LAWS(ORI)-1991-10-22

DAMBARUDHAR PANDA Vs. MAHENDRANATH SARAN

Decided On October 04, 1991
DAMBARUDHAR PANDA Appellant
V/S
MAHENDRANATH SARAN Respondents

JUDGEMENT

(1.) This is an application u/S. 482 Criminal Procedure Code by the accused.

(2.) Offence u/Ss. 406, I.P.C. and 465, Cr. P.C. are alleged to have been committed in the year 1974. Punishment provided u/S. 406, IPC is for a term of three years. Punishment for an offence, u/S. 465, Cr. P. C. is for a term of two years. Under S. 468(2)(c) and (3), Cr. P.C., limitation for taking cognizance for offences after 3 years is barred and S. 468(1), Cr. P.C. provides that no Court shall take cognizance of an offence after expiry of the period of limitation. S. 470, Cr. P.C. provides for exclusion of time in certain cases. Section 473, Cr. P.C. which is material for this case reads as follows :-

(3.) Scope of Ss. 468 and 473, Cr. P.C. are subject matter of consideration of various decisions of this Court. In ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) Subash Chandra Mohapatra.v. M. S. Jaggi cognizance was taken beyond period of limitation without taking into consideration that it is barred by limitation. When accused brought this fact to notice of the Court, it condoned the delay. Condonation of delay after taking cognizance was held by this Court on the facts and circumstances of that case to be an action in excess of jurisdiction which was held to be retrospective in character. In the next decision reported in (1987) 64 CLT 56, Mahani Moban Laba v. State cognizance was taken after the period of limitation prescribed u/S. 468, Cr. P. C. considering the decision reported in ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) (supra), it was held that provision in S. 468, Cr. P.C. is mandatory and Court has no jurisdiction to take cognizance unless the condonation of delay is judicially considered with supporting reasons. For exercise of power u/S.473, Cr. P.C. to condone the delay, no formal application is necessary where facts and circumstances revealed speak for itself. Where after taking cognizance, accused raises objection to the maintainability of prosecution against him on account of non-exercise of power u/S. 473, Cr. P.C. Court is to examine whether there is actually delay and in case there is delay, whether the preconditions for taking cognizance issatisfied. In the facts of the case Court taking cognizance not having exercised jurisdiction in accordance with law, cognizance was quashed and direction was given to consider the question afresh. In the decision reported in (1987) 64 CLT 583 (Haradhan Purohit v. Mahadev Mohapatra following the decision reported in ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) (supra) cognizance was quashed, observing that before issue of process the question of extension of time is to be considered. Since the same was not considered, cognizance was quashed. But question whether trial court would consider the question afresh was not considered. In 1989 (2) OLR 124 : (1990 Cri LJ 715) M/s. Dayal Trading Company represented by its Proprietor Giridharilal Kedai v. The State of Orissa cognizance was quashed since there was no consideration of the question of extension of time and court taking cognizance was given liberty to consider the facts of the case in order to take cognizance. In (1990) 69 CLT 440 : (1990 Cri LJ 2626) Baikunthanath Jena v. The State of Orissa after examination of a witness, accused raised objection that cognizance is barred by limitation, it was observed that a court may take cognizance of an offence after its expiry if it is satisfied that the delay has been properly explained of that it is necessary to do so in the interest of justice. This can be considered either on application of aggrieved party or suo motu. Since the law with regard to limitation was not noticed order taking cognizance was set aside and proceeding was remitted back for disposal in accordance with law. In (1990) 3 OCR 608, Nirendralal Chakraborty v. Lakhmikanta Mohapatra cognizance was quashed observing that while taking cognizance question of limitation is to be considered. Where there is no such consideration, accused on appearance after issue of process can raise such objection which touches jurisdiction. Accused was given liberty to raise objection and Special Judge was directed to consider the question of bar of cognizance. In (1990) 3 OCR 669 Shantilata Agarwalla alias Shanti Agarwalla v. State of Orissa previous decisions reported in ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) (supra), (1987) 64 CLT 56 (supra) and (1987) 64 CLT 583 (supra) were considered and it was observed that when Court takes cognizance after the period of limitation, it cannot be held that impliedly delay was condoned. It was also observed that after taking cognizance, a Magistrate has no power to rectify the illegality by passing an order u/S. 473, Cr. P. C. In view of the aforesaid discussion order taking cognizance was quashed. There was no consideration whether the question of taking cognizance would be considered afresh. In a recent unreported decision in Criminal Revision No. 408 and batch of 1990 decided on 23-1-1990, it has been clarified that for exercise of power u/S.473, Cr. P.C. no application is necessary and Magistrate is to consider the facts and circumstances while considering the question of taking cognizance without hearing the accused on the point of limitation.