Decided on September 17,1954

In Re, V. Bapanaiah And Others Appellant
STATE Respondents


CHANDRA REDDY,J. - (1.) This is a petition to revise the order of the Sub-Divisional Magistrate, Srikakulam, refusing to decide a preliminary objection, that the complaint was barred under section 53 of the Madras Police Act (XXIV of 1859). The petitioners along with police officers, of the police station, Srikakulam, were charged before the Sub-Divisional Magistrate, Srikakulam, with offences under sections 343, 348 and 330, Indian Penal Code. The case against them is that, while investigating into offences connected with a series of cases of house-breaking and theft, they kept P.Ws. 1 to 3 in wrongful detention, with a view to extort information or confessions concerning the cases mentioned above and that some of them caused hurt to P.W. 1. As the offence in question was said to have been committed on 6th November, 1952 and the complaint was filed on 23rd June, 1953, a preliminary point was raised, that' the prosecution was barred under section 53 of the Madras Police Act, 1859 and a request was made that this objection should be decided before proceeding further with the case. The learned Magistrate rejected this application notwithstanding the fact that, on a petition filed by one of the accused in this case against a similar order from the same Court, I, as a Judge of the Madras High Court, said that the accused are entitled to have a decision on the point of limitation, T.G. Nicholemas v. State (1954) W.W.N. (Cr.)185. The learned Magistrate did not give effect to it observing casually that order does not seem to apply, in terms, to the ease of the petitioners.
(2.) I am unable to agree with him that it has no application to the present case. The question in Cr.R.C. No. 211 of 1954 arose out of the same case and in fact it was filed by one of the accused, when the same Court refused to give a decision on the point of limitation, on the ground, that a decision on the point of limitation, was not free from difficulty and also that a circular issued by the Madras High Court and the decision of Ramaswamy, J., in Innasia Pillai v. Perumal Chettiar (1952) 2 M.L.J. 706 , prelcuded the Magistrate from giving his opinion at that stage. I stated there, after reviewing the case-law, that an accused person was entitled to raise a preliminary objection to the maintainability of the complaint and to have it decided, so that he may not be put to the necessity of undergoing a trial, in case he succeeds on the preliminary objection. This view of mine was based not only on principles of natural justice but also on some decided cases and I do not find any ground to change that opinion. My view, as expressed in Cr.R.C. No. 211 of 1954, is that the accused has not only a right to have a preliminary point decided ; but that it is also desirable to get a decision thereon to avoid waste of judicial time. If ultimately the Court should hold that the accused should succeed, with regard to his preliminary point, he would have been put to unnecessary trouble and expenditure and a good deal of the time of the Court wasted.
(3.) As regards the maintainability of the preliminary objection, it looks to me that there is considerable force in it. To appreciate the contention of limitation, it is necessary to set out the terms of section 53 (as amended) of the Madras District Police Act: "All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done, under the provisions of this Act, or under the provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise.......";

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