Pawan Kumar Aggarwal vs Govt. Of Nct Of Delhi
2012 Latest Caselaw 45 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+         Crl. Rev.P. 587/2009 & Crl. M.A 12823/2003(Stay)

%                                         Reserved on: 12/12/ 2011
                                          Decided on: 3rd January, 2012

PAWAN KUMAR AGGARWAL                                     ..... Petitioner
               Through:               Mr. Randhir Jain & Mr. Dhananjai
                                      Jain, Advocates
                     versus

GOVT. OF NCT OF DELHI                                   ..... Respondents
                   Through:           Mr. Manoj Ohri, APP for the State
                                      with SI Harkesh Gauba.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.

1. In the present petition the Petitioner assails the order dated 21st October, 2009 directing framing of charges under Section 182/341 IPC against the Petitioner.

2. Learned counsel for the Petitioner contends that the date of alleged offence is 16th November, 2005, the FIR was registered on 18th March, 2006 and the cognizance was taken on 10th October, 2007. Since there was no allegation for offence under Section 505 IPC in the FIR, the period of limitation was not three years but two years and hence the cognizance beyond the period of limitation was bad in law. There is no order condoning the delay in filing of the chargesheet and taking of the cognizance thereon. Section 473 Cr.P.C. makes it obligatory on the Court to record its satisfaction for condoning the delay. Further for taking cognizance for

offence under Section 182 IPC the complaint under Section 195(1) Cr.P.C. is a must and in the absence thereof no cognizance could have been taken. Reliance is placed on Pankaj Aggarwal vs. State of Delhi & Others 2001(3) Crimes 361.

3. Learned APP for the State, on the other hand, contends that in the present case charge-sheet was filed for offence under Section 186/341/505B IPC. The cognizance was taken for the said offences. Section 505(1)(b) is punishable with imprisonment for a period upto three years. Thus, it cannot be said that the cognizance was taken beyond the period of limitation. The subsequent discharge of the Petitioner for offence under Section 505(1)(b) will not vitiate the cognizance taken earlier. Further in view of Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy and Ors, 1993(3) SCC 4 even in the absence of application for condonation of delay, a duty is cast on the Court to condone the delay for sufficient cause or in the interest of justice. Thus no case for discharge is made out.

4. I have heard learned counsels for the parties. Briefly, the allegations against the Petitioner are that on 16th November, 2005 he made a bogus call from mobile phone regarding a bomb in a flight bound from Delhi to Banglore. The said call turned out to be a hoax call. Thus, FIR was registered under Sections 182/341/505b IPC. In the present case, cognizance was taken for offences under Sections 182/341/505(1)(b) IPC. Section 505 (1)(b) IPC entails a punishment with imprisonment for a period upto three years or with fine or with both. Since, the period of limitation as per Section 468(2)(c) Cr.P.C. would be three years in such a case, the cognizance has been much prior to the expiry of period of three years. Subsequent discharge

of the Petitioner for the serious offence of Section 505 IPC would not entail the Petitioner to get benefit of the reduced period of limitation and to contend that the cognizance was taken beyond the period of limitation.

5. As regards the contention of delay and the cognizance being taken beyond the period of limitation it may be further noted that even if the Petitioner has been discharged for offence under Section 505(1)(b) IPC which entails punishment with imprisonment for a period upto three years, the period of limitation would be looked into on the basis of offences which were prima facie found to be made out at the stage of taking cognizance. Further in Vanka Radhamanohari (Smt)(supra) it was held that unlike Section 5 of the Limitation Act where a duty is on the applicant to show sufficient cause, under Section 468 Cr.P.C. the duty is cast on the Court to consider whether it is in the interest of justice that the delay should be condoned. The absence of an application would not deter the Court from considering condoning of the delay in prosecuting the accused.

6. Further, as regards framing of charge under Section 182 IPC, it may be noted that no court can take cognizance for the said offence except on the complaint in writing of the public servant concerned or some other public servant to whom he is administrative or subordinate. In the present case, along with the chargesheet though complaint under Section 195 Cr.P.C. has been filed, however, no cognizance thereon has been taken. In the absence of cognizance on a complaint under Section 195 Cr.P.C., the Petitioner cannot be prosecuted for an offence under Section 182 IPC in view of the decisions of the Hon'ble Supreme Court in Durgacharan Naik and Ors. v. State of Orissa, AIR 1966 SC 1995 and Pankaj Aggarwal(supra).

7. For the aforesaid discussion, the impugned order dated 21 st October, 2009 is modified and the Petitioner is liable to be charged and prosecuted for offence punishable under Section 341 IPC. Petition stands disposed of accordingly. The Trial Court Record be sent back.

(MUKTA GUPTA) JUDGE JANUARY 03, 2012 vkm