G.D Iyer And Others Petitioners v. State

Avadh Behari Rohatgi, J.:— For the first time in India the Code of Criminal Procedure, 1973 introduced the law of limitation in criminal cases. Chapter XXXVI is a newly introduced chapter containing brand-new sections 467 to 473. These sections prescribe periods of limitation for launching a criminal prosecution in certain cases. Under the repealed Code of 1898, no period of limitation was prescribed for launching a criminal prosecution and the court could not throw out a private complaint or a police report solely on the ground of delay, though delay might be a good ground for doubting the prosecution story. This was consistent with the original theory of criminal justice. In a civil case a party can always compromise or get rid of his liability with the assent of the injured party. But crimes are offences against the State. All proceedings are in theory instituted on behalf of the Crown or the State. The law of limitation did not apply to criminal proceedings unless it was made applicable to them by express provisions. Now the Parliament has done so in the hope that the period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly. (See the Report of the Joint Committee).

2. So now an accused relying on the new sections in the new Code of 1973 can plead the bar of limitation. Section 468 says that:

“Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation.”

Sub-section (2) lays down the periods of limitation in respect of a whole range of offences punishable with sentences varying from fine only to imprisonment for a term not exceeding three years.

3. In the present petition under Articles 226 and 227 of the Constitution of India and sections 401 and 483 of the Code of Criminal Procedure 1973 (the Code) the accused, persons have raised an objection that the criminal case against them is barred by limitation. This objection was raised in the first instance before the special judge trying the criminal case. The special judge rejected the plea of limitation. The accused now seek a reversal of his order dated April 12, 1977 in criminal case No. 21 of 1976.

4. The prosecution case is that in 1971 G.D Iyer, C.V Krishnamoorthy and Vardharajan entered into a criminal conspiracy to obtain illegal gratification from M/s. Modern Sixteen Cine Laboratory Private Limited, Bombay for inducing by exercise of personal influence the officers concerned working in the Office of Chief Controller of Imports and Exports, New Delhi, to do or to forebear to do official acts, namely, to get the value of their import licence enhanced from Rs. 1.20 lakhs to Rs. 3.30 lakhs for the import of cine laboratory equipments and also to secure customs clearance permit for Rs. 19,000 for cine laboratory spare parts and accessories of picture and sound printing machine.

5. It is said that in pursuance of the conspiracy the aforementioned three persons demanded and accepted amounts of Rs. 7,500, Rs. 500 and Rs. 760 from Modern Sixteen Cine Laboratory on September 2, 1971, April 9, 1971 and December 15, 1971 respectively and that the aforesaid amounts received as illegal gratification were shared by all the three. According to the charge-sheet submitted on December 30, 1974, these three persons were charged with the offences under section 120-B read with section 163 of the Indian Penal Code.

6. Before the special judge the three accused raised a preliminary objection as to limitation. They said that the prosecution as regards the offence punishable under section 120-B. Indian Penal Code was barred by time. The special judge found that there was a delay of 7 days. He condoned the delay in filing the charge-sheet and rejected the preliminary objection. It is this order which is now being impugned by the accused before us.

7. The dates are important. To begin with, the case was registered against G.D Iyer under section 165-A of the Indian Penal Code. During the course of investigation on November 11, 1973, G.D Iyer disclosed in his interrogation that C.V Krishnamurthy and V.K Vardharajan were also parties to the criminal conspiracy. Pursuant to this disclosure the premises of accused were searched after obtaining search warrants on February 26, 1973. In the course of investigation the investigating officer came to the conclusion that it was necessary to obtain the consent of the State Government for initiation of court proceedings as required by section 196 (2) of the Code. He, therefore, on November 7, 1974, requested the Director, Special Police Establishment to refer the matter to the Department of Personnel and Administrative Reforms as consent under section 196 (2) was to be obtained from Delhi Administration through them. The Delhi Special Police Establishment themselves could not approach the Delhi Administration directly.

8. The Delhi Special Police Establishment was constituted under the Delhi Special Police Establishment Act 1946. The administrative head of the organisation is the Director, Special Police Establishment (CBI) who is an Inspector General of Police. The Delhi Special Police Establishment was under the administrative control of the Department of Personnel, Cabinet Secretariat, Government of India. It was, therefore, necessary for the Director, Special Police Establishment to move the Department of Personnel, Cabinet Secretariat which he did on November 11, 1974. The Department of Personnel, Cabinet Secretariat in turn moved the Delhi Administration by writing a letter on November 19, 1974 asking for consent. The Delhi Administration accorded consent on December 27, 1974. The Lt. Governor's consent was received by the police on December 28, 1974. December 29, 1974 was a Sunday. The charge-sheet was filed on December 30, 1974.

9. All these facts were set out in an application made on April 20, 1976 and extension of time was sought on behalf of the prosecution on the basis of the explanation for delay furnished in the application. An affidavit sworn by Inspector Ashok Kumar of the Special Police Establishment (CBI) was also submitted saying that it was on November 11, 1973 for the first time that it came to his knowledge that G.D Iyer had accepted payments from various firms for exercising his personal influence on the officers of the Chief Controller of Imports and Exports through C.G Krishnamoorthy. He made an entry in the case diary to this effect.

10. It is not in dispute that the period from November 19, 1974 to December 29, 1974, both days inclusive, must be taken as the time required for obtaining the consent and has to be excluded in computing the period of limitation in accord with section 470 (3) and the explanation thereto.

11. The investigating officer came to know that C.V Krishnamoorthy and V.K Vardharajan were parties to the criminal conspiracy along with G.D Iyer on November 11, 1973 during the course of investigation. This fact is recorded in the case diary. The special judge called for the case diary to satisfy himself about the truth of tills averment. On a perusal of the diary he found that this fact which was stated on oath by Inspector Ashok Kumar in his affidavit was borne by the record. He, therefore, accepted it.

12. So the offence came to the knowledge of the police officer on November 11, 1973. The period of limitation shall commence from the date on which the offence came to the knowledge of the officer [see section 469 (1) (b)]. The prescribed period of limitation is one year as provided in section 468 (2). The charge-sheet should have been filed on or before November 11, 1974.

We have seen that the Department of Personnel Cabinet Secretariat wrote to the Delhi Administration on November 19, 1974 asking for consent. Now there is a delay of 7 days. It is explained in the application dated April 20, 1976 that 13th November, 1974 was a Government holiday, 14 and 15th were restricted holidays and 17th was a Sunday.

13. It has been argued that the investigating officer ought to have moved at once as under section 469 the period of limitation commenced from the date of knowledge. But according to the involved procedure the letter had to be routed through the Department of Personnel and Administrative Reforms. On November 19, 1974, the Deputy Secretary of the Department of Personnel wrote to the Delhi Administration requesting that consent be accorded for the contemplated prosecution. Now the question is: Ought the delay of 7 days to be excused ? Before we can answer this question we have to ask ourselves: Has the prosecution properly explained the delay ? Or alternatively, is it necessary in the interest of justice to take cognizance of the offence after the expiry of the period of limitation ? These are two distinct heads under which the code has invested a residual discretion in the court to take cognizance of an offence after the expiry of the period of limitation. section 473 of the code reads:

“Extension of period of limitation in certain cases.

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take 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.”

This is a provision for extension of time whenever the court is satisfied on the material that the delay has been properly explained or that it is necessary so to do in the interest of justice. Section 473 gives discretion to the court to condone the delay. This is a sort of reserve power to be exercised by the court in cases where the interests of justice outweigh other considerations such as limitation.

14. The special judge condoned the delay. He was of the view that the delay had been property explained and secondly that if it be held that delay had not been properly explained he would condone the delay in the interests of justice. He said this:

“The facts and circumstances of this case as brought out and not controverted are such that if for some reason it may be said that delay has not been properly explained, it is certainly a case where it is necessary to condone the delay in the interest of justice as it would always be a matter where the investigating agency cannot be dubbed with laches or unpardonable delay nor it can be said that the investigating officer knew for certain that procurement of the sanction would take more than 5 days i.e, the period reckoned from 7th to 11th November, 1974.”

15. We agree with this view of the special judge. We think he was right on both points. In our opinion, delay had properly been explained. And in any event it is a case where in the interests of justice delay ought to be condoned. We are not prepared to say that in the facts and circumstances of the case the special judge did not exercise his discretion judicially.

16. As we have observed section 473 vests a residual discretion in the court. Whenever a court or authority is endowed with discretion it has to make a choice. The legal concept of discretion implies power to make a choice between alternative courses of action. It is impossible to encase judicial discretion in a straight jacket. Situations calling for the exercise of discretion are infinite. It is not possible to catalogue them. “On the facts and circumstances” of each case the court has to see whether it would exercise discretion in favour of the complainant and waive the bar of limitation for the institution of a criminal case.

True, it is a matter of discretion; but then the discretion is not wilful or arbitrary, but legal. Judicial discretion does not mean a wild self-wilfulness, which may prompt to any end every act; but this judicial discretion is guided by the law, so as to do substantial equity and justice. It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law. Discretion is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law. That the judge is endowed with discretion does not mean that he is the master of the law. He remains, as always, its minister. He is a servant of the law. As long ago as 1890 Lord Halsbury said that discretion is to be

“not arbitrary, vague and fanciful, but legal and regular.” Courts of justice are “to act according to rules of reason and justice, not according to private opinion — according to law, and not humour”: Sharp v. Wakefield (1891) A.C 173, 179. (1)

This discretion undoubtedly is to some extent regulated by legal principles. But by this is to be understood nothing more than that the same court cannot, consistently with its own dignity, and with its character and duty of administering impartial justice, decide in different ways two cases in every respect exactly alike. But two cases are seldom alike in every colour, circumstance and feature. So judicial discretion means doing what is just and proper under the circumstances.

17. In our writ jurisdiction under Articles 226 and 227 of the Constitution of India we do not think we will be justified in interfering with the decision of a court of law where on the material placed before it the court was satisfied that delay had been properly explained and that in any case the facts and circumstances of the case warranted condonation of delay in the interests of justice.

18. We, however, make it clear that we have not gone into the question whether a writ under Articles 226 and 227 of the Constitution of India is maintainable. Assuming it is, we are clearly of the opinion that the exercise of discretion by the special judge was not unsound, arbitrary or capricious.

19. There was some debate before us that the order in question is an interlocutory order and, therefore, this court cannot exercise the power of revision under section 397 (1) or under section 482 of the code. We were referred to three recent decisions of the Supreme Court: State of Karnataka v. L. Muniswamy and others, AIR 1977 SC 1489, (2) Smt. Parmeshwari Devi v. The State and another, AIR 1977 SC 403 (3) and Amar Nath v. State of Haryana, Criminal Appeal No. 124 of 1977 decided on July 29, 1977 (4).

Following Amar Nath v. State of Haryana (supra) we have come to the conclusion that the order of the special judge dated April 12, 1977 cannot be said to be an interlocutory order and is not outside the purview of the revisional jurisdiction of the High Court. The Impugned order decides the question of limitation and, therefore, adjudicates and affects the rights of the accused. To the accused it is a matter of great importance. A revision against such an order is perfectly competent. On the merits, however, we have held that the order of the special judge is unimpeachable on the facts and circumstances of this case.

20. For these reasons we would dismiss the petition.

Petition dismissed.