Back
1981 Supreme(Ori) 156
IN THE HIGH COURT OF ORISSA
B.N. Misra, J.
SUBASH CHANDRA MOHAPATRA - APPELLANT
Versus
M.S. JAGGI - RESPONDENT
Criminal Revision No. 432 of 1979
Decided On : 15-12-1981
B.B. Mohanty and S.M. Patnaik, for the Appellant; Party-in-Person, for the Respondent
A Magistrate cannot take cognizance of an offence after the expiry of the limitation period without condoning the delay, and retrospective condonation of delay is not permissible.
Headnote:
CRIMINAL PROCEDURE CODE - LIMITATION - TAKING COGNIZANCE - DELAY IN TAKING COGNIZANCE - CONDONATION OF DELAY - RETROSPECTIVE CONDONATION - ILLEGAL - SECTION 473 OF THE CODE - EXCLUSION OF TIME - PROSECUTION OF ANOTHER PROSECUTION - SAME FACTS - GOOD FAITH - SECTION 470(1) OF THE CODE - REVISION - LIMITATION - SUO MOTU POWERS OF REVISION - EXERCISE OF - Glaring illegality and miscarriage of justice.
Fact of the Case:
Petitioner challenged the order of the Sub-Divisional Magistrate (SDM) taking cognizance against him under Section 17 of the Orissa House Rent Control Act, 1967 (OHRC Act). The complaint alleged that the Petitioner had accepted the opposite party as a tenant but forcibly dispossessed him from the tenanted premises. The SDM took cognizance after the expiry of the limitation period, without condoning the delay.
Finding of the Court:
The Court held that the SDM acted illegally and in excess of jurisdiction in taking cognizance without condoning the delay. The Court also held that the Petitioner's revision application was barred by limitation, but exercised its suo motu powers of revision to quash the SDM's order in order to prevent perpetuation of illegality and miscarriage of justice.
Issues: 1. Whether the SDM acted legally in taking cognizance against the Petitioner after the expiry of the limitation period without condoning the delay? 2. Whether the Petitioner's revision application was barred by limitation? 3. Whether the Court should exercise its suo motu powers of revision to quash the SDM's order?
Ratio Decidendi: 1. Section 468 of the Code of Criminal Procedure (CrPC) provides a one-year limitation period for taking cognizance of offences punishable with imprisonment for a term not exceeding one year. Section 469 of the CrPC provides that the limitation period commences on the date of the offence. 2. Section 473 of the CrPC empowers the Court to take cognizance of an offence after the expiry of the limitation period if it is satisfied that the delay has been properly explained or that it is necessary to do so in the interests of justice. 3. Retrospective condonation of delay is not permissible under Section 473 of the CrPC. 4. Section 470(1) of the CrPC provides for exclusion of time in computing the limitation period when a person has been prosecuting another prosecution with due diligence in a Court which is unable to entertain it due to defect of jurisdiction or other similar cause. 5. The Court has suo motu powers of revision under Section 397(1) of the CrPC, which can be exercised even if a revision application is barred by limitation, to prevent perpetuation of illegality and miscarriage of justice.
Final Decision: The Court allowed the revision petition, quashed the SDM's order taking cognizance against the Petitioner, and directed that the Petitioner should face trial before the SDM.
JUDGMENT :
B.N. Misra, J. - In this revision the Petitioner has prayed that the order dated 23-4-1979 taking cognizance against him in case No. I.C.C. 116 of 1977 passed by the learned Sub-Divisional Magistrate, Cuttack should be quashed.
2. On 1-11-1975 the opposite party filed a complaint petition in the Court of the learned S.D.J.M., Cuttack against the Petitioner and eleven others. The complainant (opposite party) inter alia alleged that the Petitioner had accepted him as a tenant in respect of "My Desire Restaurant" with effect from 5-5-1975, but on the night 7-5-1975 the Petitioner along with his associates dispossessed the opposite party from the tenanted premises and forcibly occupied the same. The opposite party sent First Information Report to the Police Station on the same night but the Police did not take any action. It is further alleged that several applications filed by the opposite party before the City Magistrate were also not duly processed. Accordingly the opposite party filed his complaint petition before the learned S.D.J.M., Cuttack and prayed that cognizance should be taken against the Petitioner and other accused persons and that documents, etc. in G.R. Case No. 980/75 should be called for proper appreciation of the evidence. On 1-11-1975 the Court posted the case to 12-12-1975 awaiting submission of police report. The police were also directed to submit a report regarding the stage at which the investigation was then pending. After several adjournments on 17-6-1976 the Court noted that the police had submitted a final report treating the case as mistake of fact. The case was directed to be put up on 12-7-1976 along with the case diary. Thereafter the case suffered many adjournments. On several dates either the opposite party was not present or he did not take any steps and on other dates the order's of the Court had not been complied with. On 3-3-1977 the Court decided that an inquiry should be held u/s 202 of the Code of Criminal Procedure and it was further decided that another complaint case filed by the opposite party on 9-9-1976 was to be clubbed together with the present case. On 24-6-1977 the statement of the opposite party was recorded in part. On 30-6-1977 the opposite party was further examined in part. On 6-7-1977 the opposite party was again further examined in part. On 11-7-1977 the opposite party was further examined and the documentary evidence adduced by him were also marked. The case thereafter suffered several adjournments mostly on account of non--receipt of documents called for from the police. It is seen that on several dates the opposite party himself was also absent on account of which the case had to be adjourned. On 23-4-1979 the learned S.D.J.M. passed the following order:
In view of the order of the C.J.M. that the Petitioner should have moved to the regular Civil Court by filing a complaint to take action against opposite party No. 1 u/s 17 of the Act, instead of filing the petition before this Court and further it has been held that the Petitioner has been inducted as a tenant in respect of the case house by the landlord opposite party No. 1 and forcibly dispossessed by the latter. In view of the finding of the C.J.M. have no alternative, but to take cognizance u/s 17 of H.R.C. Act against accused Subhash Chandra Mohapatra.
Issue summons to accused Subash Chandra Mohapatra. Requisites by 2-5-1979.
This order of the learned S.D.J.M. is under challenge in this revision.
3. The main point urged on behalf of the Petitioner is that the statutory period of limitation having already expired, the learned Magistrate acted illegally in taking cognizance against him u/s 17 of the Orissa House Rent Control Act, 1967 (hereinafter referred to as the O.H.R.C. Act). The penalty prescribed u/s 17 of the O.H.R.C. Act is imprisonment for a term which may extend to six months or fine which may extend to two hundred rupees or both. Section 468 of the Code of Criminal Procedure, 1973 (hereinafter refe
