted on police report under Section 173(2) of the Code for the prosecution of the Petitioner.

Factual matrix of the case as disclosed in the petition, the documents filed and the trial curt record, briefly stated, is that a joint inspection team of the DESU (now DVB) conducted a raid on 13.11.1995 at premises No. 9/7137, Durga Gali, Gandhi Nagar, Delhi of which the petitioner were occupant, and detected theft of electricity by attachment of neutral wire of the electricity meter directly connected to the load resulting non-recording of the consumption of the electrical energy by the meter. Petitioner No. 1 was occupying two shops, petitioner No. 2 was also in possession of two shops and petitioner No. 3 was occupying one shop in the said building. DESU raised theft electricity bills with penalties in August, 1996 which were duly paid by the petitioners. DESU also installed new electricity meter in the premises of petitioners No. 1 and 2 and they are now paying electricity bills as per meter reading regularly. In Marc, 2000 petitioners received summons from the court of a Metropolitan Magistrate for appearance on 5.4.2000. Learned Magistrate was on leave on 5.4.2000 so the matter was adjourned to 24.4.2000. Magistrate was again on leave on 24.4.2000 so the case was adjourned to 22.5.2000. The FIR in the case was registered in 1995 but the inspection of the record showed that the cognizance of offence in the matter was taken by the learned Metropolitan Magistrate on 6.3.2000 i.e. almost 4/1.2 years after the registration of the case. It also transpired that the charge-sheet in the case was filed in the court on 14.10.1999 i.e. after almost four years of the date of the commission of the offence when it had become hopelessly time barred. It is contended that the trial court Magistrate without applying his mind took the cognizance on 6.3.2000, after condoning long delay in a mechanical manner, therefore, the order is vitiated and is liable to be quashed.

3. From the record it appears that after the charge-sheet was put up in the court on 14.10.1999 the learned Metropolitan Magistrate directed checking of the challan and registration of the case and posted the matter on 6.11.1999 for consideration of the challan. From 6.11.1999 to 16.2.2000 this case was adjourned five times as the IO did not appear despite notice and other processes issued by the court. On 16.2.2000 the IO appeared and filed an application for condensation of delay. The court then fixed 19.2.2000 for consideration of this application. On the next date again the IO absented and bailable warrant was issued against him for 6.3.2000. IO then appeared and the learned Magistrate after hearing the IO allowed the application for condensation of delay, took cognizance of the offence and issued summons to the accused for 5.4.2000. The petitioners are aggrieved and have challenged the order of the trial court dated 6.11.1999.

4. Section 468 of the Code bars taking of cognizance of an offence after the lapse of the period of limitation. For offence which are punishable with imprisonment for a term exceeding one year but not exceeding three years the limitation for taking cognizance of offence is three years in accordance with Clause (c) of Sub-section (2) of Section 468. Section 44 of the Indian Electricity Act has provided punishment for dishonest abstraction of electrical energy, use and consumption with imprisonment for a term not exceeding three years. Section 44 of the Indian Electricity Act provided for penalty for interfering with the meter or the license work (i.e. DESU's works), and for improper use of the energy. The punishment provided therein is imprisonment for a term which may extend to three years. It may also be noted that Section 4 of the Code provides that all the offences under any other law shall be investigated and inquired into as mentioned therein. Section 4 of the Code reads thus:-

"4. Trial of offences under the Indian Penal Code and other laws.-

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

5. In accordance with this Section the provisions of the Code are applicable where an offence under the Indian Penal Code or under any other law is being inquired into, tried and otherwise dealt with. Consequently, the provisions of the Code shall be applicable in so far as they are not in consistence with the provisions of Indian Electricity Act. No specific period of limitation is provided for taking cognizance of offences under Indian Electricity Act nor is there any provision for extension of the period of limitation. As such, the provision of Section 468 and 473 of the Code will apply to the trial of this case. The APP agrees that in accordance with Clause (c) of Sub-section (2) of Section 468 of Cr.P.C. limitation provided for filing the charge-sheet in this case was three years from the date of the commission of the offence.

6. Section 473 of the Code empowers the court to extend the period of limitation in certain cases. The Section being relevant is extracted below:-

"Extension of period of limitations in certain cases.-

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after they expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice."

7. It is clear from the bare reading of this provision that the court may take cognizance of an offence even after the lapse of the period of limitation prescribed by Section 468 if two essential conditions are satisfied. These conditions are (1) where a proper and satisfactory explanation of the delay is available; and (2) where the condition of delay is in the interest of justice. The extension of the period contemplated under this Section is only by way of an exception to the period fixed as per Section 468. The Supreme Court analysed the provision of Section 473 in State of Himachal Pradesh v. Tara Dutta and Anr. and observed as under:-

"Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained 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 Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condensation 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 cognized by condoning the delay whenever the cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence."

8. In the instant case joint inspection team of the DESU detected commission of offence on 30.11.1995 and the FIR in the case was registered on 5.12.1995. The charge-sheet for the prosecution of the petitioners was filed in the court of Metropolitan Magistrate on 14.10.1999. The learned Metropolitan Magistrate condoned the delay on the application filed by the IO on 16.2.2000 and took cognizance of the offences on 6.3.2000.

9. The critical question that arises here is whether the Metropolitan Magistrate has properly exercised his judicial discretion vested by Section 473 of the Code. In condoning the delay and taking cognizance after lapse of the prescribed period of limitation. The contention of the counsel for petitioners are two-fold. Firstly, in the application filed by the IO on 16.2.2000 satisfactory explanation for the delay from 5.12.1998, which was the last date of limitation reckoned from the date of the registration of the FIR on 5.12.1999, and 14.10.1999 on which the challan was put up in the court, has not been given vesting necessary power in the Metropolitan Magistrate to condone it. His second argument is that no explanation is given for condensation of the delay from 15.10.1999 to 6.3.2000 when the cognizance of the offence was actually taken by the learned Metropolitan Magistrate. It is contended that the prosecution was to explain the delay up to the date of the taking of the cognizance of the offence on 6.3.2000 by the court, therefore, the summoning order passed by the trial court on 6.3.2000 is illegal and it is required to be set aside and the whole criminal proceedings should be held to be barred by time and quashed accordingly.

10. Counsel for petitioner has relied upon a judgment of Division Bench of this Court in State (Delhi Administration) v. Anil Puri and Ors. ILR (1979) II Delhi. The Division Bench was considering the powers of the court under Section 473 of the Code in condoning the delay and extending the period of limitation prescribed under Section 468 of the Code. It was observed therein that the limitation under Section 468 of the Code was provided in order to bring finality to the criminal prosecution. It was further held that once the limitation is barred in favor of a person he acquired a valuable right and that right could not be taken away except under the law. It was also held that it was necessary that before this right was taken away, he was given an opportunity of being heard. Division Bench has observed as under:-

"Wherever the court comes to the conclusion under Section 473 that the delay has been properly explained or that it is necessary to take cognizance in the interests of justice, the court must pass a speaking order. The order should indicate that the court taking cognizance has applied its mind to reach the conclusion. Order taking cognizance of an offence where the cognizance is barred by limitation without giving an opportunity to the accused and without passing any speaking order, must be struck down and it cannot be deemed that the trial court had exercised its powers under Section 473."

11. Counsel for petitioner also referred to the judgment of a Single Bench of this Court in R.P. Sharma and Ors. v. State wherein also the court examined the limitation provided under Section 468 for taking cognizance of an offence and the power of the court under Section 470 of Code which provided for extension of time in certain cases. It was observed therein that no explanation for the delay was given in the application seeking condensation of delay for the period from 1.9.1981 to 19.12.1981 and after the petitioner was discharged by order dated 1.9.1991 for want of proper sanction the police as well as the complainant remained inactive for a period of three months there was no explanation for the said period also. It was held that the learned Magistrate has improperly exercised his discretion and had wrongly condoned the delay.

12. The delay was condoned by the learned Metropolitan Magistrate in taking cognizance of the offence in the case in hand on the application moved by the IO which is on the file at page 32. Being relevant for deciding the question raised, it is reproduced as under:-

"Application for condensation of delay in submitting challan before the Court.

Most respectfully showethp2

1) That the undersigned was assigned the case file in the abovenoted case for investigation on 30.11.1995.

2) That the investigation was completed in time and challan was handed over to the concerned Naib Court for submitting before the court concerned on 25.7.96.

3) That the challan in the said case was misplaced somewhere in the court and same could be traced only in the month of October, 1999.

4) That the undersigned after getting the challan back from the Court of Sh. Kawal Jeet Arora, MM, KKD in the month of October, 1999 immediately submitted before the Hon'ble Court and since then the same is pending for consideration.

5) That the undersigned is no way liable for any lapses, in misplacing the challan.

6) That only because of sincere efforts made by the undersigned the challan could be traced and submitted before this Hon'ble Court in the month of October, 1999.

In view of the aforesaid it is prayed that this Hon'ble Court may kindly condone the delay in submitting the challan."

13. As per the application after the investigation was completed, the charge-sheet was drafted and was entrusted to the Naib Court for being filed in the court on 25.7.1998 but the charge-sheet was misplaced in the court and could be traced out only in October, 1999. The IO took back the charge-sheet from the court of Mr. Kawal Jeet Arora, MM in October, 1999 and thereafter filed it in proper court. The IO alleged that he was not liable for the lapse and delay in filing challan, rather with his sincere efforts he was able to trace it in October, 1999. Admittedly this application was filed long after the limitation period prescribed in Clause (c) of Section 468 of Cr.P.C. for filing the challan in this case had lapsed.

14. The learned Magistrate allowed the application and condone the delay in filing of the challan in the court by order dated 6.3.2000. The order is brief and reads as under:-

"Heard. Perused the file. Brief facts are that on 30.11.95 raid was conducted regarding theft of electricity in the are of P.S. Gandhi Nagar. During the raid certain premises were found indulged in the theft of electricity. Sh. Budh Singh AE made a complaint to SHO of PS Gandhi Nagar on 30.11.95 for registration of FIR against P.S. Gandhi Nagar against the accused persons on the basis of which FIR was registered on 5.12.1995 vide FIR No. 253/95. It is stated by the IO that he completed the investigation and prepared the challan on 10.5.96 challan was put to the Court on 25.7.96. Challan in this Court was received on 14.10.99 i.e. after the period of limitation. IO has also moved an application for condoning the delay in filing the challan. It is stated in the application that challan was handed over to the Naib Court concerned on 25.7.96 but the said was misplaced somewhere in the court and it was traced out only in the month of October, 1999 from the Court of Sh. Kawaljeet Arora Ld. MM, Karkardooma. it is further stated in the application challan was traced out only due to the efforts made by the IO.

Perusal of the file receives that challan was prepared on 10.7.96 and same was put to the court on 25.7.96 same could not be presented before the Court as it was misplaced by the Naib Court. Keeping in view the fact that challan was prepared well in time by the IO and there was no fault on the part of the delay, the challan. Keeping in view the facts and circumstances I am satisfied that there was no delay on the part of the IO in not filing the challan within limitation period and in my considered opinion, delay has been properly explained. Therefore, acting under the provisions of Section 473 Cr.P.C. delay is condoned and I take cognizance of the offence. Accused persons be summoned for 5.4.2000. Summons be given dusty to the IO for its execution."

15. In the application for condensation of delay the IO had tried to explain the delay in filing the challan from 25.7.1996 to October, 1999 on which date it was actually filed in the court. Explicitly or implicity no explanation has been given in this application for explaining the delay from October, 1999 to March, 2000 when the cognizance was taken. In fact, the order sheet of the case extracted by the petitioner showed that after the challan was filed on 14.10.1999 after a lapse of 4 years the case was adjourned as many as six times since the IO was not appearing. It is pertinent to note from the order sheet that the court first called the IO for 20.11.1999 thereafter issued notice for his presence on 23.12.1999. A fresh notice was then issued to him as the earlier order was not complied with for his appearance on 13.1.2000. The process sent was still not received back so bailable warrant was issued through the DCP for the presence of the IO on 27.1.2000. The process was still not received back. Fresh notice was issued through the SHO for IO's presence on 4.2.2000. On 4.2.2000 the IO sent a request for giving him another date for his appearance and notice was issued to him for his personal appearance on 16.2.2000. The application for condensation of delay was then filed by him on 16.2.2000, as aforementioned. Even on 19.2.2000 which was fixed for consideration of that application IO remained absent although he was bound down to appear on that day. The court was constrained to issue bailable warrants against him for ensuring his presence on 6.3.2000. It was on that date the IO appeared and the court without issuing a notice to the accused and giving an opportunity of hearing to him, proceeded to dispose of the application.

16. The delay in filing of the challan within the limitation period prescribed in Clause (c) of Sub-section (2) of Section 468 the Code was condoned ostensibly in exercise of the power given by Section 473 of the Code. A reading of the order of the learned Magistrate dated 6.3.2000 would show that the learned Magistrate was swayed by the assertion of the IO in the application that he was not at fault in submitting the charge sheet in the court late since it was prepared by him within the limitation period. He, therefore, was satisfied that the delay was not on the part of the IO and the delay had been properly explained by him which he thought was sufficient to condone the delay and take cognizance of offence under Section 473 of the Code.

17. A perusal of the allegations made in the application for condensation of delay and the order of the learned Magistrate dated 6.3.2000 are enough to convince that neither proper, much less satisfactory, explanation was given for delay in submitting the charge-sheet in the court nor was any attempt made to explain the delay from 14.10.1999 to 6.3.2000 when the Metropolitan Magistrate had actually taken the cognizance of the offence. The learned Magistrate allowed the application without due application of mind in a perfunctory manner. A valuable right had accrued to the accused for the failure of the State to file the charge-sheet for the prosecution of the petitioner for the offences within the prescribed period of limitation. As held by the Division Bench of this court in State (Delhi Administration) v. Anil Puri and Ors. (supra) the learned Magistrate could not have taken away the right acquired by the petitioner without giving an opportunity to the petitioner of being heard.

18. Faced with this position in law, the learned APP fairly and candidly conceded that the order of the Metropolitan Magistrate is vitiated for being violative of the principles of natural justice as held by the Division Bench and prayed that the case may be remanded back to the learned Metropolitan Magistrate for fresh decision in the matter after giving opportunity of hearing to the petitioner. This court could have accepted this plea had this been conceded soon after this petition was instituted in May, 2000. But it remained pending for over two and a half years. Moreover the limitation for taking cognizance in the instant case expired in December, 1998. About five years have now elapsed since the prescribed limitation ended. It will not be inappropriate for the court for remanding the matter to the trial Magistrate for a fresh look into the explanation given by the IO or giving him another opportunity to submit explanation for the delay up to the date of the filing of the application on 14.10.2000 and onward up to the date of 6.3.2000 when the cognizance of the offence was actually taken. It will be traversity of justice if after eight years of the commission of the offence of the theft of electrical energy the case is remanded back for consideration of the condensation of delay which is the first step after filing of the challan in the court. Therefore, the prayer made by the APP deserved to be declined.

19. Reverting back to the main contention of the petitioner that proper explanation has not been given in the application for condensation of delay filed by the IO empowering the learned Magistrate to exercise his discretion in favor of the prosecution as noticed above in the application, the IO put the blame on the Naib Court for loss of the charge-sheet and for not filing it in the court for full four years. How the charge-sheet was lost and how it was traced back, what were the reasons, why a fresh charge-sheet could not have been filed in the court immediately oncoming to know that it had been lost by the Naib Court has not been stated. Needless to state here that the charge-sheet was based on the report of the joint raiding party of the DESU and did not require detailed investigation for collection of evidence and material. Therefore, it was not difficult at all to reconstruct the charge-sheet and put it in the court in time or at least immediately on discovering its loss, along with an application for condensation of this lapse satisfactorily. It has not been done.

20. More so, the IO has tried to give some sort of explanation for lapse of not filing the challan between 25.7.1996 and October, 1999 when it was actually filed in the court. But the subsequent conduct of the IO and the prosecution is also unexplainable. The court had to issue notices and bailable warrants for procuring the attendance of the petitioner. Even processes were sent to the DCP and the SHO. Even after the application was filed the IO was so negligent that even after he was bound down he did not appear on 19.2.200 which was the date fixed by the trial court for consideration of condensation application and the court had to issue bailable warrants for ensuring his presence on 6.3.2000. Therefore, the negligence and carelessness on the part of the prosecution is writ large on the face of the record. The prosecution has to give satisfactory explanation for the delay, may be it was not required to explain each days delay, but if the fact brought to the notice of the court for exercise of its power under Section 473 of the Code for extension of the period of limitation that would have sufficed to exercise its judicial discretion and the power vested by this section.

21. Learned APP has argued that the period of limitation could be extended by the court under Section 473 of the Code where the court was satisfied that it was necessary to do so in the interest of justice. According to her the petitioner was found committing offence of theft of electrical energy which is a serious offence, therefore, it is in the interest of justice that he was prosecuted for the offence. The learned Magistrate has not extended the period of limitation finding it necessary in the interest of justice to extend it. He condoned it because he was satisfied with the explanation given by the IO about the loss and retrieval of the charge-sheet up to 14.10.2000. Not a word was said by him about further delay in taking the cognizance. Section 468 of the Code bars the taking of the cognizance on the lapse of the period of limitation prescribed under this provision. The learned Magistrate also did not find it to be necessary for condoning the delay in the interest of justice. In the instant case it is the allegation of the petitioner, which has also not been controverter, that after the detection of the dishonest abstraction of the electrical energy by the petitioner, the DESU/complainant had raised electricity bills for theft of the electrical energy at appropriate tariff applicable and the petitioners have paid the bill. It is also stated by them that petitioners No. 1 and 2 have also been provided a meter and they were regularly paying the electricity bill for the electricity consumed by them as per meter reading regularly. These facts have not been controverter during the arguments on behalf of the State. Anyhow, it could not be said that the offence committed by the petitioners is of such a grave and serious nature that the court should find it necessary to extend the period of limitation prescribed in the interest of justice even if the filing of the charge-sheet the taking of cognizance suffers from gross delay and latches on the part of the prosecution. Needless to repeat that delay from 14.10.1999 when application for condensation of delay was filed and 6.3.2002 when cognizance of offence was taken was squarely on account of negligence of the IO which could not be explained.

22. Prosecution of the petitioners in this case would be an abuse of the process of the court. The order of the learned Metropolitan Magistrate dated 6.3.2002 suffers from patent impropriety and illegality. It is unsustainable in law. The impugned order is accordingly set aside and the criminal proceedings arising out of the FIR No. 253/1995 and the charge-sheet filed in the court are quashed.