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high court himachal

Delay in a procedure cannot call for dismissal of trial: Himachal Pradesh High Court

Mere delay in a criminal procedure cannot call for a dismissal of the prosecution, but should be given enough consideration too while delivering the final verdict. The High Court bench consisting of J. Vivek Singh Thakur shed light upon the issue of time period under Section 468 of the Code of Criminal Procedure in the matter of Shikhil Katoch v. State of Himachal Pradesh [CRMMO No. 265 of 2019]. 

The accused was apprehended for possessing 4.06g of heroin and an FIR was registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). It was submitted on behalf of the petitioner that and for alleged commission of offence, as provided under Section 21(a) NDPS Act, maximum sentence is one year imprisonment or with fine, which may extend to ten thousand rupees, or with both. Referring Section 468(2)(b) of Code of Criminal Procedure (‘Cr.P.C.’), it was contended that for an offence punishable with imprisonment for a term not exceeding one year, the period of limitation for taking cognizance is one year and as such in present case, the said period has elapsed. The order was challenged on the basis that the prosecution launched against the petitioner is time barred and hence, should be quashed.

The High Court relied on the Supreme Court judgement in Udai Shankar Awasthi v. State of Uttar Pradesh & another [(2013) 2 SCC 435], where it was held that “question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold, and moreover the issue of limitation must be examined in light of gravity of the charge in question”. Another issue that was raised was from when would the time period be counted. The court in the case of Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy & others [(1993) 3 SCC 4], and examining it in the light of legislative intent and meaning ascribed to the term “cognizance” by the Apex Court, made it clear that “Section 473 Cr.P.C. postulates condonation of delay caused by the complainant in filing the complaint and it is the date of filing of complaint which is material for calculating the limitation period. Thus, relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance”.

The HC held that “in present case, plausible and satisfactory explanation for delay in instituting the prosecution exists and also keeping in view the object and purpose of the enactment of NDPS Act, interest of society is also there in continuing the prosecution, and accordingly the petition is dismissed” .

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