P.K. CHOUDHURY versus COMMANDER, 48 BRTF (GREF)

Citation: [2008] 4 S.C.R. 976 · Decided: 13-03-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Allowed
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Judgment (excerpt)

A 
B 
[2008] 4 S.C.R. 976 
P.K. CHOUDHURY 
II. 
COMMANDER, 48 BRTF (GREF) 
(Criminal Appeal No. 480 of 2008) 
MARCH 13, 2008 
[S.B. SINHA AND V.S. SIRPURKAR, JJ.] 
Code of Criminal Procedure, 1973: 
s. 190 - Delay in filing complaint petition - Not condoned 
C - Cognizance of offence after expiry of period of /imitation -
Held: Is bad in law - Penal Code, 1860 - ss. 166, 167. 
s. 197 - Sanction under - Requirement of - Commission 
of offence under ss. 166 and 167 /PC by member of Armed 
D Forces -
Cognizance of, without obtaining sanction of 
competent authority - Held: Is bad in law - Penal Code, 1860 
-
SS. 166, 167. 
The prosecution case was that during the relevant 
period, the appellant was a member of Armed Forces. He 
E committed offences under ss. 166 and 167 IPC during the 
period 5.1.1989 to 11.2.1992 . A complaint was filed in 
November, 2000 on the basis of report dated 20.12.1996. 
The Magistrate took cognizance of the offences against 
the appellant. 
F 
Appellant filed application under s.482 Cr.P.C. for 
quashing the proceedings, which was dismissed by the 
High Court. 
In appeal to this court, the appellant contended that 
G the order taking cognizance was bad in law as the same 
was filed beyond the prescribed period of limitation and 
also was not preceded by a valid order of sanction of the 
competent authority as envisaged under s.197 Cr.P.C. 
Respondents contended that no sanction under 
H 
976 
P.K. CHOUDHURY v. COMMANDER, 48 BRTF (GREF) 
977 
... 
s.197 Cr.P.C. was required to be taken as the appellant A 
would be governed by the provisions of ss.125 and 126 
__, 
of the Army Act, 1950. 
I 
Allowing the appeal, the Court 
':( 
'! 
HELD: 1.1 Whereas s.166 IPC prescribes a sentence B 
of simple imprisonment for a term which may extend to 
one year; the sentence which can be imposed under s.167 
) 
IPC is one of either description for a term which may extend 
to three years or with fine or with both. [Para 6] [980-D] 
1.2. S.468 Cr.P.C. specifies the period of limitation c 
within which the cognizance of an offence can be taken. 
Clause (c) of Sub-section (2) of s.468 specifies the period 
of limitation to be three years if the offence is punishable 
with imprisonment for a term exceeding one year but not 
exceeding three years. There is no doubt or dispute that D 
.J.. 
the Court has the power to condone the delay. No order 
condoning the delay has however, been passed by the 
Judicial Magistrate in this case. [Paras 7, 8] [980-E, F] 
1.3. The Judicial Magistrate did not apply his mind E 
on the said averments. It did not is.sue any notice upon 
the appellant to show cause as to why the delay should 
not be condoned. Before condoning the delay, the 
appellant was not heard. Appellant was entitled to get an 
! 
opportunity of being heard before the delay could be 
condoned. [Paras 9-10] [981-B-H] 
F 
..., 
State of Maharashtra v. Sharadchandra Vinayak Dongre 
and Ors. (1995) 1 SCC 42 - referred to. 
2. Appellant admittedly is a public servant. He is said 
to have misused his position as a public servant. S.197 
G 
Cr.P.C. lays down requirements for obtaining an order of 
sanction from the competent authority, if in committing 
the offence, a public servant acted or purported to act in 
discharge of his official duty. As the offences under ss.166 
and 167 IPC have direct nexus with commission of a H 
978 
SUPREME COURT REPORTS 
[2008] 4 S.C.R. 
A criminal misconduct on the part of a public servant, 
indisputably an order of sanction was pre-requisite before 
the Judicial Magistrate could issue summons upon the 
appellant. [Para 11] [982-A-C] 
3.1. The provisions of ss.125 and 126 of the Army Act, 
B 1950 have no application whatsoever. [Para 12] [982-D] 
3.2. S.1.25 of the Army Act postulates a choice of the 
competent authority to try an accused either by a criminal 
court or any court or proceedings for court martial. S.126 
c provides for the power of the Criminal Court to require 
delivery of offende·r. [Para 13) [982-E] 
3.3. As an option to get the appellant tried in ordinary 
criminal court had been exercised by the respondent, there 
cannot be any doubt whatsoever that all the pre-requisites 
D therefor in regard to the period of limitation as also the 
necessity to obtain the order of sanction were required 
to be complied with. [Para 14] [982-F-G] 
4.1. A Court of law cannot take cognizance of an 
offence, if it is barred by limitation. Delay in filing a 
E complaint petition th_erefore
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