Vivekanandan v. Central Crime Branch, Egmore, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 31.08.2009CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCriminal Revision Petition No.827 of 2009andM.P.Nos.1 and 2 of 2009Vivekanandan.. Petitioner/1st accusedVersusThe Inspector of Police,Central Crime Branch,Egmore, Chennai... Respondent/ComplainantCr.No.747/2003Petition filed under Sections 397 and 401 of Crl.P.C againstthe order dated 10.07.2009 passed in Crl.M.P.No.192 of 2008 inC.C.No.8085 of 2006 on the file of the Chief Metropolitan Magistrate,Egmore, Chennai.For petitioner : Mr.M.L.RameshFor respondent : Mr.J.C.Durai Raj Govt. Advocate (Criminal side)- - - - - ORDERThe respondent police filed a final report against the revisionpetitioner for the offences under Sections 51 and 63 of the CopyRights Act read with Section 34 of I.P.C. The case is pending beforethe learned Chief Metropolitan Magistrate, Egmore, Chennai, inC.C.No.8085 of 2006 and the allegation against the petitioner by theprosecution is that the omni bus operators, without the permission ofthe producers, have executed the films, which has not been given anycopy right and thereby, they violated the provisions of the CopyRights Act. 2.Totally, there are two accused in this case and both theaccused, after issuance of the summons, appeared before the TrialCourt and filed a petition to discharge them on the ground that thecomplaint was barred by limitation as per the provision under Section468 (2) (C) of the Code of Criminal Procedure and the said petitionwas dismissed by the learned Magistrate and aggrieved by the said https://hcservices.ecourts.gov.in/hcservices/ order, only the first accused has preferred the criminal revisionbefore this Court.3.The learned counsel for the petitioner submits that themaximum punishment, provided under the Copy Rights Act for an offenceunder Section 63 of the Copy Rights Act, is only three yearsimprisonment and as such, the period of limitation for filing thefinal report as per Section 468 (2) (c) of the Code of CriminalProcedure is three years. The date of occurrence in this case is13.08.2003 and on the same day the First Information Report wasregistered and the final report was filed only on 28.12.2006 with adelay of 137 days. The learned counsel for the petitioner furthersubmits that the learned Magistrate has dismissed the petition filedby the petitioner strangely holding that the issue could be decidedonly after the examination of the witnesses in the Trial givingopportunity to the Investigating Agency. The learned counsel for thepetitioner also submits that the petitioner has got right to raise anobjection even at the initial stage, since the taking of cognizanceby the learned Magistrate is illegal. 4.The learned Government Advocate (Crl.Side) also fairlyadmitted that there is a delay in filing the final report. 5.This Court considered the submissions made on either sideand perused the materials available on record.6.There is no dispute in this case regarding the date ofalleged offence i.e., on 13.08.2003 and the date of filing the finalreport i.e., on 28.12.2006 and the period of limitation for filingthe final report is three years, but admittedly, the final report wasfiled with a delay of 137 days and the prosecution also has not filedany application seeking the Magistrate to take cognizance of theoffence after the expiry of the period of limitation as per Section473 of the Code of Criminal Procedure. 7.Section 473 of the Code of Criminal Procedure reads asfollows:-"473.Extention 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 period oflimitation, if it is satisfied on the facts andcircumstances of the case that the delay has been properlyexplained or that it is necessary so to do in the interestof justice."8.In this case, admittedly, the learned Magistrate beforetaking cognizance of the case has not passed any order; has not https://hcservices.ecourts.gov.in/hcservices/ observed that the Court was satisfied with the facts andcircumstances of the case that the delay has been properly explainedor that it is necessary so to do in the interest of justice. In acase where, the limitation for taking cognizance is barred underSection 468 of the Code of Criminal Procedure, it is the duty of theCourt before taking cognizance to observe the provision under Section473 of the Code of Criminal Procedure. If it is not done so, thenthe cognizance taken by the learned Magistrate is illegal and assuch, the accused has every right to challenge the cognizance thathad already been taken, immediately after being summoned. 9.As a statutory obligation is placed upon the Court underSection 468 of the Code of Criminal Procedure not to take cognizanceof the offences specified in sub-Section (2) thereof after lapse ofthe period of limitation and as the Code also does not envisage issueof any process against the accused before taking cognizance of theoffence, it is open to the accused to plead before the Court inresponse to the process issued to him that the complaint or the finalreport filed against him and cognizance taken by the Court is barredby limitation. 10.It is also decided by the Hon'ble Supreme Court in the caseof State of Punjab Vs. Sarwan Singh reported in 1981 SC 1054 that itis of the utmost importance that any prosecution, whether by theState or a private complainant, must abide by the letter of law ortake the risk of the prosecution failing on the ground of limitation.As the bar of limitation under Section 468 of the Code of CriminalProcedure has been included by the Hon'ble Supreme Court in the caseof Sarwan Singh, within the guarantee or protection of personalliberty under Article 21 of the Constitution under which no personcan be deprived of his life or personal liberty except according tothe procedure established by law, in the humble opinion of thisCourt, the accused can raise the plea of limitation before the Courtat any stage. 11.In this case, the observation of the learned Magistratethat "it will be proper to lead the evidence and decide the matter inthe factual issue of limitation by giving an opportunity to theinvestigation Officer only after examination of witness in the trial"is erroneous.12.As it is admitted by the prosecution itself that thecognizance taken by the learned Magistrate is barred by limitationand as the learned Magistrate also not invoked the provision underSection 473 of the Code of Criminal Procedure before takingcognizance, since condonation of delay should precede taking ofcognizance of the offence, this Court is to hold that the cognizancetaken by the learned Magistrate in C.C.No.8085 of 2006 is illegal andthe proceeding on the basis of such cognizance is non est. https://hcservices.ecourts.gov.in/hcservices/

13.In the result, the order passed by the learned ChiefMetropolitan Magistrate in Crl.M.P.No.192 of 2008 in C.C.No.8085 of2006 is set aside and this Criminal Revision Petition is allowed.The petitioner, who is the first accused and also the other co-accused, who had not preferred the revision are discharged from thecase. Consequently, the connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar jrlTo1. The Chief Metropolitan Magistrate, Egmore, Chennai.2. The Inspector of Police, Central Crime Branch, Egmore, Chennai.3.The Public Prosecutor,High Court,Madras.+1cc to Mr.M.L.Ramesh, Advocate Sr 43213KS(CO)km/15.9.Crl.R.C.No.827 of 2009