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Vijay Kr. Agarwalla v. The State Of Assam .
Factual and Procedural Background
This revision petition arises from the order dated 10.2.1984 passed by the learned Judicial Magistrate, Gauhati, in Case No. 2169 of 1982. On the basis of an ejahar dated 29.5.1982 the police investigated and submitted a chargesheet on 18.8.1983 under sections 352 and 448, IPC. The learned Magistrate took cognizance of offences under those sections. The accused applied to quash the proceedings on the ground that cognizance was taken after the expiry of the period of limitation prescribed under section 46 Cr. P.C. The prosecution filed an application under section 473, Cr. P.C. for condonation of delay. The Magistrate allowed condonation by order dated 10.2.1984; the present petition challenges that order.
Legal Issues Presented
- Whether condonation of the period of limitation under section 473, Cr. P.C. can be made after a Magistrate has already taken cognizance of an offence.
- Whether allowing condonation of delay after taking cognizance amounts to review or recall of the earlier judicial order and whether the Magistrate has power to do so.
Arguments of the Parties
Petitioner's Arguments (Mr. R.K. Jain)
- The Magistrate cannot extend the period of limitation after taking cognizance; condonation must precede cognizance.
- Condonation after taking cognizance would amount to review or recall of a judicial order, and the Magistrate has no power to review/recall (relied on Bindheswari Prasad v. Kali Singh).
- Cited supporting authorities: Krishna Sanghi v. State of M.P; Panney v. State of Rajasthan; Prakesk Chandra v. Kushok Kishore.
Respondent's Arguments (Public Prosecutor Sri Gopal)
- Limitation can be condoned under section 473 even after taking cognizance of the offence.
- Cited supporting authorities: Cushrow Russy v. State of W.B; Sulochona v. State Registrar of Chits.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Krishna Sanghi v. State of M.P | Held (impliedly) that condonation of delay is to be made before taking cognizance. | Cited as authority supporting the view that condonation must precede cognizance. |
| Panney v. State of Rajasthan | Cited by petitioner in support of pre-cognizance condonation requirement. | Considered among authorities opposing post-cognizance condonation. |
| Prakesk Chandra v. Kushok Kishore | Cited by petitioner (name as in opinion). | Referenced as part of the line of authorities holding condonation must precede cognizance. |
| Cushrow Russy v. State of W.B | Held that Magistrate can consider question of delay after taking cognizance and after accused enters appearance. | Cited in support of the proposition that condonation can be allowed after cognizance. |
| Sulochona v. State Registrar of Chits | Held that power under section 473 can be exercised even after taking cognizance; condonation is not a pre-condition to cognizance; section 473 is overriding. | Cited in support of post-cognizance condonation and the overriding nature of section 473. |
| Panney Singh v. State of Rajasthan | Held that court cannot, subsequent to taking cognizance, condone the delay and extend the period of limitation. | Noted as authority contrary to the view allowing post-cognizance condonation. |
| State of Karnataka v. Vedavali | Karnataka High Court decision considered in Panney Singh. | Referenced as part of the authorities relied upon in Panney Singh. |
| Channa Basappa v. State of Karnataka | Karnataka High Court decision considered in Panney Singh. | Referenced as part of the authorities relied upon in Panney Singh. |
| Prakash Chandra v. Kushok Kishore | Held (Allahabad HC) that unless delay is condoned the court cannot take cognizance; not open to take cognizance, issue process, record evidence and thereafter determine limitation. | Cited as authority supporting pre-cognizance condonation requirement. |
| Bharat Hybrid Seeds v. State | Cited in Allahabad HC decision as authority (AP decision). | Referenced in support of the view that condonation must precede cognizance. |
| Bindheswari Prasad v. Kali Singh | Supreme Court decision relied upon by petitioner concerning review/recall power. | Cited by petitioner to argue magistrate lacks power to review/recall; court considered and rejected the characterization of condonation as review. |
Court's Reasoning and Analysis
The court first identified the statutory framework: section 468 (text refers to prohibition on taking cognizance after prescribed period) and section 473 (non-obstante power to take cognizance after expiry if delay properly explained or necessary in interests of justice). The limitation for offences under sections 448 and 352 IPC is one year from 29.5.1982.
The court observed conflicting high‑court authorities: some hold condonation must be before cognizance, others permit condonation after cognizance. The court held that taking cognizance without condoning delay is bad and without jurisdiction and that such an order may be void or voidable. If the accused challenges the order as void, the effect is that there was no valid order of taking cognizance. In that situation the court must either state that proceedings are barred by section 468 or take cognizance by extending the period under section 473.
Accordingly, before finally terminating proceedings the court can consider an application for condonation even though cognizance was earlier taken illegally; if condonation is allowed it removes the jurisdictional hurdle and, by operation of law, the cognizance will be deemed to have been taken after condoning the delay. The court further held that allowing condonation after cognizance does not amount to review or recall of the earlier order, because the application does not seek to alter the prior order but to remove a jurisdictional impediment. The power to allow condonation in such circumstances is discretionary and must be exercised on material on record.
Holding and Implications
Petition dismissed.
Direct effect: The High Court dismissed the revision petition and upheld the Magistrate's exercise of discretion in condoning the delay after cognizance. Broader implication: the court held that condonation under section 473 Cr. P.C. may be allowed after an (otherwise) illegal order of taking cognizance, and such condonation does not amount to a review of the earlier order; the Magistrate's discretion to grant condonation must be exercised on material on record. No statement was made that this decision sets aside previous contrary authorities; the court expressly disagreed with those decisions but treated the matter as within judicial discretion.
1. This revision petition arises from the order dated 10.2.1984 passed by the learned Judicial Magistrate, Gauhati, in Case No. 2169 of 1982.
2. On the basis of the ejahar dated 29.5.1982 the police investigated the case and submitted chargesheet on 18.8.1983 under sections 352 and 448, IPC. Upon the receipt of the police reports. the learned Magistrate took cognizance of offence under sections-352 and 448, IPC. Thereafter, the accused filed an application to quash the proceedings as the cognizance was taken by the learned Magistrate after the expiry of the period of limitation prescribed under section 46 Cr. P.C Then the prosecution also filed an application under section 473, Cr. P.C for condonation of delay. After hearing the parties, the learned Magistrate passed the impugned order dated 10.2.1984 condoning the delay hence this petitions to the court. Mr. R.K Jain, learned counsel for the petitioner, has submitted that the Magistrate cannot extend the period of limitation after taking cognizance. In support of his contention he has cited the decisions in Krishna Sanghi v. State of M.P, 1977 Cri. L.J 90; Panney v. State of Rajasthan, 1980 Cri. L.J 339; and Prakesk Chandra v. Kushok Kishore, 1980 Cri L.J 578. On the other hand, the learned Public prosecutor, Sri Gopal has submitted that the-limitation can be condoned after taking cognizance. In support of his contentions, he has cited decisions in Cushrow Russy v. State of W.B, 1977 Cri. L.J 160; and Sulochona v. State Registrar of Chits, 1978 Cri. L.J 116.
3. Section 468 of the Code provides that except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence after the expiry of the period of limitation. Limitation for the offence punishable under Sections 448 and 352 is one year and the period of limitation shall commence from 29.5.1982 This is not disputed by the parties.
4. In Krishna Sanghi v. State of M.P, 1977 Cri. L.J 90, the Madhya Pradesh High Court has impliedly held that the condonation of delay is to be made before taking cognizance of an offence.
5. In Cushrow Russy v. State of W.B, 1977 Cri. L.J 160, the Calcutta High Court has held that the Magistrate can consider the question of delay after taking cognizance of an offence and after accused enter appearance.
6. In Sulochana v. State Registrar of Chits, 1978 Cri. L.J 116, the Madras High Court has held that the power to condone delay can be exercised even after taking cognizance of the offence beyond the period of limitation. Condonation of delay is not a pre-condition to the taking of cognizance of an offence after limitation. Power under section 473 is an overriding power and is not limited to time factor of condonation.
7. In Panney Singh v. State of Rajasthan, 1980 Cri. L.J 339, the Rajasthan High Court has, after considering decisions of the Karntaka High Court reported in State of Karnataka v. Vedavali, 1978 Cri. LJ. 1375; Channa Basappa v. State of Karnataka, 1979 Cri. L.J 185 and Krishna Sahnghi v. State of M.P, 1977 Cri. L.J 90, held that the Court cannot, subsequent to the passing of the order of taking cognizance, condone the delay and extend the delay of limitation.
8. In Prakash Chandra v. Kushok Kishore, 1980 Cri. L.J 329 the Allahabad High Court also has, after considering the decisions in Krishna Sanghi v. State of M.P, 1977 Cri. L.J 90 (MP) and Bharat Hybrid Seeds v. State, 1978 Cri. L.J 61 (AP), held that unless delay is condoned, the Court cannot take cognizarce of the complaint. It is not open for the Magistrate to take cognizance, issue process, record evidence and thereafter to-determine the question of limitation.
9. Mr. Jain has further submitted that after taking cognizance if the Magistrate condones delay, it will amount to review or recall a judicial order passed by him. The Magistrate has-no such power of review as there is no provision in the Code empowering the Magistrate to review or recall the judicial order. Mr. Jain relies on a decision of the Supreme Court in Bindheswari Prasad v. Kali Singh, (1977) 1 SCC 57 : AIR 1977 SC 2432 : 1978 Cri. L.J 187.
10. section 468, Cr. P.C prohibits the Court from taking: cognizance of the offences of the category specified in that section after the prescribed period of limitation. Therefore, an order of the Court taking cognizance of an offence without condoning the delay is bad and without jurisdiction.
11. section 473, Cr. P.C runs:
“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 oa 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.”
12. Section 473 is a non-obstante provision. However, the expression “any Court may take cognizance of an offence after the expiry of the period of limitation” shows that normally question of the limitation is to be considered and decided at the time of the taking of the cognizance.
13. The next question which arises for consideration is whether condonation can bs made after taking cognizance of an offence. As already stated such taking of cognizance without condoning the delay is bad and without jurisdiction. The order may be void or may be voidable. If the accused does not challenge the or der of taking cognizance of an offence the effect of such order may be otherwise. If such order is challenged as void, the order of taing cognizanc; of an offence without condoning the delay will be come null and void, that is, it would be deemed that there was no order of taking cognizance of an offence. This is not an end of the matter. If there is no order for taking cognizance of an offence as stated above, the Court has to pass an order stating that it is barred by section 468, Cr. P.C or the Court may take cognizance of the offence by extending the period of limitation as provided under section 473, Cr. P.C Therefore, before passing an order to stop or terminate the proceedings, the Court can consider an application for condonation of delay subsequent to the illegal order of taking cognizance of the offence. If the application for condonation is allowed, it will remove the legal hurdle and it will be deemed by operation of law that the cognizance has been taken after condoning the delay.
14. Such condonation of delay will not amount to review of an order as submitted by the learned counsel for the petitioner. Review means to reconsider the order or the judgment for changing or altering of the order or the judgment. The application for condonation of delay is not for alteration or changing of the order. It is only for removing the aforesaid legal hurdle. It is quite different from its being reconsidered or altered. If such consideration for condonation amounts to review as submitted by Mr. Jain, it may be said that the application of the accused to drop the proceedings as barred by limitation amounts to review as there was an order for taking cognizance and that order is to be altered. But it is not so as it is a matter relating to the jurisdiction of the Court. The view also supports my conclusion above. In this view of the matter, the condonation of delay can be allowed after taking the cognizance of an offence and I respectfully agree with those decisions in which this view of mine has been taken and with a great respect I disagree with the decisions in which it has been held that the condonation of delay is to be made before taking the cognizance of an offence. As regards the merit of the order, it is a discretion of the Magistrate to allow or disallow the condonation if the findings are based on material on records. In the present case, the impugned order appears to have been passed on the material on record. It is not the case where the impugned order can be attacked.
15. For the foregoing reasons, the petition is dismissed.
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