Rudrasenan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 CRL.MC NO. 931 OF 2019** **CRIME NO.240/2016 OF Aroor Police Station, Alappuzha AGAINST CC 167/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **PETITIONER/ACCUSED:** RUDRASENAN, AGED 54 YEARS S/O DAMODARAN,PADINJARE CHAKKAMTHARA HOUSE, AROOR.P.O,ALAPPUZHA DISTRICT,PIN-688534. BY ADV RAJESH SIVARAMANKUTTY ## **RESPONDENT/STATE:** THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.SANGEETHA RAJ, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON 17.02.2022 PASSED THE FOLLOWING: Crl.M.C.No.931/2019 ## -:2:- **==> picture [42 x 11] intentionally omitted <==** **==> picture [87 x 9] intentionally omitted <==** Dated this the 17[th ] day of February, 2022 This Crl.M.C has been filed to quash the entire proceedings in CC No.167/2018 on the file of the Judicial First Class Magistrate Court-II, Cherthala (for short, 'the Court below') on the ground of limitation. 2. A crime was registered by the Aroor Police Station, Alappuzha District against the petitioner under Sections 341, 323 and 354 of IPC. Annexure B is the FIR. The allegations in Annexure B were that, on 10/3/2016 at 10.15 a.m., at Panchayat road in front of the house of the de facto complainant, the petitioner wrongfully restrained the de facto complainant, pulled down the thermal box containing fish which he was carrying on his head and when he fell down, the petitioner dragged him through the ground causing injuries on various parts of his body. It was further alleged that when the wife of the de facto complainant intervened, the petitioner caught hold of her nightie with intention to outrage her modesty. Crl.M.C.No.931/2019 -:3:- 3. On investigation it was found that no offence under Section 354 of IPC was involved. Accordingly, a report was submitted by the Investigating Officer on 16/8/2016 at the Court reporting the deletion of Section 354 of IPC. Annexure C is the report. Thereafter, on completion of the investigation, final report was filed for the offences under Sections 341 and 323 of IPC on 16/12/2017. Annexure D is the final report. The Court below took cognizance of the offence on 20/2/2018. According to the petitioner, the Court below took cognizance of the offence after the expiry of the period envisaged under Section 468(2)(b) of Cr.P.C. It is in these circumstances the Crl.M.C has been filed to quash the proceedings. 4. I have heard Sri.Rajesh Sivaramankutty, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor. 5. Section 468 of Cr.P.C contains an express prohibition against taking cognizance of the offence of the category specified in the Section after the prescribed period of limitation. Under sub-section (2)(a) of Section 468, the period of limitation shall be six months, if the offence is punishable with fine only. Under sub- Crl.M.C.No.931/2019 -:4:- section (2)(b), the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year and under sub-section (2)(c), it is three years if the offence is punishable with imprisonment for term exceeding one year, but not exceeding three years. If the maximum imprisonment exceeds three years, there is no limitation. Subsection (3) provides that if multifarious offences triable together are alleged against the accused falling within sub-section (2), then the period of limitation shall be determined with reference to the offence punishable with most severe punishment. Section 469 specifically provides that the period of limitation in relation to an offence commences on the date of the offence. Section 470 recognizes rules of exclusion of time in computing the period of limitation viz., (1) exclusion of time of proceeding _bonafide_ in a Court without jurisdiction; (2) exclusion of time in cases when there is an order of a Court for stay or injunction; (3) period covered by notice, and the time taken in obtaining sanction or consent statutorily required; and (4) period of absence from India. A specific provision has been made for extension of time. Section 473 has invested the Court with a judicial power and discretion to Crl.M.C.No.931/2019 -:5:- take cognizance of an offence even after the expiry of the period of limitation, if sufficient cause is shown for the delay, or if the interests or demands of justice make it necessary to be so. 6. Coming to the facts of the case, the date of occurrence and the registration of the crime was on 10/3/2016. The final report was filed on 16/12/2017. The cognizance was taken on 20/2/2018. As stated already, Annexure B FIR was registered for the offences under Sections 341, 323 and 354 of IPC. On investigation it was found that the offence under Section 354 was not involved and Annexure C report to that effect was filed on 16/8/2016. Annexure D final report was filed only for the offences under Sections 341 and 323 of IPC. As per Section 468(3) of Cr.P.C, in relation to offences which are to be tried together, the period of limitation shall be determined with reference to the offence which is punishable with more or most severe punishment. Here, the offence punishable with more severe punishment is Section 323 of IPC. The punishment provided for Section 323 is imprisonment up to one year or with fine extending to `1,000/- or with both. Therefore, the bar to take cognizance is governed by Section 468(2)(b) of Cr.P.C which is Crl.M.C.No.931/2019 -:6:- one year. 7. The learned Public Prosecutor argued that initially the FIR was registered for the offence under Section 354 of IPC as well and, therefore, the bar to take cognizance is governed by Section 468(2)(c) of Cr.P.C. which is three years. I cannot subscribe to the said argument. Even if the offence punishable under Section 354 of IPC was included in the FIR initially, it was deleted subsequently and the final report was submitted for the offences under Sections 323 and 341 of IPC only. The period of limitation under Section 468(2) has to be calculated in relation to the offences for which the final report was filed and cognizance was taken and not in relation to the offences initially charged in the FIR. 8. The date of offence being 10/3/2016, the period of limitation under Section 468(b) expired on 10/3/2017. Annexure D final report filed on 16/12/2017 was hopelessly barred by limitation. Now, it is trite that the date relevant for computing the period of limitation is the date of final report [ _**Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr. K.M.Cherian and Others**_ (2014) 2 SCC 62; _**George v. State**_ Crl.M.C.No.931/2019 -:7:- _**of Kerala**_ 2015 (3) KLT 219]. Admittedly the power under Section 473 of Cr.P.C to condone the delay was not exercised. The cognizance taken by the learned Magistrate overlooking the interdiction under Section 468 of Cr.P.C can under no circumstances be sustained. Consequently, all further proceedings in CC No.167/2018 on the file of the Court below stands set aside. Crl.M.C. is allowed as above. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.No.931/2019 ## -:8:- ## **APPENDIX OF CRL.MC 931/2019** PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF THE FIS GIVEN BY UTHAMAN TO THE ASI OF POLICE,AROOR POLICE STATION ON 10.3.2016. ANNEXURE B CERTIFIED COPY OF THE FIR IN CRIME NO.240/2016 OF AROOR POLICE STATION,DATED 10.3.2016. ANNEXURE C CERTIFIED COPY OF THE REPORT DATED 16-82016 SUBMITTED BY THE POLICE TO THE JUDICIAL FIRST CLASS MAGISTRATEII,CHERTHALA. ANNEXURE D CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO.167/2018 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATEII,CHERTHALA.