B R NAGENDRA GUPTHA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) I have heard the petitioners' learned Advocate and also the learned government pleader.

(2.) THE short question that has been canvassed by the petitioners learned Advocate is that since the maximum punishment prescribed for the offences in question is one year, that the prosecution ought to have been instituted within an outer limit of one year from the date on which the offence is alleged to have been committed. A perusal of the record will indicate that the two petitioners were called upon to furnish certain information on 26-8-1982. Petitioner 1 sent a reply on 31-8-1982 whereas petitioner 2 replied on 28-8-1982. The prosecution alleges that despite these replies, that they are liable to be prosecuted as the requisite information was not disclosed. Assuming that the prosecution is right with regard to the allegations, the petitioners learned Advocate submits that the legislature has prescribed the time limit within which prosecution should be instituted and, there is an absolute bar under Section 468 of the Criminal Procedure Code, to the maintainability of the prosecution if this time limit is overstepped. The only exception to this Rule would be of continuing offences which are covered by Section 472 of the Criminal Procedure Code, but the present offence cannot be termed as a continuing offence.

(3.) THE learned government pleader submitted that it is not open to the petitioners to raise this plea in the present proceeding as the point should have been canvassed before the trial court. The reason for this submission is because Section 473 of the Criminal Procedure Code, does entitle a court to take cognizance of an offence even after the period of limitation provided the court is satisfied that there is valid ground or justification for doing so. The contention raised is that it was open to the prosecution to satisfy the court that the delay if any was liable to be condoned and that the case should still be entertained. There is however a flaw in this argument in so far as such a plea with regard to extension of the period of limitation cannot be taken up after the court has taken cognizance in a time barred proceeding. It is well-settled law that the ground for extension of the period of limitation must be canvassed before the trial court when the proceeding is instituted, the court should be satisfied that the bar of limitation can be waived and an order to that effect will have to be passed extending the period of limitation. Such a procedure has not been followed in the present case and therefore the contention on behalf of the petitioners will have to be upheld.