Hemant Sharma vs The State Of Madhya Pradesh
2021 Latest Caselaw 1107 MP

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

Gwalior, Dated : 26.03.2021

Shri S.S. Chauhan, Counsel for the applicant.

Shri Rohit Shrivastava, Counsel for the State.

This repeat application under Section 482 of CrPC has been

filed for quashment of criminal proceedings pending in the Court of

JMFC, Lahar, District Bhind in Criminal Case No. 19/2018 RCT, by

which the closure report filed by the police in Crime No.56/2006

registered under Section 25/27 of Arms Act was rejected and the

cognizance for offence under Section 25(1-b)(a) of Arms Act has

been taken.

It is the case of the applicant that against the impugned order

dated 30.12.2017, by which the cognizance was taken, the applicant

had earlier filed an application under Section 482 of CrPC, which was

registered as M.Cr.C. No.9175/2018 and by order dated 02.08.2018,

the said application was rejected and the order dated 30.12.2017 was

affirmed. However, it is submitted that this Court has not considered

as to whether the cognizance, which was taken by the Court below,

was in accordance with the provisions of Section 468 of CrPC or not

as the cognizance was taken beyond the statutory period without

condoning the delay. To buttress the contention of maintainability of

successive application, counsel for the applicant has relied upon the

judgment passed by the Supreme Court in the case of Anil

Khadkiwala Vs. State (Government of NCT of Delhi) and another

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

reported in (2019) 17 SCC 294.

Per contra, it is submitted by the counsel for the State that the

judgment passed in the case of Anil Khadkiwala (supra), is

distinguishable on facts. However, the successive application for the

similar relief under Section 482 of CrPC is not maintainable.

Heard the learned counsel for the parties.

So far as the maintainability of successive application under

Section 482 of CrPC is concerned, the facts in the present case are

distinguishable from the facts of the case of judgment passed by the

Supreme Court in the case of Anil Khadkiwala (supra). In the said

case, specific objection was raised by the applicant that he has already

tendered his resignation from the post of Director and while deciding

the said application under Section 482 of CrPC, High Court did not

consider the said defence and under these circumstances, it was held

by the Supreme Court that successive application under Section 482

of CrPC would be maintainable. However, in the present case, it is

fairly conceded by the counsel for the applicant that defence with

regard to the Section 468 of CrPC was never raised.

Once a particular ground was not raised, then it was not

expected from the Court to decide the same on its own without giving

any opportunity to the State or opposite party.

Thus, under the facts and circumstances of the case, this Court

is of the considered opinion that the second application under Section

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

482 of CrPC is not maintainable in the light of Section 362 of CrPC.

Even otherwise, now the important question for consideration

is as to whether the applicant had rightly not taken the defence under

Section 468 of CrPC. in his first application under Section 482 of

CrPC, or it had escaped from the notice of the earlier counsel, who is

a designated senior counsel. According to the present case, the FIR

was lodged within a period of limitation and the closure report was

also filed within a period of limitation, i.e., in the year 2007.

However, it appears that for one reason or the other, the said closure

report remained pending before the Trial Court for 10 long years. The

applicant has not filed the copy of the order-sheets of the Trial

Magistrate to show the reasons, for which the closure report remained

pending for 10 long years. But the question for consideration is that

for the purposes of computing period of limitation under Section 468

of CrPC, whether the date of filing of complaint / the date of filing

the charge-sheet / the closure report would be relevant or the date on

which cognizance is taken by the Magistrate would be a relevant

factor. The above-mentioned question is no more res integra.

The Supreme Court in the case of Sarah Mathew Vs. Institute

of Cardio Vascular and others reported in (2014) 2 SCC 62 has

held as under:-

"35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre [State of Maharashtra v. Sharadchandra

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

Vinayak Dongre, (1995) 1 SCC 42 : 1995 SCC (Cri) 16] . It is urged on the basis of this judgment that by condoning the delay, the court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 CrPC is presented before the court. Keeping this argument in mind, let us examine both the viewpoints i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time-barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 CrPC. The court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the court takes cognizance within the period of limitation, there is no question of the complaint being time-barred. If the court takes cognizance after the period of limitation then, the question is how will Section 473 CrPC work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr Luthra, learned ASG submitted that use of disjunctive "or" in Section 473 CrPC suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the latter part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued.

This question has not directly arisen before us.

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 CrPC has to be bifurcated or not. But, we do find this situation absurd. It is absurd to hold that the court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass an order condoning or not condoning the delay. The law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 CrPC is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable."

Since the designated senior while drafting and arguing first

application was aware of the fact that the date of filing of the closure

report would be material for the purposes of calculating the period of

limitation under Section 468 of CrPC, therefore, deliberately did not

take the ground of limitation.

Accordingly, it is held that the date of taking cognizance by the

Magistrate is not material but the date on which the complaint was

filed or the date of initiation of prosecution / criminal prosecution

would be relevant and accordingly, it is held that even otherwise, the

cognizance of the offence taken by the Magistrate by order dated

30.12.2017 was not barred by limitation.

There is another disturbing fact. The applicant had filed another

application under Section 482 of CrPC, which was registered as

M.Cr.C. No.24369/2019 against the order 19.12.2018 passed by the

JMFC, Bhind in RCT No. 19/2018 as well as against the order dated

THE HIGH COURT OF MADHYA PRADESH MCRC-15637-2021 Hemant Sharma Vs. State of MP

24.05.2019 passed by the Additional Sessions Judge, Lahar, District

Bhind in Criminal Revision No.166/2018, by which the application

filed by the applicant under Section 239 of CrPC was dismissed. The

said application under Section 482 of CrPC was dismissed on merits

by order dated 28.01.2021. Thus, it is clear that the applicant is

somehow trying to get proceeding quashed by filing multiple

successive applications before this Court.

Under these circumstances, this Court is of the considered

opinion that the present application is nothing, but an attempt to

misuse the lawful authority of this Court.

Under these circumstances, the application is dismissed with

cost of Rs.10,000/- to be deposited by the applicant within a period of

one month in the Registry of this Court. It is made clear that in case,

if the cost is not deposited within the stipulated period, then the

applicant shall be liable for contempt of this Court.

Accordingly, the Principal Registrar of this Court is directed to

initiate suo moto contempt proceedings in case, if the cost is not

deposited within a period of 30 days from today.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.03.27 14:14:07 +05'30'