UDAI SHANKAR AWASTHI v. STATE OF U.P

Judgment

[2013] 3 S.C.R. 935 UDAI SHANKAR AWASTHI v. STATE OF U.P. 8. ANR. (Criminal Appeal No. 61 of 2013) JANUARY 9, 2013 A B [DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR,JJ.] Code of Criminal Procedure, 1973: c s.482 - Termination of contract between a proprietary firm and a company - Initiation of arbitration proceedings - The a/legation of the firm against the officials of the company that they removed certain property, kept in the premises of the company - The arbitrator rejected the allegation - Three 0 complaints by the proprietors of the firm dismissed - One complaint entertained by the Magistrate - Petition by the officials of the Company for quashing the criminal proceedin9s - Dismissed by High Court - On appeal, held The criminal proceedings were abuse of the process of the E Court - Complaint case was not maintainable. ss.468, 469, 472 and 473 - Termination of contract between proprietary firm and company - Complaint by the proprietor of the firm against officials of the company after a period of 15 years - Held: Limitation for taking cognizance is F 3 years - In the fact situation of the case, the offence alleged is not a continuing offence, even though the effect caused by it may be continuous - Limitation. s.202 (as amended by Amendment Act, 2005) - . mandatory for the Court to postpone the issue of process, if the accused falls outside the territorial jurisdiction of the Court In the instant case, the Magistrate was wrong in issuing - summons as the ·accused were outside his territorial jurisdiction.

It is G 935 H 936 SUPREME COURT REPORTS [2013] 3 S.C.R. A B Criminal Jurisprudence - Law does not prohibit second complaint even on the same facts. if the earlier complaint was decided on the basis of insufficient material, or the order was passed without understanding the nature of complaint, or complete facts could not be placed, or where certain material facts came to knowledge of the complainants after disposal of the first complaint - Where earlier complaint is decided on merits after full consideration of the case, second complaint is not maintainable. Limitation.- Law of Limitation - Prescribed under Cr.P.C. C - Observance of - Held: Law of /imitation prescribed under Cr.P. C. must be observed, but in exceptional circumstances - The principle of condonation of delay is based on general rule of criminal justice system that 'a crime never dies' Criminal court may condone delay in tne interest of justice D recording reasons for the same - Code of Criminal Procedure, 1973 - ss.468, 469, 472 and 473 - Delay - Condonation of.

Delay - Question of delay in launching criminal E proceedings - May not by itself be a ground for dismissing the complaint at the threshold. Criminal Law - 'Continuing offence' and 'Instantaneous offence' - Difference between. F Maxim - Applicability. 'nulfum tempus out locus occurrit regi' - The works contract, awarded by IFFCO to the firm, of which respondent No.2 was the proprietor, was G terminated. The matter was referred to arbitrator. The arbitrator rejected the claim of respondent No.2 whereby he had alleged that the items kept in the godown of their firm, which was located within the premises of IFFCO, were removed by the officials of IFFCO. However, the H arbitrator accepted some other claims.

The application UDAI SHANKAR AWASTHI v STATE OF U.P. & ANR. 937 challenging the award of the arbitrator .is still pending. A Brother of respondent No. 2 had filed 2 complaints against the officers of IFFCO and the appellants u/ss. 323, 504, 506, 406 and 120-B IPC and u/ss.147, 148, 323, 504, 506, 201 and 379 IPC respectively. Both the complaints were dismissed. Respondent No.2 had also filed a B complaint against the 'appellants u/ss. 323, 504, 506, 406 and 120-B IPC, wherein the police report stated that the allegations made in the complaint were false. Respondent No.2 filed another complaint u/ss.403 and 406 IPC, of which congnizance was taken and bailable warrants c were issued against the appellants.

Appellants filed application u/s.482 Cr.P.C. for quashing the criminal proceedings a_gainst them. The application was dismissed by High Court. Allowing the appeals, the Court HELD: 1. In the instant appeals, criminal proceedings must be labeled as an abuse of the process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent No.2 and his brother, which were all dismissed on merits, after the examination of witnesses. In such a fact-situation, Complaint Case was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants. [Para 33] [960-B-D] Rabindra Nath Bose and Ors. v.

Union of India and Ors. AIR 1970 SC 470: 1970 (2) SCR 697 - followed. D E F G