IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3614 of 2008()
1. SIDDIQUE, S/O. ABOOBACKER HAJI,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/01/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
Crl.R.P. 3614 of 2008
Dated, this the 6th day of January,2009
ORDER
Revision petitioner is the accused in Crime
No.90/1997 on the file of Judicial First Class
Magistrate, Nilambur. Revision is filed
challenging the order passed by the learned
Magistrate on 25.8.2008 taking cognizance of the
offence condoning the delay invoking the power
provided under section 473 of Code of Criminal
Procedure. When the learned Magistrate had earlier
taken cognizance of the offence, petitioner
challenged that order before this court in
Crl.M.C.57/2004 contending that when cognizance of
the offences under section 279,379 and 338 of IPC
is barred on the submission of the charge sheet on
24.6.2002, learned Magistrate should not have taken
cognizance of the offence. This court as per
judgment dated 31.7.2007 quashed the order passed
CRRP 3614/2008 2
by the learned Magistrate taking cognizance of the
offence and directed the Magistrate to hear both
sides and consider whether the delay is liable to
be condoned, holding that before taking cognizance
after condoning the delay notice should have been
issued to the accused. The impugned order was
passed subsequently.
2. Learned counsel appearing for the revision
petitioner and the learned Public Prosecutor were
heard.
3. Learned counsel submitted that subsequent
to the disposal of Crl.M.C.57/2004 a report was
filed by the Sub Inspector of Police, Edakkara
explaining the delay and as per the report, the
delay was caused as the discharge certificate of
CW17 could not be obtained and that was not found
to be a sufficient cause to condone the delay by
the learned Magistrate and instead reason that
CW22 the doctor who treated CW13 is now working in
Gulf is taken as the cause for the delay which was
also not accepted as sufficient and the delay was
condoned invoking the power under section 473 of
Code of Criminal Procedure. Learned counsel argued
CRRP 3614/2008 3
that the learned Magistrate was not justified in
condoning the delay when the delay was not properly
explained by the prosecution. Learned counsel also
pointed out that learned Magistrate summoned all
the injured witnesses and they appeared before
the court and submitted that they have no objection
for dropping the case and in such circumstance
after a lapse of 11 years in view of the provision
provided under section 468 of Code of Criminal
Procedure learned Magistrate should not have taken
cognizance of the offence.
4. Learned Public Prosecutor relied on the
decision of the Apex Court in Vanka Radhamanohari
v. Vanka Venkata Reddy (1993(3) SCC 4) and in
State of Himachal Pradesh v. Tara Dutt (AIR 2000 SC
297) and argued that the criterion to be applied is
not the one applicable to condone the delay under
section 5 of the Limitation Act and instead the
question is whether in the interest of justice the
cognizance is to be taken after condoning the delay
and the learned Magistrate has applied the
provision in the proper perspective and there is no
illegality in the order.
CRRP 3614/2008 4
5. The legal position has been settled by the
Apex Court in Vanka Radhamanohari’s case (supra).
Following the earlier decision of the Apex Court in
Workmen, H.L. Ltd v. Hindustan Lever Ltd (AIR 1984
SC 1683) where it was held that Section 473 is in
the nature of an overriding provision according to
which any court may take cognizance of an offence
after the expiry of the period of limitation, if it
is satisfied that it is necessary so to do, in the
interest of justice Their Lordships held that as
distinct from Section 5 of the Limitation Act where
the onus is on the appellant or the applicant to
satisfy the court that there was sufficient cause
for condonation of delay. Section 473 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 justice to condone or ignore
such delay. It was held that while examining the
question as to whether it is necessary to condone
the delay, in the interest of justice, court has
to take note of the nature of the offence , the
class to which the victim belongs including the
background of the victim. Apex Court in Tara
CRRP 3614/2008 5
Dutt’s case (supra) laid down the principle as
follows:-
“Obviously, therefore in
respect of the offences for
which a period of limitation
has been provided in S.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. This being a
discretion conferred on the
court taking cognizance
wherever the court exercises
CRRP 3614/2008 6
this discretion, the same
must be by a speaking order,
indicating the satisfaction
of the court that the delay
was satisfactorily explained
and condonation of the same
was in the interest of
justice.”
Therefore the paramount consideration while
deciding the question whether cognizance is to be
taken after condoning the delay as provided under
section 473, is the interest of justice as found by
the learned Magistrate.
6. But the facts of this case, as pointed out
by the learned counsel appearing for revision
petitioner prove that the incident was on
22.3.1997. The charge sheet was submitted before
the court only on on 24.6.2002. After the
direction of this court to reconsider the question
in Crl.M.C.57/2004, granting opportunity to
explain the delay by filing a proper petition,
report filed by the Sub Inspector is to the effect
that the delay was occasioned as the treatment
CRRP 3614/2008 7
certificate of CW17 was not obtained. Learned
Magistrate found that the reasons submitted at the
time of argument is not the failure to get the
discharge certificate of CW17, but certificate of
CW22, the doctor who treated CW13, as the doctor is
working in Gulf. Learned Magistrate also found
that it is not a sufficient cause. But the delay
was condoned in the interest of justice as the
offence is relating to negligent driving. The
records of the learned Magistrate shows that
learned Magistrate issued notices to the injured
witnesses who appeared before the court and
submitted that they have nothing to say in the
matter. The other eye witnesses, after service of
notice, did not appear. In such circumstance, even
if the cognizance is taken and the ordeal of a
trial is completed no effective purpose will be
served as in the nature of the conduct of the
witnesses they will not support the prosecution
case. In such circumstance, considering the fact
that the incident occured more than a decade back,
it cannot be said that interest of justice warrants
taking cognizance after condoning the delay as
CRRP 3614/2008 8
provided under section 473 of Code of Criminal
Procedure, as it would result in unnecessary waste
of valuable time of the court. For that reason the
order passed by the learned Magistrate is set
aside. Revision petitioner is discharged.
Criminal Revision Petition is disposed
accordingly.
M.SASIDHARAN NAMBIAR
JUDGE
Tpl/-