RAMA CHANDRA AGARWALLA Vs. BIJAY KETAN SENSARMA

JUDGEMENT

(1.) The sole question urged in this revision is that cognizance taken against the petitioner Under Section 406 IPC is liable to be quashed on the twin grounds of the prosecution being barred by limitation and even otherwise there having been gross delay in instituting the case. The brief facts are that the opposite party lodged an FIR on 1 -3 -1974 alleging mis - appropriation. The FIR having ended in a final report and the opp. party on being issued notice, filed a protest petition which was treated as a complaint case and in that case the cognizance was taken by the learned Magistrate on 7 -9 -1982.

(2.) ASSAILING the order it is contended on behalf of the petitioner that as the occurrences in respect of which the allegations have been made were of the years 1969 -70 and 1970 -71, the cognizance would not have been taken since Section 468 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C') prohibited taking of cognizance after expiry of the period of limitation which, in the instant case, is three years. The learned counsel appearing for the opp. party opposes the move contending that the order taking cognizance would inherently mean the learned Magistrate of having -condoned the delay and to have extended the period of limitation as provided Under Section 473 Cr.P.C. and hence the delay having been condoned, the present petition is not maintainable. It is his further submission that the learned Magistrate was correct in his view for which reliance was placed on 64 (1987) CLT 56 (Mahani Mohan Laha v. State).

(3.) SUCH considerations apart, the submission of Mr. Nayak has otherwise also no force. In (1988) 1 OCR 612 (M/s. Orient Paper and Industries Limited and Anr. v. The Registrar of Companies, Orissa) this Court dealt with the question and held that since Section 468 Cr.P.C. confers a valuable right upon the accused, it is incumbent upon the Court to issue notice to him before deciding the question of condonation of delay Under Section 473 Cr.P.C. It was held that the principle of natural justice is not confined only to the constitutional remedies but takes within its ambit even judicial activities. In a recent decision, 71 (1991) CLT 238 (Shantilata Agarwalla @ Shanti Agarwalla v. State of Orissa) it was held by Hon'ble v. Gopalaswami, J. that whenever the question of taking cognizance after the expiry of the period of limitation arises before a Court the Court must apply its judicial mind to the facts of the case and expressly give its reasons as to how it is satisfied that the delay has been properly explaned or why it feels that it is necessary to take cognizance in the interests of justice. It was further pointed out that after expiry of the period of limitation the Court loses its power to take cognizance. In 32 (1990) OJD 571 (Criminal) (Nirendralal Chakraborty v. Laxrnikanta Mohapatra) similar conclusion was reached by the Hon'ble Mr. Justice S. C, Mohapatra that where cognizance is taken after expiry of the period of limitation is non -consideration of the question relating to the provision, the cognizance is vitiated and is liable to be quashed.