A.K. Mathew v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 Crl.MC.No. 405 of 2005() -----------------------CC.201/2003 of JUDL.MAGISTRATE OF FIRST CLASS, NORTH PARAVUR .................... PETITIONER: ACCUSED: -------------------- A.K. MATHEW, S/O. A.T. KURIAN, CHIEF GENERAL MANAGER, HINDUSTAN INSECTICIDES LTD., UDYOGAMANDAL. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING C.I. OF EXCISE, NORTH PARAVUR. BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.NO.1091/05 IN CRL.M.C.NO.405/2005 --------- Dismissed Sd/- V.K.MOHANAN,JUDGE. 21/2/2008 ## **V.K.MOHANAN** , **J.** ## **------------------------------CRL.M.C.NO.405 OF 2005 -------------------------------Dated this the 21st day of February, 2008** ## **O R D E R** Petitioner, who is the sole accused in C.C.No.201/2003 on the file of the Judicial First Class Magistrate's Court, North Parur, preferred this Crl.M.C. with a prayer to quash Annexure-B final report and all further proceedings in C.C.No.201/03, which is registered for the offence punishable under Section 56(b) of the Abkari Act. According to the petitioner, the learned Magistrate took cognizance after the expiry of the period of limitation prescribed and therefore Annexure-B and the execution of C.C.No.201/2003 and all further proceedings thereon are clear abuse of process of the court. 2. The prosecution case is that on 14/11/2000, the Assistant Excise Commissioner had taken samples from the spirit storage tanks inside the company, Hindustan Insecticides Ltd., Udyogamandal, a Government of India Enterprises of which the petitioner was the Chief General Manager. After taking samples, the same was sent for chemical examination. According to the prosecution, since samples -2- ## CRL.M.C.No.405/2005 were not found enough for conducting chemical examination, on 1/1/2001 the Excise Circle Inspector, Paravur as per the direction of the Assistant Excise Commissioner, had again taken the samples from the spirit storage tanks and sent the same for chemical examination. The Chemical Analyst's report shows that the spirit was not mixed with croton aldehyde which had to be added to the spirit before storage in the Company as per the licence granted to the Company. Therefore C.R.No.2/2001 was registered against the petitioner for the offence punishable under Section 56(b) of the Abkari Act. Annexure-A is a copy of C.R.No.2/2001. Annexure-B final report was filed by the Circle Inspector of Excise, North Parur. According to Annexure-B final report, petitioner had committed the offence punishable under Section 56(b) of the Abkari Act (Act 1 of 1077). Section 56 of the Abkari Act runs thus: " **For misconduct by licensee, etc** :- Whoever, being the holder of a licence or permit granted under this Act (or being in the employ of such holder and acting on his behalf) (a) fails to produce such lincence or permit on the demand of any Abkari Officer or of any other officer duly empowered to make such demand; or (b) [wilfully does or omits to do anything] in breach of any of the conditions of his licence or permit not otherwise provided for in this Act; or CRL.M.C.No.405/2005 -3- (c) xx xx xx xx (d) permits drunkenness, riot or gaming in any place in which any liquor or intoxicating drug is sold or manufactured; or (e) permits persons of notoriously bad character to meet or remain in any such place; shall, on conviction before a Magistrate, be punished for each such offence, (with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both). 3. As per the charge, if the petitioner is found guilty and convicted, he is liable to be punished with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both. In view of Section 468(2)(b) Cr.P.C. the court below has no jurisdiction to take cognizance, after one year from the date of commission of the offence or from the date of detection of the same. According to the petitioner, though the offence was detected on 19/1/2001, charge sheet was filed only on 21/1/2002 and the cognizance was taken on 20/3/2003 and hence there is considerable delay in taking cognizance. Therefore, according to the petitioner, taking cognizance by the court below itself is ,without jurisdiction and illegal and the same amounts to abuse of process of court. Hence, he prays to quash the entire -4- ## CRL.M.C.No.405/2005 proceedings. 4. I have heard the learned counsel for the petitioner as well as as the learned Public Prosecutor. By order dated 3/1/2008 this Court called for the report from the learned Magistrate to show as to what date cognizance was taken and if cognizance was taken after the expiry of the limitation period, whether the delay is condoned on any application filed under Section 473 Cr.P.C. In pursuance to the above order, the learned Magistrate as per proceedings dated 4/1/2008 informed this Court that in C.C.No.201/2003 cognizance was taken on 20/3/2003 after the expiry of the period of limitation and also stated that the delay was not condoned on any application filed under Section 473 Cr.P.C. Thereafter, by order dated 17/1/2008 this Court directed the Registry to contact the learned Magistrate and to ascertain whether charge sheet in C.C.No.201/03 arising out of C.R.No.2/01 of Varapuzha Excise Range was filed within one year of the date of detection of the offence, namely, 19/1/01. If the charge sheet has not been filed on or before 20/1/2002, the Magistrate may also be requested to report whether there was any petition to condone the delay and whether the delay was condoned before taking the charge sheet on file and if the delay was condoned, whether it was after notice to -5- ## CRL.M.C.No.405/2005 the accused. On the basis of the above order, the Registry had sent an official memorandum dated 17/1/2008 to the Judicial First Class Magistrate, North Paravur to which the learned Magistrate submitted a reply dated 21/1/2008, which shows that the charge sheet in C.C.No.201/03 was not filed within one year of the date of detection of the offence. The charge sheet in C.C.No.201/03 (Cr.No.2/01 of Excise Range, Varapuzha) was filed before that Court on 21/1/02. According to the learned Magistrate, there was only one day delay in filing the charge sheet and the prosecution did not file any application to condone the delay. The learned Magistrate further stated that the case was taken on file on 20/3/2003 and the delay was not condoned before taking the charge sheet on file. It is also stated that since no delay petition was filed, no notice was given to the accused. 5. Learned counsel for the petitioner submitted that as per Section 468 Cr.P.C. there is a bar for taking cognizance after lapse of the period of limitation. He invited my attention to Section 468 Cr.P.C. which reads thus: ## **"Bar to taking cognizance after lapse of the period of limitation:** - (1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence -6- CRL.M.C.No.405/2005 of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be-- - (a) Six months, if the offence is punishable with fine only; - (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; - (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. - (3) For the purposes of this section the period of limitation, in relation to offence which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 6. Thus, according to the learned counsel, one year is the period for taking cognizance of the offence punishable with imprisonment for a term not exceeding one year, in view of Section 468 (2)(b) of the Cr.P.C. Section 473 Cr.P.C. enables extension of period of limitation in certain cases. Counsel for the petitioner submits that even according to Annexure-A crime and occurrence report, detection of the offence was on 19/1/01 and the final report, namely, Annexure-B was filed only on 21/1/2002 and the cognizance was taken by the court on 20/3/2003, after -7- CRL.M.C.No.405/2005 the expiry of the period of limitation as per Section 468(2)(b) Cr.P.C. According to the learned counsel, Annexure-B final report and the institution of the case after taking cognizance, after the lapse of the limitation period will amount to clear abuse of process of court and it is manifest injustice to the petitioner and therefore, the entire proceedings has to be quashed. In support of the prayer for quashing the proceedings, the learned counsel very much placed reliance on the decision of the Apex Court reported in **State of Haryana and others v. Ch.Bhajan Lal and others (JT 2000 (SUPPL.1) SC=AIR 1992 SC 604).** In the above decision the Apex Court has held that "where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings this Court will be justified in quashing the proceedings under Section 482 of Cr.P.C." The learned counsel relied on another decision of the Apex Court, according to which the discretion conferred on the court by Section 473 of Cr.P.C. to take cognizance after the expiry of the period of limitation under the conditions stated therein has to be exercised judicially and on well recognized principles. It was also held in the said decision that being a discretion conferred on the -8- CRL.M.C.No.405/2005 Court taking cognizance, whenever the Court exercises this discretion, the same must be a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and the condition 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 wherever the cognizance was barred and yet the court took cognizance and proceed with the trial of the offence. In the present case the report of the learned Magistrate shows that final report was filed after the period of limitation and there was no petition to condone the delay. The Magistrate also stated that cognizance was taken on 20/3/2003 and the delay was not condoned before taking the charge sheet on file. It is also clear from the report of the Magistrate that no petition was filed for condonation of delay and therefore no notice was issued to the accused. The materials of report shows that cognizance taken was in gross violation of the statutory mandate contained in Section 468 Cr.P.C. and without assigning any reason in terms of Section 473 Cr.P.C. The entire proceedings in C.C.No.201/2003 on the file of the Judicial First Class Magistrate's Court, North Paravur is to be quashed. Going by Annexure-A -9- ## CRL.M.C.No.405/2005 occurrence report and Annexure-B final report, it can be seen that the alleged offence was with respect to the violation of the condition of licence in the name of Government of India Enterprises, namely, Hindustan Insecticides Ltd., Udyogamandal, of which the petitioner was the Chief General Manager. No allegation against the petitioner attributing the involvement of his personal interest in the matter of committing the alleged offence etc. In support of the prayer for quashing final report, Annexure-B and all other proceedings in C.C.No.201/03, the petitioner has produced Annexure-C order of this Court in Crl.M.C.No.9390/2002. In that case also cognizance was taken after the limitation period and this Court quashed the charge sheet and all the proceedings in those case. 6. Going by the materials and the evidence on record and the report of the court below, I am satisfied that the offence was detected on 19/1/2001, Annexure-B final report was filed only on 20/1/2002 and the court took cognizance only on 23/3/2003, after a long period, that too in violation of the mandatory provisions contained in Section 462 (2)(b) of the Cr.P.C. I am also satisfied that there is no petition for condonation of delay and the court below has not applied its mind in terms of Section 473 -10- ## CRL.M.C.No.405/2005 Cr.P.C. Therefore, I am of the view that Annexure-B final report and the institution of C.C.No.201/2003 after taking cognizance and all further proceedings therein are liable to be quashed. In the result, Annexure-B final report and all proceedings in C.C.No.201/2003 pending before the Judicial First Class Magistrate's Court, North Paruvar, are hereby quashed and accordingly, this Cr.M.C. is allowed. **V.K.MOHANAN, Judge.** **kcv.**