Cri. Appeal No. 12 of 1997

10th September, 1998

Petitioner Counsel: Smt. GEETA DESHPANDE
Respondent Counsel: Mr. R. M. DESHMUKH

Cases Cited:
1983 Cri. L.J. 1833 [Para 15]

JUDGMENT

JUDGMENT :- Heard Smt. Geeta Deshpande, Additional Public Prosecutor, for the appellant - State, and Mr. R.M. Deshmukh, Counsel for the respondent.

2. The State wants to file appeal against acquittal recorded by Judicial Magistrate (F.C.), Court No.4, Dhule, in Summary Trial Criminal Case No. 2440/1992. The State has prayed that the leave be granted to file appeal as per provisions of Sub-Section 3 of Section 378 of the Code of Criminal Procedure, 1973. So at this stage, it is being considered, whether leave can be granted to file the Criminal Appeal.

3. The respondent was prosecuted for offence punishable under Section 145 (1) of the Bombay Police Act, 1951, alleging that the respondent had given false information while securing the service as Constable under State Reserve Police. It is alleged that a crime was registered against the respondent, being Crime No. 118/88, for offence punishable under Sections 326, 504, both read with Section 34 of Indian Penal Code, at City Police Station, Dhule. But the respondent did not give this information while applying for the service when he was bound to give that information.

4. It appears that the Assistant Commandant, Group No.6 of State Reserve Police, Dhule, lodged the report at City Police Station, Dhule, on 22-11-1991 with these allegations. The Crime No. 572/91 was registered. The Police took up the investigation and then charge sheet was submitted in the Court, as per provisions of Section 173(2) of Cr.P. C. for the said offence.

5. The learned Magistrate recorded the evidence of the prosecution, statement of the accused under Section 313 of Cr.P.C. and after hearing the arguments, acquitted the present respondent, on the ground that the prosecution was barred by limitation. The learned Magistrate has observed that the report was made at the Police Station on 22-11-1991. While the concerned authority had got the form filled in from the respondent on 31-10-1990, it means, one year after the knowledge to the authority. The charge sheet was filed in the Court on 25-8-1992 and he has, therefore, observed that the period of one year and 10 months has elapsed since 31-10-1990 to 25-8-1992 and as per provisions of Section 468 of Cr.P.C. the Court had not jurisdiction to take cognizance of the offence when the proceeding was filed after the period of limitation. The learned Magistrate also on merits held that the prosecution has failed to prove the offence.

6. The learned Additional Public Prosecutor, Smt. Deshpande, has argued that when the charge sheet was filed in the Court, the learned Magistrate took cognizance of the offence and, therefore, it impliedly means, that the delay was condoned as contemplated under Section 473 of Cr. P.C. and, therefore, it was not proper on the part of the learned magistrate to acquit the accused on the ground that the proceeding was filed after the expiry of the period of limitation and, therefore, leave be granted to file the appeal.

7. The learned Counsel for the respondent, Mr. Deshmukh, has argued that the offence punishable under Section 145 of the Bombay Police Act, 1951, prescribes the punishment of imprisonment for a term which may extend to 3 months or with fine which may extend to Rs. 100/-. or, with both and, therefore, in view of the provisions of Section 468 of Cr. P.C., the proceeding ought to have been taken within the period of 6 months because the matter falls under clause (a) of Sub-section 2 of Section 468 of Cr.P.C. Even if it is considered that the concerned authorities learnt about the false information given by the respondent, on receiving report from Superintendent of Police. Dhule, dated 24-12-1990, even then the proceeding filed in the Court on 25-8-1992 is barred by limitation.

8. The learned Counsel for the respondent has further argued that if any condonation of delay was expected, there ought to have been an application explaining the reasons as to why there was delay in filing the proceedings and then if the Court had been satisfied regarding the reasons given for the delay, the delay could have been condoned by specific order under Section 473 of Cr.P.C. Here, no such order was obtained from the Court before filing the proceedings in the Court and, therefore, merely because mechanically the Magistrate took cognizance of the offence on 25-8-1992, it cannot be said that the delay was condoned.

9. The learned Counsel for the respondent has also argued that the offence punishable under Section 145 of the Bombay Police Act, 1951, is non-cognizable offence. Therefore, the Police had no jurisdiction to investigate the offence and to file report as contemplated under Sub-Section 2 of Section 173 of Cr.P.C. No prior sanction of the Magistrate was obtained by the Police as per provisions of Section 155 of Cr.P.C. and, therefore, the trial vitiates.

10. Considering the provisions of Sections 468, 469 and 473 of the Code of Criminal Procedure, 1973, it is very clear that the Court cannot take cognizance of an offence if the proceeding is not filed within the prescribed limitation under Sub-Section 2 of Section 468 of Cr.P.C.

11. Section 469 of Cr. P.C. states as to when the period for limitation would begin, and clause (b) of Sub-Section 1 of Section 469 provides :

" The period of limitation, in relation to an offender, shall commence, where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier."

So, in this matter, it can be said that when the respondent applied for service on 30-10-1990, the concerned authority was not knowing that any false information was recorded or any information on material points required was not given. However, an enquiry was made with the Superintendent of Police, Dhule, as per the usual practice, and then on 24-12-1990, Superintendent of Police, Dhule, informed to the Commandant of the State Reserve Police, Group No.6, Dhule, that a crime was registered against the respondent at City Police Station, Dhule. So, it can be said that the Commandant of the State Reserve Police, Group No.6, Dhule, came to know about the commission of the offence on 24-12-1990. The proceedings ought to have been filed within a period of six months from 24-12-1990. But no such proceedings is filed within the period of limitation.

12. The charge sheet is filed on 25-8-1992. But there was no application for condonation of delay by giving reasons as to why delay was caused. So, there was no order by the learned magistrate under Section 473 of Cr.P.C. condoning the delay and further taking cognizance. Merely because the learned Magistrate entertained the charge sheet in the Court, it cannot be said that the delay was condoned.

13. We find substance in the argument of the learned Counsel for the respondent, that the very filing of the charge sheet was illegal. There cannot be two opinions that the offence punishable under Section 145 of the Bombay Police Act, 1951, is a non-cognizable offence. Part - II of the first schedule of the Code of Criminal Procedure, 1973, provides that if offence against other law is punishable with imprisonment for less than 3 years or with fine only, it is a non-cognizable offence. So, the offence punishable under Section 145 of the Bombay Police Act, 1951, is non-cognizable offence. Here, we would like to make it clear that the Bombay Police Act, 1951, nowhere provides that the offence punishable under Section 145 is a cognizable offence.

14. So, in case of non-cognizable offence, the person aggrieved has to file a complaint before the Court. Even if report is filed at the Police Station for non-cognizable offence, Police cannot proceed further with investigation of such non-cognizable offence. The Police Station Officer has to direct the aggrieved person to file a complaint in the Court. If at all the Police intend to investigate the offence which is non-cognizable, then Police have to seek permission from the Magistrate as per provisions of Sub-Section 2 of Section 155 of Cr.P.C. Then only Police can proceed with the investigation and then police can file any proceeding in the Court regarding such non-cognizable offence. So, it automatically follows that a Police Officer cannot file report under Sub Section 2 of Section 173 of Cr.P.C. with respect to non-cognizable offence where no prior sanction from the Magistrate is taken for investigation as per provisions of Sub-Section 2 of Section 155 of Cr.P.C. So, any proceedings which are commencing on the basis of Police report under Section 173 of Cr.P.C. with respect to a non-cognizable offence, without there being sanction under Section 155(2) of Cr.P.C., would be void and bad in law ab initio.

15. In this respect, Smt. Deshpande, Additional Public Prosecutor, herself has fairly put before us, the ruling of the Bombay High Court, in the case of Avinash Madhukar Mukhedkar Vs. The State of Maharashtra (1983 Cri. L.J. 1833). In that case, the petitioner was prosecuted for offence punishable under Section 124 of the Bombay Police Act, 1951, by following the same procedure as obtaining in the present matter. After considering the relevant provisions of the Code of Criminal Procedure and the Bombay Police Act, 1951, and the various judgments, the proceedings against the petitioner, in the said matter, was quashed. We respectfully agree with the views expressed in the said judgment. We also appreciate the fairness shown by the learned Additional Public Prosecutor, Smt. Deshpande, in bringing to our notice the above quoted ruling.

16. We, thus, hold in the present case, that the learned magistrate erred in taking cognizance of the offence on the basis of charge sheet filed by the Police against the respondent under Section 173 of Cr.P.C. The proceeding itself vitiates and, therefore, there is no purpose in granting leave to file appeal against the order of acquittal.

17. Hence, leave to file appeal rejected. Criminal Appeal No. 12/1997 disposed of.

Appeal allowed.