TMI Blog2010 (10) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... tered by the Delhi Police in this respect on 6th November, 1998 at Police Station Parliament Street, New Delhi, under the provisions of Official Secrets Act, 1923 considering it a case of sensitive nature later its investigation was handed over to the Central Bureau of Investigation (CBI). The CBI registered the case on 13th November, 1998 being R.C. No. 9 (S)/98-SIU-1 and completed the investigation 3. Deputy Superintendent of CBI on being authorized by U.O. I. filed a Criminal Complaint Case No. 13/2002 on 19th March, 2002 before the Court of learned Chief Metropolitan Magistrate (CMM). Since there was a delay in filing the complaint, an application for condonation of delay was filed by the respondent (CBI) on 4th April, 2002. In the application it was contended that CBI had completed the investigation of the case by December, 2000, however, while evaluating the evidence, the CBI felt that accused V. Balasubramanian would not be interested in receiving these secret documents unless he was acting as per the will and mind of the corporate entity with which he was associated. The CBI, therefore, sought legal opinion from the Attorney General, if on the basis of the evidence; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh Vs. Tara Dutt, (2000) 1 SCC 230 a twin test needs to be fulfilled for condonation of delay, one that the delay has been properly explained and the second that it was necessary to condone the delay in the interest of justice. It is submitted that the order of learned CMM as well as learned ASJ was silent as to how it was necessary to condone the delay in the interest of justice and therefore the orders were bad in law. A prayer is made that the orders be set aside and the Criminal Complaint being barred by limitation, be quashed. 6. Section 473 of Cr. P.C. reads as under: 473. Extension of period of limitation in certain cases. Notwithstanding any thing contained in the foregoing provisions of this Chapter, any court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. 7. Section 473 Cr. P.C. was interpreted by the Supreme Court in Smt. Venkata Reddy and Ors. Vs. Vanka Venkata Reddy and Ors. (1993) 2 Crimes 275. The Supreme Court had considered the scope of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been properly explained or that it is necessary so to do in the interest of justice. In view of Section 437 a Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained, but even in absence of proper explanation if the Court is satisfied that it is necessary so to do in the interests of justice. The said Section 473 has a non obstante clause which means that said section has an overriding effect on Section 468, if the Court is satisfied on the facts and in the circumstances of a particular case, that either the delay has been properly explained or that it is necessary to do so in the interests of justice. (emphasis added) 6. At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the Court that there was sufficient cause for condonation of delay under Section 5 of the Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether it is necessary to do so in the interest of justice . In the case of Bhagirath Kanoria v. State of M.P. [1985]1SCR626 , this Court even after having held that non-payment of the employer's contribution to the Provident Fund before the due date, was a continuing offence, and such the period of limitation prescribed by Section 468 was not applicable, still referred to Section 473 of the Code. In respect of Section 473 it was said: That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation had been completed much before the period of limitation. I consider that if an investigating agency seeks opinion whether a corporation can be made accused on the basis of evidence collected during investigation, it cannot be said that the investigating agency acted without due diligence. No doubt an Investigating Officer of CBI is suppose to know the law but the same is the case with judges and every judge is supposed to know the law, still decisions of MM are not accepted by the parties and are taken up in appeal or revision right up to the Supreme Court. When not satisfied with the decision of a Court the parties approach higher courts, although decisions of all courts that of MM, ASJ and High Court are given in accordance with law, an Investigating Officer, though is supposed to know the law but if he considers that he should take opinion of the top law officer of the Government so that he does not go wrong on some legal issue, I do not consider that it is unwarranted or unnecessary. I, therefore, find that the explanation given by the CBI for delay in filing the complaint was rightly accepted by the learned CMM and rightly upheld by the learned ASJ. 11. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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