Muhammed Jafri @ Athil v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 ``` ``` CRL.MC NO. 3422 OF 2017 ``` ``` AGAINST THE ORDER DATED 26.10.2015 IN CC 776/2005 OF CHIEF ``` ## **`JUDICIAL MAGISTRATE ,KASARAGOD`** ## **`PETITIONER/ACCUSED NO.7:`** ``` MUHAMMED JAFRI @ ATHIL AGED 56 YEARS,S/O.K.N.KUNHI MUHAMMED, 39/2000,K.N.HOUSE,BEKAL POST, ANKAKALARI,KUTTIKULAM,HOSDURG TALUK,KASARAGOD. ``` ``` BY ADVS. ``` ``` SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY ``` ## **`RESPONDENT/COMPLAINANT/STATES:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031(CRIME NO. /2016 OF POLICE STATION,KASARAGOD DISTRICT). ``` ``` BY ADV. PP-SRI.SUDHEER GOPALAKRISHNAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3422 OF 2017 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the accused in C.C.No.776 of 2005 on the file of the Chief Judicial Magistrate Court, Kasargod. The petitioner is challenging the order dated 24.06.2016 in Crl.R.P.No.7/2015 of Court of Sessions, Kasargod which in turn was filed against order dated 26.10.2015 passed by the Chief Judicial Magistrate, Kasargod. 2. The prosecution case against the petitioner is as follows: Originally a crime was registered by the Manjeswaram Police as crime No.215/1999 for the offences punishable under Section 457, 511 and 380 of IPC which was against certain unknown persons. The allegation was that in between 08.09.1999 and 09.09.1999 somebody has made an attempt to break open the door of Vijaya Bank, Bayar Mulliyude Branch in Kasargod District and attempted to commit theft. It was alleged that the accused had stolen six Demand Drafts books each containing 50 forms from the bank and later the accused persons filled up those forms and issued it to several persons. On the basis of the same, an investigation was conducted by the CBCID and a final report was submitted for the offences punishable under Section 411 read with 34 of IPC. The Chief Judicial Magistrate took cognizance of the same as ``` CRL.MC NO. 3422 OF 2017 ``` ``` 3 ``` C.C.No.776/2005. As against the act of taking cognizance, the petitioner along with 10[th] accused approached this Court by filing Crl.M.C. No.1493/2007. The specific contention raised in the said case was that, as the offence alleged against the petitioner is under Section 411 of IPC, which is punishable for a term up to 3 years, the cognizance should have taken within a period of three years. It was pointed out that, the cognizance in this case was taken on 08.09.2005 and therefore it is barred by limitation as contemplated under Section 468 of Cr.P.C. The aforesaid Crl.M.C. was disposed of by this Court as per Annexure II judgment wherein para 11 thereof it was observed as follows: _“11. In the above view of the matter, I am of the opinion that before proceeding with the trial, the trial court has to examine the final report as to find out whether the cognizance of the offence against the revision petitioners for the offence under Section 411 of IPC is barred by limitation under Section 468 of the Cr.P.C. Certainly if the cognizance of the offence had been taken after 3 years from the date on which the police came to know the participation of the accused, the accused are not liable to be prosecuted.”_ 3. With the above observation, the Learned Magistrate was directed to consider the question of limitation after examining the documents produced along with report under section 173(2) of Cr.P.C and also affording opportunity of being heard to the petitioners therein. As per the aforesaid direction, the Chief Judicial Magistrate considered ``` CRL.MC NO. 3422 OF 2017 ``` ``` 4 ``` the question of limitation on the basis of the materials available on record. Accordingly, on evaluating the materials, the learned Magistrate came to the conclusion that as against the 7 accused, the information regarding the involvement of the petitioner herein was received on 23.02.2001 from the statement of CW2. Going by the aforesaid date, the limitation under Section 468 is applicable, in view of the fact that the cognizance was taken on 08.09.2005 as against the petitioner herein, but the learned Magistrate found that, the delay is well explained and it is necessary to take cognizance against the petitioner herein for the interest of justice. 4. Challenging the same, the petitioner filed Crl.R.P. No.7/2015 before the Sessions Court, Kasargod and as per Annexure IV judgment the Crl.R.P. was dismissed confirming the finding in Annexure III order passed by the learned Magistrate. Challenging the aforesaid orders this Crl.M.C. is filed. 5. Heard Sri.S.Rajeev, learned counsel for the petitioner and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 6. The specific case advanced by the learned counsel for the ``` CRL.MC NO. 3422 OF 2017 ``` ``` 5 ``` petitioner is that, going by the observations made in paragraph 11 of Annexure II judgment passed by this Court, once it was found that the cognizance was taken after 3 years from the date on which Police came to know of the participation of the accused, the case against them cannot be proceeded further. I find some force in the said contention, even though the same was seriously objected by the learned Public Prosecutor. It is to be noted that, in **George V.V. v. State of Kerala [2015(3) KLT 219],** the question whether the exercise of power under Section 473 Cr.P.C. to condone the delay must precede the act of taking cognizance was considered by this Court and framed the following observations: _“15. A question may arise whether the exercise of power under Section 473 Cr.P.C. must precede the act of taking cognizance under Section 190(1)(b) Cr.P.C. On a reading of Section 473 Cr.P.C. it is evident that it confers power on the court for taking cognizance of an offence, even after 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 or that is necessary so to do in the interests of justice. The Supreme Court in State of H.P v. Tara Dutt and Another, 2000 KHC 1692: AIR 2000 SC 297: 2000 (1) SCC 230: 2000 SCC (Cri) 125: (2000) CriLJ 485 considered the scope and ambit of the power of the court to take cognizance of an offence after expiry of the period of limitation. It is evident from the above Section itself that the court is bestowed with a wide discretion; of course, it must be exercised with great care and circumspection to meet the ends of justice. The Supreme Court in the above decision held that it must be exercised by a speaking order. Following quotation from the decision will be useful for our purpose:_ _"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 so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has_ ``` CRL.MC NO. 3422 OF 2017 ``` ``` 6 ``` _been provided in S. 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..........."_ _16. If one reads Section 473 Cr.P.C. 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 Section 468 Cr.P.C., 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 Section 473 Cr.P.C. condoning delay in taking cognizance for offences under S. 465 and S.471 I.P.C. 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 I.P.C. 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 Cr.P.C. and should have condoned the delay in respect of offences under S. 465 and S.471 I.P.C. 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 I.P.C. and take cognizance for other offences which were not barred by the provisions of S. 468(2) Cr.P.C. 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.”_ In the said judgment, after referring to previous judicial precedents in this regard, it was held that after taking cognizance of an offence which ``` CRL.MC NO. 3422 OF 2017 ``` ``` 7 ``` is barred under Section 468 of Cr.P.C, the court cannot retrace its steps and condone the delay at a post cognizance stage. In this case, even though reasons were stated for exercising the powers under Section 473 in Annexure III order, that has occurred after the cognizance has been taken by the Court. It is true that the aforesaid exercise was conducted by the learned Magistrate on the basis of Annexure II judgment passed by this Court. The basic question that was considered by this Court in Annexure II was whether the act of taking cognizance was within the period of limitation or not. In order to decide at the question as to whether actually the cognizance was taken within the period of limitation or not, a direction was issued by this Court to consider the said question by the learned Magistrate. Such a direction was issued by this court in view of the fact that the said question necessitated appreciation of materials available before the learned Magistrate to find out the exact date of commencement of period of limitation. While issuing such a direction, a specific finding was entered into by this Court to the effect that if the cognizance was taken after three years, no prosecution can be proceeded with. 7. In such circumstances, that was a direction binding on the ``` CRL.MC NO. 3422 OF 2017 ``` ``` 8 ``` Magistrate and the only question open for the Magistrate to decide was, whether the act of taking cognizance was beyond the period of limitation or not. In such circumstances, as on appreciation of materials, it was found that the cognizance was taken beyond the period of limitation, no prosecution could have continued against the petitioner herein. Therefore, the order to continue the proceedings as against the petitioner is not legally sustainable. In such circumstances, I am of the view that this is fit case in which the powers of this Court under Section 482 can be invoked. Accordingly this Crl.M.C. is allowed. Annexure III and IV orders are hereby set aside and it is further directed that, all further proceedings against the petitioner herein alone, in C.C.NO.776/2005 on the file of Chief Judicial Magistrate, Kasargode, shall be dropped. Sd/- **`ZIYAD RAHMAN A.A. JUDGE`** ``` SCS ``` ``` CRL.MC NO. 3422 OF 2017 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 3422/2017`** ``` PETITIONER ANNEXURE ANNEXURE IFINAL REPORT IN CRIME NO.32/CR/KNR/2001 OF CBCID,KASARAGOD ANNEXURE IITRUE COPY OF THE ORDER OF CRL.M.C.1493 OF 2007 DATED 21.01.2015 ANNEXURE IIICERTIFIED COPY OF THE ORDER IN C.C.NO.776/2005 DATED 26.10.2015 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT,KASARAGOD ANNEXURE IVCERTIFIED COPY OF THE ORDER PASSED BY THE COURT OF SESSION, KASARAGOD IN CRIMINAL PETITION NO.7/2015 DATED 24.06.2016. ```