Chander Mohan Dutta & Anr v. State

ORDER %

23.11.2011 Crl.M.A. 18254/2011 Exemption allowed subject to just exceptions. CRL.M.C. 3858/2011 & Crl.M.A. 18253/2011

(stay)

¶1The complainant Dr. K.D. Gandhi filed a complaint against the Petitionersto the DCP VigilanceCell Asaf Ali Road on ll'*^ June, 2004. Pursuant to an enquiry conducted FIR No. 49/05 was registered on 20 January, 2005 under Section 341/504/506/509/427IPG at PS Rajouri Garden. After investigation charge-sheet was filed in the said case on 2 September,2008 and cognizancethereto taken on the same date. On 19 July, 2011 a formal applicationfor condonationof delay was filed by the Page 1 of8 ,th nd .th Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. concernedInvestigatingOfficerand vide the impugnedorderdated 23"^ July, 2011 the delay was condoned and the Petitioners were directed to be summoned. It is this order dated 23'^ July, 2011 condoningthe delay of 1 year and 3 months in filing the charge sheet and taking cognizancethereon and the consequentorder thereupon summoning the Petitioners which is impugned in the present petition.

¶2Learned counsel for the Petitioner strenuously contends that once there is a delay in filing the charge-sheetthe accused gets an indefeasible right against the prosecutionand the same cannot be taken away lightly. The Hon'ble Supreme Court and this Court have repeatedlyheld that the judicial discretion to condone the delay should be on the basis of twin requirementsof sufficientreasons being explained in the applicationfor condonationof delay and the interestof justice. It is statedthat time taken for investigationis no ground to condone the delay. Initially no separate applicationwas filed and only one line was mentionedin the charge-sheet itselfthat sincethe investigationtooktime the delay be condoned. Belatedly afterthreeyearsan applicationfor condonationofdelaywas filedwhichwas a cryptic application and the only ground taken therein was that the investigation was initially conducted by the local Police which was Page 2of8 subsequentlytransferred to the DIU West District and in view of the subsequenttransfer of the InvestigatingOfficersthe charge-sheetcould not be filed before the Hon'ble Court within the period of limitation. Reliance is placedonRamesh ChandraSinhaand Ors. Vs. State ofBihar and Ors. 2003

(2) C.C. Cases (SC) 235; Zandu Pharmacheutical Works Ltd. & Ors. Vs. SharafulHaque & Ors. 2004 (3) C.C. Cases (SC) 365; State of Punjab Vs. Sarwan Singh AIR 1981 SC 1054; R.P. Sharma & Ors. Vs. State 42(1990) DLT 241; Sanjay Gupta & Ors. Vs. State and Anr. 2003 (1) C.C. Cases

(HC) 46; B.K. Roy Choudhary Vs. State (CBI) 1997 (2) C.C. Cases 252

(HC); Romy Khanna Vs. State (Govt. ofNCT ofDelhi) & Ors. 182 (2011) DLT 221; M/s. Nestle India Ltd. & Ors. Vs. State & Anr. 1999 (2) C.C. Cases HC 421; Lokesh Tokas & Anr. Vs. State 2002 (2) C.C. Cases (HC) 14.

¶3I have heard learned counsel for the Petitioner. Briefly the facts of the case have been adumbrated in the preceding paragraphs. The issues before this Court is whether an applicationis essentialfor seeking condonationof delay and whether time being consumed in the investigationdue to the change of Investigatingagencies and InvestigatingOfficer should inure to the benefit of the accused thereby scuttling and thwarting criminal prosecution. In the presentcase the charge-sheethas been filed for offences Crl.M.C.3858/2011 Page 3of8 under Section 341/506/509/427/504 IPG and thus the period of limitation as per Section 468 Gr.P.G. was three years for taking cognizance as the maximum punishment provided for the offences was two years. Assuming the Petitioner's contention to be correct that the time period has to be reckoned from the date of incident in terms of Section 469 IPG and the delay in filing the charge-sheet was for a period of one year and three months, can it be said that the Learned Trial Gourt was unjustified in condoning the delay and passing the impugned order.

¶4The Learned Trial Gourt observed that there can be no dispute to the propositionof the learned counsel for the defence that the two conditions mentioned in Section 473 Gr.P.G. were to be read conjunctively and not disjunctively. It came to the conclusion that in the instant case a Doctor was constantly harassed by two senior level Police Officers and they made the life of the complainant,his wife, daughterand his old mother a hell. Though a complaint was filed on ll"" June, 2004, however, the FIR itself was registeredafter a considerabledelay of almost 7 months and thereafterthe investigation continued for more than tlii'ee years, though the facts did not involve any complex or intricate scientific question or factual quandary, according to the Learned Trial Gourt. Without commenting upon the Page4 of 8 indolence or lackadaisical attitude of the Investigating agency the Court was of the opinion that the interest of justice could not be jettisoned at the very threshold on the technicalities of the limitation.

¶5The Hon'ble Supreme Court in Vanka Radhamanohari Vs. VankaVenkataReddy & Ors. (1993) 3 SCC 4 held that while condoning the delay and consideringthe applicabilityof Section 473 Cr.P.C., the Court is requiredto considerthe explanationof delay and the interest of justice. It was held that in view of Section 473 Cr.P.C. the Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances 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 necessaryso to do in the interestofjustice. By virtue of non-obstanteclause in Section 473 Cr.P.C. the said section has an overriding affect on Section 468 Cr.P.C. While examining the question the Court has to take note of the nature of offence, the class to which the victim belongs including the backgroundof the victim. It was held that there was a basic difference between Section 5 of the Limitation Act and Section Cr.P.C. For exercise of power under Section 5 of the Limitation Act, the onus is on appellantor the applicantto satisfythe Courtthat there was sufficientcause Crl.M.C.3858/2011 Page 5 of8 for condonation of delay, whereas Section 473 Cr.P.C. enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay.

¶6In Ramesh Chander Sinha (supra) the Hon'ble Supreme Court held that the reason for condoning the delay by the Magistrate was that from 11 November, 1994 till 5^"^ October, 1999 further proceedingsin the Court of Learned Magistrate should be construed as stayed in view of the orders passed in Criminal MiscellaneousNo. 16672/1994whereas in the light of the orderpassedby the High Courton 6^'' February,-1995 therewas no scope to contend that the proceedings before the Magistrate was stayed, as by the order dated 6^'^ February, 1995, the order dated ll"^ November, 1994 was modified in effect to vacating the earlier order staying further proceedings. Further m.Zandu Pharmacheiitical Works Ltd. (supra) the Hon'ble Supreme Court held that the complainant in the said case has not come to the Court with clean hands and there was no explanation whatsoever for the inaction betweenthe 1995 and 2009 and that the communicationdated 5"^ December, 2001 was in responseto the letterofthe complainantdated 24"^ November, 2001. Thus, according to their Lordships the factual position clearly showed that complaintwas nothing but a sheer abuse of the process of law and the Crl.M.C.3858/2011 said was a case where the power under Section 482 should have been exercised. In State ofPunjab Vs. Saii'van Singh (supra) their Lordships held that the bar of limitation on the prosecution 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 abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of offences.

¶7In the present case the complaint by the complainant was filed to the DCP Vigilance on 11 June, 2004. However, the Police took almost 7 months in registering the FIR and thereafter it is apparent since Police Officers were involved investigating agencies had to be changed and the case file was transferred to different I.O.s, thus, causing delay. Thus, in view of the law laid down by the Hon'ble Supreme Court in Vanka Radhamanohari (supra) I find that this was a fit case for condoning the delay and no illegality has been committed by the Learned Trial Court while passing the impugned order.

¶8As regards the issue whether a formal application would be required for condoning the delay, it may be noted that in Vanka Radhamanohari (supra) their Lordships held that there was a distinction between Section 5 of the Limitation Act and Section Cr.P.C. Under Section of the Crl.M.C. 3858/2011 Limitation Act, the appellant/applicant has to show sufficient cause for condonation of delay whereas under Section 473 Cr.P.C. the duty is enjoined upon the Court to examine that besides the reasons for condonation of delay whether the interest of justice demands that the delay should be condoned. Thus, to my mind in the peculiar facts of the case where every effort is being made to delay the prosecution and help the accused, the interest of justice carmot be thwarted on account of the inaction of the Police in filing an application for condonation of delay belatedly.

¶9Petition and application are dismissed. MUKTA GUPTA,J NOVEMBER 23, 2011 'ga'

$-15 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 3858/2011 CHANDER MOHAN DUTTA & ANR Petitioner Through Mr. Jugal Wadhwa, Adv. versus STATE Respondent Through None CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA