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Dheeraj Jatav vs The State Of Madhya Pradesh Thr on 18 May, 2018

THE HIGH COURT OF MADHYA PRADESH
MCRC.9720/2018.
Dheeraj Jatav Vs. State of M.P
Gwalior, Dated: 18/05/2018.
Shri R.S.Bansal, learned counsel for the petitioner.
Shri Dilip Singh Tomar, learned PP for the
respondent/State.

This petition has been filed under Section 482 of the
Cr.P.C for quashing of the FIR registering Crime No.42 of
2014 at Police Station Phoof district Bhind and all
consequential proceedings in R.T.C. No.1068 of 2017 (State
Through P.S Phoof Vs.Dheeraj Kumar). The petitioner has
also challenged the order dated 23.8.2017 by which
cognizance has been taken against the petitioner and
further order dated 7.2.2018 whereby, the charges have
been framed against the petitioner on the ground that they
are time barred.

It is submitted that as per the provisions contained in
Section 406 of the IPC, the maximum punishment is three
years RI or with fine or with both. It is submitted that in
terms of the provisions contained in Section 468 Cr.P.C, the
cognizance has been taken and the charges have been
framed, which is illegal and arbitrary.

Learned counsel for the petitioner submits that there
is no explanation for the delay in filing charge-sheet and
therefore, in absence of any explanation for delay in filing
the charge-sheet, the charge-sheet could not have been
accepted by the Magistrate. It is contended that on
7.3.2014 the FIR was lodged under the provisions of
Section 406 IPC and Sections 3 and 4 of the M.P.
Recognized Examination Act, and the charge-sheet was
filed on 23.8.2017 on which, cognizance has been taken.
Since the charges have been framed after prescribed period
of limitation, it needs to be quashed.

2

Annexure P/1 is the final report which demonstrates
that the charge-sheet was prepared on 15.11.2015. There
is no dispute to this proposition. Thereafter, it has come on
record in the form of order-sheets that the time was
continuously taken by the prosecution to file the charge-
sheet. Thereafter, a request was made by the SHO Phoof
that the case is fixed for 12.8.2016 but the investigation is
incomplete and therefore five days time may be granted to
file the charge-sheet. Thereafter, it has also come on
record that a complaint was made by Vijay Singh Tomar
SHO Phoof to Superintendent of Police, Bhind that earlier
Head Constable No.946 Brij Kishore Dixit has been
transferred from the police station and on 6.6.2017 Head
Constable Radheshyam Sharma informed him that Head
Constable Brij Kishore Dixit had not submitted case diaries
in relation to various crime numbers then Vijay Singh
Tomar had directed the H.C.M to record said finding in the
Rojnamcha and also the fact that neither Head Constable
989 Radheshyam Sharma received said case dairies In
charge nor Vijay Singh Tomar SHO. Therefore, a show
cause notice was given by the SDOP Ater to Head
Constable 946 Brij Kishore Dixit and thereafter, said case
dairies were received. This fact has been mentioned in the
documents also in the reply. It is also submitted that
because of the fault of one police officer which may be in
connivance with the petitioner and if FR was not produced
before the concerned court though it was prepared on
15.11.2015 by said Brij Kishore Dixit, no undue advantage
can be extended in favour of the petitioner.

It is settled principle of law that notwithstanding such
prohibition in view of the words “except as otherwise
3

provided by Section 468 which covers the provisions of
Section 473 and the non-obstinate clause under Section
463, the court has investigated that the discretionary
power to take cognizance of an offence despite expiry of
the period of limitation, can be exercised if the court is
satisfied that the delay has been properly explained and it
is necessary to take cognizance in the interest of justice. It
is also settled principle of law as has been laid down by the
Madras High Court in the case of Sulochana Vs. State
Registrar of Chits Madras 1978 CRI.L.J.116 power to
condone the delay can be exercised even after taking
cognizance of the offence. Condonation of delay is not a
precondition to take cognizance. In view of such judgment
of Madras High Court, this court is of the opinion that for
the lapse of Head Constable either on his own or due to
some external influence either by the petitioner or by any
other agency, it cannot be said that the court was
precluded from taking cognizance. As has been held in the
case of Sulochana (Supra) that the power to condone
the delay can be exercised even after taking cognizance of
the offence and therefore, it is a matter of time that if no
application is moved by the prosecution seeking
condonation of delay then that may be treated to the
advantage of the petitioner at a later date but for the
present, since the ratio of the decision in the case of
Sulochana (Supra) that such power to condone the delay
can be exercised even after taking cognizance of the
offence, it cannot be said that the case or the charge-sheet
or the order of taking cognizance needs to be quashed
merely on such technicalities. There appears to be
sufficient material on record to show indulgence of one of
4

the police officer Brij Kishore Dixit. On that ground also,
the delay cannot be allowed to be used as a tool to defeat
the case of the prosecution.

This petition is therefore, devoid of merit and is
hereby dismissed.

(Vivek Agarwal)
Judge
RKS

Digitally signed by R. K. SHARMA
Date: 2018.05.21 16:30:26
+05’30’

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