Madras High Court
Thinakaran vs State Rep. By on 7 December, 2021
1 CRL.O.P.(MD)NO.18775 OF 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.12.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.(MD)No.18775 of 2021 and
CRL.M.P.(MD)Nos.10403 & 10406 of 2021
1. Thinakaran
2. Naven Jeyaprakash
3. Esakiappan
4. Gnanadurai
5. Baskar Arul Raj ... Petitioners / Accused Nos.1 to 5
Vs.
1. State rep. By,
The Inspector of Police,
Tirunelveli Junction police station,
Tirunelveli City,
Tirunelveli.
(Crime No.104 of 2019) ... Respondent / Complainant
2. Ananthakumar,
Agriculture Department Tirunelveli,
Executive Magistrate SST-03,
38224 SST 03,
Tirunelveli District ... Respondent / Defacto Respondent
Prayer: Criminal Original petition is filed under Section
482 of Cr.P.C, to call for the records pertaining to the charge
sheet in C.C.No.748 of 2020 on the file of the learned Judicial
Magistrate No.IV, Tirunelveli District, in Crime No.104 of 2019
dated 17.04.2019 on the file of the first respondent and quash
the same as illegal as against the petitioner alone.
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2 CRL.O.P.(MD)NO.18775 OF 2021
For Petitioners : Mr.T.Lajapathi Roy
For R-1 : Mr.T.Senthil Kumar,
Additional Public Prosecutor.
***
ORDER
Heard the learned counsel appearing for the petitioners
and the learned Additional Public Prosecutor appearing for
the first respondent.
2. This criminal original petition has been filed to quash
the impugned proceedings in C.C.No.748 of 2020 on the file of
the Judicial Magistrate, Tirunelveli.
3. Based on the information lodged by the second
respondent, the first respondent herein registered Crime
No.104 of 2019 on 17.04.2019 for the offences under Sections
171(H), 171(E), and 109 of I.P.C. and Section 128 of the
Representation of the People Act, 1951. Investigation was
conducted and final report was filed on 03.09.2020.
Cognizance of the offences was taken on 24.11.2020 and
summons were issued to the petitioners herein.
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3 CRL.O.P.(MD)NO.18775 OF 2021
4. The offences in question are punishable with the
following terms of imprisonment:-
Accused Offences Punishment Limitation Date of Date of
Nos.1 to & Sections Charge Cognizance
5 Sheet or
Final
Report
A1 to A5 Sections One year or One year. 03.09.2020 24.11.2020
171H & E fine or both Ought to
IPC. r/w. have filed
109 IPC. on
17.04.2020
A6 to A17 Sections Maximum of One year. 03.09.2020 24.11.2020
128 of RP 3 months or Ought to
Act r/w. fine or both have filed
109 IPC. on
17.04.2020
5. Final report should have been filed on or before
17.04.2020. It is relevant to mention here that the petitioners
herein had earlier filed Crl.O.P.(MD)No.8365 of 2019 and vide
Order dated 27.09.2019, the first respondent was directed to
file final report within a period of three months, thereafter. It
is beyond dispute that the final report was filed after the
expiry of the limitation period prescribed under Sections 468
and 473 of Cr.P.C. The jurisdictional Magistrate can condone
the delay, if he is satisfied that sufficient cause was made out
and thereafter take cognizance of the offences. But in this
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4 CRL.O.P.(MD)NO.18775 OF 2021
case, cognizance of the offences was taken straightaway. The
delay occasioned in filing the final report was not condoned at
all.
6. The learned counsel appearing for the petitioners
drew my attention the decision reported in 1987 Cri LJ 360
(Kathamuthu V. Balammal). The Hon'ble Division Bench was
called upon to answer the question as to whether the
launching of a criminal prosecution after the lapse of the
period of limitation prescribed under Section 468 of Cr.P.C,
can the Court condone the delay after taking cognizance of the
offences or whether such condonation of delay should precede
the taking cognizance of the offences. In the aforesaid
Judgment, the Hon'ble Division Bench categorically answered
and held that any proceeding culminating in the conviction of
a person in a criminal case, the cognizance of which has been
taken after the expiry of the period of limitation as prescribed
under Section 468(2) of Cr.P.C. without first resorting to
Section 473 of Cr.P.C., is non est in the eye of law. The decision
reported in 1978 Cri.L.J.116 (Sulochana V. State Registrar of
Chits, Madras) was specifically disapproved. This decision was
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5 CRL.O.P.(MD)NO.18775 OF 2021
followed by a learned Judge of this Court vide Order dated
09.09.2020 in Crl.O.P.(MD)No.4307 of 2017 (D.Senthilkumar V.
The Inspector of Police). The learned Judge held that the
valuable right accrued to an accused person cannot be
allowed to be taken away except by strictly satisfying the
conditions prescribed under Section 473 of Cr.P.C. It was
specifically laid down in categorical terms that the exercise of
powers under Section 473 of Cr.P.C. extending the period of
limitation by condoning the delay in launching prosecution
should precede the taking cognizance of the offence. Since
this was not done in this case, the impugned proceedings are
quashed.
7. This criminal original petition is allowed. The benefit
of this order will enure in favour of the non-petitioning
accused also. Consequently, connected miscellaneous petitions
are closed.
07.12.2021
Index : Yes / No
Internet : Yes/ No
PMU
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6 CRL.O.P.(MD)NO.18775 OF 2021
G.R.SWAMINATHAN,J.
PMU
Note: In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant concerned.
To:
1. The Judicial Magistrate No.IV,
Tirunelveli District.
2. The Inspector of Police,
Tirunelveli Junction police station,
Tirunelveli City, Tirunelveli.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
Crl.O.P.(MD)No.18775 of 2021
07.12.2021
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7 CRL.O.P.(MD)NO.18775 OF 2021
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