ORDER

M. Thanikachalam, J.

1. Accused Nos. 2 to 8,11,12,15,20,23,24,29,31 to 33 in Cr. No. 655/96 on the file of the respondent police, are the petitioners.

2. The respondent/complainant had registered a case against the accused petitioners and others in Cr. No. 655/96, for the offences under Sections 147, 148, 448 and 427 I.P.C., for the incident or the commission of the offence said to have taken place on 3.7.1995. It seems, they have filed a final report on 7.5.1996 and the same was returned for rectification of some defects, by the Court on 10.5.1996. Thereafter, rectifying the defects, the final report was filed only on 24.7.1998.

3. The learned Judicial Magistrate, Nagapattinam, perusing the final report, came to the conclusion that the final report ought to have been filed, after rectifying the defects, on or before 3.7.1998, whereas the final report was filed only on 24.7.1998, after the prescribed period of limitation. In this view, he refused to take cognizance of the offence and rejected the same under Section 468(2) of Cr.P.C. As submitted by either party, the police have not questioned the Order passed by the Judicial Magistrate dated 24.7.1998, refusing to take cognizance of the offence, as time barred. The above facts are not in dispute. Therefore, ordinarily if the respondent/complainant was not satisfied, they ought to have preferred a revision under law, for setting aside the Order passed by the learned Judicial Magistrate, who refused to take cognizance of the offence and the Magistrate has no power, such as inherent one, to correct his own Order or nullify the same by some other method, which could not be recognized under law.

4. The respondent/complainant thereafter, appears to have filed a petition under Section 173(8) of Cr.P.C., for further investigation. The learned Judicial Magistrate, without ordering even notice to other side, it seems, allowed that petition, permitting the investigating officer to reopen the case and proceed further. The Order available does not say that the investigating officer is permitted to conduct further investigation, as contemplated under Section 173(8) Cr.P.C. Once the Magistrate has refused to take cognizance of the case, in the sense, closed the file, then under the Code, he has no authority to reopen the case, in Order to facilitate the complainant, to file the same final report, in Order to take cognizance, overcoming the hurdles created under Section 468 Cr.P.C. The Government Advocate makes a statement that on the basis of the Order passed by the learned Judicial Magistrate, a final report is also filed thereafter.

5. The learned counsel for the petitioners would contend, that the maximum imprisonment contemplated in this case, is three years for 148 I.P.C. and for that, the period of limitation prescribed, for taking cognizance, is only three years and therefore, permitting the police to reopen the case after three years and allowing them to file a final report is barred by limitation, and in a way, it is an abuse of process of law. In this view, he urged that the proceedings viz., reopening the case, as well as subsequent taking of the case, if any, also should be quashed for which, the learned Government Advocate is unable to say empathetically 'no', based upon particulars or on law.

6. The offence took place on 3.5.1995. Since the maximum period contemplated is three years, that should be taken as the limitation period for taking cognizance, as contemplated under Section 468 Cr.P.C., which says no court shall take cognizance of an offence after the expiry of the period of limitation, if an offence carries a punishment with imprisonment for a term exceeding one year, but not exceeding three years. Therefore, the complainant police ought to have filed a final report in this case on or before 3.7.1998 and the Court ought to have taken cognizance within that date alone. As observed by the Judicial Magistrate, as per the Order dated 24.7.1998, final report was finally filed only on 24.7.1998 i.e. after the period of three years and in this view, the learned Judicial Magistrate rightly held that the Court cannot take cognizance.

7. The learned Government Advocate submits that the final report was filed in time, but unfortunately, it was returned and the same was not represented in time and therefore, refusing to take cognizance of the case, as if final report was filed after three years, is an erroneous order. Assuming it is so, the remedy available for the complainant was to question the Order dated 24.7.1998 and certainly not to reopen the case, after the period of limitation, in Order to circumvent the period of limitation. In this view, in my considered opinion, the Order passed by the learned Judicial Magistrate dated 10.02.2001 permitting the investigating officer to reopen the case, is against the provisions of law, violative of the Criminal Procedure Code and the same is liable to be quashed. In addition, if a final report had been filed, the same is also liable to be quashed irrespective of the absence of specific prayer in this petition.

8. Section 473 Cr.P.C. empowers the court concerned to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and circumstances that the delay has been properly explained or that it is necessary to do so in the interest of justice. The learned Government Advocate has submitted that no application was filed to condone the delay or no explanation is also offered in the final report said to have been filed seeking condonation of the delay also, which should follow, the Magistrate ought not to have satisfied himself on the facts and circumstances of the case to condone the delay in the interest of justice. In this view also, if the case had been taken on file, the same is liable to be quashed, which is supported by the decision relied on by the learned counsel for the petitioner in Ramesh Chandra Sinha v. State of Bihar (2003 SCC (Cri) 1613 and Kathamuthu v. Balammal (1987 Crl.L.J. 360).

9. For the foregoing reasons, the contention of the learned counsel for the petitioners are well founded, legally sound, requiring the exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C.

10. The petition is allowed and the Order dated 10.12.2001 passed by the Judicial Magistrate ordering reopening of the investigation in Cr. No. 655/1995 is quashed. Crl.M.P. 12378 of 2002 is closed.