2003 JTR(SC) 766
2003 10 AIC 761 ; 2003 AIR(Jhar)(R) 1181 ; 2003 AIR(SC) 3635 ; 2003 AIR(SCW) 4062 ; 2003 2 ALD(Cri)(SC) 441 ; 2003 AllMR(Cri)(SC) 2073 ; 2003 3 BBCJ(SC) 55 ; 2003 3 BLJR 1879 ; 2003 3 CCR(SC) 156 ; 2003 3 CriCC 92 ; 2003 CriLR 802 ; 2004 CriLR(Cal) 30 ; 2003 3 Crimes(SC) 315 ; 2003 CrLJ 3888 ; 2004 1 EastCrC(SC) 101 ; 2003 3 JCC 1336 ; 2003 3 JLJR(SC) 137 ; 2003 Supp1 JT 101 ; 2003 3 PLJR(SC) 206 ; 2003 4 RCR(Cri) 235 ; 2003 6 Scale 472 ; 2003 7 SCC 254 ; 2003 SCC(Cri) 1613 ; 2003 5 Supreme 548
2003(5) Supreme 548
SUPREME COURT OF INDIA
(From Patna High Court)
Shivaraj V. Patil & Brijesh Kumar, JJ.
Ramesh Chandra Sinha & Ors. -Appellants
versus
State of Bihar & Ors. -Respondents
Criminal Appeal No. 1010 of 2003
(Arising out of SLP (Crl.) No. 3784 of 2001)
Decided on 18-8-2003
Counsel for the Parties :
For the Appellants : A. Sharan, Sr. Advocate, Irshad Ahmad, Advocate.
For the Respondent No. 1 : B.B. Singh, Advocate (NP).
For the Respondent No. 2 : Ms. K. Sarada Devi, Advocate (SCLSC).
IMPORTANT POINT
Exercise of discretion in condoning delay u/s 473 Cr.P.C. but not on relevant consideration could not be sustained.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.468, S.473, S.468(2)
INDIAN PENAL CODE : S.323, S.504, S.34, S.120(b), S.341
(A) The impugned order took cognizance of offences under Sections 323, 504, read with Section 34, Section 120-B, and Section 341 of the Indian Penal Code, and proceeded under Section 468 of the Criminal Procedure Code. Section 468(2) of the Code bars cognizance where a charge-sheet is filed after the expiry of the limitation period, and Section 473 empowers a Magistrate to condone delay. The High Courts jurisdiction under Section 482 was also engaged to review the legality of the proceedings. The interplay of these provisions determines the validity of taking cognizance after the limitation bar and the effect of stay orders passed by the High Court.
(B) Key principles include that cognizance taken after the limitation period is barred unless condoned under Section 473, and that such condonation requires satisfaction on relevant considerations. A stay order passed by the High Court does not automatically preclude a Magistrate from taking further steps unless the stay is clear, continuous, and its operation is properly understood by the lower court. The correctness of the impugned order is tested against the clarity of the procedural history and the reasoned application of discretion.
Facts of the case:
The accused, former Chairman of the Bihar State Pollution Control Board, was accused by a respondent employee of causing harassment, abuse, and assault. A complaint was filed, an FIR was registered, and the accused was dismissed from service. The accused filed a writ petition challenging the dismissal, and a criminal case was registered nearly four years after the offences. A Criminal Miscellaneous Case was filed to quash the proceedings, and the High Court passed stay orders. The charge-sheet was submitted after the limitation period, and the Magistrate condoned the delay. The High Court held that the Magistrate had not committed a serious error, and the accused challenged the impugned order.
Findings of Court:
The High Court observed that although the charge-sheet was filed after the limitation period, the case was sent back for consideration of bar under Section 468. It found that the procedural history showed a modification of the stay order, but the Magistrate did not correctly appreciate the effect of the modification. The court held that the delay was not properly condoned and that the taking of cognizance was barred under Section 468(2) of the Code.
Issues:
Whether cognizance taken after the limitation period can be sustained on the ground of condonation under Section 473. Whether a High Court stay order, modified during pendency, operates as a bar to further proceedings in the court below. Whether the Magistrate correctly applied the law on limitation and condonation of delay.
Ratio Decidendi:
Cognizance taken after the expiry of the limitation period is invalid unless the delay is condoned on relevant considerations. The modification of a stay order by the High Court must be clearly understood by the lower court; in this case, the proceedings were not effectively stayed, and the Magistrate erred in taking cognizance without properly applying Section 468(2). The impugned order cannot be sustained.
Result:
The appeal is allowed. The impugned order is set aside, and the criminal proceedings in P.S. Case No. 16/94 before the Chief Judicial Magistrate, Patna, are quashed.
(A) The impugned order took cognizance of offences under Sections 323, 504, read with Section 34, Section 120-B, and Section 341 of the Indian Penal Code, and proceeded under Section 468 of the Criminal Procedure Code. Section 468(2) of the Code bars cognizance where a charge-sheet is filed after the expiry of the limitation period, and Section 473 empowers a Magistrate to condone delay. The High Courts jurisdiction under Section 482 was also engaged to review the legality of the proceedings. The interplay of these provisions determines the validity of taking cognizance after the limitation bar and the effect of stay orders passed by the High Court.
(B) Key principles include that cognizance taken after the limitation period is barred unless condoned under Section 473, and that such condonation requires satisfaction on relevant considerations. A stay order passed by the High Court does not automatically preclude a Magistrate from taking further steps unless the stay is clear, continuous, and its operation is properly understood by the lower court. The correctness of the impugned order is tested against the clarity of the procedural history and the reasoned application of discretion.
Facts of the case:
The accused, former Chairman of the Bihar State Pollution Control Board, was accused by a respondent employee of causing harassment, abuse, and assault. A complaint was filed, an FIR was registered, and the accused was dismissed from service. The accused filed a writ petition challenging the dismissal, and a criminal case was registered nearly four years after the offences. A Criminal Miscellaneous Case was filed to quash the proceedings, and the High Court passed stay orders. The charge-sheet was submitted after the limitation period, and the Magistrate condoned the delay. The High Court held that the Magistrate had not committed a serious error, and the accused challenged the impugned order.
Findings of Court:
The High Court observed that although the charge-sheet was filed after the limitation period, the case was sent back for consideration of bar under Section 468. It found that the procedural history showed a modification of the stay order, but the Magistrate did not correctly appreciate the effect of the modification. The court held that the delay was not properly condoned and that the taking of cognizance was barred under Section 468(2) of the Code.
Issues:
Whether cognizance taken after the limitation period can be sustained on the ground of condonation under Section 473. Whether a High Court stay order, modified during pendency, operates as a bar to further proceedings in the court below. Whether the Magistrate correctly applied the law on limitation and condonation of delay.
Ratio Decidendi:
Cognizance taken after the expiry of the limitation period is invalid unless the delay is condoned on relevant considerations. The modification of a stay order by the High Court must be clearly understood by the lower court; in this case, the proceedings were not effectively stayed, and the Magistrate erred in taking cognizance without properly applying Section 468(2). The impugned order cannot be sustained.
Result:
The appeal is allowed. The impugned order is set aside, and the criminal proceedings in P.S. Case No. 16/94 before the Chief Judicial Magistrate, Patna, are quashed.
ORDER
Shivaraj V. Patil, J.-Leave granted.
2. In this appeal, the appellants have questioned the legality, validity and correctness of the impugned order. The appellants filed a petition before the High Court for quashing the entire criminal proceedings including the order dated 4.2.2000 by which the Chief Judicial Magistrate, Patna, had taken cognizance for the offences under Sections 341, 323, 504/34 and 120-B of the Indian Penal Code on a complaint filed by the respondent No. 2.
3. The appellant no. 1 was the Chairman of the Bihar State Pollution Control Board, Patna. Prior to joining the Board, he served as Professor in the Department of Geology, Patna University and he had teaching experience of 26 years. The respondent No. 2 was an employee of the Pollution Control Board. On account of certain irregularities and misconduct, he was dismissed from service after holding enquiry. He challenged the order of dismissal before the High Court in a writ petition. He lodged the F.I.R. at Harijan Police Station (Patna Sadar) alleging that right from the day he filed the writ petition, he was pressurized by the officials of the Pollution Control Board to withdraw the said writ petition. He complained that on 30.11.1992, the appellant no. 1 had abused and scolded him. Subsequently on 28.10.1993, he was beaten by the other appellants.
4. The appellants earlier filed a Criminal Misc. No. 16672 of 1994 in the High Court for quashing the criminal proceedings. On 11.11.1994, the High Court passed the following order:-
"Pending admission of the application further proceedings in the court below shall remain stayed and no coercive action shall be taken against the petitioners. "
The said order was modified on 6.2.1995 as under:-
"Pending disposal of this application Police Investigation shall continue but no coercive action shall be taken by the police against the petitioners."
5. The said Criminal Misc. case was finally disposed of on 5.10.1999.
In the impugned order, it is stated thus:-
"While disposing Cr. Misc. Case No. 16672 of 1994 a Bench of this Court had observed that although on the face of the record charge- sheet has been submitted after more than three years and no cognizance has been taken till the date of final order passed in that Cr. Misc. Case more than three years had elapsed and, as such, it was barred by limitation. But the matter was sent back to the court below for consideration whether cognizance is barred or not. "
6. The learned Chief Judicial Magistrate (for short the CJM ) by the order dated 4.2.2000 held that considering the date of occurrence being 24.9.1994 and the charge-sheet having been submitted in the year 1998 after a period of three years, bar of limitation under Section 468 of the Criminal Procedure Code (for short the Code ) was attracted but on the petition filed by the respondent No. 2 on 6.1.2000, the learned magistrate condoned the delay exercising power under Section 473 of the Code stating that from 11.11.1994 till 5.10.1999 further proceedings in the court of the learned magistrate should be construed as stayed in view of the orders passed in Criminal Misc. No. 16672 of 1994. As already noticed above, the said order dated 4.2.2000 passed by the learned CJM was under challenge in the impugned order. Before the High Court, the only point that was urged on behalf of the appellants for quashing the entire criminal proceedings was that the charge-sheet having been filed after a period of three years, taking of cognizance was barred under Section 468(2) of the Code. Although, High Court in the impugned order found that some error was committed by the learned CJM in passing the order dated 4.2.2000, it was not much of consequence, expressing that "On perusal of all the orders passed in Cr. Misc. No. 16672 of 1994, I do not find that the court below has committed much error in computing the limitation period. It is true that in the order dated 11.11.1994 further proceedings in the lower court was stayed pending admission of the application but then the petition was admitted vide order dated 6.2.1995 proceedings in the lower court had not been stayed but no specific order has been passed to that effect in the order dated 6.2.1995 and if the court below construes that stay order still remained in respect of the proceedings in the court below then perhaps it can not be said much error has been committed by the learned CJM while construing that from 11.11.1994 till 5.10.1999 the date of final order in Cr. Misc. No. 16672 of 1994 the CJM ought not to have taken further steps in the proceedings itself. "
7. Having said so, the High Court dismissed the petition filed by the appellants taking a view that the CJM had power to condone the delay under Section 473 of the Code and as such there was no need to exercise the jurisdiction under Section 482 of the Code.
8. Learned counsel for the appellants urged that having regard to bar contained under Section 468(2) of the Code, the CJM as well as the High Court committed a serious error in refusing to quash the criminal proceedings; it is clear from the records that the cognizance was taken by the CJM almost after a period of four years; in the light of the order passed on 6.2.1995 by the High Court in earlier proceeding, there was no scope to contend that the proceedings before the Magistrate were stayed.
9. Learned counsel for the respondents made submissions supporting the impugned order. She pointed out that in spite of stay order passed by the High Court, at one stage the learned Magistrate had taken cognizance but subsequently recalled the order realizing the mistake; the delay was condoned by the discretion of the Magistrate while taking cognizance and under the circumstances, the impugned order need not be interfered with.
10. There is no dispute that cognizance was taken of the offences by the learned Magistrate long after a period of three years. The Magistrate condoned the delay on the ground that the proceedings were stayed by the High Court till 5.10.1999. On 11.11.1994, further proceedings had been specifically stayed but by the order dated 6.2.1995, the order dated 11.11.1994 was modified in effect to vacating the earlier order staying further proceedings. This position is abundantly clear by a bare perusal of the orders dated 11.11.1994 and 6.2.1995 extracted above. When the order of 11.11.1994 was specifically modified, there was no reason to understand the orders otherwise. It was not correct for the learned Magistrate to say that there was stay of further proceedings till 5.10.1999 in the face of order dated 6.2.1995 read with the order dated 11.11.1994. No other reason or ground is given in the order of the Magistrate to condone the delay under Section 473 of the Code. If the discretion is exercised on relevant considerations, possibly no fault could be found with such discretion. The High Court although noticed in the impugned order as to the effect of order dated 6.2.1995 and found that there was error committed by the Magistrate but took the view that it was not a serious one. Added to this, the proceedings are of the year 1994. Having regard to the facts and circumstances of the case, the CJM as well as the High Court committed serious error in upholding taking cognizance when it is clearly barred by Section 468(2) of the Code.
11. Under these circumstances, the impugned order affirming the order of the CJM cannot be sustained. Hence, the appeal is allowed. The impugned order is set aside and the criminal proceedings in P.S. Case No. 16/94 in the court of CJM, Patna, are quashed.
Appeal allowed.
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