STATE OF MADHYA PRADESH Vs. D D KARKARE

JUDGEMENT

(1.) THE Tenth Additional Judge to the Court of Sessions Judge, Indore acting under Section 395 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') has made this reference under the following circumstances :

(2.) IN three criminal revision petitions presented by accused Nos. 2 to 6 the learned Addl. Sessions Judge who heard the revisions felt that there was conflict in limitation spelt out in chapter of the code and in sub -section (2) of Section 61 of the Act. She also seems to have felt that whereas Section 468(1) of the Code prohibited a Court from taking cognizance of an offence after expiry of the period of limitation, under sub -section (2) of Section 61 of the Act, the Court could take cognizance with the special sanction of the State Government. The learned Addl. Sessions Judge seems to have seen repugnancy in the two provisions as aforesaid. The Additional Sessions Judge further felt that the two provisions in sub -section (2) of Section 61 of the Act and chapter XXXVI of the Code which is a Central enactment and later in point of time are contrary to one another and the provisions of the code should prevail over the provisions of the Act. As the provisions of Section 61(2) of the Act had not been declared invalid or inoperative, by the High Court or the Supreme Court, the Addl. Sessions Judge made this reference acting under Section 395(1) of the Code.

(3.) AFTER the matter had been heard and closed for orders, it was felt that sub -section (2) of Section 4 of the code which would appear directly relevant for disposal of the point in controversy had not been noticed by the Court below or by the parties. Further sanction had been accorded by the State Government for prosecution of the accused Kantilal, what would be the effect of the sanction as respect other co -accused because the Magistrate takes cognizance of the offence and not of the accused and whether in this view of the matter sanction accorded in respect of accused Kantilal would enure in respect of other co -accused had not been considered and argued whether this could be considered in this reference. For all these things the hearing was reopened.