STATE OF GUJARAT Vs. MANGALABEN MUKUNDRAI SINDHAV

JUDGEMENT

(1.) BY virtue of the impugned order passed by learned Chief Judicial Magistrate ('ld.Magistrate', for short) Panchmahal at Godhra on 21.11.1998 below the application at Exhibit -5 in Criminal Case No.539 of 1989, the ld.Magistrate dismissed the complaint of the complainant, which order has given rise to this appeal under Section 378 of the Code of Criminal Procedure, 1973 ('Code', for short). By impugned order, the ld.Magistrate held that the said criminal complaint filed by the original complainant against the present respondent -accused persons was time -barred and the complaint was dismissed.

(2.) THE original complainant Mr.K.V. Pandya who was serving as P.C.R. Inspector under the Weight and Measurement Act, 1985 ('Act', for short), had visited the shop of the accused on 22.2.1996. The complainant upon inspection of a packet, the same was found closed, and no selling price was mentioned, no name etc. of the manufacturer, and description of the content of the packet was shown on the packet. The complainant seized one packet in presence of Panch. Necessary sanction was obtained by the complainant for launching the criminal prosecution against the accused persons. Thereafter, the complainant lodged the private complaint against the respondent -accused persons in the Court of ld.Magistrate for the offence punishable under Section 33 and 28 of the Standard of Weight and Measurement (Enforcement) Act, 1985, read with P.C. Rules 6(1), and the said offence was punishable under Section 52 and 48 of the Act, and the punishment prescribed was fine to the extent of Rs.5,000/ - and to the extent of Rs.1,000/ -, and for the breach of Rule 39 of the P.C. Rules, fine to the extent of Rs.2,000/ -. After receipt of the complaint, ld.Magistrate issued summons to both the accused persons. The accused through their ld.Advocate filed an application at Exhibit -5 inter -alia stating that the offence alleged against them were punishable only with fine. That as per the compliant, complainant Mr.K.V. Pandya inspected the shop of the accused and seized the packet on 22.02.1996. Despite this, the complaint was filed on 17.4.1998. That as provided under Sub -Section 2 of Section 468 of the Code, the period of limitation prescribed for filing said complaint from the date of commission of offence is 6 months. Whereas in the present case, after the date of commission of the so -called offence, the complaint was filed after about 2 years and 2 months i.e. on 17.4.1998. That thus the complaint was time -barred and requested to dismiss the same. The ld.Magistrate, considering the complaint and the relevant papers, and the provisions of law, and after hearing both the sides, by virtue of the order dated 21.11.1998, held that the complaint was outright time -barred, and there was no just and sufficient ground even for condonation of delay, and ultimately he was pleased to dismiss the complaint.

(3.) LEARNED A.P.P. Mr.Mengde for the appellant -State submitted that the impugned order passed by the ld.Magistrate is contrary to law and facts on record. That it is true that the offence alleged against the respondent -accused is punishable with fine only, and therefore, it is true that as per Sub -section -(2) of Section 468 of the Code, the period of limitation is 6 months from the date of offence for the purpose of filing criminal complaint and for the Court to take cognizance thereof. However, before filing complaint for any offence under the provisions of the Act, the complainant was required to obtain sanction of competent authority, and the period which was undergone for the purpose of obtaining sanction was required to be excluded as provided under Sub -section -(3) of Section 470 of the Code. That even otherwise, considering the nature of the complaint and the offence committed by the accused, this was a fit case for the ld.Magistrate to exercise his discretion as contemplated under Section 473 of the Code, and should not have dismissed the complaint on such technical ground of limitation. Therefore, it is submitted that the appeal be allowed and the impugned order passed by the ld.Magistrate be set -aside, and the criminal case be remanded to the concerned Court with direction to proceed further with the case in accordance with law.