AMAR DUTT,J - (1.) THIS petition is directed against the order dated 5.12.2000 passed by the Special Judicial Magistrate (C.B.I.), Ambala by which the application filed by the Central Bureau of Investigation (in short 'the CBI') under Section 473 of the Code of Criminal Procedure (in short 'Cr.P.C.') was disposed of in the following terms :- "In view of above discussion application filed by the CBI, under Section 473 of the Cr.P.C. is allowed and bar of limitation is over looked, delay is condoned and period of limitation is extended and cognizance of the case is ordered to be taken accordingly in exercise of the powers conferred by Section 473 of the Cr.P.C."
(2.) THE bare facts and circumstances leading to the filing of the aforesaid application, which are necessary for the decision of the present petition are as under :- On 12.8.1990, Miss Ruchika, a 15 years old girl, is alleged to have been molested by the petitioner, an IPS Officer, who at the relevant time was working as Director (Vigilance and Security) to Bhakra Beas Management Board. He was also the President of the Haryana Lawn Tennis Association, of which Miss Ruchika was a member player. On 16.8.1990, a memorandum was submitted to the Financial Commissioner and Secretary, Home Department, Government of Haryana about the alleged incident. Information regarding the same was also given to the Station House Officer, Panchkula which was incorporated in G.D. Entry No. 12 dated 18.8.1990 Police Station Panchkula. In pursuance of the directions given by the Chief Minister of Haryana, Shri R.R. Singh, IPS, the Director General of Police, Haryana, conducted an enquiry into the incident and submitted a report on 3.9.1990. The report recommended the registration of a criminal case against the petitioner. Inspite of this, no F.I.R. was registered but acting on the report of Shri R.R. Singh, IPS, the Director General of Police, Haryana, the Government initiated, on 4.6.1991, proceedings for major penalty. The charge-sheet was replied to and proceedings were dropped on 30.5.1994. In the meantime, Miss Ruchika committed suicide on 29.12.1993. During this period, Smt. Madhu Prakash had been asking for the enquiry report of Shri R.R. Singh, IPS, the Director General of Police, Haryana. The same was supplied to her through Memo. dated 21.7.1997 and was received by her on 29.7.1997. On 11.11.1997, Smt. Madhu Prakash filed Criminal Writ Petition No. 1694 of 1997, in which this Court directed through order dated 21.8.1998 that F.I.R. be registered in Panchkula Police Station and the investigation should be conducted by an officer of the rank of Deputy Inspector General, CBI. The petitioner filed SLP (Criminal) No. 2857 of 1998 against the above order, which was dismissed and the order of this Court was upheld. The case was eventually registered in Police Station, Panchkula on 29.12.1999 and was subsequently taken up by the CBI, SIC. I on 31.1.2000. On completion of the investigation, a challan was put up before the Special Magistrate, Ambala on 17.11.2000, which was accompanied by an application under Section 473, Cr.P.C. It is the acceptance of this application, after giving an opportunity of hearing to the petitioner, by which the petitioner is aggrieved. I have heard Shri Dinesh Kumar Mathur, Senior Advocate assisted by Mrs. Abha Rathore, Advocate appearing for the petitioner and Shri Rajan Gupta, Standing Counsel for the C.B.I. assisted by Shri Pankaj Bhardwaj, Advocate.
(3.) ON behalf of the petitioner, it is submitted that Chapter XXXVI Cr.P.C. deals with the period within which cases pertaining to certain offences have got to be brought to the Court. Section 468 Cr.P.C. prescribes the period within which the Court shall take cognizance of the offences punishable with different terms. Section 469 Cr.P.C. indicates the dates from which the period is to commence. Section 473 Cr.P.C. is the non-obstante clause which lays down the circumstances in which a proceeding can be initiated after the period of the expiry of the limitation. The clause is in two parts, one which requires the delay to be properly explained and the second which allows the condonation of delay in the interest of justice. According to the counsel for the petitioner, before invoking the powers giving the benefit of Section 473 Cr.P.C., the prosecution will have not only to satisfactorily explain the reasons for the delay but also indicate that it would be in the interest of justice that the prosecution should be allowed because the two clauses, according to him, have got to be read conjuctively and not disjunctively. After spelling out the parameters within which the Court is required to exercise its powers for condoning the delay, the learned counsel went on to highlight the fact that the limitation in this particular case expired on 12.8.1993 for submitting that there is no explanation forthcoming why the limitation was allowed to lapse.;