N. Ramakrishnan v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HON'BLE MR. JUSTICE K. RAMAKRISHNAN** **FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934** **Crl. MC. No. 2448 of 2008 ( )** **--------------------------AGAINST THE PROCEEDINGS IN CC. NO.165/2007 OF C.J.M.,KOZHIKODE IN CRIME NO.109/2000** ## **PETITIONER/ACCUSED:** **---------------------------------** **N. RAMAKRISHNAN, S/O. LATE N. NARAYANAN NAMBIAR, AYILLIATH HOUSE, AARANI KAVALAPPARA, PALAKKAD DISTRICT.** **BY ADV. SRI. BABU S. NAIR** ## **RESPONDENT/STATE:** **-------------------------------** **THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE KASABA POLICE STATION, KOZHIKODE-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31.** **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl. MC. No. 2448 of 2008 ( )** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **ANNEXURE A - TRUE COPY OF THE F.I.R. AND THE WRITTEN COMPLAINT BASED ON WHICH THE CRIME WAS REGISTERED AS CRIME NO.109/2000 BY THE KASABA POLICE STATION, KOZHIKKODE DATED 25.04.2000. ANNEXURE B - TRUE COPY OF THE CHARGE IN CRIME NO.109/2000 OF THE KASABA POLICE STATION, KOZHIKKOD** ## **RESPONDENT'S EXHIBITS:- NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** sp ## **K. RAMAKRISHNAN J. -----------------------------------Cr. M.C. No. 2448 of 2008 ----------------------------------Dated this the 15[th] day of February, 2013.** ## **JUDGMENT** This is an application filed by the accused in C.C. No. 165 of 2007 on the file of the C.J.M., Kozhikkode to quash the proceedings under Section 482 of the Code of Criminal Procedure. It is alleged in the petition that, the petitioner is a retired Manager of Canara Bank and he was charge sheeted by Kasaba Police on the basis of a complaint given by the Assistant General Manager, Canara Bank, Regional Office, P.K. Kamalam Building, Jail Road, Calicut-4, alleging that, the petitioner has committed an offence under Section 471 of Indian Penal Code for issuing N.O.C. by forging the signature of one of the employees. The case was registered in the year 2000 in respect of an incident happened in the year 1999 and after investigation, police filed final report against the petitioner in the year 2007. There was no delay condonation application filed and cognizance was taken after the period of limitation provided under Section Cr. M.C. No. 2448 of 2008 2 468 of Code of Criminal Procedure. It is also alleged in the petition that, the proceedings initiated by the Passport Authorities under Section 12(1)(b) of the Passport Act was compounded by him. According to him, the case has been registered on the same set of facts. Since the case was taken cognizance, without an application for condonation of delay and without condoning the same, the same is bad and so he prayed for quashing the proceedings. 2. After admitting the case, a report was called for from the Chief Judicial Magistrate's Court, Kozhikkode by this Court and the then C.J.M had sent a report stating that, the final report in that case was filed on 11.07.2007 and while verifying the charge sheet, inordinate delay was noticed and the charge sheet was returned calling for explanation for delay and cure the defects noticed and on 09.08.2007, charge sheet was resubmitted after curing the defect along with explanation for the delay caused in filing the charge sheet and the explanation was accepted by the Court and the charge sheet was taken on file and Cr. M.C. No. 2448 of 2008 3 cognizance was taken as C.C. No.165/2007 under Section 471 of Indian Penal Code. 3. The counsel for the petitioner submitted that, he was not given notice regarding the delay. He relies on the decision reported in _**AIR 1995 SC 231 State of Maharashtra**_ _**v. Sarath Chandran Vinayak Dongre**_ wherein it has been held that, if the charge sheet was filed after the period of limitation mentioned in Section 468 of Criminal Procedure Code, the power under Section 473 of the Code can be invoked by the Court and that can be done only after issuing notice to the accused. 4. Additional Public Prosecutor argued that, since delay application has been filed and Court has applied mind and condoned the delay, there is no necessity to quash the proceedings at this stage. 5. It is an admitted fact that, the crime was registered on the basis of a complaint filed by the Assistant General Manager, Canara Bank, Regional Office, P.K. Kamalam Building, Jail Road, Calicut-4, alleging forgery of issuing a N.O.C. by the Cr. M.C. No. 2448 of 2008 4 petitioner, happened in the year 1999 and the complaint was filed before the Circle Inspector of Police, Kasaba Police Station, Calicut which was forwarded to the Sub Inspector of Police, Kasaba Police Station for registering the case and report, who registered a case as crime No.109/2000 under Section 471 of Indian Penal Code against the petitioner on 25.04.2000. It is also an admitted fact that the final report in this case was filed as seen from Appendix (a) that, it reached the Court on 11.07.2007 and it was taken cognizance on 09.08.2007. The maximum punishment provided for the offence under Section 471 of Indian Penal Code is two years or with fine or with both and period of limitation provided for taking cognizance of such offence is three years under Section 468 of Code of Criminal Procedure and admittedly the report was filed in the year 2007 beyond the period. But it is seen from the records that, the learned Magistrate has returned the final report as it was filed beyond time and subsequently it was represented with a report to condone the delay and the Magistrate received the case on file Cr. M.C. No. 2448 of 2008 5 and without conducting enquiry on that, the learned Magistrate had accepted report and condoned the delay and took cognizance of the case. ## 5. In the decision reported in _**AIR 1995 SC 231**_ _**State of Maharashtra v. Sarath Chandran Vinayak Dongre,**_ it has been held that, if there is delay in launching the prosecution, it cannot be condoned without notice to the accused. In that case also, there was delay in filing the final report and the Chief Judicial Magistrate had condoned the delay without issuing notice to the accused and the Hon'ble Supreme Court set aside that order and remitted the case to the Court below for giving an opportunity to the accused to contest the application. In the decision reported in _**2004 (3) KLT 789 (SC) Zandu Pharmaceutical Works Ltd. v. Sharaful Haque**_ the Hon'ble Supreme Court observed that the power under Section 482 Cr. P.C. can be invoked only sparingly and further observed that the complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement Cr. M.C. No. 2448 of 2008 6 made on oath of the complainant that the ingredients of offence or offences are disclosed and there is no material to show that the complaint is a malafide, frivolous and vexatious, the same cannot be quashed. In the same decision it has been observed that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass a person needlessly. At the same time, the section is not an instrument handed over to the accused to short circuit a prosecution and bring about its sudden death. In the same decision, the power of the Court under Section 473 of Code of Criminal Procedure also has been considered. In paragraph 9 of the said judgment, the Hon'ble Supreme Court has observed that at the same time the Section is not an instrument handed over to the accused to short circuit the prosecution and bring about its sudden death. So, considering the circumstances, I feel that this is not a fit case to quash the proceedings as such Cr. M.C. No. 2448 of 2008 7 invoking the power under Section 482 of Code of Criminal Procedure on the ground of limitation. But at the same time, I feel that an opportunity has to be given to the accused on the question of delay and for that purpose, the order taking cognizance of the case by the learned Chief Judicial Magistrate has to be set aside and the matter has to be remitted to the Court below for giving an opportunity to the accused to be heard on the delay condonation application filed by the investigating agency and consider whether that can be condoned by invoking the power under Section 473 of Code of Criminal Procedure. So, the order of the Lower Court taking cognizance of the case without giving notice to the accused is hereby set aside and the matter is remitted to the Court below for considering the application for condonation of delay filed by the Investigating Officer after giving an opportunity to the accused of being heard on that question and if the Magistrate is satisfied with the reasons stated, then the Magistrate is directed to consider the application and dispose of the same in accordance with law. The Cr. M.C. No. 2448 of 2008 8 learned Magistrate is directed to issue notice to the accused in the application filed by the Investigating Officer for condonation of delay and after hearing both sides dispose of the same in accordance with law afresh. With the above direction, the application is disposed of. Communicate the order to the Lower Court immediately. **K. RAMAKRISHNAN, (JUDGE)** sp