Madras High Court
Shylenthiran Kumaran Thambi vs State Represented By on 6 July, 2023
Crl.O.P.(MD)No.2777 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.07.2023
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.2777 of 2020
and
Crl.M.P.(MD)Nos.1441 & 1442 of 2020
Shylenthiran Kumaran Thambi
@ K.Shylaja Kumaran Thambi
... Petitioner
Vs.
1.State represented by
The Inspector of Police,
Thuckalay Police Station,
Kanyakumari District.
(Crime No.225 of 2016)
2.Anu ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records relating to the case in
STC.No.925 of 2019 on the file of the learned Judicial Magistrate No.I,
Padmanabhapuram, Kanyakumari District and quash the same.
For Petitioner : Mr.M.Suri
1/8
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Crl.O.P.(MD)No.2777 of 2020
For R1 : Mr.M.Sakthi Kumar,
Government Advocate (Crl. Side)
For R2 : No Appearance
ORDER
This Criminal Original Petition has been filed to quash the the
case in STC.No.925 of 2019 on the file of the learned Judicial Magistrate
No.I, Padmanabhapuram, Kanyakumari District.
2.According to the petitioner, the first respondent filed a case
against him in Cr.No.225 of 2016 for the offence under Section 279 &
337 IPC and filed final report before the learned Judicial Magistrate
No.I, Padmanabhapuram and the same was taken cognizance in
S.T.C.No.925 of 2019 for the offence punishable under Sections 279 &
338 IPC. The learned Magistrate has taken cognizance of the offence,
after a lapse of limitation period as contemplated under Section 468 of
Cr.P.C. The period of imprisonment for the offences punishable under
Sections 279 & 338 IPC is upto 6 months and 2 years respectively.
Hence, the period of limitation for taking cognizance of the said
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Crl.O.P.(MD)No.2777 of 2020
offences, as per Section 468 of Cr.P.C., is one year and 3 years
respectively. In the present case, the alleged occurrence was taken place
on 16.03.2016 and the final report filed and taken cognizance only on
12.12.2019. The learned Magistrate has taken cognizance, after a lapse of
period of three years and thereby, the case is hit by limitation. Hence,
the above said case in STC.No.925 of 2019 is liable to be quashed.
3.The learned Government Advocate(Crl.side) appearing for the
first respondent has also admitted the date of occurrence and cognizance
taken by the Magistrate. However, he stated that the final report was filed
in time before the learned Magistrate and thereafter, it was taken on file
on 12.12.2019.
4.Heard both sides and perused the materials available in the
record.
5.On perusal of records revealed that the date or presentation of
the final report was mentioned as on 11.12.2018. However, the Court
seal was affixed in the final report as 12.12.2019 and the learned
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Crl.O.P.(MD)No.2777 of 2020
Magistrate also made an endorsement in the final report that the case was
taken on file on 12.12.2019 in STC.No.925 of 2019 for the offences
punishable under Sections 279 & 338 IPC. As per Section 468 of the
Code of Criminal Procedure, limitation for taking cognizance for the
offence under Section 338 of IPC is three years i.e., last date for taking
cognizance is 16.03.2019. Therefore, as per records, the cognizance was
taken, after a lapse of limitation period, i.e., 16.03.2019.
6.The learned counsel appearing for the petitioner relied upon the
judgment of this Court in a case of Vivekanandan Vs. The Inspector of
Police, Central Crime Branch, Egmore, Chennai reported in 2009-2-
LW(Crl)1099, wherein, this Court, after referring the judgment of the
Hon'ble Supreme Court of India in a case of State of Punjab Vs. Sarwan
Singh reported in 1981 L.W.(Crl.)293-1981 SC 1054, has observed as
follows:
10. It is also decided by the Hon'ble Supreme Court
in the case of State of Punjab Vs. Sarwan Singh reported in
1981 SC 1054 that it is of the utmost importance that any
prosecution, whether by the State or a private complainant,
must abide by the letter of law or take the risk of the
prosecution failing on the ground of limitation. As the bar
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Crl.O.P.(MD)No.2777 of 2020
of limitation under Section 468 of the Code of Criminal
Procedure has been included by the Hon'ble Supreme
Court in the case of Sarwan Singh, within the guarantee or
protection of personal liberty under Article 21 of the
Constitution under which no person can be deprived of his
life or personal liberty except according to the procedure
established by law, in the humble opinion of this Court, the
accused can raise the plea of limitation before the Court at
any stage.
11. In this case, the observation of the learned
Magistrate that "it will be proper to lead the evidence and
decide the matter in the factual issue of limitation by
giving an opportunity to the investigation Officer only after
examination of witness in the trial" is erroneous.
12. As it is admitted by the prosecution itself that the
cognizance taken by the learned Magistrate is barred by
limitation and as the learned Magistrate also not invoked
the provision under Section 473 of the Code of Criminal
Procedure before taking cognizance, since condonation of
delay should precede taking of cognizance of the offence,
this Court is to hold that the cognizance taken by the
learned Magistrate in C.C.No.8085 of 2006 is illegal and
the proceeding on the basis of such cognizance is non est.
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Crl.O.P.(MD)No.2777 of 2020
7.The learned counsel appearing for the petitioner also relied upon
the judgment of this Court in a case of Ajai Kumar & 2 others Vs. State
reported in 2007-2-L.W.(Crl)297, wherein, it is held as follows:
15.Provision of Section 473 can be invoked at the time
of taking cognizance of an offence i.e., at the time of taking a
final report on file. In the instant case, as pointed out
earlier, at the time of taking the final report on file, the
Judicial Magistrate, Padmanabapuram has not raised any
query with regard to limitation. Therefore, the cognizance
taken by the Judicial Magistrate, Padmanabapuram is itself
is erroneous. Now, te petitioners have come forward with
the present petition, praying to discharge them on the basis
of limitation. In order to cure the defect already made by
the Court as well as the prosecution, the respondent has
filed a petition under Section 473 of the Code of Criminal
Procedure, praying to condone the delay. After taking the
final report on file, the petition under Section 473 of the
Code of Criminal Procedure is not at all legally
maintainable. Further, the Judicial Magistrate,
Padmanabapuram has not passed any separate order in the
petition filed under Section 473, so as to attract the
provision of the same. On that score also, the entire order
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Crl.O.P.(MD)No.2777 of 2020
passed by the Judicial Magistrate Court, Padmanabapuram
is liable to be set aside.
8.On careful reading of the above said judgments, it is clear that
after the lapse of limitation period mentioned in Section 468 of Cr.P.C.,
the Court cannot take cognizance, without filing any petition under
Section 473 of Cr.P.C., to condone the delay and after taking
cognizance, the Court cannot entertain the petition under Section 473 of
Cr.P.C. The said case laws are squarely applicable to the present facts of
the case. In the present case, admittedly, final report presented on
12.12.2019 , after a lapse of three years. The learned Government
Advocate(Crl.side) appearing for the first respondent also admitted that
petition under Section 473 Cr.P.C., was not filed before the trial Court to
condone the delay. Therefore, cognizance taken by the learned Judicial
Magistrate No.I, Padmanabhapuram, Kanyakumari District in STC.No.
925 of 2019 under Sections 279 and 338 IPC is erroneous and thereby,
this Court can invoke provision under Section 482 of the Code of
Criminal Procedure to quash the proceedings.
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Crl.O.P.(MD)No.2777 of 2020
P. DHANABAL,J.
gns
9.In the result, this criminal original petition is allowed and the
cognizance taken by the learned Judicial Magistrate No.I,
Padmanabhapuram, Kanyakumari District in STC.No.925 of 2019 is
quashed. Consequently, connected miscellaneous petitions are closed.
06.07.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gns
To
1.The Judicial Magistrate No.I,
Padmanabhapuram,
Kanyakumari District.
2.The Inspector of Police,
Thuckalay Police Station,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.O.P.(MD)No.2777 of 2020
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