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PETITIONER: SRINIVASA GOPAL

       Vs.

RESPONDENT: UNION TERRITORY OF ARUNACHAL PRADESH (NOW STATE)

DATE OF JUDGMENT18/07/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR 1729            1988 SCR  Supl. (1) 477  1988 SCC  (4)  36        JT 1988 (3)   342  1988 SCALE  (2)113  CITATOR INFO :  RF         1992 SC1701  (37)

ACT:      Constitution of India, 1950-Art. 21-inordinate delay of 9-1/2 years in proceeding with criminal prosecution for rash and negligent driving-Proceedings quashed-Quick justice is a sine qua non of Art.      Cr.P.C. 1973-Sections  468  and  473-Taking  cognizance after expiry of the period of limitation-When permissible?      Assam Frontier  (Administration of  Justice) Regulation 1945-Section 32-Applicability of Cr. P. C. 1973 to Arunachal Pradesh.

HEADNOTE:      The appellant  was driving  a jeep  which met  with  an accident and one of the occupants died and another sustained grievous injuries. According to the Police, the accident was attributable to rash and negligent driving of the appellant. He was  charge-sheeted  under  section  279  IPC  read  with sections 304-A/338  IPC and  a report  was submitted  to the Deputy Commissioner  on 22nd  November 1976.  The Magistrate held that  cognizance  was  taken  on  22nd  November,  1976 itself. The appellant moved the High Court under section 482 Cr.P.C. read with Art. 227 of the Constitution.      The High  Court held that the investigations started on 22nd November, 1976 on the registration of the case and were completed on  8th September,  1977, and cognizance was taken on 31st  March, 1986  when the Deputy Commissioner passed an order for  issuing summons  to the appellant. The High Court quashed the  charges against  the appellant and remitted the case to the Magistrate for considering it afresh.      This appeal  by special leave is against the High Court Judgment. It  was contended  before this  Court  that  since cognizance was  taken in  1986, it was barred by section 468 Cr.P.C. On  behalf of  the Respondent  it was contended that the provisions  of Cr.P.C.  do not  apply to  the  State  of Arunachal Pradesh. 478      Allowing the appeal, this Court, ^      HELD: 1.1  Section 473  Cr.P.C. provides that any Court

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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 to do so in the interest  of   justice.  Taking  cognizance  means  judicial application of mind of the Magistrate to the facts mentioned in the  complaint with  a view  to  taking  further  action. [484E-H]      Tula Ram and others v. Kishore Singh, [1977] 4 SCC 459, referred to.      1.2 As  regards the  contention  that  Cr.P.C.  is  not applicable to the State of Arunachal Pradesh, the High Court rightly  held   that   s.   32   of   the   Assam   Frontier (Administration of  Justice)  Regulations,  1945,  on  which reliance was  placed, should  be guided by the spirit of the Code and it will be proper to throw out a complaint if there was inordinate  or undue  delay, which  was  not  explained. [483D-E]      State of  Punjab v.  Sarwan Singh,  [1981] 3  SCR  349, referred to.      1.3 Statutes  of  limitation  have  legislative  policy behind them.  They shut  out belated  and dormant  claims in order to  save the accused from unnecessary harassment. They also save  the accused from the risk of having to face trial at a  time when his evidence might have been lost because of the delay  on the  part of  the prosecution.  A bar has been prescribed under  section 468 Cr.P.C. and there is no reason why the  appellant should not be entitled to it in the facts and circumstances of this case. [484A-C]      Surinder Mohan  Vikal v.  Ascharaj Lal Chopra, [1978] 2 SCC 403, relied on.      Kathamuthu v.  Balammal, [1987] Crl. L.J. 360; Ghansham Dass v.  Sham Sunder  Lal, [1982]  Crl. L.J.  1717 and Vijay Kumar Agarwalla  v.  State  of  Assam,  [1986]  1  GLR  421, referred to.      2. In the instant case, the broad facts that emerge are that the  alleged offence  took place in November, 1976, and until  the   High  Court’s   order  in   August,   1987   no investigation had  taken place.  The offence  is of rash and negligent driving.  It is,  as such,  neither  a  grave  and heinous offence  nor an  offence against  the  community  as such, 479 though all  criminal offences are crimes against society. It is not  necessary in the facts and circumstances of the case to decide,  whether cognizance  was properly  taken, whether the extension of period of limitation under section 473 must precede taking of the cognizance of the offence, and whether cognizance in  this case was taken on 8th September, 1977 as held by  the learned  Magistrate or  on 31st  March, 1986 as held by  the High  Court. Having  regard to  the  nature  of offence there  is enormous  delay  in  proceeding  with  the criminal prosecution  by the  respondent 91/2  years  for  a trial for  rash and  negligent driving  is too  long a time. Quick justice  is a  sine qua  non  of  Article  21  of  the Constitution. Keeping  a person  in suspended  animation for 91/2 years without any case at all cannot be with the spirit of the procedure established by law. [484D-G] C      [This Court  set aside  the order of the High Court and quashed the proceedings against the appellant.] [485A-B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 385

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of 1988. D      From the  Judgment and  order dated  14.8.1987  of  the Guwahati High Court in Criminal Revision No. 303 of 1986.      R. Ramachandran for the Appellant.      B. Datta,  Additional Solicitor  General,  Kitty  Kumar Marylar and Ms. A. Subhashini for the Respondents.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J.  Special  leave  granted.  The appeal is disposed of by the order passed herein.      On 20th  of November, 1976, the appellant was posted in the State  of Arunachal  Pradesh as  an  Executive  Engineer (Elect). An  accident took  place  in  the  jeep  which  was alleged to  have been  driven by the appellant. The accident took place  within the  Bomdila Police  Station in Arunachal Pradesh. In  the said  accident one  of the  occupants, J.K. Jain, Assistant  Engineer (Elect) died and another S. Karim, driver sustained  grievous injuries. According to the police the accident  is attributable  to rash and negligent driving of the  appellant. As  per the  case file,  Shri R.B. Singh, Sub-Inspector submitted a report to the Deputy Commissioner, Bomdila on 22nd November, 1976, who H 480 according to  the learned  Magistrate took cognizance of the offence under  section 32(c) of Regulation I of 1945 and the police registered the case. The learned Magistrate held that cognizance was  taken on  22nd November, 1976. This finding, however, was  not sustained by the High Court. The police is alleged  to   have  registered   the  case   and   took   up investigations and  submitted the  chargesheet in September, 1977 which,  however, appears to have been placed before the Deputy Commissioner  on 31st March, 1986, and it was on that date that the cognizance of the offence was taken, according to the  High Court.  The learned  Magistrate  in  his  order stated that the reason why report could not be placed before the Court  promptly merited  detailed probing,  which showed that cognizance  was taken  on 22nd  November, 1976  by  the competent  authority   but  the  court  proceedings  thereof commenced  on   31st  March,   1986.   The   appellant   was chargesheeted under  section 279  read with section 304A/338 of  the  Indian  Penal  Code.  According  to  the  appellant cognizance was  only taken  on 31st  March, 1986.  The first question,  therefore,   in  this   case  is:  when  was  the cognizance taken.  By the  order of  the learned Magistrate, the appellant  was directed  to appear  on the  next date of hearing, that  is on  8th September,  1986.  The  order  was passed on 14th July, 1986.      Challenging the  said order,  the appellant  moved  the High Court  of Gauhati  under section  482 of  the  Code  of Criminal Procedure read with Article 227 of the Constitution for quashing the charges framed by the Magistrate 1st Class, Bomdila. The High Court in its judgment and order dated 14th August, 1987  held that  the investigation  started on  22nd November,  1976  on  the  registration  of  the  case  under sections  279,   304A  and   338  of   the  I.P.C.  and  the investigation was  completed  on  8th  September,  1977  and cognizance was  taken on  31st March,  1986 when  the Deputy Commissioner passed  the following  order: "Records perused. Issue summons to the accused to appear at Kameng on 9th May, 1986." Therefore,  the first  question that  arises is, when was the  cognizance taken,  on 22nd  November, 1976  or 31st March, 1986.  The High  Court held that cognizance was taken on 31st  March, 1986.  The  offence  under  section  279  is punishable with  imprisonment for  a term  not  exceeding  6 months, or  with fine,  or with  both. Offence under section 304A  is   punishable  with  imprisonment  for  a  term  not

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exceeding 2 years, or with fine, or with both. Offence under section 338  is punishable  with imprisonment for a term not exceeding 2  years. Or  with  fine  or  with  both.  In  the aforesaid view  of the  matter, the period of limitation for taking cognizance  of the  offences would  be  three  years. Section 468  of the  Code of  Criminal Procedure provides as follows: 481           "468. Bar  to taking cognizance after lapse of the           period of  limitation:  (1)  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.                (2) The period of limitation shall be-                (a) six months, if the offences is punishable           with fine only,                (b) one  year, if  the offence  is punishable           with imprisonment  for a  term not  exceeding  one           year;                (c) three years, if the offence is punishable           with imprisonment  for a  term exceeding  one year           but not exceeding three years."      There is,  however, a  provision for  extension of  the period of limitation in certain cases where on the facts and circumstances of  the case,  the  delay  has  been  properly explained or  it is  necessary in the interest of justice to do so.  This is  provided in  section 473  of  the  Criminal Procedure Code in the following terms:           "473 Extention  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  interest  of           justice."      It was contended before us that the first question that arises in this appeal is: when the cognizance of the offence was taken in this case. This Court in Tula Ram and others v. Kishore Singh,  [1977] 4 S.C.C, 459 explained the meaning of the  words  "taking  cognizance"  and  held  that  it  means judicial application  of mind of the magistrate to the facts mentioned in  the complaint  with a  view to  taking further action. In this connection reference may also be made to the observations of this Court in Bhagwant Singh v. Commissioner of Police  and another,  [1985] 3 S.C.R. 942. It was held by this Court as follows: 482           "Now, when the report forwarded by the officer-in-           charge of a police station to the Magistrate under           sub-section  (2)(i)   of  s.   173  comes  up  for           consideration  by   the  Magistrate,  one  of  two           different situations  may arise.  The  report  may           conclude that  an offence  appears  to  have  been           committed by a particular person or persons and in           such a  case, the  Magistrate may  do one of three           things:(1) he  may  accept  the  report  and  take           cognizance of the offence and issue process or (2)           he may  disagree with  the  report  and  drop  the           proceeding  or   (3)   he   may   direct   further           investigation under  sub-section (3) of s. 156 and           require the  police to  make a further report. The           report may  on the  other hand  state that, in the

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         opinion of  the police, no offence appears to have           been committed  and where  such a  report has been           made, the  Magistrate again has an option to adopt           one of three courses; (1) he may accept the report           and drop  the proceeding  or (2)  he may  disagree           with the  report and taking the view that there is           sufficient ground  for  proceeding  further,  take           cognizance of the offence and issue process or (3)           he may  direct further investigation to be made by           the police under sub-section (3) of section l56.      ... . ... ....... ..................... .... ..........           But if  the Magistrate  decides that  there is  no           sufficient ground for proceeding further and drops           the proceeding or takes the view that though there           is sufficient  ground for proceeding against some,           there  is  no  sufficient  ground  for  proceeding           against others  mentioned in the First Information           Report,   the   informant   would   certainly   be           prejudiced because  the First  Information  Report           lodged by  him would  have failed  of its purpose,           wholly or in part.      . . . .. . . .. . .. .. .... . .. ... .. ... ... ... ..           There can,  therefore, be no doubt that when, on a           consideration of the report made by the officer in           charge  of  a  police  station  under  sub-section           (2)(i) of  s. 173,  the Magistrate is not inclined           to  take  cognizance  of  the  offence  and  issue           process,  the   informant   must   by   given   an           opportunity of being heard so that he can make his           submissions to  persuade the  Magistrate  to  take           cognizance of the offence and issue process."      The High  Court was  of the view that really cognizance in this  case was  taken on 31st March, 1986. The High Court has set  out the  facts on  which it  is  relied.  The  said finding of the High Court has not 483 been challenged.  The appellant  in this  case  before  this Court has proceeded on that basis. Shri B. Datta, Additional Solicitor General  contended that  cognizance was  taken  as early as  in September,  1977. It was contended before us on behalf of the appellant as it was said before the High Court that if  the cognizance  was taken  in  1986,  then  it  was clearly beyond  the time.  If the  principles of the Code of Criminal Procedure  applied, the laking of cognizance of the offence was  barred by  section 468  of the Code of Criminal Procedure.      It was  submitted before  the High Court of Gauhati and reiterated before  us that  the provisions  of the  Code  of Criminal Procedure  do not  apply to  the State of Arunachal Pradesh. In  this connection  reliance was placed on section 32  of   the  Assam  Frontier  (Administration  of  Justice) Regulation, 1945. Section 32 of the Regulation provides that the High  Court, the  Deputy Commissioner  and the Assistant Commissioner shall  be guided  in regard to procedure by the principles of the Code of Criminal Procedure so far as these are applicable  to the  circumstances of  the  District  and consistent with  the provisions  of the Regultion. There are exceptions to  section 32.  Those exceptions  are irrelevant for the  present purpose.  The High  Court held,  and in our opinion rightly,  that section  32 of  the  said  Regulation should be  guided by  the spirit  of the Code and it will be proper to  throw out  a complaint if there was inordinate or undue delay,  which was not explained. Indeed, this Court in State of  Punjab  v.  Sarwan  Singh,  [1981]  3  S.C.R.  349 observed at  page 351  of the  report that the object of the

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Criminal Procedure  Code 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 abuse  of  the process  of  the  court  by  filing  vexatious  and  belated prosecutions long  after the date of the offence. This Court reiterated that  the  object  which  the  statutes  seek  to subserve is  clearly  in  consonance  with  the  concept  of fairness  of  trial  as  enshrined  in  Article  21  of  the Constitution. Shri  Raju  Ramachandran  submitted  that  the exercise of  the power  under section  473 of  the  Criminal Procedure  Code   extending  the  period  of  limitation  by condoning the  delay in  launching the  prosecution,  should precede the  taking of  cognizance of  the offence. Reliance was placed on the Bench decision of the Madras High Court in Kathamuthu v. Balammal, [1987] Crl. L.J. 360. It was held by the Punjab  and Haryana  High Court  in the case of Ghansham Dass  v.  Sham  Sundar  Lal,  [1982]  Crl.  L.J.  1717  that cognizance taken  by the  Magistrate  without  deciding  the point in  limitation was  beyond his  jurisdiction. In  this connection, reliance  may be  placed to the decision of this Court in Surinder Mohan Vikal v. Ascharaj Lal Chopra, [1978] 484 2 S.C.C.  403 where at page 407 of the report, while dealing with the  provisions of  section 468 of the Code of Criminal Procedure, this  Court observed  that it is hardly necessary to say  that statutes  of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims  in  order  to  save  the  accused  from  unnecessary harassment. They  also save  the accused  from the  risk  of having to  face trial at a time when his evidence might have been  lost   because  of  the  delay  on  the  part  of  the prosecutor. As  has been  stated, a  bar to  the  taking  of cognizance has been prescribed under section 468 of the Code of Criminal  Procedure  and  there  is  no  reason  why  the appellant should  not be  entitled to  it in  the facts  and circumstances of  this case. Our attention was also drawn to the case  of Vijay Kumar Agarwalla v. State of Assam, [1986] 1 GLR  421, where  the Court  held that taking of cognizance without condoning delay was bad and without jurisdiction.      The High  Court in  the instant  judgment under  appeal held that  this aspect  of the  matter was not considered by the Magistrate  and  the  High  Court  quashed  the  charges against  the   appellant  and   remitted  the  case  to  the Magistrate for  considering the  case afresh. In the instant case, the  broad facts  that emerge  are  that  the  alleged offence took  place in  November, 1976,  and until  the High Court’s order  in August,  1987 no  investigation had  taken place. The  offence is of rash and negligent driving. It is, as such,  neither a grave and heinous offence nor an offence against the  community as such, though all criminal offences are crimes against society.      It is  not necessary  in the facts and circumstances of the case  to decide,  whether cognizance was properly taken. It is  also not necessary to decide whether the extension of period of  limitation under  section  473  must  precede  or taking of  the cognizance of the offence. It 1:: is also not necessary to  decide whether  cognizance in  this  case  was taken  on  8th  September,  1977  as  held  by  the  learned Magistrate or on 31st March, 1986 as held by the High Court. Having regard  to the  nature of  offence there  is enormous delay in  proceeding with  the criminal  prosecution by  the respondent-91/2 years  for a  trial for  rash and  negligent driving, is too long a time. Quick justice is a sine qua non of Article  21 of  the Constitution.  Keeping  a  person  in

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suspended animation for 91/2 years without any cause at all- and none  was indicated  before the  learned  Magistrate  or before the  High Court  or before  us, cannot  be  with  the spirit of  the procedure established by law. In that view of the matter,  it is  just and  fair and  in  accordance  with equity to  direct that  the  trial  or  prosecution  of  the appellant to proceed no further. We do so accordingly. 485      In the  aforesaid view  of the  matter, we  are of  the opinion that  the A  proceedings  cannot  be  proceeded  any further. We  allow the  appeal, set  aside the  order of the High Court of Gauhati. dated 14th August, 1987 and quash the proceedings against  the appellant.  The proceedings against the appellant are hereby quashed. G.N.                                    Appeal allowed. 486