N. M. Sidhique v. Station House Officer, Central Police Station, Ernakulam and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** # **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **Crl.MC.No.1171 OF 2019(F)** **CC NO.86/2017 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM IN CRIME NO.1989/2010 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **N.M. SIDHIQUE, AGED 53 YEARS, S/O. MAKKAR, 14/2018, R.K. PILLAI ROAD, THOPPUMPADY P.O., KOCHI-682 005.** **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** ## **RESPONDENT/S:** **1 THE STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM. 2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031. BY ADDL. DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS** ## **OTHER PRESENT:** ## **SRI. RAMESH CHAND PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.1171/2019 2 ## **ORDER** The petitioner herein is the accused in C.C.No.86 of 2017 on the file of the Chief Judicial Magistrate Court, Ernakulam, in which case, he has been hauled up to answer a charge under Section 153A of the IPC and Section 52A r/w. Section 68A of the Copyright Act, 1957. 2. The gist of the prosecution allegation is that the petitioner, with intent to promote enmity between different groups on the ground of religion, collected compact discs, pamphlets, placards etc. and stored them in a building No.XLT/1746 within the limits of Cochin Corporation, which was taken on lease for running an organization by name ‘Media Research and Development Foundation Center of Human Rights’. 3. From Annexure-II FIR, it is apparent that the offence was detected on 16.07.2010. On the same day itself, Crime No.1989 of 2010 was registered by the Sub Inspector of Police, Central Police Station. The investigation was then taken over by the Assistant Commissioner of Police and on its completion, final report was laid on 30.11.2016. 4. Sri.T.G.Rajendran, the learned counsel appearing for the petitioner, contended that taking of cognizance by the learned Magistrate for the offences, much after the expiry of the period of limitation, is illegal. It is further submitted that the prosecution did not approach the learned Crl.M.C. No.1171/2019 3 Magistrate under Section 473 of the Cr.P.C. to condone the delay. He would then urge that the sanction to prosecute the petitioner for the offence under Section 153A of the IPC was accorded after the expiry of the period of limitation. According to the learned counsel, the sanction order is vitiated for non-compliance of Section 196(iii) of the Code of Criminal Procedure, which mandates that prior to according sanction under sub-section (i) of Section 196 of the Code, the District Magistrate ought to have ordered preliminary inquiry by a police officer not below the rank of an Inspector. 5. Per contra, the learned Additional Director General of Prosecution submitted that the allegations are very grave and the cognizance having been taken by the learned Magistrate, the petitioner will have to raise his contentions before the learned Magistrate during trial and this Court, in exercise of the powers under Section 482 of the Code, should refrain from interfering at this stage. However, he fairly admitted that the prosecution had not approached the learned Magistrate to condone the delay and take cognizance of the offence. 6. I have considered the rival submissions advanced and have perused the records. 7. Before proceeding to deal with the question, it would be appropriate to have a look at the relevant provisions of law. Chapter XXXVI Crl.M.C. No.1171/2019 4 (Sections 466-473) of the Code of Criminal Procedure, 1973 prescribes period of limitation for taking cognizance of certain offences. Section 467 of the IPC defines the phrase 'period of limitation' to mean the period specified in Section 468 of the IPC for taking cognizance of an offence. Sub-section (1) of Section 468 of the Cr.P.C. bars a court from taking cognizance of certain offences of the category specified in sub-section (2) after expiry of the period of limitation. It is material and is extracted below for easy reference. “Section 468. 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 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 purpose 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.” 8. Section 469 of the Cr.P.C. declares as to when the period of limitation would commence. Sections 470 and 471 of the Code provide for Crl.M.C. No.1171/2019 5 exclusion of period of limitation in certain cases. Section 472 of the Cr.P.C. deals with 'continuing offence’. Section 473 of the Cr.P.C. is an overriding provision that enables the courts to condone delay, where such delay has been properly explained or where the interest of justice demands extension of period of limitation. 9. The object, which the statute seeks to subserve by fixing a period of limitation on instituting criminal proceedings according to its gravity is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether instituted by the State or a private party, must strictly adhere to the provisions of law. Obviously, the object of fixing a bar of limitation on prosecution is clearly to prevent the parties from instituting belated criminal complaints. Furthermore, by fixing a period, the investigating agency would strive to complete the investigation in an expeditious manner by which, the interest of the State as well as the de facto complainant would be served. An offender can also be brought to justice swiftly. The provisions of Section 468 of the Cr.P.C are mandatory and cognizance taken beyond the period of limitation and consequent trial leading to a conviction will be without jurisdiction and non est in the eye of law. 10. In **Japani Sahoo** v. **Chandra Sekhar Mohanty[1]** , it was held by > 1 [AIR 2003 SC 4560] Crl.M.C. No.1171/2019 6 the Apex Court that for the purpose of computing the period of limitation, the relevant date is the date of filing a complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. 11. In **Arun Vyas and another v. Anita Vyas**[2] , the Apex Court in paragraph 11 of the judgment had occasion to lay down the principles with regard to the period of limitation, which reads as under: “11. It may be noted here that the object of having Chap.36 in Cr. P. C. is to protect persons from prosecution based on stale grievances and complaints which may turn out to be vexatious. The reason for engrafting rule of limitation is that due to long lapse of time necessary evidence will be lost and persons prosecuted will be placed in a defenceless position. It will cause great mental anguish and hardship to them and may even result in miscarriage of justice. At the same time it is necessary to ensure that due to delays on the part of the investigating and prosecuting agencies and the application of rules of limitation the criminal justice system is not rendered toothless and ineffective and perpetrators of crime are not placed in advantageous position. The Parliament obviously taking note of various aspects, classified offences into two categories, having regard to the gravity of offence, on the basis of the punishment prescribed for them. Grave offences for which punishment prescribed is imprisonment for a term exceeding three years are not brought within the ambit of Chap.36. The period of limitation is prescribed only for 2 [(1999) 4 SCC 690] Crl.M.C. No.1171/2019 7 offences for which punishment specified is imprisonment for a term not exceeding three years and even in such cases wide discretion is given to the Court in the matter of taking cognizance of an offence after the expiry of the period of limitation.” 12. Section 473 of the Code confers power on the court to take 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 offence for which a period of limitation has been provided in Section 468 of the Code, the power has been conferred on the Court taking cognizance to extend the said period of limitation, where 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 on well recognized principles. Whenever 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 continuation 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 Crl.M.C. No.1171/2019 8 with the trial of the offence (See **State of Himachal Pradesh v. Tara Dutt**[3] ) 13. In the case on hand, the offence was detected on 16.07.2010. By applying the principles of limitation, the final report ought to have been filed on or before 15.07.2013. Annexure-I would show that the final report was laid on 30.11.2016, more than six years after the detection of the crime. Admittedly, no application was filed before the learned Magistrate under Section 473 of the Cr.P.C. to enlarge the time. In that view of the matter, the petitioner is entitled to succeed. I am of the view that it would be an abuse of process to permit the criminal prosecution to continue. In the result, this petition will stand allowed. Annexure-I final report and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.86 of 2017 on the file of the Chief Judicial Magistrate Court, Ernakulam are quashed. ## SD/- **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE 3 [AIR 2000 SC 297] Crl.M.C. No.1171/2019 9 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE I**|**TRUE COPY OF THE FINAL REPORT.**| |**ANNEXURE II**|**TRUE COPY OF THE FIRST INFORMATION**| ||**REPORT.**| |**ANNEXURE III**|**COPY OF SANCTION ORDER DATED 3.11.2016.**|