D.K. Jain, J.
1. This criminal revision is directed against the order of the learned Metropolitan Magistrate dated 21 June 1996, whereby charges under Section 218/220/271 and 342 IPC were framed against the petitioner, S.I.Manoj Pant.
2. The undisputed material facts leading to the filing of this petition are that on 10 August 1991, the petitioner, who at the relevant time was a Sub-Inspector, along with the staff of Special Staff, East District, apprehended one Lokesh Kumar in FIR No. 304/91 under Section 411 IPC and Sections 7, 10 and 55 of the Essential Commodities Act, 1955 registered at PS Krishna Nagar. On the disclosure statement of the said Lokesh Kumar, the petitioner apprehended one Anil Solanki, produced him before the Officer Incharge of the Special Staff, East District, who directed the petitioner to book the accused as per law. On the disclosures made by the said persons, 146 gas cylinders were recovered from both the accused. Later on it was reported on 11 August 1991, to the said officer and his senior officers, that the petitioner had let off the main accused Anil Solanki with malafide intention for illegal gratification and in his place had implicated his relative Gajender Singh and for that framed incorrect record with the intention to save concerned person from punishment and wrongful confinement of Gajender Singh. Being a public servant, on the direction of his officer Incharge, a case under Sections 218/220/221/342/193/161 IPC was registered against the petitioner.
3. After investigations, challan against the petitioner was filed on 6 March 1993. At the stage of consideration for charge, an objection was raised before the trial court on behalf of the petitioner that his prosecution having been instituted more than three months of the act complained of and without proper and valid sanction of the Lt. Governor, requisite under Section 140 of the Delhi Police Act, 1978 (hereinafter referred to as the Act) and as such no charge could be framed against him. However, relying on the order dated 29 October 1992, passed on prosecution's application, the learned Metropolitan Magistrate, held that since delay in filing the charge sheet had already been condoned by virtue of the said order, cognizance of the offence was not barred by limitation. Rejecting the objection, vide order dated 2 May 1996, he directed framing of charge against the petitioner under the afore noted Sections. Accordingly, the charges were framed on 21 June 1996. Hence the present petition.
4. I have heard Mr. K.B. Andley, learned counsel for the petitioner and Ms. Mukta Gupta, learned counsel for the State.
5. It is not disputed that the alleged offence was committed on 10 August 1991 and complaint against the petitioner was registered on 11 August 1991. The challan was filed in court on 6 March 1993, long after the time stipulated in Section 140 of the Act. It, however, appears that to get over the difficulty, or perhaps to camouflage the matter, an application was moved before the Magistrate on 29 October 1992, stating that challan could not be filed within three months, the time mentioned in Section 140 of the Act, the sanction of the Lt. Governor to file it thereafter could not be obtained within the stipulated period of one year, the delay may be condoned so that the challan is filed. The learned Magistrate thereon passed the following order:
Present: APP for the State
I.O. Sh. Kanchan Lal ASI is present
Heard the argument, Case file perused. In view of the circumstances explained, the time for investigation is hereby extended by one year. Delay, if any, is already condoned."
6. Mr. K.B. Andley has assailed the order framing charge on the ground that the challan being hopelessly barred by time, the Magistrate could not take cognizance of the same; the order dated 29 October 1992 extending time for investigation, being under Section 473 of the Code of Criminal Procedure (for short the Code) is of no consequence and the order framing charge is illegal as the Act being a special enactment, provisions contained in Section 140 of the Act must prevail over Section 473 of the Code and the bar in Section 140 to the entertainment of a prosecution, instituted beyond the period prescribed therein, being absolute, it could not be waived by the Magistrate acting under Section 473 of the Code. It is also urged that the grant of sanction by the Lt. Governor after the expiry of one year as contemplated in proviso to Sub-section (1) to Section 140 cannot revalidate the inherent lack of jurisdiction in the court taking cognizance of a challan beyond the period of limitation provided therein. In the alternative it is also submitted that even order dated 29 October 1992 is bad in law having been passed without notice to the petitioner and in any case it does not purport to condone delay in filing the challan. It is thus contended that taking of cognizance being bad in law, no charge could be framed and the same be quashed.
7. On the other hand, it is submitted by Ms. Mukta Gupta that since the Act does not provide the machinery for filing a charge sheet, the process of filing a charge sheet has to be under the provisions of the Code, which include Chapter XXVI, laying down the limitation for taking cognizance of certain offences and extension of period of limitation in certain cases and, therefore, the delay in tiling the challan having been condoned by the Magistrate on 29 October 1992, the entertainment of the challan cannot be said to be illegal not withstanding that the requisite sanction under Section 140 of the Act was obtained after the expiry of one year from 11 August 1991, the date of offence complained of.
8. Thus, the first question falling for consideration is whether in the matter of institution of prosecution against a police officer in respect of acts done by him under the colour of duty or authority or in excess of such duty or authority, the period of limitation contained in Section 140 of the Act would apply or the general provisions in Chapter XXVI of the Code will apply?
9. As indicated in the preamble, the Act was enacted to amend and consolidate the law relating to the regulation of police in the Union Territory of Delhi. It is axiomatic that it is a special enactment in respect of matters referred to therein and, therefore, the provisions contained in a special law must prevail over the provisions contained in the general law, like the Code, which generally apply to all the complaints, challans etc., and other proceedings connected thereto. Section 140 of the Act, falling in the miscellaneous Chapter XI, imposes certain restrictions and limitations in the matter of institution of suits and prosecutions against police officers in respect of the alleged offences or wrong acts by them. In my view, the Act being a special law, restrictions and limitations, enumerated therein should apply to cases falling within the ambit of Section 140 of the Act. Support to this view is lent by a decision of the Supreme Court in Prof. Sumer Chand v. Union of India and Ors. JT 1993 (5) SC 189, wherein while dealing with the question whether the period of limitation in filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Section 140 of the Act or by Article 74 of the Limitation Act 1963, their Lordships held that since the Act is a special law, if the suit filed falls within the ambit of Section 140 of the Act, then the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed in Section 74 of the Limitation Act.
10. Having held so, the next question for consideration is whether on the facts of the case can it be said that sanction accorded by the Lt. Governor on 11 February 1993 meets the requirements of proviso to Sub-section (1) of Section 140, the relevant part of which is reproduced below:
Section 140: Bar to suits and prosecutions: (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of: Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
11. Sub-section (1) provides that no prosecution for the offence or wrong, if committed or done, was of the character mentioned therein, shall be entertained and if entertained shall be dismissed if it is instituted more than three months after the date of the act complained of. However, proviso thereto relaxes the said condition and permits entertainment of such prosecution by the Court, if it is instituted with the previous sanction of the Administrator within one year from the date of the offence.
12. It is clear from a bare reading of the proviso that the sanction of the Administrator has to be obtained within one year from the date of the alleged offence as the prosecution itself has to be instituted within the said one year. It is obvious that a prosecution falling within the ambit of Section 140 of the Act cannot be entertained after the expiry of one year from the date of offence even with the sanction of the Administrator. In the instant case, the sanction of the Lt. Governor is dated 11 February 1993 for the offence which is alleged to have been committed on 10 August 1991. Thus, I am of the view that the sanction so obtained is of no consequence and does not have the effect of validating cognizance taken by the Court on 6 March 1993.
13. The next question which survives for consideration is as to what is the effect of the afore-extracted order dated 29 October 1992 whereby the learned Metropolitan Magistrate extended the lime for investigation by the police by one year. To appreciate the purport and effect of the said order it will be relevant to refer to the contents of the application filed by the police seeking condensation of delay. In the application of even date, roughly translated it is slated that since the time to obtain approval/sanction under Section 140 of the Act has expired and neither the sanction could be taken nor can it now be accorded by the Administrator, within the time stipulated, the delay may be condoned so that the challan could be filed after completing the investigations.
14. The application itself reflects the stand of the prosecution. When the said application was moved the prosecution was conscious of the fact that time for obtaining sanction under Section 140 from the Administrator had already expired and any approval obtained thereafter would not be valid. The order passed by the Magistrate on 29 October 1992 granting one year's time for investigation to the police was of no avail and could not be construed as extending the statutory period in Section 140 of the Act and therefore, the challan filed against the petitioner was barred by limitation.
15. In view of the above discussion, I have no hesitation in coming to the conclusion that since taking of cognizance by the learned Magistrate was itself bad in law, charge could not be framed on the basis of accusations in an invalid challan. Accordingly, the revision petition is accepted and the charges framed against the petitioner are hereby quashed.
16. The petition stands disposed of.