Orissa High Court
Diptiranjan Patnaik vs State Of Orissa on 15 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.1388 of 2017
(In the matter of application under Section 482 of the
Criminal Procedure Code, 1973).
Diptiranjan Patnaik ... Petitioner
-versus-
State of Orissa ... Opposite Party
For Petitioner : Mr. A.Mohanty, Senior
Advocate
For Opposite Party : Mrs. S.R.Sahoo, ASC
CRLMC NO.1344 of 2017
Indrani Patnaik ... Petitioner
-versus-
State of Orissa ... Opposite Party
For Petitioner : Mr. A.Mohanty, Senior
Advocate
For Opposite Party : Mrs. S.R.Sahoo, ASC
CRLMC NO.1749 of 2017
Balasubramanian ... Petitioner
Prabhakaran
-versus-
State of Orissa ... Opposite Party
For Petitioner : Mr. A.Mohanty, Senior
Advocate
For Opposite Party : Mrs. S.R.Sahoo, ASC
CRLMC Nos.1388, 1344 & 1749 of 2017 Page 1 of 16
CORAM:
JUSTICE G. SATAPATHY
DATE OF JUDGMENT : 15.09.2023
G. Satapathy, J.
1. The Petitioners by way of this application
U/S. 482 Cr.P.C. pray to quash the following:-
(i) Charge-sheet No. 187 dated
11.12.2013 arising out of Bamberi
P.S. Case No. 37 dated 04.03.2010
under annexure-2.
(ii) The order passed on 23.04.2014
by learned JMFC, Barbil in G.R. Case
No. 166 of 2010 taking cognizance of
offence U/Ss. 379/120-B of IPC under
annexure-3 and,
(iii) The criminal proceeding instituted
against them in G.R. Case No. 166 of
2010.
2. Prosecution case in brief was, in the course
of inspection of railway sidings at Jaroli on
23.01.2010, around 63 rakes of iron ore were found
to have dispatched to different places through Rail
from 01.01.2010 to 23.01.2010, but the consigner
and consignee of such transaction of iron ore were
neither lessee nor licensee of Joda circle. Hence, the
above quantity of dispatched iron ore i.e. 63 rakes
was suspected to have been procured by way of theft
and transported with connivance of Railway
employees/Authorities without permission.
On the above facts, on 04.03.2010, the
Deputy Director, Mines, Joda Circle lodged an FIR
before IIC, Joda, who registered PS Case No. 37 of
2010 U/Ss. 379/34 of IPC and the matter was
investigated into. Finally on completion of
investigation on 11.12.2013, a charge-sheet in CS
No. 187 of 2013 was placed against the Petitioners
and others for commission of offences U/Ss.
379/120-B of IPC and finding prima facie case against
the Petitioners and others, the learned JMFC, Barbil
by the impugned order passed on 23.04.2014 took
cognizance of offences U/Ss. 379/120-B of IPC and
issued processes in the form of summons against the
accused persons released on bail and in the form of
NBWs against the absconding accused persons, but
the Petitioner Indrani Pattnaik in CRLMC No. 1344 of
2017 was shown as an absconder in the impugned
order under annexure-3 along with 11(eleven) other
accused persons as per the charge sheet submitted
by the IO. According to the Petitioner in CRLMC No.
1388 of 2017, he was the power of Attorney Holder of
Smt. Indrani Pattnaik to look after the day to day
activities and operation of Unchbahal Iron and
Manganese Ore Mines, whereas the Petitioner
(Balasubhramaniyam Pravakram) in CRLMC No. 1749
of 2017 was a contractor being appointed by Smt.
Indrani Pattnaik. Being aggrieved with the charge-
sheet, order taking cognizance of offence and
consequently, the criminal proceeding, the Petitioners
have approached this Court in these applications U/S.
482 Cr.P.C. for the relief indicated in the preceding
paragraph.
3. In the course of argument, Mr. A. Mohanty,
learned Sr. counsel has submitted that although FIR
was lodged against the unknown persons, but the
Petitioners have been charge-sheeted in this case
without any prima facie materials. It is further
submitted by the learned Sr. counsel for the
Petitioners that the materials so far collected by the
IO do not disclose the necessary ingredients of the
offence U/Ss. 379/120-B of IPC and the implication of
each of the Petitioners was on the basis of suspicion
and imagination and, therefore, the criminal
proceeding against the petitioners being an abuse of
process of Court may kindly be quashed. On the
other hand, learned ASC by taking this Court to the
relief claimed by each of the petitioners, has
submitted that in the course of investigation, the IO
had collected prima facie materials against the
petitioners and, thereby, the cognizance taken by the
learned J.M.F.C., Barbil cannot be faulted with and,
therefore, the CRLMCs being unmerited may kindly
be dismissed. Further, this Court has also heard the
parties on the issues of limitation to take cognizance
of offences.
4. What is significant is that this Court while
going through the admitted facts of the case found
the plea of limitation has not been addressed to by
the learned J.M.F.C., Barbil, while taking cognizance
of offence, but such plea cannot be withheld merely
because the Petitioners had not raised such plea and
it would not deprive them from the legitimate
consequence of the bar to taking cognizance after
expiry of limitation. Hence, this Court is required to
address such plea of limitation as available to the
petitioners in Law, since the enactment of Section
482 of the Cr.P.C. is itself with an objective to make
such orders as may be necessary to give effect to any
order under the Cr.P.C, or to prevent abuse of the
process of any Court or otherwise to secure the ends
of justice. On the aforesaid analogy, this Court now
proceeds to examine the plea of limitation in the
succeeding paragraphs.
5. The period limitation for taking cognizance
of offences starts from the date of commission of
offence as provided under Section 469 of the Cr.P.C.
While counting the said period, the date of offence is
to be excluded as per sub-section 2 of Section 469 of
the Cr.P.C. It is clarified, neither the offences alleged
against the Petitioners in this case were continuing
offences nor would the provision of Section 472 of the
Cr.P.C come into play. Albeit, the learned Magistrate
is empowered to take cognizance of an offence in
exercise of power U/S. 473 of the Cr.P.C. after the
expiry of the period of limitation, but it has to be
satisfied on the facts and in the circumstances of the
case that the delay has been properly explained or
that it is necessary to do in the interest of justice.
The impugned order does not show that the learned
JMFC had applied its mind on this question of law of
limitation nor was there any disclosure in the
impugned order of the learned Magistrate condoning
the delay or as it was necessary to do so in the
interest of justice.
6. The scope and ambit of powers U/S. 473 of
the Cr.P.C. was considered by the Apex Court in
State of Himachal Pradesh Vrs. Tara Dutt &
Another; 2000 SCC (Cri.) 125 and in
Sanapareddy Maheedhar Seshagiri & Anr. v.
State of Andhra Pradesh;AIR 2008 (SC)787. The
Apex Court in the aforesaid two decisions has
observed as follows:-
"Section 473 confers power on the court
taking cognizance after the expiry of 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 that it is necessary so to
do in the interest of justice. Obviously,
therefore in respect of the offences for
which a period of limitation has been
provided in Section 468, the power has
been conferred on the court taking
cognizance to extend the said period of
limitation where a proper and satisfactory
explanation of the delay is available and
where the Court taking cognizance finds
that it would be in the interest of justice.
This discretion conferred on the Court has
to be exercised judicially and on well-
recognized principles. This being a
discretion conferred on the court taking
cognizance, wherever the court exercises
this discretion, the same must be by a
speaking order, indicating the satisfaction
of the court that the delay was
satisfactorily explained and condonation
of the same was in the interest of justice.
In the absence of a positive order to
that effect it may not be permissible
for a superior court to come to the
conclusion that the court must be
deemed to have taken cognizance by
condoning the delay whenever the
cognizance was barred and yet the
court took cognizance and proceeded
with the trial of the offence."
7. In the circumstances, what would be the
effect of issuance of processes, which had already
been issued against the accused persons in this case,
but mere issuance of processes against the accused
persons does not automatically condone the delay in
taking cognizance of offences. Additionally, this Court
is also conscious of the fact that when a statue, while
conferring power, prescribes mode for exercise of
that power, the power has to be exercised in that
manner, or not at all. This view was first expressed in
Privy Council's decision in Nazir Ahmed Vs. King
Emperor; AIR 1936 PC 253(1936 SCC On line PC
41). It is therefore, very clear that "where a power is
given to do a certain thing in a certain way, the thing
must be done in that way or not at all". Why this
Court is reminding this principle is because that the
learned J.M.F.C., Barbil while taking cognizance of
offences had ignored to address the issue of
limitation and simply took cognizance of offence and
issued processes against the accused persons
including the petitioners ignoring the valuable right of
accused persons.
8. On coming back to the facts of the case,
undisputedly, the date of occurrence or offence
according to Col. No. 3(b) of FIR as per the
prosecution case was 23.01.2010, but FIR was lodged
on 04.03.2010 by alleging therein about dispatch of
iron ore, which was the subject matter of theft
through Rail from 01.01.2010 to 23.01.2010, and
accordingly, the FIR was lodged for commission of
offence U/Ss. 379/34 of the IPC, but charge sheet
was submitted against the petitioners and others for
commission of offences U/Ss. 379/120-B of the IPC
and cognizance was taken for offences U/Ss.
379/120-B of the IPC. However, the offence U/S. 379
of the IPC prescribes punishment for imprisonment of
either description for a term which may extend to
3(three) years or with fine or with both, but where no
express provision is made in the Code for the
punishment of such a conspiracy, the party to the
criminal conspiracy be punished in the same manner
as if he had abetted such offence and, therefore, by
applying Section 468(3) of the Cr.P.C., the
punishment prescribed for offence U/S. 379 of the
IPC would be taken into consideration in this case for
the purpose of calculating the period of limitation for
commission of offences U/S. 379/120B of the IPC. In
this case, the learned trial Court had taken
cognizance of offences on 23.04.2014, which is four
years and three months after commission of the
offences on 23.01.2010, but the limitation for taking
cognizance of offences U/S. 379/120B of the IPC shall
be three years as per the mandate of Section 468(c)
of the Cr.P.C. and thereby, cognizance was taken
after the expiry of the prescribed period of limitation,
even the charge sheet was filed beyond the aforesaid
period of limitation for taking cognizance of offences
since it was filed after three years ten months and
some odd days. For the purpose of present case,
clause-b of Section 470(4) may be noticed. The said
clause stipulates that for computing the period of
limitation, the time during which an offender has
avoided arrest by absconding or concealing himself
has to be excluded. The said clause may be
applicable in the facts of the present case as the
charge-sheet was filed by showing some of the
accused persons including the petitioner Indrani
Pattnaik in CRLMC No.1344 of 2017 as absconders,
but this aspect/question was required to be decided
by the Court of learned J.M.F.C., Barbil when it
decides to take cognizance of the offences, but the
learned J.M.F.C., Barbil had not addressed to such
aspect/question. Further, in the present case, the
learned Magistrate took cognizance of offences
without addressing the necessary conditions as
required U/S 473 of the Code which are subjective
satisfaction of the Court with regard to explanation of
delay or necessity to do in the interest of justice. In
such situation, a question also automatically arises
whether a right, which was already accrued in favour
of the accused persons for taking cognizance of
offences after the statutory period of limitation, can
be set at naught by necessary implication or deemed
condonation of delay, but in the humble opinion of
this Court, the accused persons in the circumstances
is required to be noticed before taking cognizance of
offences after expiry of the prescribed period of
limitation. This question was already answered in
P.K. Choudhury Vrs. Commander, 48 BRTF
(GREF); (2008) 13 SCC 229, wherein the Apex
Court has held as under:-
"10. The learned Judicial Magistrate did not
apply his mind on the said averments. It did not
issue any notice upon the appellant to show
cause as to why the delay shall not be
condoned. Before condoning the delay, the
appellant was not heard. In State of
Maharastra Vrs. Sharadchandra Vinayak
Dongre (1995) 1 SCC 42 this Court has held:
"5. In our view, the High Court was
perfectly justified in holding that the
delay, if any, for launching the
prosecution, could not have been
condoned without notice to the
respondents and behind their back and
without recording any reasons for
condonation of the delay. However,
having come to that conclusion, it
would have been appropriate for the
High Court, without going into the
merits of the case to have remitted
the case to the trial Court, with a
direction to decide the application
for condonation of delay afresh after
hearing both sides. The High Court,
however, did not adopt that course and
proceeded further to hold that the trial
Court could not have taken cognizance
of the offence in view of the application
filed by the prosecution seeking
permission of the Court to file a
supplementary charge-sheet on the
basis of an incomplete charge-sheet and
quashed the order of the CJM dated
21.11.1986 on this ground also. This
view of the High Court, in the facts and
circumstances of the case is patently
erroneous.
9. Besides, in Sharadchandra (supra), the
Apex court has held that delay in launching the
prosecution cannot be condoned without notice to the
accused. In the case at hand, the learned trial court
while passing the impugned order had neither noticed
the accused persons nor had condoned the delay by a
speaking order. Additionally, the prosecution had not
filed any application to condone the delay nor the
charge sheet filed by the IO contains any explanation
for condoning the delay and there was no order
passed by the learned JMFC, Barbil to consider that it
was necessary so to do in the interest of justice to
condone the delay. It, therefore, very clear that
impugned order taking cognizance of offences cannot
sustain in the eye of law and the same needs fresh
adjudication.
10. In the result, the CRLMCs stand allowed on
contest, but in the circumstance there is no order as
to costs. Consequently, the order passed on
23.04.2014 by learned J.M.F.C., Barbil in G.R. Case
No.166 of 2010 taking cognizance of offences
U/Ss.379/120-B of IPC under Annexure-3 is hereby
quashed. As a logical sequitur, the matter is remitted
back to learned J.M.F.C., Barbil for passing fresh
order on the point of cognizance in accordance with
law by addressing the issue of limitation for taking
cognizance of offence. It is advised that the learned
J.M.F.C., Barbil shall pass necessary order afresh on
the point of cognizance within a period of three
months of receipt of copy of this order.
A copy of this order be communicated to learned
Court of J.M.F.C., Barbil forthwith.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 15th of September, 2023/Priyajit
Signature Not Verified
Digitally Signed
Signed by: PRIYAJIT SAHOO
Designation: Jr. Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 16-Sep-2023 10:36:45
