A Magistrate cannot take cognizance of an offense after the expiry of the limitation period prescribed under Section 468(1) of the CrPC without first considering the question of condoning the delay under Section 473 of the CrPC.

S. C. MOHAPATRA, J.

( 1 ) THIS is an application u/s. 482 Criminal Procedure Code by the accused.

( 2 ) OFFENCE u/ss. 406, I. P. C. and 465, Cr. P. C. are alleged to have been committed in the year 1974. Punishment provided u/s. 406, IPC is for a term of three years. Punishment for an offence, u/s. 465, Cr. P. C. is for a term of two years. Under S. 468 (2) (c) and (3), Cr. P. C. , limitation for taking cognizance for offences after 3 years is barred and S. 468 (1), Cr. P. C. provides that no Court shall take cognizance of an offence after expiry of the period of limitation. S. 470, Cr. P. C. provides for exclusion of time in certain cases. Section 473, Cr. P. C. which is material for this case reads as follows :-"473. Extension of period of limitation in certain cases :- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court maytake cognizance of an offence 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 or that it is necessary so to do in the interests of justice. "if there would have been no provision like S. 473, Cr. P. C. , there is no doubt that for offences u/ss. 406 and 465, Cr. P. C. committed in the year 1974, cognizance could not have been taken on 9-1-1981 about 7 years after and such cognizance being without jurisdiction would have been quashed.

( 3 ) SCOPE of Ss. 468 and 473, Cr. P. C. are subject matter of consideration of various decisions of this Court. In ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) Subash Chandra Mohapatra. v. M. S. Jaggi cognizance was taken beyond period of limitation without taking into consideration that it is barred by limitation. When accused brought this fact to notice of the Court, it condoned the delay. Condonation of delay after taking cognizance was held by this Court on the facts and circumstances of that case to be an action in excess of jurisdiction which was held to be retrospective in character. In the next decision reported in (1987) 64 CLT 56, Mahani Moban Laba v. State cognizance was taken after the period of limitation prescribed u/s. 468, Cr. P. C. considering the decision reported in ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) (supra), it was held that provision in S. 468, Cr. P. C. is mandatory and Court has no jurisdiction to take cognizance unless the condonation of delay is judicially considered with supporting reasons. For exercise of power u/s. 473, Cr. P. C. to condone the delay, no formal application is necessary where facts and circumstances revealed speak for itself. Where after taking cognizance, accused raises objection to the maintainability of prosecution against him on account of non-exercise of power u/s. 473, Cr. P. C. Court is to examine whether there is actually delay and in case there is delay, whether the preconditions for taking cognizance issatisfied. In the facts of the case Court taking cognizance not having exercised jurisdiction in accordance with law, cognizance was quashed and direction was given to consider the question afresh. In the decision reported in (1987) 64 CLT 583 (Haradhan Purohit v. Mahadev Mohapatra following the decision reported in ILR (1982) 1 Cut 143 : (1982 Cri LJ NOC 92) (Orissa) (supra) cognizance was quashed, observing that before issue of process the question of extension of time is to be considered. Since the same was not considered, cognizance was quashed. But question whether trial court would consider the question afresh was not considered. In 1989 (2) OLR 124 : (1990 Cri LJ 715) M/s. Dayal Trading Company represented by its Proprietor Giridharilal Kedai v. The State of Orissa cognizance was quashed since there was no consideration of the question of extension of time and court taking cognizance was given liberty to consider the facts of the case in order to take cognizance. In (1990) 69 CLT 440 : (1990 Cri LJ 2626) Baikunthanath Jena v. The State of Oris