The accused persons are entitled to an opportunity of being heard before the extension of the period of limitation under Section 473 of the Criminal Procedure Code.

1. :- The accused persons have moved this application under Section 482 of the Criminal Procedure Code for quashing the order of the Additional Munsif and Judicial Magistrate 1st Class No. 2, Jodhpur dated 8.11.1978 whereby the learned Magistrate condoned the delay in presentation of the charge-sheet. They have further sought to quash the entire proceedings against them.

2. The material facts relating to the present application are that on the report of one Dharma Ram, case under Sections 147, 148, 149 and 323 Indian Penal Code was registered against the accused persons on 19.10.1974 regarding the occurrence alleged to have taken place on that date. The police presented the charge-sheet after the expiry of three years on 15.2.1978. The learned Magistrate on presentation of the charge-sheet registered the case. Accused Umed Singh was present to whom copies of the police papers were supplied. Rest of the accused persons were not present in the court so warrants were ordered to be issued against them. The accused persons Panney Singh, Sher Singh and Onkar Singh appeared on 18.4.1978. On the next date i.e. on 17.5.1978, on behalf of the present accused applicants, an application under Section 468 (2) (c) was presented in which it was stated that the Charge-sheet should have been filed within three years before 19.10.1977 but the same had been filed on 15.2.1978, thus the prosecution is barred by time, so the case may be dismissed. On behalf of the prosecution, reply of the Station House Officer addressed to the Assistant Public Prosecutor No. 2 of the Court of Additional Munsif and Judicial Magistrate No. 2, Jodhpur was presented wherein it was stated that there were in all six accused persons, out of whom five were released on bail by the police and the sixth accused viz. Umed Singh was declared a proclaimed offender. He was produced before the court after effecting his arrest. It was further stated in this communication that without the accused persons, the court did not accept the challan and on all occasions the Court verbally so ordered. The charge-sheet was not accepted in the absence of all the accused persons. It is due to this reason, the charge-sheet could not not be presented within the prescribed period of limitation. It was further stated that the accused persons in spite of their bail bonds did not present themselves in the court and no proceedings for forfeiture of their bail bonds accepted by the police were initiated by the court. This reply was accompanied with an affidavit of Bhanwarlal, Station House Officer, Police Station, Udaimandir in which he deposed that the court ordered that charge-sheet would not be accepted without the presence of the accused persons. It was also stated in the affidavit that accused persons and their sureties were directed to be presented before the court and their memos were also produced along with the affidavit. The learned Magistrate, after hearing the arguments, condoned the delay in presentation of the charge-sheet for the period between 19-10-77 to 15-2-78. Aggrieved against this order of the learned Magistrate, the present application has been filed.

3. I have heard Shri Jaswantmal Bhandari, advocate for the accused applicants and Shri S. L. Mardia, Public Prosecutor for the State.

4. Shri Bhandari on behalf of the applicants contended that under Section 468 (1), Criminal Procedure Code, the Court is debarred to take cognisance of an offence after the expiry of period of limitation. The period of limitation is prescribed under sub-section (2) of Section 468 and the present case is covered under clause (c) of sub-section (2). On 15-2-78, when the charge-sheet was presented, it was beyond the prescribed period of limitation so the Court had no jurisdiction to take cognizance. The learned counsel urged that Section 473 Criminal Procedure Code empowers the Court to condone the delay and extend the period of limitation only when delay is properly explained or condonation is n