Mere delay in a criminal procedure cannot call for a dismissal of the
prosecution, but should be given enough consideration too while delivering the
final verdict. The High Court bench consisting of J. Vivek Singh Thakur shed
light upon the issue of time period under Section 468 of the Code of Criminal
Procedure in the matter of Shikhil Katoch v. State of Himachal Pradesh
No. 265 of 2019].
The accused was apprehended for possessing 4.06g of heroin and an FIR was
registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS Act). It was submitted on behalf of the petitioner
that and for alleged commission of offence, as provided under Section 21(a) NDPS
Act, maximum sentence is one year imprisonment or with fine, which may extend to
ten thousand rupees, or with both.
Referring Section 468(2)(b) of Code of Criminal Procedure (Cr.P.C.), it was
contended that for an offence punishable with imprisonment for a term not
exceeding one year, the period of limitation for taking cognizance is one year
and as such in present case, the said period has elapsed. The order was
challenged on the basis that the prosecution launched against the petitioner is
time barred and hence, should be quashed.
The High Court relied on the Supreme Court judgement in Udai Shankar Awasthi
v. State of Uttar Pradesh & another
[(2013) 2 SCC 435], where it was held
that question of delay in launching a criminal prosecution may be a circumstance
to be taken into consideration while arriving at a final decision, however, the
same may not itself be a ground for dismissing the complaint at the threshold,
and moreover the issue of limitation must be examined in light of gravity of the
charge in question. Another issue that was raised was from when would the time
period be counted.
The court in the case of Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy &
[(1993) 3 SCC 4], and examining it in the light of legislative intent
and meaning ascribed to the term cognizance
by the Apex Court, made it
Section 473 Cr.P.C. postulates condonation of delay caused by the complainant in
filing the complaint and it is the date of filing of complaint which is material
for calculating the limitation period. Thus, relevant date is the date of filing
of the complaint or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance.
The HC held that:
In present case, plausible and satisfactory explanation for
delay in instituting the prosecution exists and also keeping in view the object
and purpose of the enactment of NDPS Act, interest of society is also there in
continuing the prosecution, and accordingly the petition is dismissed.
Written By: Prime Legal Law Firm
Off Address: 39/2, 2nd floor, K G Road, Bengaluru, Karnataka-560001
Phone no: +9986386002, Email: [email protected]