V.N.Subramaniam v. State rep. By The Inspector of Police, T I W, Salem, Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:02.09.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.598 of 2009andM.P.No.1 of 2009V.N.Subramaniam .. Petitioner/AccusedVs.State rep. ByThe Inspector of Police,T I W, Salem, Salem. (Crime No.291 of 2004) .. Respondent/ComplainantPrayer:-Petition filed under Section 397 r/w. 401 of Cr.P.C,against the order dated 26.05.2009 passed in Crl.M.P.No.5832 of2008 in C.C.No.226 of 2008 by the learned Judicial Magistrate No.V,Salem. For Petitioner : Mr.S.LakshmanasamyFor Respondent : Mr.A.Saravanan, Government Advocate (Crl. Side)- - - - -ORDERThe petitioner herein is an accused in C.C.No.226 of 2008 onthe file of the learned Judicial Magistrate No.V, Salem. Therespondent police had filed a final report against the accused forthe alleged offences under Sections 279, 337 and 304(A) I.P.C.After appearing before the Court, the petitioner herein had filed apetition in Crl.M.P.No.5832 of 2008 before the trial Court seekingdischarge on the ground that the respondent police had not filedthe final report within the limitation period of three years as perSection 468(2)(c) of Cr.P.C. and the said petition was dismissed bythe learned Magistrate. Aggrieved by the order of the learnedMagistrate, the petitioner herein has preferred this CriminalRevision Petition before this Court.

The learned counsel appearing for the petitioner submitsthat the occurrence had taken place on 02.06.2004 at about 6.30a.m. and the First Information Report also was registered on the https://hcservices.ecourts.gov.in/hcservices/ same day at about 7.30 a.m. The maximum period of punishment forthe offence under Section 304-A I.P.C. is two years. As perSection 468(2)(c) of Cr.P.C., the final report ought to have beenfiled within a period of three years. But the final report wasfiled by the respondent police only on 08.04.2008, which wasexceeding the period of three years. The final report also hadbeen returned by the learned Magistrate and again, it wasrepresented on 21.04.2008 with a letter from the Inspector of Police stating that there was a delay in obtaining the woundcertificate of the victim. The learned Magistrate, withoutcondoning the delay or passing any order, had taken the finalreport on file. The learned counsel appearing for the petitionerfurther submitted that taking cognizance of the complaint after theexpiry of the period of limitation is illegal. The learned counselhas also relied on a decision of this Court reported in 2009 (3)MWN (Crl.) 26 (Vivekanandan Vs. The Inspector of Police, CentralCrime Branch, Egmore, Chennai).

The learned Government Advocate (Crl. Side) submitted thatthough the final report was filed after the expiry of the period oflimitation under Section 473 of Cr.P.C., the Court has power totake cognizance of an offence after the expiry of the period oflimitation.

This Court has considered the submissions made by thelearned counsel on either side and perused the materials availableon record.

As per the Fist Information Report, the occurrence hadtaken place on 02.06.2004 and the First Information Report was alsoregistered for the offences under Sections 279, 337 and 304(A)I.P.C. It appears from the original record, which was receivedfrom the trial Court that on 08.10.2007, the learned JudicialMagistrate No.V, Salem had passed an order stating that as finalreport was not filed within the period of limitation, the FirstInformation Report was closed as barred by limitation under Section468 of Cr.P.C. Subsequent to this order, the respondent police haschosen to file a final report on 08.04.2008 and it was returned onthe same day by the learned Magistrate. On 21.04.2008, the finalreport was resubmitted by the respondent police with a letterstating that there was a delay in obtaining the wound certificatesince the victim was in the hospital as in-patient for a longperiod. In the said letter, the date on which the victim wasdischarged and the date on which copy of the wound certificatereceived were also not mentioned. The learned Magistrate simplymentioned that on 21.04.2008, the final report was taken on fileand posted the case to 23.04.2008 and issued orders for servingsummons to the accused. The learned Magistrate has not passed anyorder under Section 473 of Cr.P.C., which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "473. Extension of period of limitation in certaincases.- Notwithstanding anything contained in theforegoing provisions of this Chapter, any Court may takecognizance of an offence after the expiry of the periodof limitation, if it is satisfied on the facts and inthe circumstances of the case that the delay has beenproperly explained or that it is necessary so to do inthe interests of justice. "

Before taking cognizance of the complaint, the learnedMagistrate ought to have applied his mind and ought to havesatisfied on the facts and circumstances of the case that the delayhad been properly explained or the learned Magistrate ought to haveobserved that it was necessary to take cognizance of an offence inthe interests of justice. In the absence of any specific orderbeing passed by the learned Magistrate for extending the period oflimitation as provided under Section 473 of Cr.P.C., the cognizancetaken by the learned Magistrate in this case is illegal.

This Court had observed in the decision cited supra inparagraph Nos.10, 11 and 12, as follows:-"10. It is also decided by the Hon'ble SupremeCourt in the case of State of Punjab Vs. Sarwan Singh, reported in 1981 SC 1054, that it is of the utmostimportance that any prosecution, whether by the State ora private complainant, must abide by the letter of lawor take the risk of the prosecution failing on theground of limitation. As the bar of limitation under Section 468 of the Code of Criminal Procedure has beenincluded by the Hon'ble Supreme Court in the case of Sarwan Singh, within the guarantee or protection ofpersonal liberty under Article 21 of the Constitutionunder which no person can be deprived of his life orpersonal liberty except according to the procedureestablished 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 learnedMagistrate that "it will be proper to lead the evidenceand decide the matter in the factual issue of limitationby giving an opportunity to the investigation Officeronly after examination of witness in the trial" iserroneous. 12. As it is admitted by the prosecution itselfthat the cognizance taken by the learned Magistrate isbarred by limitation and as the learned Magistrate alsonot invoked the provision under Section 473 of the Codeof Criminal Procedure before taking cognizance, sincecondonation of delay should precede taking of cognizance https://hcservices.ecourts.gov.in/hcservices/ of the offence, this Court is to hold that thecognizance taken by the learned Magistrate inC.C.No.8085 of 2006 is illegal and the proceeding on thebasis of such cognizance is non est. "