JUDGMENT:

S.B. Sinha, J. – Leave granted.

1. Appellant herein is aggrieved by and dissatisfied with a judgment and order dated 21st March, 2006 passed by a learned Single Judge of the Gauhati High Court.

2. Indisputably, Appellant at all material times was a Commandant of 48 BRTF (GREF) as a member of the Armed Forces. While he was acting in the said capacity, allegations were made against him for commission of offences under Section 166 and 167 of the Indian Penal Code, 1860.

3. The period during which the said offences are said to have been committed is 5.1.1989 to 11.2.1992. A complaint petition was filed in November, 2000 purported to be on the basis of a report dated 20.12.1996 of the then Commander, 48 BRTF at Tezu on 20.12.1996.

3.1. The Judicial Magistrate, First Class, Tezu took cognizance of the said offences against the appellant by an Order dated 7.11.2000.

4. The application filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 for quashing the said proceedings has been dismissed by the Gauhati High Court by reason of the impugned judgment.

5. Mr. Nagendra Rai, the learned senior counsel appearing on behalf of the appellant would submit that the order taking cognizance is bad in law as the same was filed beyond the prescribed period of limitation and in any event was not preceded by a valid order of sanction of the competent authority as envisaged under Section 197 of the Code of Criminal Procedure.

6. Section 166 and 167 of the Indian Penal Code provides for an offence by a public servant.

6.1. Whereas Section 166 prescribes a sentence of simple imprisonment for a term which may extend to one year; the sentence which can be imposed under Section 167 is one of either description for a term which may extend to three years or with fine or with both.

7. Section 468 of the Code of Criminal Procedure, 1973 specifies the period of limitation within which the cognizance of an offence can be taken. Clause (c) of Sub-section (2) of Section 468 specifies the period of limitation to be three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

8. There is no doubt or dispute that the Court has the power to condone the delay. No order condoning the delay has however, been passed by the learned Judicial Magistrate in this case.

8.1. The ground taken for condonation of delay in the said complaint petition of the complainant is as under:-

"8. That a Court of Inquiry was held by the Department against the irregularities in Supply Orders and thereafter the case was under consideration by Army HQ. The Central Vigilance Commission also investigated the matter since 20 Dec. 1996 and on the completion of investigation by CVC, the matter was barred by limitation for taking action under the Army Act against the accused. Hence the delay in filing this complaint in the Court and the delay may be condoned under Section 473 Cr.P.C. as the delay was not intentional but inevitable in holding Court of Inquiry."

9. The learned Judicial Magistrate did not apply his mind on the said averments. It did not issue any notice upon the appellant to show cause as to why the delay shall not be condoned. Before condoning the delay the appellant was not heard. In State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Others [(1995) 1 SCC 42] this Court held;

"5. In our view, the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of the delay. However, having come to that conclusion, it would have been appropriate for the High Court, without going into the merits of the case to have remitted the case to the trial court, with a direction to decide the application for condonation of delay afresh after hearing both sides. The High Court however, did not adopt that course and proceeded further