Sajan @ Sajan J. Manjooran and Regha v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **TUESDAY, THE 21ST DAY OF JANUARY 2014/1ST MAGHA, 1935** ## **Crl.MC.No. 1931 of 2012 ()** ## **--------------------------CRL.M.P. NO. 1740/2012 IN CC NO. 1281/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY** **------------------** ## **PETITIONERS/ACCUSED 1 & 2 :** **---------------------------------------------** **1. SAJAN @ SAJAN J. MANJOORAN, S/O. MANJOORAN JOSE, AGED 41 YEARS** **POYYA VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT.** ## **2. REGHA** - **W/O. SAJAN @ SAJAN J. MANJOORAN, POYYA VILLAGE KODUNGALLUR TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS :** **--------------------------** ## **1. STATE OF KERALA** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. THE SUB INSPECTOR OF POLICE, MALA POLICE STATION, MALA-680732.** ## **3. JOHNY** - **S/O. NEDUMPARAMBIL LONAPPAN, POYYA VILLAGE KODUNGALLUR TALUK, THRISSUR DISTRICT-680664.** ## **R1 & R2 BY PUBLIC PROSECUTOR SRI. BINDU GOPINATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 1931 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **-------------------------------------------** **ANNEXURE I TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO. 23493/2006 DATED 1-9-2006. ANNEXURE II TRUE COPY OF THE JUDGMENT IN WPC NO. 31782 OF 2006 DATED 8-12-2006. ANNEXURE III TRUE COPY OF THE DECREE IN O.S. 738/05 DATED 18-8-2008 ANNEXURE IV TRUE COPY OF THE FIR IN CRIME 439/06. ANNEXURE V TRUE COPY OF THE CHAGE SHEET IN CRIME 439/06 OF THE MALA POLICE STATION SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT. ANNEXURE VI TRUE COPY OF THE JUDGMENT IN CRL. M.C. NO. 3905 OF 2011. ANNEXURE VII TRUE COPY OF THE APPLICATION CRL. M.P. NO. 1740/2012 DATED 7-2-2012. ANNEXURE VIII CERTIFIED COPY OF THE ORDER OF THE COURT BELOW IN CRL.M.P. NO. 1740/2012 IN C.C. NO. 1281/2010. ANNEXURE IX TRUE COPY OF THE JUDGMENT IN C.C. 1503/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY DATED 31-12-2011. RESPONDENTS' EXHIBITS : NIL -------------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C.No.1931 of 2012** **-----------------------------------------------Dated this the 21[st] day of January, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner is aggrieved by Annexure VII order passed by the learned Magistrate. Petitioners are accused in a case, wherein they are charged for offences punishable under Sections 341, 323, 506 (1), 294(b) r/w Section 34 I.P.C. Contention of the petitioner is that the learned Magistrate took cognizance of the offence after the time prescribed in Section 468 Cr.P.C. Major offence alleged against the petitioners is punishable under Section 506(1) I.P.C, which prescribes a maximum period of imprisonment for 2 years. Learned counsel for the petitioner submitted that the following dates are relevant for determining the question of limitation. The alleged incident occurred on 27.10.06. The F.I.R was filed on 28-10-2006. Police conducted investigation and filed a charge sheet on 24-11-2010. Learned Magistrate took cognizance of the matter on 13-12-2010. So, it is contended that **Crl.M.C.No.1931 of 2012 2** the case is clearly barred by limitation. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Learned counsel for the petitioner would submit that the defacto complainant is persecuting the petitioners with lot of civil and criminal cases. Annexure I is produced to show that he had to seek police protection from this court in connection with a dispute between himself and the defacto complainant. Annexure II judgment is produced to show that at the instance of the third respondent/defacto complainant police harassed the first petitioner and he had to seek appropriate orders from this court. Annexure III is the decree in O.S No.738/2005, a suit filed by the defacto complainant against the first petitioner, which was ultimately dismissed. Annexure IV is the F.I.R in relation to the crime in question. Annexure V is the final report. 4. Petitioner approached this court with Crl.M.C No.3905/2011 for quashing the final report contending that it **Crl.M.C.No.1931 of 2012 3** was filed beyond the time prescribed. Learned Single Judge by order dated 17-11-2011 directed the petitioner to approach the learned Magistrate with a petition to take a decision on the question of limitation. As directed, the petitioner filed Annexure VII petition before the trial court. It was dismissed by the learned Magistrate by Annexure VIII, the impugned order. In paragraph 6 of the impugned order, learned Magistrate has mentioned various relevant dates. He condoned the limitation by drawing power from Section 470(4)(b) of Cr.P.C. It says that in computing the period of limitation, the time during which the accused avoided arrest by absconding or concealing himself shall be excluded. According to the reasonings of the learned Magistrate, the accused were evading the process of law, therefore the period of limitation can be excluded and cognizance can be taken on final report. Learned counsel for the petitioner relying on Annexure IX judgment of the same court contended that the reasoning of the court below that the **Crl.M.C.No.1931 of 2012 4** petitioners were absconding cannot hold good. According to him, that prosecution was also launched at the instance of the defacto complainant herein. First petitioner was asked to answer charges under Section 447 and 326 I.P.C. It is evident from Annexure IX judgment that the alleged offence took place on 07-07-2005. The complaint was filed against the petitioner on 03-10-2005. Appearance of the petitioner was on 10-09-2008 and on the same day he was released on bail. Trial of the case commenced on 03-11-2009 and it was closed on 26-12-2011. Learned counsel contended that the judgment would show that the petitioner fully participated in the trial and for that reason alone it cannot be stated that the petitioner was absconding during the relevant time. It is true that the finding of the court below that the provision under Section 470 (4)(b) Cr.P.C can be applied for condonation of delay is not sustainable in view of the facts established in this case. 5. Learned Public Prosecutor would contend that the **Crl.M.C.No.1931 of 2012 5** court is justified in taking cognizance by virtue of the provision under Section 473 Cr.P.C, it reads as follows : ## _“_ _**473. Extension of period of limitation**_ _**in certain cases** .- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.”_ 6. Supreme Court in _**State of Himachal Pradesh v. Tara Dutt A.I.R 2000 S.C 297**_ held that the power to condone delay can be exercised even after taking cognizance as the condonation of delay is not a pre-condition for taking cognizance of an offence after the period of limitation. The petition for condonation of delay can be filed on or before conclusion of the trial and even if no such petition is filed, the delay can be condoned in suitable cases. Considering this legal position, I am of the view that **Crl.M.C.No.1931 of 2012 6** though the learned Magistrate committed a legal error in condoning the delay based on Section 470(4)(b) Cr.P.C, I am of the opinion that the court should consider whether Section 473 Cr.P.C is applicable in the facts and circumstances of this case. However, the learned Magistrate has not applied his mind on Section 473 Cr.P.C and therefore he shall consider this matter in accordance with law and pass appropriate orders with due notice to the petitioners. The impugned order cannot stand for the aforementioned reasons and it is set aside. The matter is remitted back to the trial court for fresh consideration in the light of the above observations. In the result, the petition is disposed of with the above directions. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk