State of Kerala v. Koshi P. John and Aliamma Koshy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935** **Crl.Rev.Pet.No. 1890 of 2013 ()** **--------------------------------** **AGAINST THE JUDGMENT IN M.P.NO.2422/12 IN ST 1051/2005 of J.M.F.C.-II, ERNAKULAM.** **REVISION PETITIONER(S)/RESPONDENT/COMPLAINANT:** **----------------------------------------------** **SENIOR INSPECPTOR, LEGAL METROLOGY, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **RESPONDENTS/PETITIONERS/ACCUSED NOS.3 & 4:** **------------------------------------------** **1. KOSHI P. JOHN, MANAGING PARTNER, VIDYARTHIMITHRAM PRESS & BOOK DEPOT, KOTTAYAM-686001.** **2. SMT.ALIAMMA KOSHY, PARTNER, VIDYARTHIMITHRAM PRESS & BOOK DEPOT KOTTAYAM-686001.** **R2 BY ADV. SRI.VARGHESE C.KURIAKOSE** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** “C.R.” ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 1890 of 2013 -----------------------------------------------------Dated this the 18[th] day of October, 2013** **ORDER** The State of Kerala, represented by the Senior Inspector, Legal Metrology, Ernakulam, is the Revision Petitioner herein as well as the complainant in S.T.No.1051 of 2005 on the files of Judicial First class Magistrate's Court-II, Ernakulam. The said complaint was filed against the accused who are the respondents herein alleging the offences punishable under Sections 19, 36(b) and 33 read with Secs.42 and 51 of the Standards of Weights and Measures (Enforcement) Act, 1985 (for short 'the Act') and Rule 12 of the Standards of Weights and Measures (Enforcement) Rules and Rule 6(1) and 23(1) r/w Rule 39 of the Standards of Weights and Measures (Packaged **Crl.R.P. No.1890 of 2013** -: 2 :- Commodities) Rules. The order under challenge in this revision was passed on an application filed by the respondents, raising the question of limitation in taking cognizance of the offence and to pass consequential order dismissing the complaint as time barred. The offence under Sec.19 read with 36(b) and 33 of the Standards of Weights and Measures (Enforcement) Act is punishable with imprisonment for a term which may extend to one year. Therefore, as per Sec.468(b) of the Cr.P.C., period of limitation for taking cognizance of the offence is only one year. But the complaint was filed only after one year and sixty seven days. Consequently, the complaint should have been dismissed as time barred. On that premises, the above petition was filed challenging the maintainability of the complaint. 2. The Revision Petitioner filed objection contending that as per Sec.470(3) of the Cr.P.C., where the previous sanction or consent of the Government or any authority is **Crl.R.P. No.1890 of 2013** -: 3 :- required for the institution of the complaint, the time required for obtaining such consent shall be excluded from the period of limitation. Here, the delay of 67 days was occurred for getting authorisation of the Controller of Legal Metrology for instituting the complaint. Hence a petition to exclude, the time taken for getting authorisation from the Controller of Legal Metrology, from the operation of period of limitation had been filed along with the complaint. So, there is no delay in filing the complaint. After considering the rival contentions, the learned Magistrate dismissed the complaint on a finding that the complaint itself was barred by the limitation under Section 468 of the Cr.P.C. The legality and correctness of this order is under challenge in this Revision Petition by the State. 3. The learned Public Prosecutor submits that the impugned order is illegal, unsustainable and liable to be set aside. The Public Prosecutor further admits that it is true that there is a delay of 67 days in filing the above **Crl.R.P. No.1890 of 2013** -: 4 :- complaint. But the reason for the said delay was properly explained in the petition to condone the delay. The delay in filing the complaint was occurred due to the administrative reasons for getting authorisation from the Controller of Legal Metrology and hence the complainant is entitled to get that period excluded while computing the period of limitation and the delay caused for obtaining authorisation will come under the purview of Section 470(3) of the Cr.P.C. In short, the argument advanced by the learned Public Prosecutor is that the delay occurred for obtaining authorisation under Sec.63(a)(ii) of the Act would get exemption under sub-section (3) of Sec.470 of the Cr.P.C. 4. The learned counsel for the respondents advanced arguments to justify the impugned order under challenge. According to the learned counsel, the delay in obtaining authorisation to file a complaint provided under Sec.63 of the Act will not get exemption under sub-section (3) of Sec.470 of the Cr.P.C. as the authorisation envisaged under Sec.63(a) ## **Crl.R.P. No.1890 of 2013** -: 5 :- (ii) of the Act is only an administrative authorisation and it cannot be equated with the statutory sanction or consent required for taking cognizance of the offence provided under Sec.470 (3) of the Cr.P.C.. 5. I have bestowed my anxious consideration to the arguments advanced by the respective counsel. In view of the rival submissions, the question that arises for consideration is, can the time required for obtaining the order of the Controller of the Metrology under Section 63(a) (ii) of the Standards of Weight and Measures (Enforcement) Act, authorising the Inspector of Metrology to file complaint, be excluded in computing the period of limitation under Sec.470(3) of the Cr.P.C.? 6. Going by Sec.470(3) of the Cr.P.C., the statutory mandate is that where under any law, for the institution of prosecution for an offence, the previous consent or sanction of the Government or any other authority is required, in computing the period of limitation, time required for obtaining such consent or sanction can be excluded; whereas **Crl.R.P. No.1890 of 2013** -: 6 :- Sec.63 of the Standards of Weights and Measures (Enforcement) Act mandates that the court shall not take cognizance of an offence under the Act except upon a complaint made by (1) Controller (2) Any other officer authorised by the Controller by general or special order (3) Any person aggrieved, and (4) A recognized consumer association. 7. Obviously, previous consent or sanction of the Government or any authority for prosecution is not made a condition precedent for taking cognizance of an offence under the Standards of Weights and Measures (Enforcement) Act. But, what is required to come under Sec.470(3) is sanction or consent for institution of prosecution against the accused for an offence. But, what is required under sub-sec. (ii) of Section 63 is only an authorisation, empowering the subordinate officer to file a complaint and it can be a general authorisation empowering a category of officers as a whole, or a special authorisation empowering an officer. Needless to say, it can be a one time - one line order. But, in the **Crl.R.P. No.1890 of 2013** -: 7 :- former case, sanction or consent is required for institution of each prosecution, and there the application of mind over the allegation or charge is required, as the act of granting or rejecting consent is a quasi judicial function and in the latter case, it is only a conferment of authority individually or generally or empowering a person for the purpose of filing a complaint and it is an administrative function only. Therefore, I hold that conferment of authority or empowering of the subordinate officer cannot be equated with the statutory requirement of sanction or consent for the institution of prosecution envisaged under Sec.470(3) of the Cr.P.C. To sum up, the time required for obtaining authorization of the Controller to file a complaint cannot be excluded under Sec.470(3) of the Cr.P.C. Put it commonly, the time required for obtaining authorisation of the department head or any superior officer to file a complaint by the subordinate officer cannot be excluded in computing the period of limitation. 8. In Rakesh Kumar Jain v. State (AIR 2000 SC **Crl.R.P. No.1890 of 2013** -: 8 :- 2754) the Supreme Court had an occasion to consider the legal issue in a case under the Official Secrets Act (Act 19 of 1923). Section 13(3) of the Official Secrets Act provides that cognizance of offence under the Act can be taken only upon complaint which is (a) filed by order or appropriate Government; or (b) filed under authority from the appropriate Government; or (c) by some officer empowered by the appropriate Government. In the above context, the Supreme Court held as follows: “No sanction or consent is provided to be taken from the Government under S. 13 (3) of the Act and the period spent in obtaining the orders for filing the complaint cannot be excluded under Explanation to sub-sec. (3) of S. 470, Cr. P.C. 'Consent' or 'sanction' envisaged under S. 470, Cr. P.C. cannot be equated with the 'order' or 'authority' for the purposes of filing the complaint as envisaged by sub-section (3) of S. 13 of the Act. The Legislature, in its wisdom, thought it appropriate to exclude only such period **Crl.R.P. No.1890 of 2013** -: 9 :- which is required for obtaining the previous consent or sanction of the Government for institution of any prosecution of an offence and not obtaining of orders or authority or naming a person for the purpose of filing the complaint”. 9. Going by Section 470(3) of the Cr.P.C., it could be seen that the legislature in its wisdom excluded only such period which is required for obtaining the previous consent or sanction of the Government for instituting any prosecution of an offence and not for obtaining of orders or authority or naming a person for the purpose of filing the complaint. In short, the administrative authority or authorisation required under Sec.63(a)(ii) of the Act will not come under the application of Sec.470(3) of the Cr.P.C. 10. The learned Public Prosecutor further contended that the expiry of the period of limitation provided under Sec.470 of the Cr.P.C. can be condoned under Section 473 of the Cr.P.C., if the delay has been properly explained or it is necessary so to do the interest of justice. The learned **Crl.R.P. No.1890 of 2013** -: 10 :- Public Prosecutor further submits that in the instant case the delay is satisfactorily explained so also for the interest of justice it is necessary to condone the delay as the offence itself is one affected by the entire society as a whole. 11. Going by the back records of the case, it could be seen that the offence is allegedly detected on 28/1/04 and the complaint was instituted on 6/4/05 and the process was issued to the accused in the year 2011 only. In the meantime, the prime accused passed away. The conditions to condone the delay are that the court must be satisfied on facts that the delay has been satisfactorily explained by the prosecution or extension of time is necessary in the interest of justice. These are pre-requisites for extending the period of limitation. 12. In the petition filed by the complainant, no other reason has been stated in the petition for condoning the delay, except the claim that the time consumed for obtaining the sanction of the Controller, Legal Metrology is to be excluded while calculating the period of limitation. Though **Crl.R.P. No.1890 of 2013** -: 11 :- the offence was detected on 28/1/04, admittedly the complainant forwarded the file for the authorisation of the Controller only on 24/11/04. It shows that he had slept over the file for 10 months, knowing fully well that the period of limitation for filing the complaint is one year. No explanation has been offered in the petition for such a delay in forwarding the file to the Controller. In the petition, it is also admitted that the complainant received sanction of the Controller on 9/3/05. But the complaint is seen filed only on 6/4/05. It shows that the complainant did not even care to file complaint immediately after the receipt of authorisation from the Controller and that the delay occurred after getting authorisation is not explained in the petition. 13. Thus, there is an unexplained delay of one month after getting the sanction. In the above factual matrix, I am of the opinion that the complainant was not diligent in prosecuting the matter. If that be so, the complainant is not entitled to get the delay condoned. Thus, I find that there is no illegality or impropriety in the impugned order dismissing **Crl.R.P. No.1890 of 2013** -: 12 :- the complaint for the reason of delay in lodging the complaint. This revision petition is dismissed accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge