Chanchal Bhatti & Ors vs State (Nct Of Delhi)
2010 Latest Caselaw 4812 Del

                                                           REPORTABLE

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRIMINAL M.C. NO. 1810 OF 2007


                                  Reserved on : 13TH September, 2010.
%                           Date of Decision: 19th October, 2010.


CHANCHAL BHATTI & OTHERS                 .... Petitioners
                   Through Mr. S.C. Sagar, advocate.


                                  VERSUS


STATE (NCT OF DELHI)                           .....Respondents

Through Ms. Fizani Hussain, APP.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

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

2. To be referred to the Reporter or not ?      YES
3. Whether the judgment should be reported
in the Digest ?                                 YES


SANJIV KHANNA, J.:

The petitioners, Chanchal Bhati, Ranvijay and Kalu, by this Petition

under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as the Code, for short) have prayed for quashing of FIR No.

173/2003 dated 23rd February, 2003 under Section 379 of the Indian Penal

Code, 1860 (hereinafter referred to as IPC, for short). They have also

prayed for setting aside of the order dated 26th March, 2007 passed by the

Metropolitan Magistrate issuing non-bailable warrants and the subsequent

proceedings thereafter. The petitioners further pray for setting aside of the

order dated 19th April, 2007 initiating of proceedings under Sections 82 and

83 of the Code against the petitioners.

CRL.M.C. NO.1810/2007 Page 1

2. FIR No. 107/2003 under Section 379, IPC was registered at P.S.

Shalimar Bagh on 23rd February, 2003 on a complaint made by one

Navdeep Khurana that his car bearing no. DL-2CG-1022 was stolen in the

night intervening 18/19th February, 2003. It is submitted that the

petitioners and one Rakesh were arrested in FIR Nos.167, 168 and

169/2003 P.S. Kavi Nagar, Distt. Ghaziabad, U.P. along with the said car on

1st March, 2003. An unnumbered FIR had also been registered against

Ranvijay Singh. Intimation of the arrest of the petitioners was given to P.S.

Shalimar Bagh with reference to FIR No.107/2003 vide D.D. entry 40B

dated 4th March, 2003. Possession of the stolen car was taken by the

Investigating Officer on 21st March, 2003 and warrant was issued by the

Metropolitan Magistrate under Section 72 of the Code on 27th March, 2003.

However, the petitioners could not be arrested as they were released on bail

on 13th March, 2003 from the Ghaziabad jail. Thereafter no steps were

taken by the Investigating Officer to arrest the petitioners or conduct

further investigation till H.C. Satbir Singh wrote a note dated 5th June,

2006 that the earlier Investigating Officer HC Dinesh Singh had not carried

out any proceedings, had not written the case diary or arrested the accused

persons. This note was addressed to ACP Rohini and permission was

sought to order reinvestigation.

3. An application dated 16th March, 2007 was made to the court of

Metropolitan Magistrate for issue of non bailable warrants. It was stated in

the application that the petitioners could not be arrested and were

absconding. Learned Metropolitan Magistrate issued non bailable warrants

for 19th April, 2007 vide order dated 26th March, 2007. The petitioners

could not be arrested and the court was informed that non bailable

warrants could not be executed and an application under Section 82 of the

Code was filed on 19th April, 2007. On this application, order dated 19th

CRL.M.C. NO.1810/2007 Page 2 April, 2007 was passed by the Metropolitan Magistrate for initiation of

proceedings under Sections 82 and 83 of the Code against the petitioners.

4. The contention raised by the petitioners is that the offence under

Section 397 IPC is punishable with imprisonment of three years and

therefore in view of Section 468 of the Code, Metropolitan Magistrate is not

competent to take cognizance of the offence under Section 397 IPC after

expiry of three years. It is submitted that the trial court could not therefore

have issued non-bailable warrants or initiated proceedings under Sections

82 and 83 of the Code. It is submitted that the investigation by the police is

barred and prohibited as the court cannot now take cognizance in view of

the limitation period prescribed in section 468 of the Code.

5. To decide the said contention, provisions of Chapter XXXVI -

―Limitation for taking cognizance of certain offences‖ relating to limitation

are required to be examined.

6. Sections 468, 469, 470, 472 and 473 of the Code are reproduced

below:-

―Section 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.]

CRL.M.C. NO.1810/2007 Page 3 Section 469. Commencement of the period of limitation--(1) The period of limitation, in relation to an offender, shall commence,--

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

(2) In computing the said period, the day from which such period is to be computed shall be excluded.

Section 470. Exclusion of time in certain cases.--(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded:

Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation.--In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.

(4) In computing the period of limitation, the time during which the offender--

CRL.M.C. NO.1810/2007 Page 4

(a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or

(b) has avoided arrest by absconding or concealing himself, shall be excluded.

Section 472. Continuing offence.--In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.

Section 473. Extension of period of limitation in certain cases.--Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence 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 or that it is necessary so to do in the interests of justice."

7. Section 468(1) of the Code stipulates that no court shall take

cognizance of an offence after the period of limitation prescribed in sub-

section (2) has expired. Thus there is a bar or prohibition on the court from

taking cognizance. The term ―cognizance‖ has not been defined in the Code.

It is well settled that ―cognizance‖ means judicial notice of an offence taken

by a Magistrate, in order to initiate proceedings in respect of such offence.

It requires application of mind by the Magistrate to the content or the

allegations made in the chargesheet or the complaint or suo motu on the

information received by the court. Taking of cognizance of an offence by the

Magistrate depends upon the facts and circumstances of the particular case.

It has been observed in Chief Enforcement Officer v. Videocon

International Ltd. (2008)2SCC492 that cognizance of an offence under

Section 190 of the Code is said to have been taken by the Magistrate, when

he applies his mind not only to the content of the complaint or police report

but also when he has done so for the purpose of proceeding under Section

200 of the Code. On the other hand, when the Magistrate has applied his

mind only to the extent of ordering for an investigation under section

CRL.M.C. NO.1810/2007 Page 5 156(3) or issue of search warrant for investigation, it cannot be said that he

has taken cognizance of the offence.

8. The term ―investigation‖ has been defined in Section 2(h) of the

Code and includes all proceedings under the Code for collection of evidence

conducted by the police officer or any person, other than the Metropolitan

Magistrate, who has been authorized by the Metropolitan Magistrate in this

behalf. The term ―investigation‖ has been interpreted by the Supreme Court

in H.N.Rishbud v. State of Delhi (1955) 1 SCR 1150 and it has been

held;

―5. ........Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. ....‖

9. The Code also deals with investigation of offences by the police in

Chapter XII. Section 167 of the Code deals with the procedure when

investigation cannot be completed within 24 hours. Sections 167(5) and (6)

of the Code reads as under:-

"Section 167. Procedure when investigation cannot be completed in twenty-four hours. --

(1) xxxxx (2) xxxxx (3) xxxxx (4) xxxxx (5) If in any case triable by 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 satisfies

CRL.M.C. NO.1810/2007 Page 6 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.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.‖

10. Under section 167(5) of the Code time limit of six months from the

date the accused is arrested, has been fixed for investigation in summons

cases. A magistrate can, for special reasons and in the interest of justice,

permit investigation even after six months. In case of refusal and stoppage

of investigation the State can approach the Sessions Court. No such time

limit has been fixed in non-summon cases. Offence under Section 379 IPC

is punishable upto three years and is therefore a warrant case and not a

summons case. In any case, the accused in the present petition were not

arrested and therefore Section 167(5) of the Code has no application.

11. It is clear from the above, that Section 468 of the Code only deals

with cognizance of offences and does not prescribe any limitation period for

investigation of offences. Section 468 of the Code does not bar investigation

of offences by the police even if the period of limitation, prescribed under

the said section, for taking cognizance by the court, has expired.

12. There is a good reason why Section 468 of the Code cannot be

applied and should not be interpreted as fixing an outer time limit for

investigation of offences. Section 469 of the Code states when the period of

limitation for an offence shall commence. In some cases, it may be doubtful

and debatable as to which of the three clauses under Section 469(1) is

applicable. This determination or dispute has to be decided by the courts

and not by the police. Similarly, Section 470 of the Code provides for

CRL.M.C. NO.1810/2007 Page 7 exclusion of time in certain cases. Again whether or not time should be

excluded has to be determined and adjudicated by the court and not by the

police.

13. For the purpose of the present case, clause (b) of Section 470(4) may

be noted. The said clause stipulates that for computing the period of

limitation the time during which an offender has avoided arrest by

absconding or concealing himself has to be excluded. The said clause may

be applicable in the facts of the present case as FIR under Section 397 IPC

was registered in February, 2003 but the petitioners were not apprehended

or arrested. The case of the police/State is that the petitioners were

absconding. This aspect/question can be decided by the court when it

decides whether or not cognizance should be taken. However, investigation

by the police cannot be stopped or barred.

14. Disputes can also arise whether an offence is a continuing offence. This again is a matter for the court to be decided and not for the police to make self judgment.

15. Section 473 of the Code is a non-obstante provision and gives liberty

to the court to take cognizance of an offence after expiry of the period of

limitation, if it is satisfied that in the said case delay has been properly

explained or it is necessary to take cognizance in the interest of justice. The

two conditions stipulated in Section 473 of the Code are in alternative and

distinct and not conjoint. An order under Section 473 of the Code is to be

passed by a court and not by the police. Till investigation is done and a

chargesheet under Section 173 of the Code is filed by the police, the stage of

taking cognizance by the court does not arise. It is at the stage of taking

cognizance that the court decides whether or not delay should be condoned

under Section 473 of the Code and till that stage, the court cannot condone

delay.

CRL.M.C. NO.1810/2007 Page 8

16. In view of the aforesaid reasoning, the contention of the petitioners

that investigation should be stopped and FIR should be quashed cannot be

accepted. In the present case, it is noticed that on the applications filed by

the police on 16th March, 2007 and 19th April, 2007, the Metropolitan

Magistrate had passed an order for issue of non-bailable warrants against

the petitioners on 26th March, 2007 and proceedings under Sections 82 and

83 of the Code on 19th April, 2007. Sometimes while the FIR is pending

investigation the police/Investigating Officer can move applications before

the court with the prayer for orders or directions. The court while deciding

any application does not act as a rubber stamp of the prosecution and

orders are passed after due consideration and discretion is exercised

keeping in mind the relevant facts including contentions raised, public

interest, case of the prosecution, statutory and constitutional rights of the

victim and accused, delay in investigation, reasons thereof etc. In a given

case, delay in investigation etc. may be a relevant consideration for the

exercise of discretion by the court. However, at this stage, the court does

not consider and decide the question of cognizance, whether or not

cognizance should be taken. Application of provisions of Chapter XXXVI of

the Code is to be decided by the court at the time of taking cognizance.

17. With the aforesaid observations, the present petition is dismissed. It is clarified that the observations made in this order are for the purpose of disposal of the present petition and will not be construed as observations on merits/facts binding on the trial court. This court has not expressed any opinion on whether or not proceedings under Sections 82 and 83 of the Code are justified and valid. The petitioners will have to approach the trial court for the said purpose at the first instance.

                                                      (SANJIV KHANNA)
                                                       JUDGE
OCTOBER        19, 2010.
P


CRL.M.C. NO.1810/2007                                                  Page 9