S.P.S Rathore v. Central Bureau Of Investigation .

Amar Dutt, J.:— This petition is directed against the order dated 5.12.2000 passed by the Special Judicial Magistrate (C.B.I), Ambala by which the application filed by the Central Bureau of Investigation (in short ‘the CBI’) under Section 473 of the Code of Criminal Procedure (in short ‘Cr.P.C’) was disposed of in the following terms:—

“In view of above discussion application filed by the CBI, under Section 473 of the Cr.P.C is allowed and bar of limitation is over looked, delay is condoned and period of limitation is extended and cognizance of the case is ordered to be taken accordingly in exercise of the powers conferred by Section 473 of the Cr.P.C”

2. The bare facts and circumstances leading to the filing of the aforesaid application, which are necessary for the decision of the present petition are as under:—

On 12.8.1990, Miss Ruchika, a 15 years old girl, is alleged to have been molested by the petitioner, an IPS Officer, who at the relevant time was working as Director (Vigilance and Security) to Bhakra Beas Management Board. He was also the President of the Haryana Lawn Tennis Association, of which Miss Ruchika was a member player.

3. On 16.8.1990, a memorandum was submitted to the Financial Commissioner and Secretary, Home Department, Government of Haryana about the alleged incident. Information regarding the same was also given to the Station House Officer, Panchkula which was incorporated in G.D Entry No. 12 dated 18.8.1990 Police Station Panchkula.

4. In pursuance of the directions given by the Chief Minister of Haryana, Shri R.R Singh, IPS, the Director General of Police, Haryana, conducted an enquiry into the incident and submitted a report on 3.9.1990 The report recommended the registration of a criminal case against the petitioner. Inspite of this, no F.I.R was registered but acting on the report of Shri R.R Singh, IPS, the Director General of Police, Haryana, the Government initiated, on 4.6.1991, proceedings for major penalty. The chargesheet was replied to and proceedings were dropped on 30.5.1994 In the meantime, Miss Ruchika committed suicide on 29.12.1993

5. During this period, Smt. Madhu Prakash had been asking for the enquiry report of Shri R.R Singh, IPS, the Director General of Police, Haryana. The same was supplied to her through Memo dated 21.7.1997 and was received by her on 29.7.1997

6. On 11.11.1997, Smt. Madhu Prakash filed Criminal Writ Petition No. 1694 of 1997, in which this Court directed through order dated 21.8.1998 that F.I.R be registered in Panchkula Police Station and the investigation should be conducted by an officer of the rank of Deputy Inspector General, CBI.

7. The petitioner filed SLP (Criminal) No. 2857 of 1998 against the above order, which was dismissed and the order of this Court was upheld. The case was eventually registered in Police Station, Panchkula on 29.12.1999 and was subsequently taken up by the CBI, SIC. I on 31.1.2000

8. On completion of the investigation, a challan was put up before the Special Magistrate, Ambala on 17.11.2000, which was accompanied by an application under Section 473, Cr.P.C It is the acceptance of this application, after giving an opportunity of hearing to the petitioner, by which the petitioner is aggrieved.

9. I have heard Shri Dinesh Kumar Mathur, Senior Advocate assisted by Mrs. Abha Rathore, Advocate appearing for the petitioner and Shri Rajan Gupta, Standing Counsel for the C.B.I assisted by Shri Pankaj Bhardwaj, Advocate.

10. On behalf of the petitioner, it is submitted that Chapter XXXVI Cr.P.C deals with the period within which cases pertaining to certain offences have got to be brought to the Court. Section 468 Cr.P.C prescribes the period within which the Court shall take cognizance of the offences punishable with different terms. Section 469 Cr.P.C indicates the dates from which the period is to commence. Section 473 Cr.P.C is the non-obstante clause which lays down the circumstances in which a proceeding can be initiated after the period of the expiry of the limitation. The clause is in two parts, one which requires the delay to be properly explained and the second which allows the condonation of delay in the interest of justice. According to the counsel for the petitioner, before invoking the powers giving the benefit of Section 473 Cr.P.C, the prosecution will have not only to satisfactorily explain the reasons for the delay but also indicate that it would be in the interest of justice that the prosecution should be allowed because the two clauses, according to him, have got to be read conjuctively and not disjunctively. After spelling out the parameters within which the Court is required to exercise its powers for condoning the delay, the learned counsel went on to highlight the fact that the limitation in this particular case expired on 12.8.1993 for submitting that there is no explanation forthcoming why the limitation was allowed to lapse.

11. On behalf of the respondent, it is submitted that the argument advanced by the petitioner's counsel cannot be sustained in view of the plain reading of the provisions of Section 473, Cr.P.C It was also submitted that in any case, the circumstances in which the investigation of the case against the petitioner has been protracted and the filing of the chargesheet delayed have sufficiently explained the circumstances in which the same could not be filed within the period of limitation prescribed and taking into consideration the nature of the allegations it would be in the interest of justice that the delay should be condoned and the case be decided on merits after the parties have been allowed an opportunity to lead evidence in support of their respective stands.

12. I have given my thoughtful consideration to the rival contentions put forth on behalf of the parties.

13. In the present case, the first question which will have to be determined is whether the prosecuting agency is only required to satisfactorily explain the delay or whether the Court apart from being satisfied about the delay having been properly explained would also be required to form an opinion that it was necessary in the interest of justice to condone the delay.

14. On behalf of the respondent, it was urged that Section 473, Cr.P.C, which reads as under:—

“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.”

15. Enables the Court taking cognizance of any offence after the expiry of the period of limitation prescribed in Section 468, Cr.P.C to do so if on the facts and circumstances of the case it is satisfied that the delay has been properly explained as also in cases where in the aforesaid facts and circumstances it feels that it is necessary to condone the delay in the interest of justice. According to the respondent, the word, ‘or’ which has been used between the delay has been properly explained and that it is necessary so to do in the interests of justice has been used disjunctively and as such the Section spells out two independent situations in which the delay can be condoned. For supplementing this argument, it was sought to be urged that the first part of Section 473, Cr.P.C spells out circumstances in which any application for condonation of delay filed under Section 5 of the Limitation Act could be allowed and the second part confers an independent right on the Court if satisfied that it was in the interest of justice to condone the delay. In support of this argument, the respondent relied upon the following observations contained in Venka Radhamanohari (Smt.) v. Vanka Venkata Reddy, 1993 (3) SCC 4:—

“In view of Section 473 a Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstance of the case that the delay has been properly explained, but even in the absence of proper explanation if the Court is satisfied that it is necessary so to do in the interests of justice. The said Section 473 has a non-obstante clause which means that said section has an overriding effect on Section 468, if the Court is satisfied on the facts and in the circumstances of a particular case, that either the delay has been properly explained or that it is necessary to do so in the interests of justice.”

16. The argument though attractive on first principle has got to be rejected by this Court in view of what has been laid down in State of H.P v. Tara Dutt, 2000 (1) RCR (Civil) 41 (SC) : 2001 (1) SCC 230, wherein three Judges of the Apex Court while re-considering the decision of the Apex Court in Arun Vyas v. Anita Vyas, 1999 (2) RCR (Crl.) 828 (SC) : 1999 (4) SCC 690, observed as under:—

“Obviously, therefore in respect of the offence for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well-recognised principles.”

17. And further in the later part of the judgment went on to observe as under:—

“We had already indicated in the earlier part of this judgment as to the true import and construction of Section 473 of the Code of Criminal Procedure. The said provision being an enabling provision, whenever a Magistrate invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay.”

18. In view of what has been laid down in State of H.P v. Tara Dutt's case (supra), while going into the merits of the order passed by the Special Judicial Magistrate (C.B.I), Ambala, this Court will be required to go into the circumstances in which the case against the petitioner could not be filed within the time stipulated in Section 468, Cr.P.C and if satisfied that the delay has been satisfactorily explained, also record a finding that it was in the interest of justice to condone the delay.

19. Having settled the legal parameters within which an application for condonation of delay has got to be dealt with, I may proceed to advert to the circumstances which would be necessary for determining the question in issue. Regarding the incident which is alleged to have taken place on 12.8.1990, a memorandum dated 16.8.1990 was forwarded to the Financial Commissioner and Secretary, Home Department, Government of Haryana, Chandigarh and G.D Entry No. 12 dated 18.8.1990 was recorded in Police Station Panchkula. In pursuance of the directions issued by the Chief Minister of Haryana, Shri R.R Singh, IPS, the then Director General of Police, Haryana, conducted an enquiry into the incident and submitted a report on 3.9.1990 in which he recommended that case be registered against the petitioner. No case was, however, registered and instead the Government decided to proceed with a departmental enquiry for major penalty. These proceedings were dropped on 30.5.1994 In the meantime, Miss Ruchika had committed suicide and Mrs. Madhu Prakash, the mother of Reemu had been trying to obtain a copy of the report of Shri R.R Singh, IPS, the Director General of Police, Haryana and it was supplied to her on 29.7.1997 and on 11.11.1997 she had filed a writ petition before this Court, which was allowed and SLP (Criminal) No. 2857 of 1998 filed by the petitioner was dismissed whereafter a case was registered in Police Station Panchkula on 29.12.1999, which was subsequently taken up by the CBI, SIC. I on 3.1.2000

20. From the above circumstances, it is evident that the complainant had protested against the treatment given to her on 12.8.1990 within four days of the incident and for reasons which need not be gone into while disposing of this petition, the investigation was to initiated until the High Court intervened in 1998. After the decision of the High Court, the petitioner had moved the Apex Court for seeking its intervention against this belated investigation which was causing harassment to him and his family members but his plea was rejected on 14.12.1999 The investigation in these circumstances could proceed only after the dismissal of the S.L.P when C.B.I took up the case on 3.1.2000

21. Seen in the light of the above facts, the delay in the filing of the chargesheet, in my opinion, has been adequately explained and cannot be attributed to the aggrieved party.

22. I may now proceed to examine the question as to whether it would be in the interest of justice to condone the delay. The objection to this belated trial is based upon the scope of object with which the provisions of Chapter XXXVI of the Code of Criminal Procedure were introduced, which were primarily, (a) as the time passes, the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater; (b) for the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some other time or the other commit some crime or other. People will have no peace of mind if there is no period of limitation even for petty offences; (c) the deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned;(d) the sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of a long period; and (e) 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, yet Section 468 Cr.P.C does not contain a complete bar and Section 473 Cr.P.C carves out an exception of period of limitation in certain cases. As already indicated by me, the Court while exercising its discretion under Section 473 Cr.P.C has to be satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. In the present case, as already indicated by me, the complaint was lodged on 16.8.1990 and for reasons best known to the Administration, the investigation into the case could not start until the High Court intervened in the year 1998 and the petitioner's plea against the High Court's order was finally rejected on 14.12.1999 While there is no doubt that with the passage of time there might be a lapse of memory yet from this factor alone, it would be possible for the Court to infer that the condonation of delay would not be in the interest of justice. The other factors referred to in the objects for introducing the provisions of limitation by and large would recede into the background for though it cannot be denied that living under a constant threat of prosecution for over 8 years may have caused a lot of harassment to the petitioner and his family yet the other reasons on account of which the period of limitation was introduced in this particular case are attributable to circumstances beyond the control of the complainant. It is quite possible that the lethargic approach of the executive to the case in hand may be attributable to the rank of the person involved although he himself may not have been asked for any favour. In this view of the matter, while it becomes necessary that the use of the bar of limitation is not made for reducing the deterrent effect and the sense of social retribution which is stated in the objects to be one of the purpose of criminal law, it is also necessary that the same is not extended to a case where criminal prosecution is delayed on account of avoidable delay in setting into motion the investigative machinery of the State. In this case, the Court will have to bear in mind that the investigation into the alleged offences has been carried out by the intervention of the High Court, which order was not reversed by the Supreme Court when intervention was sought by the petitioner. As now the investigation is over and this Court has come to a conclusion that the delay in the presentation of the chargesheet is sufficiently explained, it would not be proper for this Court to stand in the way of the parties getting a judicial decision on the merits of their respective positions, which till date stand shrouded in mystery and by doing so restore the confidence of the general public, both in the investigating agency as well as in the administration of justice.

23. For the reasons recorded above, the present petition is dismissed.

24. However, since the matter has been hanging fire for a sufficiently long time, I feel that the circumstances warrant that the agony of the parties be brought to an end as early as possible by issuing a direction to the trial Court to take steps to dispose of the case as expeditiously as possible, preferably within six months.

Petition dismissed.