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TMI Blog1991 (2) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... e same proceedings. 2. This Application u/S. 482 of the Criminal Procedure Code is directed against the order of the Chief Judicial Magistrate, Satara, dated 21st November, 1986, for quashing the order passed by the trial Court taking cognizance of the offence directing issue of process to the accused and condoning the delay in filing the prosecution. It is necessary to state few facts in order to appreciate the rival contentions and the questions of law stated hereinafter that arise upon the controversy. 3. M/s. Doburg Lager Breweries Private Limited is a Company incorporated under the Companies Act and it carries on business of brewing, bottling and selling Bear. For this purpose, the Company has set up a brewery at Satara in the State of Maharashtra and it was granted a licence in the year 1972 for the manufacture of Bear under the Maharashtra Manufacture of Bear and Wine Rules, 1966, framed under the Bombay Prohibition Act, 1949. The licence was initially for a period of five years and was thereafter renewed from time to time every five years and was valid lastly up to 31st March 1987. 4. On 23rd August 1985, the Officers of the Prohibition and Excise Department of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1987 and 10 others. Upon an application moved on 26th November 1985, as applicant No. 1 in Criminal Application No. 531 of 1987 was given notice of his impending arrest, an application for grant of anticipatory bail was made before the City Sessions Court at Bombay on his behalf and vide order dated 4th December 1985 an order granting anticipatory bail to Applicants No. 1 for four weeks was made by the City Sessions Court at Bombay. Applicant No. 1 and the other accused were thereafter formally arrested and were bailed out by the orders of the Chief Judicial Magistrate at Satara. 7. In the meanwhile, against the cancellation of the licence of the Company, it filed Writ Petition No. 2369 of 1985 before this Court in its original jurisdiction and this Court vide its judgment and order dated 18th November 1986 quashed and set aside the order of the State Government cancelling the licence granted to the Company. An appeal against this order at the instance of the State is pending before this Court, but stay having been declined in the said appeal some time in the month of March/April 1987, the licence of the Company was renewed for a further period of 5 years valid up to 31st March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86 the opponent caused five different charge-sheets pertaining to five different periods to be filed in the Court of the Chief Judicial Magistrate, Satara, and it is further an admitted fact that the said charge-sheets were incomplete as would be clear from the note appended thereto. That the investigation was incomplete is further clear and admitted from the fact that on 21st November 1986 the Investigating Officer filed an application before the Chief Judicial Magistrate at Satara (Exhibit 2) stating that the investigation could not be completed before filing of the charge-sheet and as such the prosecution may be permitted to make further investigation and collect further additional evidence in respect to the offences after filing of the charge-sheet. It was prayed that permission be granted to the prosecution to file an additional charge-sheet within 6 months from the date of the application after collecting additional evidence. 12. Curiously enough, on the same day, another application (Exhibit 3) came to be filed before the Chief Judicial Magistrate at Satara presumably u/S. 473 of the Criminal Procedure Code, 1973, for condonation of delay for filing the charge-sheets on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the Inspector of Excise is examined and registered. Issue process against the accused. Accused produced along with the charge-sheet. 2. Application by the Excise Inspector for permission to file additional charge-sheet. Keep for orders. 3. Application by the Investigating Officer for delay condonation. Application granted. Adjourned for inspection on 4-3-87. Sd/- S. W. Khadse, C.J.M., Satara. 15. Reading of the endorsement on Exhibits 2 and 3 referred to above and the orders passed thereon and the order-sheet dated 21st November 1986 recorded by the Chief Judicial Magistrate, Satara, would reveal not only the utter non-application of mind on behalf of the trial Court but the perfunctory and casual approach of the trial Court in respect of making judicial orders. It is needless to state that taking cognizance of an offence under S. 190(1)(b) of the Code of Criminal Procedure and condoning delay in filing prosecutions u/S. 473 of the Code are judicial orders in judicial proceedings. The order-sheet dated 21st November 1986 reveals that the trial Court mechanically took cognizance of the offence, directed process to be issued against the accused and at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to take cognizance of the offence a police report in the form prescribed by the State Government. According to him, the first requisite of the condition precedent of sub-sec. (2) of S. 173 is the completion of the investigation and the second is forwarding the police report to the Magistrate for taking cognizance of the offence. The endorsement on the charge-sheet and the application (Exhibit 2) dated 21st November 1986 seeking permission to further investigate on the ground that the investigation is incomplete distinctly and undisputedly shows that the investigation was not completed on 21st November 1986 when the incomplete charge-sheets were presented by the opponent-State in the Court of the Chief Judicial Magistrate, Satara. Thus, according to Shri Manohar, the pre-requisite of filing the police report which is a condition precedent for the Court to take cognizance was not there. 19. It is his further submission that the police report has been defined in cl. (r) of S. 2 of the Code in the following terms : Police report means a report forwarded by a police officer to a Magistrate under sub-sec. (2) of S. 173. Thus, according to him, there is only one specie of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a police report within the meaning of sub-sec. (2) of S. 173 of the Criminal Procedure Code read with S. 2(r) of the Code and there is no question of the Magistrate taking cognizance of the offence within the meaning of S. 190(1)(b) of the Code on the basis of an incomplete charge-sheet. In the present case, admittedly an incomplete charge-sheet has been filed and it is specifically stated therein that the investigation is not yet completed. The application, Exhibit 2, clearly further recites that the investigation is not completed and this fact is even admitted before me as stated in the reply affidavit filed by the Investigating Officer opposing the present Application. Consequently, the incomplete charge-sheets cannot be treated as a police report at all as contemplated u/S. 173(2) of the Code to entitle the Magistrate to take cognizance of the offences. The learned Counsel for the applicants is right in contending that the definition of police report as given in the Code cannot be enlarged under the guise of interpretation and it is contended that when the meaning of a statutory provision is plain and clear, the Court should not be impelled by factors like practical diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of S. 167(2) or to say S. 468 of the Criminal Procedure Code can always be circumvented by the prosecution and the apparent legislative intents under those provisions would not only be not effectuated but undoubtedly stultified. 26. Apart from these facts, as contended by the learned Counsel for the applicants and as held in R. R. Chari v. State of Uttar Pradesh 1951CriLJ775 the said Court after considering the view in Gopal v. Emperor, AIR1943Pat245 , has held that the word cognizance is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of the proceedings. It is the condition precedent to the initiation of proceedings by a Magistrate. The Court noticed there that the word cognizance is a word of somewhat indefinite import and it is perhaps always not used in exactly the same sense and it further noticed the view in Superintendent and Remembrancer of Legal Affairs, W.B. v. Alani Kumar AIR1950Cal437 , that what is taking cognizance has not been defined in the Cr.P.C. and I have no desire to attempt to define it . It seems to me clear that before it can be said that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interest of justice. This new Chapter was apparently introduced in the Code in the interest of administration of justice with a view to put pressure on the organs of the criminal prosecution to make all efforts to ensure the detection and punishment of the crime quickly and also to shut out belated prosecutions and save the accused from unnecessary harassment and from the risk of facing a trial at a time when his evidence might have been lost due to the delay on the part of the prosecution. On account of the inordinate delay in the prosecution, the evidence of witnesses becomes weaker and uncertain due to the lapse of memory. One of the grounds given by the Law Commission for introducing this Chapter is that the sense of social retribution which is one of the purports of criminal law loses its edge after the expiry of the longer period. 29. It is thus clear from the language of S. 468 of the Code that there is a legislative interdiction against taking cognizance of the offences in the category specified in sub-s. (2) after the expiry of the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the part of the prosecutor. As has been stated a bar to the taking of cognizance has been prescribed u/S. 468 of Cr.P.C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of the case. The Supreme Court further in State of Punjab v. Sarwan Singh 1981CriLJ722 , has observed that the object of criminal procedure in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time as a result of which material evidence may disappear and also to prevent the abuse of the process of the Court by filing vexations and belated prosecution long after the date of the offence. The object which the statute seeks to subserve is clearly in. consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution. From these observations, it is clear that the prosecution runs the risk of failing on the ground of limitation if the prosecution is filed beyond the prescribed period of limitation and as such the accused acquires a right to contend before the Court that belatedly filed prosecutions should not be entertained and as a consequence to oppose the application u/S. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnerjee v. Registrar of Companies, West Bengal; (1978) I C LJ 617; Gulabchand Jain v. State 180 BLJR 156; State (Delhi Administration) v. Anil Puri, ILR (1979) Delhi 350; X. M. Dakashinamurti v. State (1989) 1 Crimes 185 :Vankeppa v. Regional Transport Officer, (1978) 2 Kant L.J 457; and State of Maharashtra v. Pandurang Virya, 1985 Mah LR 185. 36. Thus, in my view, the Chief Judicial Magistrate, Satara, was plainly in error in taking cognizance of the offence on the basis of the incomplete police report presented before him and consequently the order taking cognizance of the offence and issuing process to the accused is quashed and set aside as also the order of condonation of delay made by him vide order dated 21st Nov. 1986. 37. The applicants in Criminal Application No. 812 of 1987 are accused Nos. 12 to 16 in the aforesaid Criminal Cases Nos. 57 to 61 of 1987, whereas the applicants in Criminal Application No. 1868 of 1987 are the original accused Nos. 17 to 19 in the aforesaid Criminal Cases. For the reasons already stated, the judgment in Criminal Application No. 531 of 1987 shall also govern the Criminal Applications Nos. 812 of 1987 and 1868 of 1987 and for the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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