M.S.Jothimani v. State & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.02.2009CORAM:THE HONOURABLE MR.JUSTICE K.N.BASHACRL.O.P.No.1730 of 2009M.S.Jothimani ... Petitioner/Accused No.1Vs.1. State rep. by Inspector of Police, N.1 Royapuram Police Station, Chennai-600 013. (Crime No.1556 of 2005)2. Tamizharasi ... Respondents/Complainants Prayer : Criminal Original Petition filed under Section 482 of theCriminal Procedure Code praying to call for the records relating toC.C.No.6031 of 2008 on the file of the learned XVI MetropolitanMagistrate, George Town, Chennai and to quash the same. For Petitioner : Mr.T.P.SekarFor 1st Respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side)O R D E RThe petitioner, who has been arrayed as A1 out of sevenaccused for the alleged offences under Sections 147, 341, 323 and354 of IPC has come forward with this petition seeking for therelief of quashing the proceedings pending in C.C.No.6031 of 2008on the file of the learned XVI Metropolitan Magistrate, GeorgeTown, Chennai.2.Learned counsel appearing for the petitionersubmitted that the charge sheet was filed in this case after theexpiry of the period of limitation as per the provision underSection 468 (2)(c) of Cr.P.C. for the offences under Sections 341,352 of IPC read with Section 4 of Women Harassment Act. It isfurther submitted by the learned counsel that as per the saidprovision, the charge sheet in this case ought to have been filedbefore the expiry of three years, but the same was filed only on13.10.2008 after the expiry of three years as the First InformationReport was registered in this case on 11.08.2005 and as such, there https://hcservices.ecourts.gov.in/hcservices/ was a delay of two months in filing the charge sheet in this case.It is also contended that though a condone delay petition was filedby the respondent police, the same was not filed properly inaccordance with law and the respondent has not even filed anyaffidavit by assigning valid reasons for condoning the delay infiling the final report in this case.3.The learned counsel appearing for the petitionerwould further submit that even in the order passed by the learnedMetropolitan Magistrate condoning the delay also does not discloseany valid reasons for passing such an order and it is only a non-speaking order and as such, the learned Magistrate has committedserious error of law in taking cognizance of the offences allegedagainst the petitioner. Therefore, the learned counsel for thepetitioner contended that the entire proceedings pending againstthe petitioner is liable to be quashed.4.Learned Government Advocate (Criminal Side) wouldsubmit that a condone delay petition was filed and after condoningthe delay, the learned Magistrate has taken the final report onfile and taken cognizance in this case. The learned GovernmentAdvocate (Criminal Side) would further submit that there is noillegality in the order passed by the learned XVI MetropolitanMagistrate, George Town, Chennai dated 13.10.2008 condoning thedelay in filing the charge sheet as it is clearly stated by thelearned Magistrate that the reasons stated in the condone delaypetition are genuine and therefore, accepted. It is also stated bythe learned Government Advocate that even in the condone delaypetition, the respondent police has assigned reason to the effectthat the earlier Investigating Officer was transferred and as such,there was a delay in filing the charge sheet in this case.5. I have carefully considered the rival contentions putforward by either side and perused the materials available onrecord. 6.It is seen that the petitioner has been arrayed asA1 out of seven accused and he has been implicated for the allegedoffences as stated above. The grievance of the petitioner is tothe effect that the charge sheet in this case was filed beyond theperiod of limitation as contemplated under Section 468 of Cr.P.C.The fact remains that the petitioner has been charge sheeted forthe alleged offences under Sections 341 and 352 IPC read withSection 4 of Women Harassment Act. It is pertinent to be noted thatall the above said three offences are punishable with imprisonmentfor a period of three years. Section 468 of Cr.P.C. readshereunder:"468. Bar to taking cognizance after lapse of the periodof limitation : https://hcservices.ecourts.gov.in/hcservices/ (1)Except as otherwise provided elsewhere in thisCode, no Court shall take cognizance of an offence of thecategory specified in sub-section (2), after the expiryof the period of limitation.(2)The period of limitaltion shall be -(a) six months, if the offence is punishablewith fine only;(b) ne year, if the offence is punishable withimprisonment for a term not exceeding one year;(c) three years, if the offence is punishablewith imprisonment for a term exceeding one year but notexceeding three years.(3) For the purposes of this section, the periodof limitation, in relation to offences which may be triedtogether, shall be determined with reference to theoffence which is punishable with the more severepunishment or, as the case may be, the most severepunishment.)"7.A reading of the above said provision makes itcrystal clear that as per Section 468 (2) (c), the period oflimitation is three years if the offence is punishable withimprisonment for a term exceeding one year but not exceeding threeyears. Therefore, there is no doubt that the charge sheet ought tohave been filed before the expiry of the period of three years fromthe date of preferring the complaint. In this instant case, thecomplaint was preferred on 11.08.2005 and admittedly even as perthe order of condoning the delay passed by the learned Magistrate,final report was filed only on 31.10.2008. Now it is seen that inview of such delay, the respondent police filed a petition tocondone the delay in filing the charge sheet as contemplated underSection 473 of Cr.P.C. It is very unfortunate to note on perusalof the condone delay petition filed by the respondent herein thatthe petition was not filed properly and even the provision ofCr.P.C. also not stated or mentioned in the petition. The learnedMagistrate has not sent any notice to the respondent/ accused andstraight away passed an order dated 13.10.2008. Therefore, thisCourt is constrained to state that the learned Magistrate thoughtit fit to pass a creptic order without assigning any reasons. Atthis juncture it is pertinent to be noted that the Honourable ApexCourt in AIR 1995 Supreme Court 231, State of Maharashtra V.Sharadchandra Vinayak Dongre and others has held as follows:"In our view, the High Court was perfectlyjustified in holding that the delay, if any, forlaunching the prosecution, could not have been condonedwithout notice to the respondents and behind their backand without recording any reasons for condonation of thedelay. However, having come to that conclusion, it wouldhave been appropriate for the High Court, without going https://hcservices.ecourts.gov.in/hcservices/ into the merits of the case to have remitted the case tothe trial court, with a direction to decide theapplication for condonation of delay afresh after hearingboth sides. The High Court however, did not adopt thatcourse and proceeded further to hold that the trial courtcould not have taken cognizance of the offence in view ofthe application filed by the prosecution seekingpermission of the Court to file a "supplementary charge-sheet" on the basis of an 'incomplete charge sheet' andquashed the order of the CJM dated 21.11.1986 on thisground also. This view of the High Court, in the factsand circumstances of the case is patently erroneous."8.In view of the above settled principle of law laiddown by the Honourable Apex Court in the decision cited supra whichis squarely applicable to the facts of this case as in this casealso admittedly no notice was served to the accused beforecondoning the delay, this Court is constrained to set aside theorder passed by the learned XVI Metropolitan Magistrate, GeorgeTown, Chennai dated 13.10.2008 condoning the delay and the learnedMagistrate is hereby directed to consider the condone delaypetition filed by the respondent police after affording opportunityto the accused by ordering notice to the accused and after hearingboth sides pass orders on merits and in accordance with law.With the above directions, the Criminal Original Petitionis disposed of. Consequently, connected Miscellaneous Petition isclosed.TsiSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The XVI Metropolitan Magistrate, George Town, Chennai. 2.Do Through The Chief Metropolitan Magistrate, Egmore, Chennai 8.3.The Inspector of Police, N.1 Royapuram Police Station, Chennai-600 013.4.The Public Prosecutor, Madras High Court, Madras.+ 1 cc to Mr. T. P. Sekar, Advocate SR No.6004Crl.O.P.No.1730 of 2009RSM(CO) SR/13.2.2009