Delhi High Court
Ramesh Lamba vs State on 15 September, 2010
Author: Sanjiv Khanna
17.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1344/2007
Date of decision: 15th September, 2010
RAMESH LAMBA ..... Petitioner
Through Mr. Vishwendra Verma, Advocate.
Versus
STATE ..... Respondent
Through ASI Premvir Singh, P.S. Sultanpuri
in person.
Mr. Usman Choudhary, Advocate for the
respondent No. 2.
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 ?
3. Whether the judgment should be reported
in the Digest ?
ORDER
1. FIR No. 1218/2002 was registered in Police Station Sultanpuri on
1st September, 2002 on a complaint made by Moinuddin Khan that three
persons including Narender Kumar and Ramesh Lamba had trespassed
into the property C-8, 401, Sultanpuri and have taken away his employee
Zinder Ali. Thereafter, the said three persons locked the property with
their lock. Initially, the FIR was registered under Section 448 of the
Indian Penal Code, 1860 (IPC, for short) and investigation was
CRL.M.C. No. 1344/2007 Page 1
undertaken.
2. During investigation, Section 420 IPC was added. Charge sheet
was filed under Sections 420 and 448 IPC.
3. Learned Metropolitan Magistrate by order dated 5th June, 2006
took cognizance and summoned the accused only under Section 448 IPC.
Section 448 IPC is punishable with maximum imprisonment of one year.
In these circumstances, learned trial court examined the question whether
delay in filing of the charge sheet /police report should be condoned.
The said power is given under Section 473 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the Code, for short) and
stipulates that the court may take cognizance of an offence after expiry of
the period of limitation if it is satisfied that the delay has been properly
explained and it was necessary in the interest of justice to do so.
4. Learned trial court has examined the allegations in the charge
sheet. It was noticed that Moinuddin Khan had purchased the
property/plot in question from one Vijay Kumar on 31 st July, 2002.
Vijay Kumar had entered into a agreement with one Aarif, the original
allottee in 1978 for purchase of plot for Rs.2,000/-. Vijay Kumar had
paid Rs.1,000/- against due receipt and was given possession of the plot.
Thereafter, Aarif did not initiate any proceedings or demand the balance
Rs.1,000/-. However, as per the police investigation, Vijay Kumar
continued to enjoy uninterrupted peaceful possession of the property
from 1978 upto 31st July, 2002, when the property was sold to the
complainant Moinuddin Khan by Vijay Kumar. As per the prosecution
case, in 1984 Aarif executed a set of documents in favour of one
Jaswant. The said Jaswant in turn on 27th August, 2002 executed a set of
documents for sale of the property in favour of Narender. However, as
per the charge sheet, actual physical possession was never transferred
and given to either Jaswant or Narender. Narender on the basis of the
said documents tried to dispossess and forcibly take physical possession
CRL.M.C. No. 1344/2007 Page 2
of the property by trespassing the same. The trial court has noticed that
the police had investigated whether a case for cheating under Section 420
IPC was made out. The trial court has also noticed that there was delay
of nearly four years on the part of the police to complete the
investigation but this was also occasioned due to the fact that finger
prints and specimen signatures were required to be sent to various
laboratories for forensic results. Looking at the nature of the allegations
and the explanation given by the police, the delay was condoned and
accordingly Narender Kumar and Ramesh Lamba were summoned to
appear as accused.
5. Ramesh Lamba filed a revision petition before the learned
Additional Sessions Judge challenging the order condoning the delay.
The said revision petition has been dismissed by the impugned order
dated 9th February, 2007 and it was observed that the learned
Metropolitan Magistrate committed no error in condoning the delay even
if no formal application was moved. It is recorded that the learned
Metropolitan Magistrate has given detailed reasons for condoning the
said delay.
6. This has now prompted the petitioner to file the present petition
under Section 482 of the Code to question and challenge both the orders
passed by the learned Metropolitan Magistrate and the Additional
Sessions Judge. Learned counsel for the petitioner states that the reports
from the laboratories are dated 5th August, 2003 and 4th August, 2003
and therefore the delay in filing of the charge sheet is not fully explained.
Learned counsel for the petitioner has also relied upon Lokesh Tokas
and Another versus State, 2002 IV AD (DELHI) 941 and Yukub Ali
Saranj and Others versus The State of West Bengal, 1995 CRL.L.J.
4077. In Lokesh Tokas (supra) a single Judge of this Court has observed
that the State had not sought benefit of Section 473 of the Code, which
permits extension of time and, therefore, Section 468(1) of the Code,
CRL.M.C. No. 1344/2007 Page 3
which prohibits the court from taking cognizance of an offence as
specified in sub-section 2 after expiry of the period of limitation was
applicable. In Yukub Ali Saranj (supra) it has been observed that the
learned Metropolitan Magistrate had erred in taking cognizance without
recording to his satisfaction on the on the explanation for the delay as
embodied in Section 473 of the Code. The Magistrate in the said case
had not considered the materials on record for condonation of delay and
had not even assigned any special reason for condoning delay. It was
emphasized by the Hon‟ble Court that the satisfaction of the trial court
and the reasons why the delay was condoned should be apparent from
the order itself.
7. In the present case, as noticed above, learned trial court has gone
into the question of condonation of delay under Section 473 of the Code
and has given reasons why the delay should be condoned. As noticed
above, the FIR was being investigated both under Sections 420 and 448
IPC. Later on even charge sheet was filed under both the Sections but
the case was made out and cognizance was taken under Section 448 IPC
only. The delay was also occasioned atleast till August, 2003 when
forensic result became available. Learned Magistrate has mentioned that
the facts justify condonation of delay and this order has been upheld on
challenge in a revision petition before the Learned Sessions Judge. There
is limited scope for interference in this petition under section 482 of the
Code. This power is to be exercised sparingly to prevent abuse of
process of any court or otherwise to secure ends of justice. In Arun Vyas
and Another versus Anita Vyas, (1999) 4 SCC 690, the Supreme Court
has examined Section 473 of the Code and has observed:
"14. It may be noted here that Section 473
Cr.P.C. which extends the period of limitation
is in two parts. The first part contains non
obstante clause and gives overriding effect to
that section over Sections 468 to 472. The
CRL.M.C. No. 1344/2007 Page 4
second part has two limbs. The first limb
confers power on every competent court to take
cognizance of an offence after 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 the second limb
empowers such a court to take cognizance of
an offence if it is satisfied on the facts and in
the circumstances of the case that it is
necessary so to do in the interests of justice. It
is true that the expression „in the interest of
justice‟ in Section 473 cannot be interpreted to
mean in the interest of prosecution. What the
court has to see is „interest of justice‟. The
interest of justice demands that the court
should protect the oppressed and punish he
oppressor/offender. In complaints under
Section 498-A the wife will invariably be
oppressed, having been subjected to cruelty by
the husband and the in-laws. It is, therefore,
appropriate for the courts, in case of delayed
complaints, to construe liberally Section 473
Cr.P.C. in favour of a wife who is subjected to
cruelty if on the facts and in the circumstances
of the case it is necessary so to do in the
interests of justice. When the conduct of the
accused is such that applying rule of limitation
will give an unfair advantage to him or result in
miscarriage of justice, the court may take
cognizance of an offence after the expiry of
period of limitation in the interests of justice.
This is only illustrative not exhaustive.
15. Any finding recorded by a Magistrate
holding that the complaint to be barred by
limitation without considering the provisions of
Section 473 Cr.P.C. will be a deficient and
defective finding, vulnerable to challenge by
the aggrieved party. In this case the complaint
was clearly barred by limitation and no
explanation was offered for inordinate delay;
this is what the learned Magistrate took note of
and concluded that the complaint was barred
by limitation. This is correct insofar as the
CRL.M.C. No. 1344/2007 Page 5
offence under Section 406 is concerned.
Therefore, in regard to Section 406 the order of
the learned Magistrate discharging the
appellants cannot be faulted with. But
regarding offence under Section 498-A the
learned Magistrate did not advert to the second
limb of the second part in Section 473 Cr.P.C.
referred to above. The order of the learned
Magistrate on this aspect was unsustainable so
the High Court has committed no illegality in
setting aside that part of the order of the
learned Magistrate."
8. The expression „in the interest of justice‟ used in Section 473 of
the Code has been interpreted and it has been observed that it cannot
mean in the interest of prosecution but the said expression demands that
the court should protect the oppressed and punish the oppressor/offender.
It has been also observed that in appropriate cases, the court can construe
Section 473 of the Code liberally giving benefit of the said rule so that
the provision does not result in unfair advantage or result in miscarriage
of justice. In State of H.P. versus Tara Dutt and Another, (2000) 1
SCC 230 Sections 468 and 473 of the Code were examined and it was
observed that the court can condone delay where it has been explained
and it is in the interest of justice to do so. This discretion has to be
exercised judiciously on well recognized principle and should be by a
speaking order indicating satisfaction of the court. It was accordingly
observed as under:
"8. ........We have already indicated in the earlier
part of this judgment as to the true import and
construction of Section 473 of the Code of
Criminal Procedure. The said provision being an
enabling provision, whenever a Magistrate
invokes the said provision and condones the
delay, the order of the Magistrate must indicate
that he was satisfied on the facts and
circumstances of the case that the delay has been
properly explained and that it is necessary in the
CRL.M.C. No. 1344/2007 Page 6
interest of justice to condone the delay. But
without such an order being there or in the
absence of such positive order, it cannot (sic) be
said that the Magistrate has failed to exercise
jurisdiction vested in law. It is no doubt true that
in view of the fact that an offence under Section
498-A is an offence against the society and,
therefore, in the matter of taking cognizance of
the said offence, the Magistrate must liberally
construe the question of limitation but all the
same the Magistrate has to be satisfied, in case of
period of limitation for taking cognizance under
Section 468(2)(C) having expired that the
circumstances of the case require delay to be
condoned and further the same must be manifest
in the order of the Magistrate itself. This in our
view is the correct interpretation of Section 473
of the Code of Criminal Procedure."
9. In view of the aforesaid, I do not see any reason to interfere with
the impugned orders. The petition is accordingly dismissed.
SANJIV KHANNA, J.
SEPTEMBER 15, 2010
VKR/NA
CRL.M.C. No. 1344/2007 Page 7
