Excerpts from Additional Chief Metropolitan Magistrate B.P. Kamble's order:
IT was submitted on behalf of the State mainly that so far as limitation is concerned, it is not applicable in this case, because it runs only after the sanction obtained from the Government of Maharashtra. So far as defence is concerned the ld. advocate for accused has mainly emphasised for bail and release of accused.
After having considered the facts and circumstances over-all situation in both these remand applications the court cannot play role of mere spectator. It is the duty of court for correct application, real implementation and execution of legal values...
In order to apply said principle of limitation and to calculate the alleged offence which has taken place before 7 years. An attempt is made to explain that u/s 470 CrPC on behalf of the State that said period pertains to exclusion of time in this case. Prosecution has given reference about Sec. 470(3) CrPC in order to compute the period of limitation which reads as follows:
Where notice of prosecution of 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.
I am unable to accept the position propounded by the prosecution that S.153-A of IPC. is governed by Sec.470(3) of CrPC. It elaborates particularly that sanction of Government is necessary under the virtues and rules by any law for the time being in forc e but Sec. 153-A IPC. does not fall under orbit of Sec. 470(3) CrPC. because no written sanction produced. As per Remand application averted as follows:
"On 24/04/1994 the application was made to the Govt. of Maharashtra under Sec.196-(a) of Code of Criminal Procedure seeking sanction for prosecution of accused for the said offences. By their communication dated 20/07/2000, the Govt. of Maharashtra has a ccorded the requisite sanction."
Obviously, the prosecution is not in hands the said written sanction. One cannot forget that there is limitation so far as filing the charge-sheet, completion of investigation. If it is not completed within 24 hours, the procedure followed in Sec.167(2) of CrPC. Can we say that there is no limit for filing charge-sheet? Is it the whims of prosecution? Unfortunately these questions are not explained by prosecution to my satisfaction.
Since investigation could not be completed for the reasons best known to the prosecution as contemplated u/s 167 CrPC therefore accused cannot be put to arrest and any more detention. The prosecution also failed to explain why condonation of delay, if an y, was not sought for. However, the interesting prayer of prosecution for suitable orders does not satisfy what categorically they require remedy for...
The application is brought for remand without support by the State. The arguments are made orally without production of any such sanction from the State government. Without sanction the court cannot take cognisance of offence. Cognisance means taking jud icial notice of an offence. Taking cognisance of an offence as a court of original jurisdiction amounts to initiation of the proceeding for the first time in a court and not in a subsequent inquiry or trial necessary for disposal of the case...
Offence registered is barred by limitation u/s 468(2)(c) of CrPC cognisance not taken by the court. Therefore accused No.1 Balasaheb Keshav Thackare, accused No.2 Sanjay Rajam Raut and accused No.3 Subash Rajaram Desai are released and offence registered stands terminated and closed.