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2008 Supreme(Gau) 151
IN THE HIGH COURT OF GAUHATI
IQBAL AHMED ANSARI, J.
Rani Narah – Appellant
Vs.
State of Assam – Respondent
Decided On: 22.02.2008
The Court held that the CJM cannot be treated to have taken cognizance of the offence(s) merely by making over the case, for disposal, to another Magistrate subordinate to him, on receiving a complaint or a police report; rather, Section 410 is resorted to only when a CJM, having already made over a case, for enquiry or trial, to another Magistrate, withdraws the same or recalls the same and, then, makes over the case to a Magistrate other than the one to whom the case was earlier made over.
Headnote:
The Court held that the Chief Judicial Magistrate (CJM) cannot be treated to have taken cognizance of the offence(s) merely by making over the case, for disposal, to another Magistrate subordinate to him, on receiving a complaint or a police report; rather, Section 410 is resorted to only when a CJM, having already made over a case, for enquiry or trial, to another Magistrate, withdraws the same or recalls the same and, then, makes over the case to a Magistrate other than the one to whom the case was earlier made over.
Fact of the Case:
The accused-petitioner, Rani Narah, was charged with various offences, including rioting, assault, and obstructing public servants in the discharge of their duties. The charge sheet was filed more than three years after the alleged offences were committed, which was beyond the limitation period prescribed under Section 468 of the Code of Criminal Procedure (CrPC). The accused-petitioner filed an application before the trial court, seeking to drop the proceedings on the ground that the cognizance of the offences was barred by limitation. The trial court rejected the application, holding that the CJM had already taken cognizance of the offences before making over the case to the trial court. The accused-petitioner then filed a petition under Section 482 of the CrPC, challenging the trial court's order and seeking to quash the entire criminal proceeding, including the charge sheet.
Finding of the Court:
The Court held that the CJM did not take cognizance of the offences before making over the case to the trial court. The Court observed that the CJM's order merely made over the case to the trial court for disposal, and did not reflect any application of mind to the question of condonation of delay or the extension of the limitation period. The Court further held that the trial court erred in not considering the question of condonation of delay or extension of the limitation period before taking cognizance of the offences. The Court also held that the trial court should have given the accused-petitioner an opportunity to be heard on the question of condonation of delay or extension of the limitation period.
Issues: 1. Whether the CJM had taken cognizance of the offences before making over the case to the trial court. 2. Whether the trial court erred in not considering the question of condonation of delay or extension of the limitation period before taking cognizance of the offences. 3. Whether the trial court should have given the accused-petitioner an opportunity to be heard on the question of condonation of delay or extension of the limitation period.
Ratio Decidendi: 1. The Court held that the CJM did not take cognizance of the offences before making over the case to the trial court, as the CJM's order merely made over the case for disposal and did not reflect any application of mind to the question of condonation of delay or the extension of the limitation period. 2. The Court held that the trial court erred in not considering the question of condonation of delay or extension of the limitation period before taking cognizance of the offences, as the trial court should have examined the facts and circumstances of the case to determine whether the delay in filing the charge sheet was properly explained or whether it was necessary to extend the limitation period in the interest of justice. 3. The Court held that the trial court should have given the accused-petitioner an opportunity to be heard on the question of condonation of delay or extension of the limitation period, as the accused-petitioner had a right to be heard before the trial court took a decision on the matter.
Final Decision: The Court set aside the trial court's order and remanded the case back to the trial court for consideration of the question of condonation of delay or extension of the limitation period. The Court directed the trial court to give the accused-petitioner and the other co-accused an opportunity to be heard on the matter.
I.A. Ansari, J.
1. On receiving a report submitted, under Section 173(2) of the Code, by the police, on completion of investigation of a case, disclosing commission of offence(s) by one or more persons, if a Chief Judicial Magistrate makes over the case for disposal to another Magistrate, subordinate to him, does such making over of the case necessarily denote that the Chief Judicial Magistrate had taken cognizance of the offence(s) and, having so taken cognizance, made over the case for enquiry or trial to the magistrate to whom the case was sent for disposal ? If a Judicial Magistrate issues process without condoning the delay, when taking cognizance stands barred by a period of limitation as prescribed in Section 468 of the Code, shall the High Court, in exercise of its powers under Section482 of the Code, necessarily and invariably, set aside and quash not only the order taking cognizance, but also the first information report or the complaint, as the case may be, and/or the police report (i.e. charge-sheet) submitted under Section 173(2) ? These are two questions of paramount importance, which this criminal petition, made under Section 482 of the Code, have raised. How to compute the periods of limitation prescribed under Section 468 of the Code of Criminal Procedure (in short, 'the Code'), which imposes bar to the taking of cognizance by the Court beyond the prescribed periods of limitation and how to construe the commencement of such a period of limitation under Sections 469 read with Sections 471 and 472 of the Code are the two important questions, which have also arisen for determination in this Criminal Petition. Can a Court suo motu invoke the provisions of Section 473 of the Code for the purpose of extending a period of limitation and for taking of cognizance of an offence after expiry of the period of limitation or whether an application, request or prayer is required to be made, in this regard, by the prosecution or the complainant.
2. Let me, first, take note of the facts and circumstances, which have led to the making of this criminal petition:
(i) The Sub-Inspector of Police, Prafulla Bora, lodged an information, in writing, on 10.11.2000, with the Officer-in-Charge Dispur Police Station, alleging, inter alia, thus: on 10.11.2000, when the informant along with his team of police personnel was on duty, at Ganeshguri area, due to 'bandh' call given by a political party, namely, Assam Pradesh Youth Congress-I Party, a group of about 40/50 persons, led by Mrs. Rani Narah, a Member of Parliament, formed an unlawful assembly and forcibly started closing shops and also obstructing the normal flow of traffic. When the police party, led by the informant, raised their objection to such illegal activities of the members of the said political party, the said group of people became violent and started scuffling with the police personnel and obstructed them in discharging their official duties. The rioters damaged the shop causing injuries to the people working there. Treating this information as the First Information Report, Dispur Police Station Case No. 956/2000, under Sections147/325/353/427/448 IPC, was registered and, on completion of investigation, charge sheet was accordingly laid by the police, on 29.05.2004, against as many as 32 persons, including the present petitioner, as accused.
(ii) By order, dated 11.10.2004, learned Chief Judicial Magistrate, Kamrup, made over the said case, for disposal, to a Judicial Magistrate, at Guwahati, who, in turn, passed an order, dated 29.10.2004, directing issuance of summons to the accused persons. Without appearing in the case pursuant to the processes issued by the Court, a petition was filed, on 09.09.2005, by the accused-petitioner, Rani Norah, stating to the effect, inter alia, that since the charge-sheet had been filed, in the case aforementioned, upon expiry of the period of limitation, the taking of cognizance of the offences was barred by the provisions of Section
