The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.1388 of 2017 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973). Diptiranjan Patnaik … Petitioner -versus- State of Orissa … Opposite Party For Petitioner : Mr. A.Mohanty, Senior Advocate For Opposite Party : Mrs. S.R.Sahoo, ASC CRLMC NO.1344 of 2017 Indrani Patnaik … Petitioner -versus- State of Orissa … Opposite Party For Petitioner : Mr. A.Mohanty, Senior Advocate For Opposite Party : Mrs. S.R.Sahoo, ASC CRLMC NO.1749 of 2017 Balasubramanian Prabhakaran … Petitioner -versus- State of Orissa … Opposite Party For Petitioner
Legal Reasoning
379/120-B of IPC and finding prima facie case against the Petitioners and others, the learned JMFC, Barbil by the impugned order passed on 23.04.2014 took cognizance of offences U/Ss. 379/120-B of IPC and issued processes in the form of summons against the accused persons released on bail and in the form of NBWs against the absconding accused persons, but CRLMC Nos.1388, 1344 & 1749 of 2017 Page 3 of 16 the Petitioner Indrani Pattnaik in CRLMC No. 1344 of 2017 was shown as an absconder in the impugned order under annexure-3 along with 11(eleven) other accused persons as per the charge sheet submitted by the IO. According to the Petitioner in CRLMC No. 1388 of 2017, he was the power of Attorney Holder of Smt. Indrani Pattnaik to look after the day to day activities and operation of Unchbahal Iron and Manganese Ore Mines, whereas the Petitioner (Balasubhramaniyam Pravakram) in CRLMC No. 1749 of 2017 was a contractor being appointed by Smt. Indrani Pattnaik. Being aggrieved with the charge- sheet, order taking cognizance of offence and consequently, the criminal proceeding, the Petitioners have approached this Court in these applications U/S. 482 Cr.P.C. for the relief indicated in the preceding paragraph. 3. In the course of argument, Mr. A. Mohanty, learned Sr. counsel has submitted that although FIR was lodged against the unknown persons, but the CRLMC Nos.1388, 1344 & 1749 of 2017 Page 4 of 16 Petitioners have been charge-sheeted in this case without any prima facie materials. It is further submitted by the learned Sr. counsel for the Petitioners that the materials so far collected by the IO do not disclose the necessary ingredients of the offence U/Ss. 379/120-B of IPC and the implication of each of the Petitioners was on the basis of suspicion and imagination and, therefore, the criminal proceeding against the petitioners being an abuse of process of Court may kindly be quashed. On the other hand, learned ASC by taking this Court to the relief claimed by each of the petitioners, has submitted that in the course of investigation, the IO had collected prima facie materials against the petitioners and, thereby, the cognizance taken by the learned J.M.F.C., Barbil cannot be faulted with and, therefore, the CRLMCs being unmerited may kindly be dismissed. Further, this Court has also heard the parties on the issues of limitation to take cognizance of offences. CRLMC Nos.1388, 1344 & 1749 of 2017 Page 5 of 16 4. What is significant is that this Court while going through the admitted facts of the case found the plea of limitation has not been addressed to by the learned J.M.F.C., Barbil, while taking cognizance of offence, but such plea cannot be withheld merely because the Petitioners had not raised such plea and it would not deprive them from the legitimate consequence of the bar to taking cognizance after expiry of limitation. Hence, this Court is required to address such plea of limitation as available to the petitioners in Law, since the enactment of Section 482 of the Cr.P.C. is itself with an objective to make such orders as may be necessary to give effect to any order under the Cr.P.C, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. On the aforesaid analogy, this Court now proceeds to examine the plea of limitation in the succeeding paragraphs. 5. The period limitation for taking cognizance of offences starts from the date of commission of CRLMC Nos.1388, 1344 & 1749 of 2017 Page 6 of 16 offence as provided under Section 469 of the Cr.P.C. While counting the said period, the date of offence is to be excluded as per sub-section 2 of Section 469 of the Cr.P.C. It is clarified, neither the offences alleged against the Petitioners in this case were continuing offences nor would the provision of Section 472 of the Cr.P.C come into play. Albeit, the learned Magistrate is empowered to take cognizance of an offence in exercise of power U/S. 473 of the Cr.P.C. after the expiry of the period of limitation, but it has to be satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do in the interest of justice. The impugned order does not show that the learned JMFC had applied its mind on this question of law of limitation nor was there any disclosure in the impugned order of the learned Magistrate condoning the delay or as it was necessary to do so in the interest of justice. CRLMC Nos.1388, 1344 & 1749 of 2017 Page 7 of 16 6. The scope and ambit of powers U/S. 473 of the Cr.P.C. was considered by the Apex Court in State of Himachal Pradesh Vrs. Tara Dutt & Another; 2000 SCC (Cri.) 125 and in Sanapareddy Maheedhar Seshagiri & Anr. v. State of Andhra Pradesh;AIR 2008 (SC)787. The Apex Court in the aforesaid two decisions has observed as follows:- “Section 473 confers power on the court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well- recognized principles. This being a discretion conferred on the court taking cognizance, wherever the court exercises this discretion, the same must be by a speaking order, indicating the satisfaction CRLMC Nos.1388, 1344 & 1749 of 2017 Page 8 of 16 that the court of the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence.” 7. In the circumstances, what would be the effect of issuance of processes, which had already been issued against the accused persons in this case, but mere issuance of processes against the accused persons does not automatically condone the delay in taking cognizance of offences. Additionally, this Court is also conscious of the fact that when a statue, while conferring power, prescribes mode for exercise of that power, the power has to be exercised in that manner, or not at all. This view was first expressed in Privy Council’s decision in Nazir Ahmed Vs. King Emperor; AIR 1936 PC 253(1936 SCC On line PC 41). It is therefore, very clear that “where a power is CRLMC Nos.1388, 1344 & 1749 of 2017 Page 9 of 16 given to do a certain thing in a certain way, the thing must be done in that way or not at all”. Why this Court is reminding this principle is because that the learned J.M.F.C., Barbil while taking cognizance of offences had ignored to address the issue of limitation and simply took cognizance of offence and issued processes against the accused persons including the petitioners ignoring the valuable right of accused persons. 8. On coming back to the facts of the case, undisputedly, the date of occurrence or offence according to Col. No. 3(b) of FIR as per the prosecution case was 23.01.2010, but FIR was lodged on 04.03.2010 by alleging therein about dispatch of iron ore, which was the subject matter of theft through Rail from 01.01.2010 to 23.01.2010, and accordingly, the FIR was lodged for commission of offence U/Ss. 379/34 of the IPC, but charge sheet was submitted against the petitioners and others for commission of offences U/Ss. 379/120-B of the IPC CRLMC Nos.1388, 1344 & 1749 of 2017 Page 10 of 16 and cognizance was taken for offences U/Ss. 379/120-B of the IPC. However, the offence U/S. 379 of the IPC prescribes punishment for imprisonment of either description for a term which may extend to 3(three) years or with fine or with both, but where no express provision is made in the Code for the punishment of such a conspiracy, the party to the criminal conspiracy be punished in the same manner as if he had abetted such offence and, therefore, by applying Section 468(3) of the Cr.P.C., the punishment prescribed for offence U/S. 379 of the IPC would be taken into consideration in this case for the purpose of calculating the period of limitation for commission of offences U/S. 379/120B of the IPC. In this case, the learned trial Court had taken cognizance of offences on 23.04.2014, which is four years and three months after commission of the offences on 23.01.2010, but the limitation for taking cognizance of offences U/S. 379/120B of the IPC shall be three years as per the mandate of Section 468(c) CRLMC Nos.1388, 1344 & 1749 of 2017 Page 11 of 16 of the Cr.P.C. and thereby, cognizance was taken after the expiry of the prescribed period of limitation, even the charge sheet was filed beyond the aforesaid period of limitation for taking cognizance of offences since it was filed after three years ten months and some odd days. For the purpose of present case, clause-b of Section 470(4) may be noticed. The said clause stipulates that for computing the period of limitation, the time during which an offender has avoided arrest by absconding or concealing himself has to be excluded. The said clause may be applicable in the facts of the present case as the charge-sheet was filed by showing some of the accused persons including the petitioner Indrani Pattnaik in CRLMC No.1344 of 2017 as absconders, but this aspect/question was required to be decided by the Court of learned J.M.F.C., Barbil when it decides to take cognizance of the offences, but the learned J.M.F.C., Barbil had not addressed to such aspect/question. Further, in the present case, the CRLMC Nos.1388, 1344 & 1749 of 2017 Page 12 of 16 learned Magistrate took cognizance of offences without addressing the necessary conditions as required U/S 473 of the Code which are subjective satisfaction of the Court with regard to explanation of delay or necessity to do in the interest of justice. In such situation, a question also automatically arises whether a right, which was already accrued in favour of the accused persons for taking cognizance of offences after the statutory period of limitation, can be set at naught by necessary implication or deemed condonation of delay, but in the humble opinion of this Court, the accused persons in the circumstances is required to be noticed before taking cognizance of offences after expiry of the prescribed period of limitation. This question was already answered in P.K. Choudhury Vrs. Commander, 48 BRTF (GREF); (2008) 13 SCC 229, wherein the Apex Court has held as under:- “10. The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show CRLMC Nos.1388, 1344 & 1749 of 2017 Page 13 of 16 cause as to why the delay shall not be condoned. Before condoning the delay, the In State of appellant was not heard. Maharastra Vrs. Sharadchandra Vinayak Dongre (1995) 1 SCC 42 this Court has held: to notice reasons if any, launching recording any “5. In our view, the High Court was perfectly justified in holding that the the for delay, prosecution, could not have been condoned without the respondents and behind their back and without for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial Court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court, however, did not adopt that course and proceeded further to hold that the trial Court could not have taken cognizance of the offence in view of the application seeking filed by file a permission of the Court supplementary charge-sheet on the basis of an incomplete charge-sheet and quashed the order of the CJM dated 21.11.1986 on this ground also. This view of the High Court, in the facts and circumstances of the case is patently erroneous. the prosecution to 9. Besides, in Sharadchandra (supra), the Apex court has held that delay in launching the CRLMC Nos.1388, 1344 & 1749 of 2017 Page 14 of 16 prosecution cannot be condoned without notice to the accused. In the case at hand, the learned trial court while passing the impugned order had neither noticed the accused persons nor had condoned the delay by a speaking order. Additionally, the prosecution had not filed any application to condone the delay nor the charge sheet filed by the IO contains any explanation for condoning the delay and there was no order passed by the learned JMFC, Barbil to consider that it was necessary so to do in the interest of justice to condone the delay. It, therefore, very clear that impugned order taking cognizance of offences cannot sustain in the eye of law and the same needs fresh adjudication. 10. In the result, the CRLMCs stand allowed on contest, but in the circumstance there is no order as to costs. Consequently, the order passed on 23.04.2014 by learned J.M.F.C., Barbil in G.R. Case No.166 of 2010 taking cognizance of offences U/Ss.379/120-B of IPC under Annexure-3 is hereby CRLMC Nos.1388, 1344 & 1749 of 2017 Page 15 of 16 quashed. As a logical sequitur, the matter is remitted back to learned J.M.F.C., Barbil for passing fresh order on the point of cognizance in accordance with law by addressing the issue of limitation for taking cognizance of offence. It is advised that the learned J.M.F.C., Barbil shall pass necessary order afresh on the point of cognizance within a period of three months of receipt of copy of this order. A copy of this order be communicated to learned Court of J.M.F.C., Barbil forthwith. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 15th of September, 2023/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-Sep-2023 10:36:45 CRLMC Nos.1388, 1344 & 1749 of 2017 Page 16 of 16
Arguments
: Mr. A.Mohanty, Senior Advocate For Opposite Party : Mrs. S.R.Sahoo, ASC CRLMC Nos.1388, 1344 & 1749 of 2017 Page 1 of 16 CORAM: JUSTICE G. SATAPATHY DATE OF JUDGMENT : 15.09.2023 G. Satapathy, J. 1. The Petitioners by way of this application U/S. 482 Cr.P.C. pray to quash the following:- (i) Charge-sheet No. 187 dated 11.12.2013 arising out of Bamberi P.S. Case No. 37 dated 04.03.2010 under annexure-2. (ii) The order passed on 23.04.2014 by learned JMFC, Barbil in G.R. Case No. 166 of 2010 taking cognizance of offence U/Ss. 379/120-B of IPC under annexure-3 and, (iii) The criminal proceeding instituted against them in G.R. Case No. 166 of 2010. 2. Prosecution case in brief was, in the course of inspection of railway sidings at Jaroli on 23.01.2010, around 63 rakes of iron ore were found to have dispatched to different places through Rail from 01.01.2010 to 23.01.2010, but the consigner and consignee of such transaction of iron ore were CRLMC Nos.1388, 1344 & 1749 of 2017 Page 2 of 16 neither lessee nor licensee of Joda circle. Hence, the above quantity of dispatched iron ore i.e. 63 rakes was suspected to have been procured by way of theft and transported with connivance of Railway employees/Authorities without permission. On the above facts, on 04.03.2010, the Deputy Director, Mines, Joda Circle lodged an FIR before IIC, Joda, who registered PS Case No. 37 of 2010 U/Ss. 379/34 of IPC and the matter was investigated into. Finally on completion of investigation on 11.12.2013, a charge-sheet in CS No. 187 of 2013 was placed against the Petitioners and others for commission of offences U/Ss.