URMILA VIJAY (SMT.) Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) SECTION 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary to do so in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Sec. 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence.

(2.) THE petitioners have challenged the said order on the grounds inter alia, that on August 2, 1978, when the learned Magistrate took cognizance of the offences under Ss. 354, 147 and 323 IPC, the period of limitation prescribed for taking such cognizance had already expired. None of the three offences alleged to have been committed by the petitioners is punishable with imprisonment for a period exceeding three years. The limitation for taking cognizance had thus expired on June 8, 1975. It is true that the learned Magistrate could extend the period of limitation if he was satisfied on the facts and circumstances of the case that extension was necessary in the interest of justice. While taking cognizance, the learned Magistrate did not say that he was satisfied on the facts and circumstances of the case that the delay had been properly explained to him, or that, it was necessary in the interest of justice to condone the delay. The impugned order must therefore, be quashed.

(3.) I have carefully gone through this authority but I am not inclined to subscribe to the views expressed by Bombay High Court in Kamal H. Javeri's case (supra). It is true that if the complaint is filed by the complainant in time and the cases are adjourned because the Magistrate is not present or he embarks upon an enquiry u/Ss. 200 and 202 Cr.P.C. then that may be a suitable ground for condonation of delay and the Court may exercise its powers under S. 473 Cr.P.C. to condone the delay. The bar created by S. 468 Cr.P.C. is against the taking of cognizance. No cognizance will be taken by a Court of competent jurisdiction after the prescribed period of limitation, and if taken, it is illegal as per the view of this Court in Panney Singh's case (supra). In the case in hand, although the protest petition was filed by the father of the injured but his counsel sought several adjournments either for production of law book or for obtaining inaction for proceeding against the accused and ultimately the case was argued on 9.9.1983 and the Court has taken cognizance against the accused petitioner but by that time, the period of three years within which the cognizance could have been taken has expired. The learned Magistrate has given no reasons in his order for condoning the delay. A simple order taking cognizance has been passed by him after the expiry of three years. It cannot be held that it condoned the delay ipso facto. Before condoning the delay, the Court has to be satisfied on facts and in the circumstances of the case the delay has been properly explained or the Court has to say taking of cognizance is necessary in the interest of justice but in this case, neither the Court while taking cognizance beyond the period of limitation has observed that it was necessary to do so in the interest of justice nor has it held that delay in taking cognizance has been properly explained and therefore, it is a clear case where no powers have been exercised under Sec. 473 CPC but cognizance has been taken straight way against the provisions of Sec. 468 Cr.P.C.