Basic principle for taking cognizance of time barred offence

 All the aforesaid decisions lead to the following conclusions:
(a) Magistrate taking cognizance is to consider the question of limitation before taking cognizance and before issue of process.
(b) No formal application for exercise of power under Section 473, Cr. P. C. is necessary and Magistrate is to consider the question on the facts and circumstances. However, an appli cation can be filed bringing facts and circumstances to notice of the Magistrate if such facts and circumstances are not borne out from record.
(c) Magistrate taking cognizance is to observe the principle of natural justice to give opportunity to accused to resist the exercise of power under Section 473, Cr. P. C.
(d) Magistrate, however, can exercise power under Section 473, Cr. P. C. without hearing the accused.
(e) Where Magistrate has exercised power under Section 473, Cr. P. C. and has taken cognizance, accused on appearance can object to the taking cognizance since he was not heard in the matter and Magistrate is to decide the question.
(f) Cognizance beyond the period of limitation prescribed under Section 468. Cr. P. C. is violation of mandatory provision under Section 468(I) Cr. P. C. and is without jurisdiction.
(g) Once such cognizance is taken, there is no scope for the Magistrate taking cognizance to condone the delay and extend time under Section 473, Cr. P. C. to operate retrospe ctively.
(h) When cognizance is taken without exercise of power under Section 473, Cr. P. C. revisionaI Court is to quash the cognizance.
(i) Revisional Court while quashing the order of cognizance can give a direction to the Magistrate to consider the question of exercise of power under Section 473, Cr. P. C. and on that basis consider whether it would take cognizance.

Orissa High Court

Dambarudhar Panda vs Mahendranath Saran on 4 October, 1991

Equivalent citations: 1992 CriLJ 2213, 1992 I OLR 124

1. This is an application under Section 482 Criminal Procedure Code by the accused.
2. Offence under Section 406 (PC and 465 Cr. P. C. are alleged to have been committed in the year 1974. Punishment provided under Section 406 IPC, is for a term of three years. Punishment for an offence under Section 465 Cr. P. C. is for a term of two years. Under Section 468(2)(c) and (3) Cr. P. C. limitation for taking cognisance for offences after 3 years is barred and Section 468(I) Cr. P. C. provides that no Court shall take cognisance of an offence after expiry of the period of limitation. Section 470 Cr. P. C. provides for exclusion of time in certain cases. Section 473 Cr. P. C. which is material for this case 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 take cognisance of an offence 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 or that it is necessary so to do in the interests of justice."
If there would have been no provision like Section 473 Cr. P. C, there is no doubt that for offences under Section 406 and 465 Cr. P. C. committed in the year 1674, cognizance could not have been taken on 9-1-1S81 about 7 years after and such cognizance being without jurisdiction would have been quashed.
3. Scope of Section 468 Cr. P. C. and 473 Cr. P. C. are subject matter of consideration of various decisions of this Court.
In ILR(1932) 1 Cut. 143 (Subash Chandra Mohapatra v. M. S. Jaggi) cognisance was taken beyond period of limitation without taking into consideration that it is barred by limitation. When accused brought this fact to notice of the Court, it condoned the delay. Condonation of delay after taking cognisance was held by this Court on the facts and circumstances of that case to be an action in excess of jurisdiction which was held to be retrospective in character.
In the next decision reported in 64 (1987) CLT 56 (Mahani Mohan Laba v. State) cognisance was taken after the period of limitation prescribed under Section 468 Cr. P. C. considering the decision reported in ILR (1982) 1 Cut. 143 (supra), it was held that provision in Section 468 Cr. P. C. is mandatory and Court has no jurisdiction to take cognisance unless the condonation of delay is judicially considered with supporting reasons. For exercise of power under Section 473 Cr. P. C, to condone the delay, no formal application is necessary where facts and circumstances revealed speak for itself. Where after taking cognizance accused raises objection to the maintainability of prosecution against him on account of non-exercise of power under Section 478 Cr. P. C. Court is to examine whether there is actually delay and in case there is delay, whether the precondition for taking cognizance is satisfied. In the facts of the case Court taking cognisance not having exercised jurisdiction in accordance with law, cognisance was quashed and direction was given to consider the question afresh.
In the decision reported in 64(1987) CLT 583 (Haradhan Purohit v. Mahadev Mohapatra)following the decision reported in ILR (1982) 1 Cut. 143 (supra) cognisance was quashed, observing that before issue of process the question of extension of time is to be considered. Since the same was not considered, cognisance was quashed. But question whether trial Court would consider the question afresh was not considered.
In 1989 (U) OLR 124 (Dayal Trading Company represented by its Proprietor Giridharilal Kedal v. The State of Orissa and Ors.) cognisance was quashed since there was no consideration of the question of extension of time and Court taking cognisance was given liberty to consider the facts of the case in order to take cognisance.
In 69 (1989) CLT 440 (Baikunthanath Jena v. The State of Orissa and another) after examination of a witness, accused raised objection that cognisance is barred by limitation, it was observed that a Court may take cognisance of an offence after its expiry if it is satisfied that the delay has been properly explained or that it is necessary to do so in the interest of justice. This can be considered either on application of aggrieved party or suo motu. Since the law with regard to limitation was not noticed order taking cognisance was set aside and proceeding was remitted back for disposal in accordance with taw.
In 1990 (II) OLR 490, (1990) 3 OCR 608 (Nirendralal Chakraborty v. Lakhmikanta Mohapatra) cognizance was quashed observing that while taking cognizance question of limitation is to be considered. Where there is no such consideration, accused on appearance after issue of process can raise such objection which touches jurisdiction. Accused was gives liberty to raise objection and Special Judge was directed to consider the question of bar of cognizance.
In 1990(II) OLR 561, (1990)3 OCR 669 (Shantilata Agarwalla @ Shanti Agarwalla v. State of Oriss) previous decisions reported in ILR (1982) 1 Cut. 143 (supra), 64(1987) CLT 65 (supra) and 64 (1987) CLT 583 (supra)were considered and it was observed that when Court takes cognizance after the period of limitation, it cannot be held that impliedly delay was condoned. It was also observed that after taking cognizance a Magistrate has no power to rectify the illegality by passing an order under Section 473 Cr. P. C. In view of the aforesaid discussion order taking cognizance was quashed. There was no consideration whether the question of taking cognizance would be considered afresh.
In a recent uareported decision in Criminal Revision No. 408 and batch of 1990 decided on 23-1-1990, it has been clarified that for exercise of power under Section 473 Cr. P. C. no application is necessary and Magistrate is to consider the facts and circumstances while considering the question of taking cognizance without hearing the accused on the point of limitation.
4. All the aforesaid decisions lead to the following conclusions:
(a) Magistrate taking cognizance is to consider the question of limitation before taking cognizance and before issue of process.
(b) No formal application for exercise of power under Section 473, Cr. P. C. is necessary and Magistrate is to consider the question on the facts and circumstances. However, an appli cation can be filed bringing facts and circumstances to notice of the Magistrate if such facts and circumstances are not borne out from record.
(c) Magistrate taking cognizance is to observe the principle of natural justice to give opportunity to accused to resist the exercise of power under Section 473, Cr. P. C.
(d) Magistrate, however, can exercise power under Section 473, Cr. P. C. without hearing the accused.
(e) Where Magistrate has exercised power under Section 473, Cr. P. C. and has taken cognizance, accused on appearance can object to the taking cognizance since he was not heard in the matter and Magistrate is to decide the question.
(f) Cognizance beyond the period of limitation prescribed under Section 468. Cr. P. C. is violation of mandatory provision under Section 468(I) Cr. P. C. and is without jurisdiction.
(g) Once such cognizance is taken, there is no scope for the Magistrate taking cognizance to condone the delay and extend time under Section 473, Cr. P. C. to operate retrospe ctively.
(h) When cognizance is taken without exercise of power under Section 473, Cr. P. C. revisionaI Court is to quash the cognizance.
(i) Revisional Court while quashing the order of cognizance can give a direction to the Magistrate to consider the question of exercise of power under Section 473, Cr. P. C. and on that basis consider whether it would take cognizance.
5. In all the aforesaid decisions, effect of quashing or setting aside the order of cognizance where no direction is given to consider the question of exercise of power under Section 473, Cr. P. C. has not been considered. It can be clarified that a prosecution is initiated either on polise report, or on complaint either by a private individual or by a Public officer, or on own information of the Magistrate. Cognizance of the Offence is the next step. Even if order taking cognizance is quashed or sat aside by the revisional Court, proceeding is not wiped out unless revisional Court specifically directs that the charge-sheet shall be rejected or complaint shall be dismissed. Even if such direction is given it does not amount to acquittal under Section 300, Cr. P. C. and in deserving cases, prosecution can be restarted afresh. Therefore, in either case, Magistrate taking cognizance gets jurisdiction to consider the question of exercise of power under Section 473, Cr. P. C. Where, however, a Magistrate exercises power under Section 473, Cr. P. C. and condones the delay or extends the time for taking cognizance and in revision it is held that such exercise of power cannot be sustained. Magistrate has no scope for considering the question of exercising power under Section 473, Cr. P. C. afresh does not arise and consequence would be that the prosecution shall have to be given its finality in favour cf the accused.
6. It requires no clarification that in a case where cognizance is bad and the order is set aside, all subsequent actions on basis of such cognizance become bad since the foundation having collapsed, super structure cannot stand. Where however, accused has entered appearance it shall be treated that accused has entered appearance before cognizance is taken. Proceeding shall continue afresh from the stage of taking cognizance.
7. In this case, offence alleged is of the year 1974, complaint was filed in December, 1975. Explanation has been given for the delay in filing complaint. Thereafter, complainant had no control over the proceeding. Learned Magistrata sent the complaint to Police which consumed some time. When no report came, learned Magistrate directed enquiry under Section 202, Cr. P. C. . On basis of enquiry report, cognizance was taken beyond the period of limitation without considering the question of delay. Rightly, cognizance was quashed. Learned Magistrate on the facts and circumstances of the case was justified in exercising power under Section 473, Cr. P. C. in ends of justice. I find no justification to interfere with the same.
8. However, there being no scope for exercise of power under Section
473. Cr. P. C. after taking cognizance, I quash the cognizance taken earlier and direct learned Magistrate to take cognizancs afresh and continue the prosecution from that stage.
9. In the result, this application is dismissed subject to the aforesaid direction.

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