VERY IMPORTANT POINTS
1. Limitation provided for taking cognizance of offence in Section 468 is in respect of the offence charged and not in respect of offence finally proved.
2. An order u/s 473 Cr.P.C. condoning delay in taking cognizance of offence must be a speaking order indicating satisfaction of Magistrate that the delay has been property explained.

Headnote:(i) Code of Criminal Procedure, 1973-Section 468-Charge for one offence but conviction for lesser offence-Limitation for taking cognizance of offence-Limitation provided for, in Section 468, taking cognizance is in respect of offence charged and not in respect of offence finally proved-In respect of offences which may be tried together, period of limitation shall be determined with reference to offence punishable with more or most severe punishment.
       Held : Sub-section (3) of Section 468 which was added by the Code of Criminal Procedure (Amendment) Act, 1978, provides that in relation to offences which may be tried together, the period of limitation shall be determined with reference to the offence which is punishable with the more or most severe punishment. The language of sub-section (3) of Section 468 makes it imperative that the limitation provided for taking cognizance in Section 468 is in respect of the offence charged and not in respect of offence finally proved. (Para 5)
       In the instant case charges framed were under Sections 468, 420 120 of IPC and 5(2) of Prevention of Corruption Act. The offence was alleged to have been committed in 1983. Charge sheet was submitted in November 1987 and cognizance was taken in December 1987. While convicting the accused of the charges u/s 420, 468 and 5(2); trial Court convicted them under Sections 417 and 465 r/w 109 IPC. The High Court on an analysis of Section 468 of the Code of Criminal Procedure came to the conclusion that for the offences for which the two respondents have been convicted by the Special Judge namely Sections 417 and 465 of the Indian Penal Code, the cognizance taken on 31.12.1987 was barred by limitation and, therefore he acquitted the accused persons. The High Court also came to the conclusion that though under Section 473 of the Code of Criminal Procedure the power to condone the delay taking cognizance was there for cogent reasons but since the learned Special Judge has not exercised that power inasmuch no such reasons had been recorded, the said provisions cannot be pressed into service.
       Held : In the case in hand, when the respondents were charged under Section 468 read with Section 120-B, for which the imposable punishment is seven years and Section 5(2) of the Prevention of Corruption Act, 1947, which is punishable with imprisonment for a term which may extend to seven years and for such offences no period of limitation having been provided for in Section 468, the cognizance taken by the learned Special Judge cannot be said to be barred by limitation. (Para 5)
       Held further, that the provisions of Section 473 did not apply to the case in hand since for the offences charged, no period of limitation has been provided in view of the imposable punishment thereunder. In this view of the matter we have no hesitation to come to the conclusion that the High Court committed serious error in holding that the conviction of the two respondents under Section 417 would be barred as on the date of taking cognizance the Court could not have taken cognizance for the said offence. Needless to mention, it is well settled by a catena of decisions of this Court that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence has been committed. (Para 7)
       (ii) Code of Criminal Procedure, 1973-Section 473-Condonation of delay in taking cognizance of offence-Power of Court is discretionary-Order condoning delay must be speaking order-Magistrate must indicate that he was satisfied that delay has been properly explained-However absence of positive order would not mean that Magistrate failed to exercise jurisdiction u/s 473.
       Held : Section 473 confers power on the Court taking cognizance 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 and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, where-ever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence. (Para 7)
       Section 473 being an enabling provision, whenever a Magistrate invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay. But without such an order being there or in the absence of such positive order, it cannot be said that the Magistrate has failed to exercise jurisdiction vested in law. (Para 8)

JUDGMENT

Pattanaik, J.-Leave granted.

2. The State of Himachal Pradesh has preferred this appeal against the Judgment of the learned Single Judge of the Himachal Pradesh High Court, who being of the opinion that conviction in respect of a minor offence where charges had been framed for a major offence becomes barred under Section 468 of the Criminal Procedure Code, as on the date of cognizance for such minor offence the provisions of Section 468 gets attracted. The short facts necessary for disposal of this appeal are that the two respondents herein were challaned for offences under Sections 468, 420, 120-B of the Indian Panel Code and for the offence under Section 5(2) of the Prevention of Corruption Act, 1947. The offence in question was alleged to have been committed in the year 1983 by forging the receipts under the Scab Control Scheme, 1983 . The charge-sheet was submitted in November, 1987 and cognizance was taken in December, 1987. Charges were framed under Sections 468, 420, 120-B of the Indian Panel Code and Section 5(2) of the Prevention of Corruption Act. Learned Special Judge acquitted them of the charges under Sections 468 and 420 IPC and Section 5(2) of the Prevention of Corruption Act but convicted them under Sections 417 and 465 read with Section 109 of the Indian Penal Code. Some other accused persons who had also been tried along with the respondents herein were acquitted fully. On appeal, the High Court of Himachal Pradesh on an analysis of Section 468 of the Code of Criminal Procedure came to the conclusion that for the offences for which the two respondents have been convicted by the Special Judge namely Sections 417 and 465 of the Indian Penal Code, the cognizance taken on 31.12.1987 was barred by limitation and, therefore he acquitted the accused persons. The High Court also came to the conclusion that though under Section 473 of the Code of Criminal Procedure the power to condone the delay taking cognizance was there for cogent reasons but since the learned Special Judge has not exercised that power inasmuch no such reasons had been recorded, the said provisions cannot be pressed into service. Having recorded the conclusion that the cognizance itself was barred by limitation, the High Court also in the penultimate para of the impugned Judgment expressed opinion on merits and held that the offences under Sections 417 and 465 would not stand proved.

3. When the matter was placed before a Bench of two learned Judges, it was felt that the decision of this Court in Arun Vyas & Anr. v. Anita Vyas1 requires reconsideration by a larger Bench of three Judges and that is how the matter has been placed before us.

4. Section 468 of the Code of Criminal Procedure provides period of limitation for taking cognizance in sub-section (2) thereof and puts an embargo on the Court from taking cognizance of an offence after the expiry of the period of limitation under sub-section (1) thereof. Sub-section (3), however which was introduced by way of an Amendment Act of 1978, provides that when accused is tried for several offences, the period of limitation in relation to the offence which is punishable with more severe punishment would be the period of limitation for taking cognizance. For better appreciation of the point in issue, Section 468 of the Criminal Procedure Code is quoted in extenso:

"Sec. 468. Bar to taking cognizance after lapse of the period of limitation.-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

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1999 Supreme(SC) 1360

Cases Referred (2)