ROSHAN LAL Vs. STATE

JUDGEMENT

(1.) THIS is a petition under section 482 Cr.P.C. by Roshan Lal Kapoor and 39 others against the State of Uttar Pradesh. The brief facts of the case are that a case under section 3/4 of the Gambling Act was rtegistered against the petitioners as Crime No. 560 of 1973. After investi gation, a charge-sheet was submitted against them, but the charge-sheet in fact reached the court on 8-5-75. When cognizance was taken on the basis of this charge-sheet, the petitioners filed a revision, which was allowed by the Sessions Judge on 23-10-75 holding that the cognizance was barred by the pro visions of Sect ion 468 Cr.P.C. as the, cognizance bad been taken after more than a year after the commission of the offence. Against this decision of the Sessions Judge, the State of Uttar Pradesh filed a petition under section 482 Cr.P.C., but it was dismissed on 27-10-76 and the order of the Sessions Judge was upheld. Thereafter, the A.P.P. moved an application under Section 473 Cr.P.C. for condonation of delay. The Magistrate, after hearing the parties, came to the conclusion that there were good reasons for continuing the delay under the said Section and he, therefore, ordered that the accused persons (the present petitioners) be sum moned for 5-4-77. It is this order which is now being challenged. The point raised by the learned counsel for the petitioners was that if any illegality had been committed by the Magistrate initially by taking cognizance of the offence after the expiry of the period of limitation, that illegality was not now curable by making an applica tion under section 473 Cr.P.C. In other words, the contention was that taking cognizance beyond the period of limita tion was a defect which was fatal to the prosecution and that now it was not open to the prosecution to fill up the lacuna by coming forward with an application for condonation of delay on any ground whatsoever. It may not be necessary to reproduce the provisions of Section 468 Cr.P.C. It will simply suffice to say that this section bar cognizance of certain offences after the period of limitation has expired. Natu rally therefore if cognizance is taken against this provision of law, it will be an illegality, which cannot be cured. I thus find no difficulty in holding that in the instant case, the taking of cogni zance by the Magistrate after the expiry of the period of limitation was an illegality, which was not curable. It will, however, be useful to reproduce the provisions of section 473 Cr.P.C. which run as under:- "Notwithstanding anything contain ed in the foregoing provisions of the Chapter, any court may take cogni zance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the cir cumstances of the case that the delay has been properly explained or that it is necessary so to do in the inte rests of justice." The learned counsel for the peti tioners referred to the provisions of section 537 Cr.P.C. (old) which corres pond to Sections 464 and 465 of the new Code of Criminal Procedure. These provisions simply lay down which de fects will be curable and which defects shall be fatal. Obviously, therefore, the consideration of these provisions do not appear to be material for the pur pose of this petition, simply because I have already held that taking cogni zance against the provisions of section 468 Cr.P.G. is a defect, which is not curable. The material question, how ever, is whether by a subsequent appli cation it is open to the prosecution to take advantage of section 473 Cr.P.G. or not. The learned counsel for the petitioners argued that because the ini tial taking of cognizance was illegal, this defect was not curable. I have given my anxious consideration to this argu ment and in my opinion it is not accept able. If cognizance is taken against the provisions of section 468 Cr.P.C., it is true that the whole proceedings in pursuance of that cognizance will be illegal and invalid. But I fail to see why prosecution should be debarred from taking advantage of section 473 Cr.P.G. afterwards. It would not in fact be a case of curing of illegality but it would rather be a case of removal of an illegality. The provisions of section 473 Cr.P.O. are analogous to the provisions of sec tion 5 of the Limitation Act which are applicable to certain appeals and appli cations. Under section 5 of the Limi tation Act also, the Court has been given a power to admit an appeal or application after the expiry of the period of limitation if the appellant or the applicant satisfies the court that he had sufficient cause for not prefer ring the appeal or application within the prescribed period. But it would be per tinent to note that section 473 Cr.P.C. gives the court an additional power, viz. that the court can take cognizance after the expiry of the period of limita tion not only in those cases where the delay has been explained but also in those cases where it is necessary so to do in the interests of justice. Taking the instance of an appeal, if an appeal is filed beyond time by an appellant who bona fide believes that it is within time but subsequently if it is ultimately decid ed by the court that the appeal is barred by time, I fail to see why the appellant should be debarred from taking advantage of section 5 of the Limitation Act. Whether the court, in such circumstances will consider the grounds to be sufficient or not will be a question of fact, which will be decid ed by the court concerned, but I do not think that if once an appellant has filed an appeal beyond time, he would be debarred from taking advantage of section 5 of the Limitation Act. Simi larly the provisions of section 473 Cr.P.C. also empower the court to take cognizance of an offence after the expiry of period of limitation by con doning the delay if it has been explain ed or if it is necessary to do so in the interest of justice. THIS court shall certainly interfere and will act under Section 483 Cr.P.C. if the condonation of delay or taking cognizance purport ing to be in the interest of justice really amounts to an abuse of the pro cess of law. It was argued that this condonation of delay was done without any notice to the petitioners. Section 473 Cr.P.C. however does not provide for any notice. Moreover this argument appears to be incorrect, because the order of the Magistrate clearly shows that he passed this order after hearing both the parties. It was of course not urged before me that this condonation of delay on any ground whatsoever really amounted to an abuse of the process of law. The question whether a subsequent cognizance or trial will be barred or not cannot possibly be governed by Sec. 537 Cr..P.C. (old.) The question whether a fresh trial would be barred or not is governed by section 403 Cr.P.C. (old). I was not referred to any provision of law which bars a fresh cognizance if the initial cognizance was defective for any reason whatsoever. The learned counsel for the petitioners cited the case report ed as Ukha Kolhe v. State of Maharash tra (A.I.R. 1963 S.C. 1531.). THIS case relates to the powers of an appellate court ordering a re trial. Obviously the instant case is not one of re-trial. It is only a case of taking cognizance afresh. THIS ruling therefore hardly applies to the facts of the present case. I have already pointed out that the question whether the Magistrate was or was not correct in condoning delay is not to be decided in those proceedings unless it be urged that this condonation amounts to an abuse of process of law. On behalf of the State, reference was made to a case recently decided by this Court and reported as Ramesh Chandra v. State(1977 Alld Cr.cases,P 159). In this case also it was held that because cognizance had been taken after the expiry of the period of limitation it was an illegality. But at the same time it was observed that it was open to the Magistrate to take cognizance afresh in accordance with law. It is true that this ruling does not decide the point, which has been raised by the present petitioners. But I have not been able to find out any grounds which may debar the Magistrate from taking cog nizance under the provisions of section 473 Cr.P.C., afresh. For these reasons the petition appears to be without force and is re jected. The stay order dated 4-3-77 stands vacated.