1. Applicant, by means of this application under Section 482 Cr. P.C. has prayed for quashing the proceedings arising out of charge sheet No. 5 dated 31.10.2011 filed on 01.11.2011 bearing case Crime No. RC/DST/2010/S/0007 under Section 323 IPC C.B.I. /STF/ New Delhi Vs. Sidddhartha Tripathi and another, pending in the court of Special Judicial Magistrate (CBI), Lucknow and also to quash the impugned summoning order dated 25.11.2011 passed in the aforementioned case, whereby the trial court took cognizance of the case after expiry of the period of limitation as provided under Section 468 Cr.P.C.
2. It is argued that in this case, the trial court has taken cognizance after expiry of the period of limitation. Since the offence under Section 323 IPC is punishable with maximum imprisonment of one year, therefore, in view of provisions of Section 468 Cr.P.C. the period of limitation for taking cognizance of the said offence was one year and the cognizance was taken after expiry of the period of limitation. It is further submitted that in this case no application under Section 5 of the Limitation Act was moved on behalf of prosecution at the time of filing of the charge sheet, therefore, the delay could not have been condoned.
3. The second argument is that since the charge sheet has been filed for a non-cognizable offence, therefore, in view of the explanation of Section 2 (d) Cr.P.C. the procedure of a complaint case ought to have been followed and cognizance ought to have been taken only under section 190 (1) a Cr.P.C..
4. On behalf of CBI it is argued that this case was registered under the direction of this Court and the CBI took notice of this offence for the first time on 04.11.2010 when the case was registered. Therefore, in view of the facts of this case the period of limitation shall start from the said date because prior to that date there was no FIR in this case, and no notice of case was to the officers of CBI therefore CBI was entitled to the benefit of Section 469 (b) Cr.P.C. It is further submitted that the allegations against the applicant were not of ordinary nature. The applicant had obstructed the free flow of judicial administration, therefore, it was in the interest of justice for the court to have taken the cognizance. It is further submitted that there is no illegality in not adopting the procedure laid down for trial of complaint cases.
5. To resolve the controversy, facts of the case are necessary which are as under:--
In this case the occurrence is alleged to have taken place on 21.08.2010. The complainant moved an application stating the facts in brief to the District Judge, Lucknow on 25.08.2010. Thereafter the matter came to the notice of this Court by means of a Writ Petition No. 9925 (MB) of 2010 (Prashant Singh Gaur Vs. State of U.P. and others) wherein this Court vide order dated 28.10.2010 directed investigation in the matter by the CBI. In compliance of the order of this Court, CBI registered the case on 04.11.2010 and filed charge sheet on 01.11.2011. The cognizance on the charge sheet was taken by the trial court on 25.11.2011. This Court while directing the investigation of the case by the CBI had observed as under:--
"The incident referred to at Para-12 of the report of learned District & Sessions Judge, Lucknow, pertaining to a group of advocates beating up a litigant as he was coming out from the Court on 21.08.2010. He was reportedly forced to compromise the case under duress"
6.The complaint made by Sri Devendra Singh Rawat against the applicant and others was as under:--
" I had come to the Court on 21.08.2010 at about 10.15 hrs. as the case was fixed before the Court No. 37, Lucknow for disposal of the application for commission in pursuance to the Hon'ble High Court Order dated 06.08.2010.
I was standing in the corridor waiting for my lawyer when Shr. Siddharth Tripathi was seen with his friend coming towards me saying that I had obtained the order of the Hon'ble High Court but will I be able to go out of the premises alive? At the moment, my lawyer Sh. Vinod Kumar Singh came and we moved inside the court. After sometime, the application was taken up and the date was fixed.
My lawyer thereafter left the Court while I waited to know the next date fixed. As I was coming out in the evening all alone Sh. Siddharth Tripathi along with 30-40 lawyers bounced upon me and started beating up. Being alone, I was severely beaten up and then was taken to the PS Wazirganj, Lucknow where I was asked to sit in a corner. After about one and half hour a compromise was directed to be signed by me by force before the police and about 30-40 lawyers. I had no option but to sign. Since there was completely dark, none of the contents of the alleged compromise could be seen by me nor could I know what was written therein. My cell phone was even taken away and the same was handed back to me later on ghy the SO, PS Wazirganj, Lucknow. Then I informed my brother and told him that I was at PS Wazirganj, Lucknow.
Thereafter at about 8.00 O'Clock in the evening when my brother came, with him I came back home. There was heavy down pour and there was no electricity in the area."
7.After investigation the CBI filed the charge sheet in which the brief facts of the case were narrated as under:--
"In compliance to the order dated 28.10.2010 of the Hon'ble High Court of Judicature at Allahabad, Lucknow Bench in a Writ Petition No. 9925 (MB) of 2010, this case RC DST 2010/S/0007 was registered on dt. 04.11.2010 U/S. 143, 147, 323, 341, 342 & 506 IPC against Siddharth Tripathi Advocate, Civil Courts, Lucknow along with 30-40 lawyers.
During investigation several witnesses were examined and documents collected. The investigation has disclosed that Sh. Devender Singh Rawat, complainant, was present in the Court campus on 21.08.2010 for doing pairvi of civil case titled Shyam Singh Rawat (father of the complainant Sh. Devender Singh Rawat) Vs. Avas Vikas Parishad and Smt. Vidhya Vati Tripathi (mother of accused Siddharth Tripathi) etc. listed in Court No. 37 in the Civil Court at Lucknow. Sh. Rawat was standing outside the Court, when Sh. Siddharth Tripathi who is also an advocate in the above case, threatened and challenged him that though he had obtained order from the High Court for constituting 'Commission' in the matter but he can't go alive from the Court. Sh. Siddharth Tripathi tried to assault the complainant but he tolerated the same and kept mum. After attending the court when Sh. Devender Singh Rawat along with Sh. Bansi Lal Arya priest of his neighboring temple were coming out from the court campus, Sh. Siddharth Tripathi along with Vijay Prakash Tiwari, advocate and 30-40 other lawyers beat Sh. Rawat badly on the road in front of the Court Gate, as a result of which he suffered several injuries, Sh. Tripathi also snatched Rs.2500/- from Sh. Devender Singh Rawat, complainant. However, during the investigation, the factum of snatching Rs.2500/- by he accused Siddharth Tripathi and abusing by accused persons to complainant could not be substantiated through reliable evidence.
That Sh. Siddharth Tripathi, Sh. Vijay Prakash Tiwari and other advocates forcibly took the complainant Sh. Devender Singh Rawat to the Police Station Wazirganj, Lucknow and tried to get registered a false FIR against him but the SHO Wazirganj resisted and did not register any FIR and directed Sh. Kunwar Pal Singh, Head Moharrir, P.S. Wazirganj to intervene and get the dispute settled.
That the accused Siddharth Tripathi, Vijay Prakash Tiwari and his associates also forced complainant Devender Singh Rawat to sign some documents purported to be a 'compromise letter' in the campus of the PS Wazirganj, Lucknow. Under the aforesaid pressure, he signed that letter but he was not allowed to read the same before signing. Moreover, that compromise letter could not be recovered during investigation by CBI. Thereafter, Sh. Ravinder Singh Rawat (the brother of Sh. Devender Singh Rawat), after receiving information about the said incident, arrived in the campus of PS Wazirganj, Lucknow and rescued his brother Devender Singh Rawat from the clutches of accused Siddharth Tripathi, Vijay Prakash Tiwari and other persons. During the investigation, the complainant Devender Singh Rawat expressed his inability to identify the other accused persons.
That after complainant Sh. Devender Singh Rawat went to Balrampur Hospital, Lucknow and got his injuries examined. The Medico Legal examination dated 22.08.2010 conducted at Balrampur Hospital, Lucknow also confirmed the infliction of several injuries on his body due to aforesaid incident of beating by the accused persons and their associates.
That Sh. Devender Singh Rawat, complainant also sent a complaint to DIG/SSP, Lucknow on 23.08.2010 and to District Judge, Lucknow on 25.08.2010 mentioning about the said occurrence.
During the investigation the complainant had pointed the place of occurrence and sketch map of the scene of crime was prepared by Sh. S. K. Rao, Junior Engineer, CPWD, Lucknow at the instance of informant Sh. Devender Singh Rawat.
Then, when the investigation was under progress, the accused Siddharth Tripathi again tried to obtain a compromise letter, affidavit etc. from the complainant so that the FIR of this case could be closed against him and he managed to send the same by post to various authorities of CBI etc. But those moves were just for the sake of saving himself from culpability.
It is, therefore, submitted that during the investigation the commission of offence U/Ss 323 IPC & Sec. 34 r/w 323 IPC against Siddharth Tripathi and Vijay Prakash Tiwari could only be substantiated through the reliable evidence. It is, therefore, requested that the cognizance of the offence against the said accused persons U/S 190 Cr. P.C. may be taken and the above named accused persons may be tried according to law."
8. Learned counsel for the applicant has placed reliance on the pronouncement of Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Limited and others Vs. Mohd. Sharaful Haque & another reported in (2005) 1 SCC, page 122 and also on the pronouncement of this Court in the case of Dr. Anil Kumar Agrawal Vs. State of U.P. and others, reported in 1993 AWC, page 453 wherein it was decided that application to condone delay is necessary. Reliance has also been placed on the pronouncement of this Court in the case of Dhruv Kumar Dubey & anothere Vs. State of U.P. & others, reported in 2011 (2) JIC, 803 (ALL) (LB) wherein it has been decided that procedure of complaint case has to be followed where police, after investigation submits report disclosing commission of non cognizable offence.
9. The perusal of the aforementioned facts clearly establishes that this is not a simple case of Section 323 IPC, because in this case 30-40 advocates including the applicant had obstructed the free flow of judicial system. Every person, under law, has a right to approach the court for redressal of his grievances. Any obstruction in the free flow of justice delivery system can not be tolerated. In the aforementioned case of Zandu Pharmaceutical Works Limited and others (supra) Hon'ble Apex Court has reiterated the principles laid down in the celebrity judgment of Bhajan Lal 1992 Supp (1) SCC 335 in which point no. 6 says that 'where there is an express legal bar en-grafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned providing efficacious redress for the grievance of the aggrieved party'. Learned counsel for the applicant has pressed that in view of the aforementioned principle the proceedings of the case ought to have been dropped because Section 468 Cr.P.C. prescribes the period of limitation for taking cognizance of the said offence. In that case the Hon'ble Apex Court had quashed the order of the High Court because the High Court held that the complaint was not hit by limitation. Hon'ble Apex Court while allowing the petition observed as under:--
"The period of limitation in terms of Section 468 (2) is 3 years. That being so, the court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the court 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." (underlined by me)
11. This observation of the Hon'ble Apex Court makes it clear that the decision to take cognizance even after period of limitation has to be taken keeping in view the facts and circumstances of each case because Section 473 Cr.P.C. also casts a duty on the Court to see whether continuance of proceeding is in the interest of justice or not.
12. In the facts of this case applicant himself had moved an application before the Court for treating the proceedings to be barred by time, objections were filed on behalf of the CBI and after hearing both the parties cognizance was taken. A closer look into the provisions of Section 473 of the Code clearly shows that this Section starts with a non-obstante clause, which reads, "notwithstanding anything contained in the foregoing provisions of the Chapter". This, in turn, means that notwithstanding the bar, which stands imposed by Section 468 of the Code, on the Court's power to take cognizance of an offence beyond the prescribed period of limitation, a Court may, in a given case, if satisfied, that 'the delay has been properly explained' or 'that it is necessary so to do in the interest of justice', take cognizance of an offence even after the period of limitation. The granting of such extension or taking of such cognizance beyond the period of limitation would obviously mean that the Court has invoked its powers under Section 473. Two conditions are provided in section 473 for taking cognizance. One condition is that before such cognizance is taken, the Court must be satisfied that the delay has been explained; whereas the other condition is that the Court shall be satisfied that it is in the interest of justice to condone the delay. Unless a different intent can be attributed to the provisions of Section 473, one has no option, but to construe the two expressions, "the delay has been properly explained" and "it is necessary to do so in the interest of justice", disjunctively and not conjunctively. When construed in this light, it logically follows that though, ordinarily, a Court can taken cognizance of an offence only when the police or the complainant has explained the delay in not presenting the police report or complaint, as the case may be, within the period of limitation, the fact remains that in a given case, even if there is no formal application or prayer made for condonation of delay, the Court is not powerless in condoning the delay and taking cognizance of the offence if it is satisfied that the condonation of such delay is necessary in the interest of justice.
13. Coupled with the above, what is also imperative to note that when a State launches prosecution against a person as an accused, the State also represents the interest of the person, who is aggrieved by the commission of such offence. Interest of victim has developed into a recognized aspect of criminal jurisprudence. Every provision of penal as well as procedural law has to take into account the interest of the victim. The expression, 'it is necessary so to do in the interest of justice' reflects the legislative concern for the unseen victim or for the unseen aggrieved party, the protection of whose interest becomes, undoubtedly, the duty of the Court too. In the facts of this case poor complainant was lawfully seeking his remedy through Courts of law, and he was prevented by the applicant and others to do so, he was beaten and was also forced to sign compromise. So it was the duty of the Court to protect his interest, because he was not the least responsible for the alleged delay.
14. It would be, contrary to the legislative intent expressed in Section 473, to contend that the Court is powerless to look into the causes of delay on its own motion and condone it, suo moto, if the facts and circumstances of the case so warrant, in the interest of justice. Hon'ble Apex Court in the case of Sukhdev Raj Vs. State of Punjab reported in 1994 Supp (2) SCC, page 398, has held as under ;
"It may be noted Section 473 Cr.P.C. does not in any clear terms lay down that the application should be filed at the time of filing a challan itself. The words "so to do in the interest of justice" are wide enough and the court accepted the explanation. Therefore, there are no merits in this appeal. The appeal is accordingly dismissed."
15. In the case of Vanka Radhamanohari (Smt.) Vs. Vanka Venkata Reddy and others, reported in (1993)3 SCC, 4, the Hon'ble Apex Court held as under "It has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the Court that there was sufficient cause for condonation of delay under Section 5 of the Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of the delay, whereas 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 the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. The case in hand is also of such nature in which accused persons can not be permitted to go without facing trial, because it is an offence against system, where a poor litigant was obstructed from seeking his legal remedy and was forced to sign compromise. However in the case in hand the case law of Dr. Anil Kumar (supra) is of no help to the applicant because the trial Court took cognizance after hearing the applicant. Applicant had filed his written objections at that stage and only after considering the same the impugned order was passed.
16. In another case Arun Vyas & another Vs. Anita Vyas, reported in (1999) 4 SCC, page 690 the Hon'ble Apex Court dealing with the provisions of Section 473 Cr.P.C. has held as under:--
" It may be noted here that Section 473 Cr.P.C. which extends the period of limitation is in two parts. The first part contains non obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. The first limb confers power on every competent court to take cognizance of an offence after 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 and the second limb empowers such a court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression 'in the interest of justice' in Section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is 'interest of justice'. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender."
17. I am also of the view that the present case is not of such nature which could have been thrown merely on the ground of limitation. First of all, in my view, there is sufficient Explanation for the delay in filing the charge sheet. The charge sheet was filed within one year from the date when the case was registered by CBI under the orders of this Court. I am of the view that it is a case where it would be in the interest of justice to continue with the proceedings pursuant to the chargesheet and it is not one of those cases where the extension of the period of limitation ought not to be granted. Perusal of the impugned order shows that the trial Court was of the view that since the case is of serious nature and High Court had directed investigation in this matter by CBI therefore keeping in mind the serious allegations trial Court condoned the delay in the interest of justice and this view of the trial Court can not be said to be erroneous in any manner.
18. So far as the second argument is concerned it is clear from the facts as alleged and as came out during investigation that applicant along with 30-40 other lawyers was a member of unlawful assembly. The other accused persons could not be identified by the complainant hence charge sheet was filed u/s 34 IPC. But the fact remains that the offence was committed in prosecution of the common object of the said unlawful assembly of 30-40 advocates, which brings the case u/s 147 IPC which is a cognizable offence. Therefore the argument that procedure of complaint case ought to have been followed has no force. In the facts of this case other offences also appears to have been committed, but this Court refrains from expressing any opinion on that point as that may affect the trial, however the trial Court shall consider this aspect at the relevant stage of the trial. In view of the facts of this case the applicant is not entitled to the benefit of the case law of Dhruv Kumar Dubey (supra) Accordingly this application u/s482 CrPC has no force and deserves to be dismissed and is accordingly dismissed.
Dated. 16th July 2012 Shaakir