21 Nov 2023 10:45 AM GMT
The Kerala High Court recently laid down that a delay of nearly five years in re-submitting a request for obtaining sanction for taking cognizance of an offence Section 153(A) of the IPC ('Promoting enmity between different groups on grounds of religion, race, place of birth, residence') cannot be accepted.It also held that prosecution cannot contend that that period is liable to be...
The Kerala High Court recently laid down that a delay of nearly five years in re-submitting a request for obtaining sanction for taking cognizance of an offence Section 153(A) of the IPC ('Promoting enmity between different groups on grounds of religion, race, place of birth, residence') cannot be accepted.
It also held that prosecution cannot contend that that period is liable to be excluded under Section 470(3) Cr.P.C.
Section 470(3) Cr.P.C. stipulates that, "Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded".
"When the Explanation says that the date on which the application was made and the date of receipt of the order of the Government are allowed to be excluded from the period taken for obtaining sanction, the intention of the Legislature is clear. The provisions under Section 470 of the Code that allows exclusion of the period taken for obtaining sanction requires a strict interpretation. When there occurred a delay of nearly five years to re-submit the request for obtaining sanction, the prosecution cannot be heard to contend that that period is liable to be excluded under Section 470(3) of the Code," Justice P.G. Ajithkumar observed.
The revision petitioners were charged with offences punishable under Sections 143 ('punishment for unlawful assembly'), 147 ('punishment for rioting'), 148 ('punishment for rioting, armed with deadly weapon'), 341 ('Punishment for wrongful restraint'), 323 ('Punishment for voluntarily causing hurt'), and 153(A) read with Section 149 (common object) of IPC. They were alleged to have formed an unlawful assembly, and attacked the de facto complainant and a few students of Bible College at Maramon. It was further alleged that the petitioners shouted slogans and attempted to create communal disharmony and hatred between different religious groups.
The petitioners averred that the court below had taken cognizance of the offence long after the period prescribed in Section 468 of the Code, which is that of three years, and that the prosecution was thus illegal. Since the incident took place in May 2005, they submitted that cognizance of the offence ought to have been taken on or before May 2008.
The petitioners contended that even applying the provisions of Section 470(3) of the Code, the filing of the final report was beyond the period of limitation, and the order of the court below holding that once the period taken for obtaining sanction from the Government is excluded, cognizance of the offence was taken within time, was wrong.
The Court took note that the request for sanction had been submitted in May 2008, and that it was subsequently returned in a week for r curing formal defects in it. Thereafter, it noticed that the request was resubmitted only in January 2013.
To this, the Public Prosecutor submitted that during the interregnum there was flood situation in the area disabling the police personnel to take action in the matter and the delay in re-submitting the application was thus justified. The counsel thus sought the period from May 2008 till February 2019 when the final report was submitted, to be excluded under the provisions of Section 470(3) Cr.P.C.
It is at this juncture that the said contention could not be accepted since Section 470 required strict interpretation.
"The reason for allowing exclusion is that the period is the time taken by the Government to accord sanction. If whole of the period was taken by the Government, the prosecuting agency cannot be found at fault for that. But, it was not so. As stated, a major part of the period of delay was on account of the inaction on the part of the prosecuting agency," the Court reasoned.
The prosecution had also sought condonation of delay.
Holding that a party could not claim benefit of both exclusion of period as well as condonation of delay in respect of the same period, the Court observed,
"The provision for condonation of delay is a salutary one and is intended to mitigate the hardship of a person from rigours of limitation, provided he has a justifiable reason for not approaching the court in time. He has to satisfy the court that there was sufficient cause for not approaching the court in time. On the other hand, if exclusion of time is claimed, it is a matter for reckoning by computing the period. Once it is shown that the period is liable for exclusion, it is a matter of right, whereas condonation of delay is a matter of discretion of the court".
It thus held that the prosecution would not be entitled to get the period between return of the request for sanction and re-submission of the same before the Government excluded under Section 470(3) Cr.P.C.
As regards the question as to whether the accused could claim discharge for the reason that the cognizance of the offences was taken beyond the period of limitation, the Court affirmed that the accused could be discharged since there could not be a legal trial as the cognizance was time barred.
The revision petitioners were thus discharged.
Counsel for the Petititoners: Advocate Ajeesh K. Sasi
Counsel for the Respondent: Public Prosecutor Maya M. N.
Citation: 2023 LiveLaw (Ker) 673
Case Title: Manoj Kumar & Ors. v. State of Kerala
Case Number: CRL.REV.PET NO. 161 OF 2023
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