Punjab-Haryana High Court
Himanshu Talwar vs State Of Punjab on 4 April, 2024
Neutral Citation No:=2024:PHHC:051489
CRM-M-14576-2024 - 1- 2024:PHHC:051489
123 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-14576-2024
Date of Decision: 04.04.2024
Himanshu Talwar ...Petitioner
vs.
State of Punjab ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Atul Kaushik, Advocate
for the petitioner.
Mr. I.P.S Sabharwal, DAG, Punjab.
***
N.S.Shekhawat J.
1. The petitioner has filed the present petition under Section 482 Cr.
P.C with a prayer to quash the FIR No. 38 dated 28.03.2021, registered under
Section 188,269,270 of IPC, Police Station Phase-11, Mohali and all subsequent
proceedings arising therefrom.
2. Learned counsel for the petitioner contends that the FIR in the
present case was ordered to be registered against the petitioner on the basis of
the complaint moved by the ASI Mohan Singh and the same has been
reproduced below:-
"To the SHO, Today ASI Mohan Singh No.251/ASI, SAS Nagar,
ASI Nirmal Singh No.523, SAS Nagar, Head Constable Nirdosh Singh
No.2178/SAS Nagar, C. Narinder Singh No.1098/SAS Nagar, C. Gaurav Verma
No.2428/SAS Nagar, PHG Balwinder Kumar No.26438/198 were on private
vehicle and were present at light point of Mandi Board, Phase-11. At about
02:15 AM, a secret informer informed that owner of Walking Street Club
namely Sajan Mahajan had opened his club and large number of people had
gathered there and Hooka was also being served there. If raid was conducted,
they would be apprehended. Since the information is reliable and trustworthy,
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therefore, owner of Walking Street Club namely Sajan Mahajan and others
have violated the orders issued by Deputy Commissioner and for controlling the
Spread of Corona Virus, this action has been initiated under Section 188,
269,270 of IPC. Therefore, ruqa is sent against owner of Walking Street Club
Sajan Mahajan and the FIR may registered and is sent through Cons. Gaurav
Verma No. 2478,SAS Nagar, Mohali to the Police Station Phase-11, Mohali.
3. Learned counsel for the petitioner contends that in the present case,
the offences under Section 269,270 of IPC were ordered to be deleted and after
completion of investigation, the final report under Section 188 of IPC has been
presented before the Court on 04.09.2023. Learned counsel further contends
that the maximum sentence under Section 188 of IPC is punishable with
imprisonment or either description for a term which may extend to six months
or with fine which may extend to one thousand rupees or both. Consequently,
the Trial Court was barred from taking cognizance of the offence in view of the
bar contained in Section 468 (2) Cr. P.C. Section 468 (2) Cr. P.C clearly
provides that the period of limitation shall be one year, if the offence is
punishable with imprisonment for a term not exceeding one year. In the present
case, the maximum period of imprisonment was six months, consequently, the
period of limitation for taking cognizance was one year. Thus, the trial Court is
expressly barred to take cognizance of the offence in the present case. Learned
counsel next contends that similarly placed co-accused Gaurav Uppal had filed
a case i.e.CRM-M-65175-2023 and vide the judgment dated 05.03.2024
(Annexure P-2), this Court had quashed the present FIR and all subsequent
proceedings qua him. The case of the petitioner is also covered by the said
judgment.
4. A status report by way of an affidavit of Deputy Superintendent of
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Police, City-2, SAS Nagar has been filed on behalf of respondent-State and the
same is taken on record.
5. Learned State counsel also submits that in the present case, the
offences under Sections 269,270 of IPC were ordered to be deleted from the
FIR and the final report under section 188 IPC has been presented before the
competent Court on 04.09.2023.
6. As per the provisions of Section 468 Cr. PC, there is a bar to take
cognizance after the expiry of the period of limitation and the same has been
reproduced below:-
468. Bar to taking cognizance after lapse of the period of
limitation:-
(1) Except as otherwise provided elsewhere in this Code, no Court,
shall take cognizance of an offence of the category specified in
Sub-Section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment
for a term not exceeding one year;
(c) three years, if the offence is punishable with
imprisonment for a term exceeding one year but not
exceeding three years.
(3) For the purposes of this Section, the period of limitation, in
relation to offences which may be tried together, shall be
determined with reference to the offence which is punishable with
the more severe punishment or, as the case may be, the most severe
punishment.
7. The Hon'ble Supreme Court has held in the matter of Vakil Prasad
Singh Vs. State of Bihar 2009 (3) SCC 355, as follows:-
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18. Time and again this Court has emphasized the need for speedy
investigations and trial as both are mandated by the letter and
spirit of the provisions of the Cr.P.C. (In particular, Sections 197,
173, 309, 437 (6) and 468 etc.) and the constitutional protection
enshrined in Article 21 of the Constitution. Inspired by the broad
sweep and content of Article 21 as interpreted by a seven-Judge
Bench of this Court in Maneka Gandhi Vs. Union of India & Anr.
(1978) 1 SCC 248, in Hussainara Khatoon & Ors. Vs. Home
Secretary, State of Bihar (1980) 1 SCC 81, this Court had
observed that Article 21 confers a fundamental right on every
person not to be deprived of his life or liberty except according to
procedure established by law; that such procedure is not some
semblance of a procedure but the procedure should be 'reasonable,
fair and just'; and therefrom flows, without doubt, the right to
speedy trial. It was also observed that no procedure which does
not ensure a reasonably quick trial can be regarded as
'reasonable, fair or just' and it would fall foul of Article 21. The
Court clarified that speedy trial means (1978) 1 SCC 248 (1980) 1
SCC 81 reasonably expeditious trial which is an integral and
essential part of the fundamental right to life and liberty enshrined
in Article 21.
19. The exposition of Article 21 in Hussainara Khatoon's case
(supra) was exhaustively considered afresh by the Constitution
Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr.
(1992) 1 SCC 225. Referring to a number of decisions of this Court
and the American precedents on the Sixth Amendment of their
Constitution, making the right to a speedy and public trial a
constitutional guarantee, the Court formulated as many as eleven
propositions with a note of caution that these were not exhaustive
and were meant only to serve as guidelines. For the sake of
brevity, we do not propose to reproduce all the said propositions
and it would suffice to note the gist thereof. These are: (i) fair, just
and reasonable procedure implicit in Article 21 of the Constitution
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creates a right in the accused to be tried speedily; (ii) right to
speedy trial flowing from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry, trial, appeal, revision
and retrial; (iii) in every case where the speedy trial is alleged to
have been infringed, the first question to be put and answered is --
who is responsible for the delay?; (iv) while determining whether
undue delay has occurred (resulting in violation of right to speedy
trial) one must have regard to all the attendant circumstances,
including nature of offence, number of accused and witnesses, the
work-load of the court concerned, prevailing local conditions and
so on--what is called, (1992) 1 SCC 225 the systemic delays; (v)
each and every delay does not necessarily prejudice the accused.
Some delays may indeed work to his advantage. However,
inordinately long delay may be taken as presumptive proof of
prejudice. In this context, the fact of incarceration of accused will
also be a relevant fact. The prosecution should not be allowed to
become a persecution. But when does the prosecution become
persecution, again depends upon the facts of a given case; (vi)
ultimately, the court has to balance and weigh several relevant
factors--'balancing test' or 'balancing process'--and determine in
each case whether the right to speedy trial has been denied; (vii)
Ordinarily speaking, where the court comes to a conclusion that
right to speedy trial of an accused has been infringed the charges
or the conviction, as the case may be, shall be quashed. But this is
not the only course open and having regard to the nature of
offence and other circumstances when the court feels that quashing
of proceedings cannot be in the interest of justice, it is open to the
court to make appropriate orders, including fixing the period for
completion of trial; (viii) it is neither advisable nor feasible to
prescribe any outer time-limit for conclusion of all criminal
proceedings. In every case of complaint of denial of right to speedy
trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the court to weigh all the
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circumstances of a given case before pronouncing upon the
complaint; (ix) an objection based on denial of right to speedy trial
and for relief on that account, should first be addressed to the
High Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of
grave and exceptional nature. Such proceedings in the High Court
must, however, be disposed of on a priority basis.
24. It is, therefore, well settled that the right to speedy trial in all
criminal persecutions is an inalienable right under Article 21 of
the Constitution. This right is applicable not only to the actual
proceedings in court but also includes within its sweep the
preceding police investigations as well. The right to speedy trial
extends equally to all criminal prosecutions and is not confined to
any particular category of cases. In every case, where the right to
speedy trial is alleged to have been infringed, the court has to
perform the balancing act upon taking into consideration all the
attendant circumstances, enumerated above, and determine in
each case whether the right to speedy trial has been denied in a
given case.
25. Where the court comes to the conclusion that the right to
speedy trial of an accused has been infringed, the charges or the
conviction, as the case may be, may be quashed unless the court
feels that having regard to the nature of offence and other relevant
circumstances, quashing of proceedings may not be in the interest
of justice. In such a situation, it is open to the court to make an
appropriate order as it may deem just and equitable including
fixation of time frame for conclusion of trial.
26. Tested on the touchstone of the broad principles enumerated
above, we are convinced that in the present case appellant's
constitutional right recognised under Article 21 of the Constitution
stands violated.'
8. It has also been held by the Hon'ble Supreme Court in the matter
of State of Punjab Vs. Sarwan Singh, 1981, 3 SCC, 34 as follows:-
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(3) xxxxx
In the instant case as the charge-sheet clearly mentions that
the offence was committed on August,22, 1972, the bar of
limitation contained in Section 468 (2) Cr.PC clearly applies and
the prosecution, therefore, is clearly barred by limitation. Even
assuming that so far as, the offender is concerned, the commission
of the offence came to knowledge of the officer concerned, it would
be so according to charge-sheet on January 5, 1973, the date when
the audit report was made, Even if this extreme position is
accepted, the prosecution would still be barred by limitation under
Section 469 (1) (b) of the Code of Criminal Procedure, 1973.
Counsel for the State of Punjab, was unable to assail the point of
law delivered by the High Court regarding the interpretation of
Section 468. The object of criminal Procedure Code in putting a
bar of limitation on prosecutions was clearly to prevent the parties
from filing cases after a long time, as a result of which material
evidence may disappear and also to prevent abuse of the process
of the court by filing vexatious and belated prosecutions must
abide by the letter of law or take the risk of the prosecution falling
on the ground of limitation. The prosecution against the
respondent being barred by limitation the conviction long after the
date of the offence. The object which the statutes seek to subserve
is clearly in consonance with the concept of fairness of trial as
enshrined in Article 21 of the Constitution of India, it is therefore,
of the utmost importance that any prosecution, whether by the
State or a private complainant as also the sentence of the
respondent as also the entire proceedings culminating in the
conviction of the respondent as also the entire proceedings
culminating in the conviction of the respondent herein become non
est. applicability of Section 468 of the Code of Criminal Procedure
has been correctly decided by the Punjab and Haryana High
Court. This Court has also taken the same view in a number of
decisions. The result is that the appeal fails and is dismissed. The
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respondent will now be discharged from his bail bonds.
9. In the present case also, the FIR was ordered to be registered
against the petitioner on 28.03.2021 and ultimately, it has been concluded that
the petitioner had committed the offence under Section 188 of IPC, which is
punishable with imprisonment, which may extend to six months or with fine or
with both. Consequently, in view of the provisions contained in section 468 (2)
Cr.P.C, the period of limitation for taking cognizance of the Trial Court was
one year.
10. Thus, in view of the law laid down by the Hon'ble Supreme Court
and in view of the factual discussion, the Trial Court is barred from taking
cognizance of the offence in the present case. Even otherwise, the present FIR
has already been quashed qua similarly placed co-accused namely Gaurav
Uppal vide judgment dated 05.03.2024 (Annexure P-2) passed by this Court.
Thus, the impugned FIR No. 38 dated 28.03.2021, registered under Section
188,269,270 of IPC, Police Station Phase-11, Mohali and all subsequent
proceedings arising therefrom are hereby ordered to be quashed.
(N.S.SHEKHAWAT)
04.04.2024 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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