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1979 Supreme(Pat) 243
PATNA HIGH COURT
S.Shamsul Hasan and . JJ.
Gulab Chand Jain
Versus
State Of Bihar
Criminal Miscellaneous No. 2508 of 1979 ;
Decided On : NOVEMBER 11, 1979
The court must expressly state that it has exercised power under Section 473, Cr. P. C. to condone the delay in taking cognizance, and the prosecution must show that the accused had the mens rea to commit the offence.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 468 - LIMITATION FOR TAKING COGNIZANCE - DELAY IN TAKING COGNIZANCE - CONDONATION OF DELAY - NECESSITY FOR EXPRESS ORDER - SECTION 473 - EXERCISE OF POWER - REASONS TO BE STATED - MENS REA - ESSENTIAL ELEMENT IN OFFENCES UNDER SECTIONS 406 AND 407 IPC.
Fact of the Case:
The petitioners were accused of misappropriation of tins of Vanaspati ghee belonging to Rohtas Industries. Two FIRs were lodged, one by the owner of the truck on which the ghee was loaded and the other by a representative of Rohtas Industries. The petitioners were made accused in the Ranchi case and the two cases were amalgamated. The charge-sheet was submitted on 24-7-76 and cognizance of the offence was taken on 3-1-77. The petitioners filed an application for quashing of the proceedings on the ground that the cognizance was taken after 3 years of the date of occurrence and after discovery of the name of the persons involved, and that the prosecution was barred by Section 468 of the Code of Criminal Procedure.
Finding of the Court:
The court held that the Magistrate was wrong in not expressly stating that he had exercised power under Section 473, Cr. P. C. to condone the delay in taking cognizance. The court also held that the prosecution had failed to show that the petitioners were party to any conspiracy to misappropriate or commit the theft of Hanuman Vanaspati sent on truck no. BRP-2391. The court further held that the petitioners were not aware of the fact that the tins of Hanuman Vanaspati were stolen or misappropriated tins belonging to the informant company of the second F. I. R.
Issues: 1. Whether the cognizance was taken after 3 years of the date of occurrence and after discovery of the name of the persons involved, and that the prosecution was barred by Section 468 of the Code of Criminal Procedure? 2. Whether the prosecution had failed to show that the petitioners were party to any conspiracy to misappropriate or commit the theft of Hanuman Vanaspati sent on truck no. BRP-2391? 3. Whether the petitioners were aware of the fact that the tins of Hanuman Vanaspati were stolen or misappropriated tins belonging to the informant company of the second F. I. R?
Ratio Decidendi: 1. Section 468 of the Code of Criminal Procedure bars the taking of cognizance of an offence after the expiry of a period of limitation, unless the delay is condoned by the court under Section 473, Cr. P. C. 2. The Magistrate is required to state expressly, giving the grounds, that he is satisfied that the delay had been properly explained or that it is in the interest of justice to do so and to condone the delay. 3. The prosecution must show that the accused had the mens rea, or the guilty mind, to commit the offence.
Final Decision: The court quashed the proceedings against the petitioners.
S. Shamsul Hasan, J.
1. This application is for quashing of the proceeding against these petitioners pending in G. R. Case No.1662 of 1966 in the Court of Shri V. S. Prasad, judicial Magistrate, first class, Sasaram. Cognizance was taken on 3-1-77 and the case was transferred for trial on that day. A petition was filed before the trial Magistrate at the stage of framing of charge with a prayer that in view of the operation of Sec.468 of the Code of Criminal Procedure the cognizance being bad, no charge could be framed.
2. The prosecution of the petitioners is as a result of two F. I. Rs. lodged in connection with the misappropriation of tins of Vanaspati ghee belonging to rohtas Industries. A first information report was lodged first by Besh Lal chaudhary which was numbered as Dehr P. S. Case No.10 (10)/66. It was alleged in the first information report that 600 tins of Hanuman ghee were loaded on Truck No. BRP-2391 for being taken to the depot of the company at barauni. Since this truck was sent on 6-11-66, when no information was received about the arrival of the truck, the first information report as stated above, was lodged on 12-10-66. Subsequently a second F. I. R. was lodged at Ranchi on 14-10-66 and a case was instituted there being Kotwali P. S. , Case No.62 (10)/ 66. This was lodged by a representative of the Rohtas Industries. Allegation under Sec.411 of the Indian Penal Code was stated to have been made out inthat first information report and it was stated that on 6-10-66.600 tins were sent on Truck no. BRP-2391 belonging to the informant of the first case. This truck was later recovered and seized and kept in Marafari Thana. Later on, the informant of the second case was informed by one Shri Lun Karan that one shri Paras who is a partner in the firm of the petitioners M/s. Naveen Chandra prakash Chandra, was trying to sell some Hanuman ghee on 8-10-66, but since there could be no explanation from where the goods were obtained he did not buy it. On getting this information the informant started moving around the market and he found certain Hanuman Vanaspati tins bearing Batch nos.200, 204 and 205 in the premises of petitioners 1 to 4. This Batch number was stated for the first time in the second F. I. R. after the informant had seen the tins in the shop of the petitioners 1 to 4. On search 92 tins of vegetable oil were recovered from the premises of the petitioners. On the basis of this f. I. R. the petitioners have been made accused in the Ranchi case. Subsequently ranchi case and the Dehri case were amalgamated. Charge-sheet was submitted on investigation of both the cases and was filed on 24-7-76 and cognizance of the offence was taken on 3-1-77. Charge-sheet has been submitted under Sec.406 read with Sec.411, I. P. C.
3. In support of the application, learned Counsel for the petitioners has raised two points. His first point is that since the cognizance was taken after 3 years of the date of occurrence and after discovery of the name of the persons involved, the prosecution is barred by Sec.468 of the Code of Criminal Procedure. While taking cognizance, according to him, the court has not condoned the delay in exercise of its power under Sec.473, Cr. P. C. His second point is that reading the prosecution material in its entirety and accepting it as wholly correct, no offence has been made out against these petitioners.
4. In reply to the first point the learned Counsel for the informant has submitted that this is a case covered by Sec.407 of the Indian Penal Code and, therefore, Sec.468 Cr. P. C. has no application whatsoever. His second submission is that if Sec.468 Cr. P. C. is found applicable in view of the sections under which cognizance has been taken, then it is a fit case which shonld be remanded to the Magistrate to enable him to deal with the matter once again so that he may have no opportunity to exercise power under Sec.473, Cr. P. C. if he deems it proper. He has also drawn my attention to
