Delhi High Court

Balbir Sing vs The State & Anr. on 19 May, 2009

Author: Mool Chand Garg

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+        Crl.M.C. 4843/2003

%                                          Date of reserve : 11.05.2009
                                           Date of decision: 19.05.2009

        BALBIR SINGH                                 ...PETITIONER
                          Through:         Ms. Madhu Kapoor, Adv.

                                    Versus

        THE STATE & ANR.                               ...RESPONDENTS
                       Through:            Mr. Arvind Kr. Gupta, APP


        CORAM:
        HON'BLE MR. JUSTICE MOOL CHAND GARG

     1. Whether the Reporters of local papers may be allowed to Yes
        see the judgment?

     2. To be referred to Reporter or not?                                    Yes

     3. Whether the judgment should be reported in the Digest?                Yes


:       MOOL CHAND GARG, J.

1. This petition arises out of an order passed by the ASJ, dismissing

the second revision petition filed by the petitioner under section 397

Cr.P.C. whereby he assailed the order passed by Magistrate dismissing

his application under Section 468 of Cr.P.C. after the deletion of

charges under Section 504 IPC in case FIR No.247/98 of P.S. Seema

Puri.

2. The charge sheet in this case was filed under Section

323/342/347/379/427/504 IPC. The Metropolitan Magistrate after

hearing arguments on the question of charge deleted the offences

under Section 347/379/427 IPC but directed the petitioner to face trial

with respect to offences under Section 323/342/504 IPC. The petitioner

then filed a revision petition under Section 397/399 Cr.P.C. which was

allowed in part and the offences under Section 504 IPC were also

deleted.

3. Subsequently the petitioner filed an application before the MM

concerend under Section 468 of the Code of Criminal Procedure

alleging that the challan filed in this case registered on 25.04.1998 on

a report filed on 24.04.1998 could not have proceeded further for the

offences which were left to be tried under Section 322/323 of the IPC

after the order of Additional Sessions Judge deleting the charges under

Section 504 IPC., the case has become time barred. By the impugned

order the ASJ, Karkardooma who dismissed the revision petition filed

second time by the petitioner after his application under Section 468

Cr.P.C. was dismissed, it has been observed that:

Thus, it is seen from the record that in the instant case investigation was carried out against the accused by the investigating Agency in the abovesaid case FIR No.247/98 dated 25.04.1998 for offences punishable under Sections 323/342/347/379/504 as also 427 IPC on the basis of which police report/challan under the provisions of Section 173 Cr.P.C. was filed by the investigation agency in the ld. Trial Court on 27.09.99 on which date the challan was admittedly not time barred for the offences for which it had been filed against the accused as per the provision of Section 468 Cr.P.C.

5. Admittedly, also in the instant case the ld. Trial court has framed charges under Sections 323/341/504 IPC against the accused vide its order dated 28/07/01 and as per the provision of Section 468(3) Cr.P.C. 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. Thus, it can be said in no uncertain terms that the cognizance had been taken by the ld. Trial Court for offences under Section 323/343/504 IPC against the accused on the date on which the challan for the said offences as on said date. It was only on 12/10/01 that charge under Seciton 504 IPC was dropped against the accused by the Revisional Court on revision by the accused as abovesaid. In my opinion, the said dropping of charge under Section 504 IPC against the accused vide order dated 12/10/01 of the Revisional Court would not render the prosecution of the accused for the remaining offences under Sections 323/342 IPC vide the impugned challan time barred as has been alleged by the ld. Counsel for the revisionist/accused since the impugned challan for the offences for which it had been

filed agains the accused on the relvant date as above said was not time barred as on said date as per the provision of Section 468 Cr.P.C., as also cognizance of the same had been taken by the ld. Trial Court within the period of limitation for the offences under Sections 323/342/504 IPC against the accused.

6. I find from the record that the ld. Trial court vide its impugned order has also held that it is a settled law that the period of limitation will be reckoned according to the offence charged any order of discharge passed against the accused during the coruse of trial cannot have retrospective effect to render the summoning order of the ld. Trial Court illegal. On the date when the ld. Trial court took cognizance of the offence, chargesheet was not time barred and was well within the period of limitation. Any subsequent development during the course of trial cannot change its position retrospectively.

4. The petitioner has now filed the present petition under Section

482 of the Cr.P.C. The questions which arise for consideration by this

Court are:

i) Whether the police report filed by the respondents in this

case was beyond limitation period as prescribed under

Section 468 of Cr.P.C.

ii) Whether the limitation is to be considered from a back date

if no charge is framed on some of the offences alleged in

the challan by the Magistrate or by the Higher Courts like

the Court of ASJ.

iii) Whether a petition under Section 482 Cr.P.C. can be

entertained in the facts of this case after dismissal of the

revision petition filed by the petitioner aggrieved from the

order of the Magistrate in having dismissed his application

under Section 468 Cr.P.C.

5. Before proceeding further, it would be appropriate to take note

of the provision contained under Section 468 of the Code of Criminal

Procedure which reads under:

468. 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-

(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 a 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.

6. A bare reading of sub clause 3 of Section 468 Cr.P.C. makes it

abundantly clear that for the purpose of limitation in relation to a joint

trial of the offences to be tried together, reference has to be made to

the offence which is punishable with more severe punishment. Thus,

applying the aforesaid provision to the facts of this case, apparently at

the time when the challan was filed, some of the offences levelled

against the accused were providing a limitation of two years. Thus, the

challan per se was within limitation.

7. However, it is the contention of the petitoner that after deletion

of the charges under Section 347/379/427 IPC by the Magistrate and

deletion of charge under Section 504 IPC by the Sessions Court, the

offences which remained to be tried were only those offences for which

limitaiton prescribed is one year and therefore the proceedings could

not have been continued thereafter. Thus, the order of the Magistrate

as well as the order of the ASJ needs to be set aside. In this regard he

has relied upon the following judgments:

i) Vipin Kalra & Anr. Vs. State 2002 (1) JCC 307

ii) Ramesh Chandar Sinha & Ors. Vs. State of Bihar & Ors.

(2003) 7 SCC 254

8. In the case of Vipin Kalra & Anr. Vs. State (supra) it was

observed:

3. Learned counsel for the petitioners argued that as per the allegations in the charge-sheet, no offence under Section 506 IPC was made out; that this Section was deliberately added to fill up the lacunae in the prosecution case and to avoid the bar of limitation; charge-sheet was filed in a mechanical manner and the impugned order dated 16th November, 1998 directing framing of notice under Section 341/323/34 IPC is not sustainable as the same is barred by limitation. Learned counsel for the petitioner also argued that before the magistrate can be said to have taken cognizance of an offence under Section 190 Cr.P.C., it must be shown that he applied his mind to the contents of the challan for the purpose of proceeding in a particular way, as indicated in the Code. Merely releasing the accused on bail and supplying him copies would not amount to taking cognizance. Reliance was placed on the decision in Legal Remembrancer v. Abani Kumar AIR (37) 1950 Calcutta

437.

4. The question which arises for consideration is whether in this case cognizance was taken within the period of limitation as prescribed under Section 468 Cr.P.C.? Section 468 Cr.P.C. creates a bar for taking or cognizance of the offence after lapse of the period of limitation prescribed in the section; Clause (b) of Sub- section (2) of this section provides the period of limitation as one year if the offence is punishable with imprisonment for a term not exceeding one year. Sub- Section (3) of Section 468 Cr.P.C. provides that limitation in relation to the offence being tried together shall be determined with reference to the offence which is punishable with more severe punishment. The offence under Section 323 IPC is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 1,000/- or with both. Thus, valid cognizance of the offence could be taken within the period of one year from the date of commission of offence. In this case, the offence was committed on 10th January, 1997. Police submitted the charge-sheet on 23rd March, 1998, i.e., after the expiry of period of one year. Prosecution also did not file any application for extension of the period of limitation under Section 473 Cr.P.C. In view of the unexplained delay, cognizance could not be taken after the lapse of period of limitation.

9. However, the aforesiad judgment is not applicable to the facts of

this case inasmuch as, taking cognizance is dependent upon the facts

disclosed in the challan. In this case, the Magistrate was satisfied that

the challan did make out a case even under Section 504 IPC for which

limitation prescribed is 2 years and accordingly the Magistrate not only

took the cognizance of the challan but also framed the charges for the

offences under Section 323/342/504 IPC against the petitioner.

10. The other judgment cited by the petitoner, i.e., Ramesh Chandra

Sinha & Ors. Vs. State of Bihar & Ors.(Supra) has no application to the

facts of this case.

11. At this juncture reference can also be made to a judgment of the

Apex Court delivered in the case of State of H.P. Vs. Tara Dutt & Anr.

(2000) 1 SCC 250 where it has been held:

5. .........This being the position, in the case in hand, when the respondents were charged under Section 468 read with Section 120-B for which the imposable punishment is seven years and Section 5(2) of the Prevention of Corruption Act, 1947, which is punishable with imprisonment for a term which may extend to seven years and for such offences no period of limitation having been provided for in Section 468, the cognizance taken by the learned Special Judge cannot be said to be barred by limitation. The High Court in recording its conclusion relied upon the decision of this Court in the case of State of Punjab v. Sarwan Singh (1981) 3 SCC 34. In the said case, the respondent was charged under Section 406 for misappropriation. The challan was presented on October 13, 1976 and therein it was clearly mentioned that the offence was committed on August 22, 1972. The learned trial Judge acquitted the accused of the charges under Section 468 but convicted him of the charge under Section 406 of the CrPC. This Court came to the conclusion that since the charge-sheet itself mentions that the offence was committed on August 22, 1972, the cognizance was barred under Section 468(2)(c) of the Code. At the outset it may be stated that in the aforesaid case the Court had not considered the provisions of Sub-section (3) of Section 468 which was in fact not there on the statue book when the alleged offence was held to have been committed. But in view of the provisions of Sub-section (3) of Section 468 which we have already considered this decision will be of no application and the High Court committed error in relying upon the aforesaid decision to come to the conclusion that in the case in hand the cognizance itself was barred by limitation.

12. It would also be appropriate to take note of the another

judgment of the Apex Court delivered in the case of Gurubachan Singh

Gill Vs. (2005) 13 SCC 381 where it has been held:

3. By the impugned order, the High Court affirmed order dated 24-3-2004 passed by the learned Metropolitan Magistrate, New Delhi whereby he dismissed the complaint petition holding that the same was barred by limitation. In view of the stand taken by both the parties on the point of limitation from the very beginning, we are of the view that in the facts of the present case the question of limitation is not a pure question of law, but a mixed question of law and facts and for deciding the said question certain disputed questions of facts have to be adjudicated after giving opportunity to the parties to adduce evidence. The said procedure having not been adopted, the trial Court committed an error in dismissing the complaint on the ground that the same was barred by limitation and the High Court was not justified in upholding the said order.

13. I may also refer to another judgment of the Apex Court in the

case of Harnam Singh Vs. Everest Construction Co. & Ors. (2004) 6 SCC

754 where also similar question was discussed and the Apex Court

rejected the contention of the appellant that question of cognizance

should not be looked into only at the time of filing of the complaint and

it was held:

6. We are unable to perceive any legal basis for the observation quoted above. The bar against cognizance after the lapse of the prescribed period of limitation is laid down under Section 468 of Cr.P.C. It is within the parameters of that provision that the Court called upon to take cognizance of the offence should act. Most of the offences alleged against the respondents viz., Sections 420, 467, 471 & 474 IPC are punishable with imprisonment for a term exceeding three years and therefore as contended by the learned counsel for the appellant, the bar of limitation under Section 468 is not attracted. The complaint cannot therefore be thrown out at the threshold on the ground of limitation. If, apart from the question of limitation, the effect of delay if any in instituting the complaint is necessary to be determined for considering the merits of the charge, that can only be done at the stage of trial on the basis of the evidence on record. Obviously, the High Court did not bear in mind the explicit provision contained in Section 468 and the allied provisions of chapter XXXVI of Criminal Procedure Code.

14. Thus, in view of the aforesaid following conclusions can be

reached:

i) In view of Section 468(3) Cr.P.C. cognizance of an

offence can be taken by the Magistrate/ASJ taking into consideration that if it is a case of joint trial then the limitation prescribed for the offence which is punishable with the highest punishment has to be considered.

               ii)     The question of Limitation is to be considred only on
                       the      basis     of         averments       made          in     the
                       complaint/challan.
               iii)    Merely, because subsequent to the filing of the

challan/complaint some of the offences are held to be not made out either by the Magistrate or the ASJ this would not make the filing of the complaint/challan barred by limitation even if the remaining offence had a lesser limitation.

iv) Question of limitaiton is both a question of fact as well as the question of law.

v) If prima facie the Court is satisfied that the challan/complaint has been filed within the period of limitation as per the provisions contained under Section 468(3) Cr.P.C. then cognizance of the challan/complaint can be taken.

vi) Even if there is a delay in filing of the complaint/challan beyond limitation then also the Court has a power to condone the delay by applying the principals laid down under Section 473 Cr.P.C.

vii) If prima facie the complaint/challan appears to be within limitation taking into consideration the offences alleged, the challan/complaint cannot be thrown out at the threshhold on the plea of limitation and the question of limitation can be determined at the time of considering the merits of the charge or at the stage of trial on the basis of evidence which may come on recrod.

viii) The language of Section 468(3) makes it imperative that the limitation provided for taking cognizance is in respect of the offence charged and not in respect of offence

finally proved.

15. In view of the aforesaid, the first two questions framed in this

matter are decided against the petitioner.

16. At this juncture, reference can also be made to a judgment

delivered by the Apex Court in the case of Kailash Verma Vs. Punjab

State Civil Supplies Corporation & Anr. (2005) 2 SCC 571 where it has

been held:

5. It may also be noticed that this Court in Rajathi v. C. Ganesan (1999) 6 SCC 326 said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second Revision. Ordinarily, when a Revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to Revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law were not complied with and when the High Court feel that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.

17. I may also refer to a judgment of this Court in Crl.M.C.4024/2008

titled as Gajraj Singh Tomar Vs. State and Ors. decided on 02.02.2009,

where this Court held as under:

11. The facts of this case needs to be analysed in the light of the ratio of the aforesaid judgments which circumscribe the powers vested in this Court under Section 482, 483 of Cr.P.C. whenever an attempt is made to again invoke the power of revision though in the garb of petition under Sections 482, 483 in view of the bar created under Section 397(3) Cr.P.C. once the petitioner has already availed the remedy of revision in respect of his grievance by approaching the Sessions Court. The ratio of the judgment, as quoted above, makes it abundantly clear that while the powers vested in this Court under Sections 482,483 Cr.P.C. are wide enough to still interfere in a case where even the revisional jurisdiction has already been invoked by the Sessions Court on a petition filed by the petitioner under Section 397(1) of the Cr.P.C. but it has to be exercised only in a case where there is grave miscarriage of justice or abuse of the process of Court or where the required statutory procedure has not been complied with or where there is failure of justice or that the order passed or sentence imposed requires correction.

18. Applying the aforesaid principal to the facts of this case, I find

that it is not a fit case to exercise the powers under Section 482 Cr.P.C.

for the reasons that the petitioner is simply trying to misuse the

process of Court inasmuch as firstly he invoked the revisional

jurisdiction before the Sessions Court when charges under Section 504

IPC were deleted then again he approached the revisional Court on the

issue of limitation which point he could have taken before the First

Revisional Court. In any case after failing before the Sessions Judge,

the petitioner has again filed the present petition which is certainly in

the nature of third revision petition and thus is clearly barred under

Section 397(3) Cr.P.C.

19. Applying the aforesaid legal principal to the facts of this case,