Mathew Purackal Kuncheria v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 CRL.MC NO. 347 OF 2020 [CRIME NO.609/2011 OF SULTHAN BATHERY POLICE STATION, WAYANAD DISTRICT] [AGAINST THE PROCEEDINGS IN CC 490/2017 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA] ## PETITIONER/ACCUSED NO.3: MATHEW PURACKAL KUNCHERIA AGED 57 YEARS S/O. CHACKO, RESIDING AT PURACKAL HOUSE, KAVALAM P O, ALAPPUZHA DISTRICT, PIN-688506. BY ADV R.SURENDRAN ## RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADV RANJIT GEORGE, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.01.2022, THE COURT ON 2.2.2022 PASSED THE FOLLOWING: Crl.MC. No.347 of 2020 2 ## O R D E R The petitioner is the 3[rd] accused in C.C.No.490/2017 on the file of the Chief Judicial Magistrate Court, Kalpetta which arises from Crime No.609/2011 of Sulthan Bathery Police Station in Wayanad District. The aforesaid case is registered against the petitioner and two others for the offences punishable under Sections 3 and 4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. 2. The prosecution case against the petitioner is that, he, in association with the other accused, registered a company namely “Daehsan Trading (India) Pvt. Limited” at Chennai for the purpose of marketing the products of one DXN company in Malaysia under the money circulation scheme with an intention of making huge profits. As part of the said scheme, the accused persons enrolled members by collecting membership fee and thereby committed the offence punishable under the aforesaid Crl.MC. No.347 of 2020 3 provisions. Annexure-A1 FIR was registered on the basis of an inspection conducted in the premises on 29.7.2011. After completing the investigation, Annexure-A2 final report was submitted by the police for the offences mentioned above. 3. This Crl.M.C. is filed by the petitioner for quashing Annexure-A2 final report and all further proceedings in C.C.No.490/2017 pending before the Chief Judicial Magistrate Court, Kalpetta. 4. Heard Sri. R.Surendran, the learned counsel for the petitioner and Sri. Ranjit George, the learned Public Prosecutor appearing for the State. 5. Even though several contentions have been raised in the Crl.M.C., the learned counsel for the petitioner confined his arguments in respect of the question of the delay in taking cognizance of the offence and the application of Section 468 of the Code of Criminal Procedure (Cr.PC). The learned counsel for the petitioner brought my attention to the fact that, even though the crime was registered Crl.MC. No.347 of 2020 4 on 29.7.2011, the final report was submitted by the police before the court on 29.8.2016 and the learned Magistrate has taken cognizance thereon only on 28.6.2017. The specific case of the learned counsel for the petitioner is that, since the cognizance was taken after almost six years of the registration of the crime, the prohibition contained under Section 468 of the Cr.PC is applicable. The learned counsel for the petitioner points out that, the maximum punishment contemplated under Section 4 of the Prize Chits and Money Circulation Schemes (Banning)Act, 1978 is three years and hence the provisions contemplated under section 468 of the Cr.PC is applicable to the aforesaid procedure, and it is an offence coming within the category specified under Section 468(2)(c) of the Cr.PC. Therefore, the period of limitation is three years. 6. The learned Public Prosecutor opposes the said application and contends that, by virtue of the power envisaged under Section 473 of the Cr.PC, ## Crl.MC. No.347 of 2020 5 the learned Magistrate is competent to take cognizance even after the period of limitation, if the court is satisfied that the delay has been properly explained or that it is necessary so to do in the interests of justice. In this case, it was contended that, the fact that, the learned Magistrate had chosen to issue summons indicates that, the learned Magistrate had invoked the powers conferred upon him under section 473 of the Cr.PC and therefore no interference is warranted in the proceedings. 7. Thus, the only question that arises for consideration is as to whether the act of taking cognizance by the learned Magistrate for the offences mentioned above, is hit by the stipulation contained in section 468 of the Cr.PC. The aforesaid provision reads as follows: 468: Bar to taking cognizance after lapse of the period of limitaiton.(1)Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— Crl.MC. No.347 of 2020 6 (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. For the purposes of this section, the period of limitation, in relation to offences 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.” It is specifically provided in the said provision that, no court can take cognizance after a period of three years, in respect of an offence punishable with imprisonment for three years. As pointed out by the learned counsel for the petitioner, the maximum punishment that can be imposed for the offence alleged against the petitioner in this case, is three years. It is to be noted in this regard that, Section 3 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 provides that, no person shall promote or conduct any prize chit or money circulation scheme, or enrol as a member to any such chit or scheme, or participate in it otherwise, or receive or remit any money in pursuance of such chit or scheme. Section 4 of the Crl.MC. No.347 of 2020 7 said Act provides that, whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both. Thus, it is evident the maximum punishment stipulated is three years. Thus, the aforesaid offence comes within the stipulation contained in Section 468(2)(c) of the Cr.PC and, therefore, the period within which the learned Magistrate can take cognizance is three years. In this case, it is evident from Annexure A2 that the final report was prepared by the investigating officer on 7.10.2013 as is evident from the dates shown thereon. However, the said final report is seen submitted only on 29.8.2016 and the learned Magistrate has taken cognizance on the same only on 28.6.2017 as is seen from the endorsement made in this regard. Thus, it is evident that, the cognizance was taken after almost six years of the registration of the crime. Section 469 of the Cr.PC provides that the period of Crl.MC. No.347 of 2020 8 limitation, in relation to an offender, shall commence on the date of the offence; or where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. In this case, in Annexure-A1 FIR, the name of the petitioner herein is not seen included. However, it is seen from Annexure-A2, which was prepared on 7.10.2013, that the petitioner’s name was included as the 3[rd] accused. Annexure-A5 is the report submitted by the investigating officer before the learned Magistrate arraying the petitioner herein as the 3[rd] accused in the aforesaid case being one of the Directors of the company. The aforesaid report is dated Crl.MC. No.347 of 2020 9 5.8.2013. Thus, it is evident that, the investigating officer was aware of the alleged role of the petitioner in the commission of the crime prior to 5.8.2013. Despite the above, the final report was submitted only on 29.8.2016, even though the same was prepared on 7.10.2013. The cognizance thereon was taken only on 28.6.2017. Thus, it is evident that, the filing of the final report and also the act of taking cognizance thereon by the learned Magistrate was after the expiry of more than three years, even if the date of knowledge of the involvement of the petitioner in the crime is taken as 5.8.2013, which is the date of Annexure-A5 report submitted by the investigating officer arraying the petitioner as one of the accused. Thus, it is beyond the period stipulated under Section 468 Cr.PC. 8. The learned counsel for the petitioner has relied upon the decision of this Court in George V.V. v. State of Kerala [2015(3)KLT 219] . In the said decision, it is categorically held by this Crl.MC. No.347 of 2020 10 Court by relying upon the decision in State of H.P. v. Tara Dutt and Another [AIR 2000 SC 297] that, even though the court is empowered to take cognizance even after the period of limitation, it must be exercised with great care and circumspection to meet the ends of justice. 9. In this case, the investigating officer has not offered any explanation for such huge delay in submitting the final report and the learned Magistrate also has not passed a speaking order explaining the circumstances under which the cognizance was taken beyond the period of limitation prescribed under Section 468 Cr.PC. As pointed out by the learned Public Prosecutor, Section 473 of Cr.PC enables the learned Magistrate to take cognizance of an offence after the expiry of the period of limitation if the court is satisfied that the delay has properly explained or that it is necessary so to do in the interest of justice. However, the crucial aspect to be noticed is that, the aforesaid power has to be exercised at Crl.MC. No.347 of 2020 11 the time of taking cognizance of the offence. Section 473 of the Cr.PC contains a heading which reads as _“Extension of period of limitation in certain cases”._ The aforesaid heading along with the specific stipulation contained in the said provision clearly conveys that, the aforesaid power is necessarily intended to be exercised before the cognizance is taken and not thereafter. This is particularly because, Section 468 Cr.PC contains a specific prohibition in taking cognizance of the offence after the period of limitation prescribed therein and what is contemplated under Section 473 of the Cr.PC is the _extension of the period of_ _limitation_ mentioned under Section 468 Cr.PC. Therefore, in this case, the cognizance was taken without invoking the powers under Section 473 Cr.PC by the learned Magistrate and, therefore, the act of taking cognizance is bad in law which vitiates the further proceedings in the matter. As pointed out by the learned counsel for the petitioner, this Court in the case of George V.V.’s case (supra) has Crl.MC. No.347 of 2020 12 considered this question specifically and made the following observations: _“16. If one reads S.473 CrPC carefully, it can be seen that condonation of delay by the Court should precede the taking of cognizance. In other words, after taking cognizance of an offence, which is barred under S.468 CrPC, the Court cannot retrace its steps and condone the delay at a post cognizance stage. In the instant case, there is no dispute that there was no speaking order by the trial Judge under S.473 CrPC condoning delay in taking cognizance for offences under S.465 and S.471 IPC. As mentioned earlier, the trial Judge is not legally competent to condone the delay in taking cognizance in respect of offences under S.465 and S.471 IPC after taking cognizance of all the offences, including the above mentioned offences. The learned trial Judge before taking cognizance must have applied his mind as required under S.473 CrPC and should have condoned the delay in respect of offences under S.465 and S.471 IPC. It is also indisputable that there should have been a speaking order for condoning delay before taking cognizance. Non-compliance of the mandatory requirements certainly makes the cognizance bad in law. An option available for the trial Judge was to leave alone the offences under S.465 and S.471 IPC and take cognizance for other offences which were not barred by the provisions of S.468(2) CrPC. But that will surely affect the strength of the prosecution case in view of the fact situation in this case. As stated above, the learned trial Judge without any application of judicial mind took cognizance of all the offences, including the time barred ones, and permitted the prosecution to adduce evidence on all the charges, causing serious prejudice to the appellant, because the essential ingredients for attracting the barred offences and other offences are identical.”_ Thus, it has been categorically held by this Court that once the cognizance is taken after the expiry Crl.MC. No.347 of 2020 13 of the period stipulated in Section 468 Cr.PC, the court is not empowered to retrace its steps and condone the delay at a post cognizance stage. Therefore, the act of taking cognizance is bad and the entire proceedings initiated against the petitioner on the basis of such cognizance is vitiated. In the light of the principles laid down by this Court in George V.V’s case (supra), the contention put forward by the learned Public Prosecutor that the learned Magistrate is empowered to exercise its power under Section 473 of the Cr.PC at a post cognizance stage is not legally sustainable. Thus it is evident that, the prosecution initiated against the petitioner in C.C.No.490/2017 by the Chief Judicial Magistrate Court, Kalpetta is legally unsustainable. In such circumstances, I am inclined to invoke the powers of this Court under Section 482 of the Cr.PC and the proceedings as against the petitioner in C.C.No.490/2017, on the file of Chief Judicial Magistrate Court, Kalpetta, which arises from Crime Crl.MC. No.347 of 2020 14 No.609/2011 of Sulthan Bathery Police Station are hereby quashed. The Crl.M.C. is disposed of as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.MC. No.347 of 2020 15 ## APPENDIX OF CRL.MC 347/2020 |PETITIONER’S|ANNEXURES:| |---|---| |ANNEXURE 1|TRUE CERTIFIED COPY OF THE FIR IN CRIME| ||NO.609 OF 2011 OF SULTHAN BATHERY POLICE| ||STATION ALONG WITH A TYPED COPY.| |ANNEXURE 2|TRUE CERTIFIED COPY OF THE FINAL| ||REPORT/CHARGE SHEET IN CRIME NO.609 OF 2011| ||OF SULTHAN BATHERY POLICE STATION, IN| ||WAYANAD DISTRICT.| |ANNEXURE 3|TRUE CERTIFIED COPY OF THE MEMO OF EVIDENCE| ||DATED 7.10.2013 FILED BY THE INVESTIGATING| ||OFFICER IN CRIME NO.609 OF 2011 OF SULTHAN| ||BATHERY POLICE STATION.| |ANNEXURE 4|TRUE CERTIFIED COPY OF THE STATEMENT OF 13| ||WITNESS RECORDED BY THE INVESTIGATING| ||OFFICERS IN CRIME NO.609 OF 2011 OF SULTHAN| ||BATHERY POLICE STATION.| |ANNEXURE 5|TRUE CERTIFIED COPY OF REPORT DATED| ||5.8.2013 AUTHORED BY THE SUB INSPECTOR OF| ||POLICE, SULTHAN BATHERY POLICE STATION AND| ||FILED BEFORE THE CHIEF JUDICIAL| ||MAGISTRATE’S COURT, SULTHAN BATHERY ON| ||18.08.2016.|