Jagat Narain Singh v. Sate of Bihar — 1975 DIGILAW 147 (PAT)

JUDGMENT Uday Sinha J. The point involved in this application is whether the prosecution of the petitioner was barred by limitation in terms of section 468 of the Code of Criminal Procedure (New) and whether the cognizance of the offence taken by the learned Chief Judicial Magistrate, Aurangabad by order dated 6.1.1975 alleged to have been committed by the petitioner, was permissible in law. In order to appreciate this submission on behalf of the petitioner it is essential to set out some of the facts which have a bearing on the point involved in the case. 2. On the 3rd of January, 1975 opposite party Shanti Devi filed before the Chief Judicial Magistrate, what has been described as, “Protest Complaint Case No. 13/75” against the petitioner and one another alleging that on 19.12.1971 at about 10 P.M. petitioner Jagat Narain Singh entered into her room and locked it from inside and attempted to outrage her modesty. Accused Jagat Narain Singh was alleged to have fled away when persons in the neighbourhood rushed on hearing her hulla. By the time the villagers could turn up, the two accused fled away after lifting the thatch. It was also stated in the protest complaint petition that she had reported about the incident at the police station, but no heed was paid to it. The police, however, took up investigation on the instructions of the Deputy Superintendent of Police, Aurangabad but ultimately it ended in a final report in favour of the accused. Prior to the filing of the final report, however, the complainant had filed an anticipatory protest petition before the Sub-divisional Magistrate, Aurangabad on 24.1.1973, but that also proved abortive and, therefore, the petitioner had to file the protest complaint petition on the 3rd of January, 1975. This complaint petition was put up before the Chief Judicial Magistrate on the 6th of January, 1975 and cognizance was taken of the offence alleged to ha, e been committed by the accused on the basis of the said protest complaint petition. Thus we find that the occurrence took place on 19.12.1971. The case lodged by the opposite party was investigated by the police and final report was submitted by the latter on 24.1.1973. On the same day the complainant had filed an anticipatory protest petition which was ordered to be put up along with the G.R. record. Thus we find that the occurrence took place on 19.12.1971. The case lodged by the opposite party was investigated by the police and final report was submitted by the latter on 24.1.1973. On the same day the complainant had filed an anticipatory protest petition which was ordered to be put up along with the G.R. record. The matter was then postponed from day to day. On 4.2.1974 the complainant was absent and, therefore; the Sub-divisional Magistrate dismissed the complaint filed by the opposite Party. The complaint was, however, restored to file on the 6th of February, 1974 and Shri Ram Nath Pandey. Magistrate was directed to enquire into the matter and submit his report. On the 12th of December, 1974 the complaint was again dismissed by the Chief Judicial Magistrate, for default. Thereafter, the complainant. opposite party filed the present protest complaint in regard to the occurrence of the 19th of December, 1971. In that background the question of applicability of section 468 of the Code of Criminal Procedure (New) has got to be considered. 3. The content of section 468 is new to criminal jurisprudence in this land. It has introduced the concept of prosecution being barred by lapse of time which did not exist prior to the enactment of the Code of Criminal Procedure, 1973. Section 468' prohibits Courts from taking cognizance of the offences of certain categories. The categories are three in number. They are – (a) Offences punishable with fine only; (b) Offences punishable with imprisonment for a term not exceeding on year: and (c) Offences punishable with imprisonment for a term exceeding one year but not exceeding three years. The limitation prescribed for the three categories enumerated above respectively are six months, one year and three years. In the instant case, cognizance has been taken in regard to the offences covered by sections 448 and 354 of the Indian Penal Code. Section 354 is punishable with imprisonment for two years, or with fine, or with both and the maximum sentence which may be imposed under section 448 of the Indian Penal Code is imprisonment for one year, or with [me extending to one thousand rupees, or with both. The present case, therefore, will fall within the category provided in section 468 (2) (c). Section 469 lays down the point of time from which limitation against prosecution shall commence. The present case, therefore, will fall within the category provided in section 468 (2) (c). Section 469 lays down the point of time from which limitation against prosecution shall commence. The starting point of limitation has again been classified into three classes. The provision relevant to the present case is contained in clause (a) of section 469 (1) of the Code of Criminal Procedure (New) which lays down that the period of limitation in relation to an offender shall commence on the date of the offence. Section 470 provides for the exclusion of time, in computing the period of limitation. It lays down that the time during which any person has been prosecuting with due diligence another prosecution shall be excluded. It is useful, therefore, to quote section 470 of the Code of Criminal Procedure (new) in order to appreciate the content of the provision. “470 (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it." The rest of the sections is irrelevant for the present purpose and therefore, it is not necessary to quote them. It will be observed that the content of section 470 (1) is in pari materia with the provisions contained in section 14 (1) and (2) of the Limitation Act, (Act XXXVI of 1963) which provides that in computing the period of limitation for any suit or application, the time during which the applicant has been prosecuting with due dilligence another civil proceeding, against the same party for the relief shall be excluded where such proceeding is prosecuted in good faith in a Court, which, from defect of jurisdiction Or other cause of a like nature, is unable to entertain it. The expression "defect of jurisdiction or other cause of a like nature" has been the subject matter of judicial interpretation by various Courts. The Consensus of judicial opinion is that there must be initial want of jurisdiction in order to give the benefit of section 14 to any party. The expression "defect of jurisdiction or other cause of a like nature" has been the subject matter of judicial interpretation by various Courts. The Consensus of judicial opinion is that there must be initial want of jurisdiction in order to give the benefit of section 14 to any party. Since the expression "defect of jurisdiction or other cause of a like nature" appearing in section 470 (1) is the same as that in section 14 of the Limitation Act, that expression must receive the same interpretation as in the Limitation Act. Viewed in that light it is a matter of consideration whether the complainant was entitled to the benefit of section 470 (1) and whether the learned Chief Judicial Magistrate had a jurisdiction to take cognizance of the offences alleged in the complaint filed on the 3rd of January, 1975. 4. The revert to the sequence of events, it would be seen that the occurrence had taken place in December 1971 and the complaint in regard to the said occurrence had been dismissed on the first occasion on the 4th of December, 1974 and on the second occasion on the 12th of December, 1974. Thus there can be no doubt that the occurrence had taken place three years prior to the present complaint on the 3rd of January, 1975. Ordinarily, the complainant would have been entitled to the benefit of the provisions contained in section 470 (1), but the present case will be governed by the proviso to sub-section (1) of section 470 which provides that such an exclusion of the time during which the case had been pending before another cannot be excluded, the Sub-divisional Magistrate, who had dismissed the complaint on the 12th of December, 1974 certainly had the jurisdiction to apply his mind and pass such appropriate orders in regard to the complaint. It cannot, therefore, be said that the Sub-divisional Magistrate on that occasion was unable to entertain it as there was no want of jurisdiction in the Sub-divisional Magistrate. There was no inability in the Sub-divisional Magistrate to entertain the complaint, but it had been dismissed. For whatever reasons it might have been dismissed is immaterial. Thus there was neither any inability to entertain nor was there any want of jurisdiction. There was no inability in the Sub-divisional Magistrate to entertain the complaint, but it had been dismissed. For whatever reasons it might have been dismissed is immaterial. Thus there was neither any inability to entertain nor was there any want of jurisdiction. In that view of the matter, the proviso to section 470 (1) governs the instant case and the complainant could not get the benefit of the main section 470 (1) as the previous complaint was not before a court which had no jurisdiction to entertain it. The learned Chief Judicial Magistrate had, therefore, no jurisdiction to take cognizance of the of fences alleged in the petition of complaint filed on the 3rd of January, 1975. 1he fact that the petition filed on the 3rd of January, 1975 was described as ‘protest complaint case’ and not ‘complaint’ will not make any difference. There is no sanctity in the expression ‘protest complaint’ having been used in that application. In my view, that application could not have been treated but as the complaint with the same rigor attaching to it. In my view, therefore, the submission of learned counsel for the petitioner has substance and must be accepted. 5. A question may arise whether section 484 of the Code of Criminal Procedure (New) could be of any assistance to the complainant. The provisions of section 484 (2) (a) and (3) above have some bearing on the matter. Subsection 2 (a) provides that where any appeal, application, trial, inquiry or investigation was pending under the Old Code, then such an appeal, application, trial etc. shall be disposed of, continued, held or made, in accordance with the provisions of the Code of Criminal Procedure 1898, as if the present Code (Act 2 of 1974) had not come into force. Subsection (3) provides that where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of the Code of 1973 that period shall not be enlarged only by reason of the fact that a longer period is prescribed in the New Code, Sub-section 2 (a) of section 484 in my view has no application to the present case because the complaint pending consideration had been dismissed on the 12th of December, 1974. Therefore, whatever was pending on the 1st of April, 1974 came to an end on the 12th of December, 1974. Therefore, whatever was pending on the 1st of April, 1974 came to an end on the 12th of December, 1974. The complaint filed on the 3rd of January, 1975 which has given rise to the present application was a fresh complaint. It was 110t an application for revival of the old complaint filed on 24.1.1972 (or 24.1.1973 whatever may be correct since the complaint mentions 24.1.73 and the petition before this Court mentions 24.1.72), but was a fresh complaint since the prayer in the complaint was that "your honour would be pleased to put the accused persons on trial”. I am, therefore, of the view that section 484 (2) (a) does not come into play in the present case. 6. So far as section 484 (3) is concerned, that also has no bearing on the point under consideration. Under the Old Code of 1898 there was no provision limiting jurisdiction of Courts to take cognizance on the basis of passage of time from the date of the Occurrence. As stated already, section 468 enshrines a new concept in criminal jurisprudence in this country. As sub-section (3) refers to limitation on extension of time, where the period prescribed for an action, under the Old Code, came to a close before the commencement of the New Code. That provision can have no application, since there was no such provision under the Old Code. I am, therefore, of the view that the petitioner is entitled to the advantage of the provisions contained in section 468 and his prosecution was barred by time. 7. A question still remains whether section 468 can have any application to offences committed prior to 1.4.1974 when the New Code came into force. In my view, the provisions of section 468 could look back and affect complaints in regard to actions committed prior to 1.4.1974. That must be held to be so on a parity of reasoning as was done by the Supreme Court in relation to section 428 of the New Code in Mr. In my view, the provisions of section 468 could look back and affect complaints in regard to actions committed prior to 1.4.1974. That must be held to be so on a parity of reasoning as was done by the Supreme Court in relation to section 428 of the New Code in Mr. Boucher Pierre Andre versus Superintendent, Central Jail, Tihar, New Delhi and another1 which provides that where an accused has undergone any imprisonment during investigation, inquiry or trial of the case prior to his conviction and sentence of imprisonment that period of detention shall be set off against the term of imprisonment imposed on him on such conviction and the liability of such convict to undergo imprisonment on such conviction would be restricted to the remainder of the term of imprisonment imposed on him. Section 468 does not limit the application of the provisions to offences committed after the New Code came into force. On that date, i.e. 1.4.1974, it could have any meaning only in re1ation to offences committed prior to the appointed date. This is not providing the effect of retrospectivity to the section, but it is just giving full effect of the contents of the proviso. In my view, therefore, section 468 cannot be limited to its application to offences committed after 1.4.1974, but it would also govern offences and complaints thereof in its generic sense prior to that date. The petitioner, therefore, in this application must be he1d to be entitled to the benefit of section 468 of the Code of Criminal Procedure, 1973. 8. For the reasons, stated above, the application is allowed and the proceeding against the petitioner in complaint Case No.13 of 1975 pending in the Court of Shri Jiwan Tigga, Judicial Magistrate, First Class, Aurangabad is quashed. Application allowed.