Sheo Nandan Singh v. Surajdeo Singh — 1978 DIGILAW 241 (PAT)

Judgment Nagendra Prasad Singh, J. 1. The petitioners have filed an application under section 481 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code) for quashing an order dated 30.6.1975 passed by the learned chief Judicial Magistrate, Biharsharif summoning the petitioners to stand trial under section 188 of the Penal Gode, on a petition of complaint filed by the sub-divisional Officer, Biharsharif. According to the petitioners, learned Chief judicial Magistrate could not have taken cognizance of the offence aforesaid on the relevant date in view of the bar of limitation placed by clause (b) of subsection (2) of section 458 of the new Code, which provides one year as the period of limitation for taking cognizance of offence which is punishable with imprisonment for a term not exceeding one year. 2. In order to appreciate the contention raised on behalf of the petitioners certain facts have to be stated. On 13.11.1973 the police submitted a report for action under section 144 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the old Code) because there was an apprehension of breach between the petitioners and opposite party no.1. On the basis of that police report, a proceeding under section 144 of the old Code was initiated on 19.11.1973. Notice of that proceeding was served on. the petitioner on 21.11.1973. On 23.11,1973, opposite party no.1 filed a petition before the learned Magistrate concerned saying that after the service of the notice on 21.11.1973, these petitioners had violated the prohibitory order on 22.11.1973 by harvesting the paddy and amalgamating a portion of the land in dispute with their land. Learned Magistrate on that very date, i. e. , on 23.11.1973, called for a report from the police. The police officer, who was entrusted with the enquiry visited the place of occurrence on 24.11.1973 and submitted his report dated 26.11.1973 saying that after local enquiry he had learnt that on 22.11.1973 the petitioners, after service of the notice of the proceeding under section 144, had harvested the crops of the plots in question and had also amalgamated the same to their own plots, and, as such, action under section 188 of the Penal Code should be taken against them. A copy of this report is Annexure 3 to this application. On 3.12.1973, learned Magistrate perused the aforesaid police report and heard the parties. A copy of this report is Annexure 3 to this application. On 3.12.1973, learned Magistrate perused the aforesaid police report and heard the parties. On behalf of the petitioners a petition was filed that a local enquiry should be held through some other officers. On that petition, learned Magistrate directed the Anchal Adhikari, Rajgir to hold a local enquiry and then to submit a report. The Anchal Adhikari, after holding an enquiry, submitted his report dated 17.12.1973 saying that the allegation about the harvesting and violation of the prohibitory order was correct. That report was put up before the learned magistrate on 18.12 1973. After perusing the same, he directed these petitioners to file their show cause. That show-cause was filed on 26.8.1974. The case was adjourned from time to time and ultimately, after hearing the parties, learned magistrate passed an order dated 21.2.1975 saying that the Officer-in-charge, silao P. S. as well as the Circle Officer, Rajgir have recommended for action under section 188 of the Penal Code against these petitioners, and, as such, he was directing filing of a complaint against them for prosecution under section 188 of the Penal Code. The complaint was actually filed before the learned Chief judicial Magistrate on 5.4.1975, on the basis of which cognizance was taken on 30.6.1975, as already stated above. 3. According to learned counsel appearing for the petitioners, the new code came in 1.4.1974 and its section 468 became applicable. In view of that section cognizance should have been taken within one year of the offence, which in the instant case was committed on 22.11.1973. As no cognizance was taken within the period precsribed, learned Magistrate could not have taken cognizance thereof. This case was heard by a learned Judge of this Court who has referred it to Division Bench primarily for consideration as to whether this period of one year is to be calculated from the date when the offence is alleged to have b;en committed or from the date when the authority concerned, after enquiry, was satisfied about the commission of such an offence. In other words, if this period of one year is to be calculated from the date the offence was committed, admittedly, the period prescribed by clause (b) of sub-section (2) of section 468 of the new Code had expired and no cognizance could have been taken, on the other hand, if it is to be calculated from the date the learned Magistrate after enquiry passed an order for filing of the complaint, then it shall be within time, because in the instant case ho passed an order for filing of the complaint on 21.2.1975 and cognizance was taken on 30a1975. 4. Section 468 of the new Code prescribes different periods of limitation for different types of offences. As section 188 of the Penal Code is punishable with an imprisonment for a term less than one year, clause (b) of sub-section (2)of section 468 is applicable, which read with sub-section (1) of that section says that no court shall take cognizance of an offence after one year if the offence is punishable with imprisonment for a period not exceeding one year. But, in this connection section 469 of the new Code is relevant, which is as follows :- "469. (1) The period of limitation in relation to an offender, shall commence,- (a) on the date of the offence ; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier ; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded". 5. This section provides as to since which date the limitation shall start running. Clause (a) says that it shall commence on the date of the offence. In view of this clause (a) of sub-section (1) of section 469, learned counsel appearing for the petitioners submitted that limitation shall be calculated from 23.11.1973, the day the offence was committed. 5. This section provides as to since which date the limitation shall start running. Clause (a) says that it shall commence on the date of the offence. In view of this clause (a) of sub-section (1) of section 469, learned counsel appearing for the petitioners submitted that limitation shall be calculated from 23.11.1973, the day the offence was committed. In support of his contention, he placed reliance on a Supreme Court Judgment in the case of Surinder Mohan Vikal V/s. Ascharj Lal Chopra, AIR 1978 SC 986 . In that case, the complainant, after his acquittal under sections 406 and 420 of the Penal Code, filed a complaint under sec.500, i. e. for defamation against the complainant of the case in which he was accused. A plea was taken that in the meantime the period prescribed for filing a complaint of an offence of defamation had expired and section 468 of the new code was a bar. The Supreme Court held that the offence of defamation was committed against the complainant the day a case under sections 406 and 420 of the Psnal Code was filed against him and he should have filed a complaint within the period prescribed. That period will not commence after he was acquitted of the charges. In the instant case, in my view, clause (a) of sub-section (1) of section 469 is not applicable. Rather, clause (b) of sub-section (I) of that section is relevant, which applies to cases where the commission of the offence is not known to the person aggrieved or to police officer and in those cases the limitation shall commence on the first day on which such offence came to the knowledge of such aggrieved person or to any police officer. So far as the prosecution for violation of the prohibitory order under section 144 of the Code is concerned, the real aggrieved person is the court of the Magistrate whose order is violated and in view of sub-section (1) of section 195 of ihe Code no court can take cognizance of an offence punishable under section 188 of the Penal Code without a complaint in writing of that court or of some other court to which that court is a subordinate. Any party to a proceeding under section 144 has no right to file a complaint for any violation. Any party to a proceeding under section 144 has no right to file a complaint for any violation. In such a situation, in my view, clause (b) of sub-section (1) of section 469 of the new Code will be applicable. The commission of the offence under section 188 of the Penal Code might be known to a party to the proceeding under section 144 on the day it was committed, but may not be known to the court whose order has been violated. Therefore, whenever there is a violation of any prohibitory order and question arises of filing a complaint, the period of limitation shall commence when the commission of such an offence is brought to the notice of the court concerned. Now, in the instant case, although the offence was committed on 22.11.1973, it was brought to the notice of the court on 23.11.1973. it can be said on a plain reading of clause (b) of sub-section (1) of section 469 that limitation shall commence since this date, but that will not be a proper interpretation of that sub-section in my view, the words "was not known to the person aggrieved" mean that when it comes to the knowledge of the person aggrieved. This knowledge should be based on some reliable basis. Apparently in the instant case the Magistrate concerned did not accept the statement made by opposite party no. I in his petition filed on 23.11.1973 and that is why he directed the police officer to enquire and report. The police report was placed before him for perusal on 3,12.1973. Learned counsel appearing for the petitioners conceded that the limitation should run since 3.12.1973 when the police report was placed before the Magistrate, in which it had been stated that these petitioners had committed an offence under section 188 on 22.11.1973. Learned counsel appearing for the State, however, pointed out that the learned Magistrate was not satisfied by the is police report and that is why, on a prayer being made on behalf of the petitioners, he called for a report from the Anchal Adhikari. If this contention is to be accepted, even that the report of the Anchal Adhikari was received and placed before the Magistrate on 18.12.1973, reporting the same fact. As such, ifthe period of one year is calculated even from that day, still the cognizance hud been taken after one year. 6. If this contention is to be accepted, even that the report of the Anchal Adhikari was received and placed before the Magistrate on 18.12.1973, reporting the same fact. As such, ifthe period of one year is calculated even from that day, still the cognizance hud been taken after one year. 6. Then, faced with this situation, learned counsel appearing for the State urged that before filing a complaint it is the duty of the court concerned to be fully satisfied about the allegation of commission of the offence under section 188 and for that purpose, notice to show cause had to be issued to these petitioners and that was finally disposed of on 21.2.1975. As such, in the eye of law, it will be deemed that the court knew about the commission of the offence on 21.2.1975 when it passed an order for filing of the complaint. It is difficult to accept this contention. The sole object of section 468 and section 469 of the new Code is to shut out belated and stale prosecutions and that object shall be frustrated if the words "was known to the person aggrieved" are interpreted in this manner. In my view,no sooner the Magistrate was satisfied on the basis of the police report or on the report of the Circle Officer that an offence under section 188 has been committed by these petitioners, the period of limitation commenced. 7. There may be cases where the Magistrate may not accept the police report or the report of any other officer and prefers to hold a preliminary enquiry himself. But, that is not the case here. On 18.12.1973, after being satisfied, the magistrate directed the petitioners to file show-cause as to why they should not be prosecuted under section 188 of the Penal Code. This will not, in my view, stop the running of the limitation, because on 18,12.1973 on the basis of the police report as well as on the basis of the report of the Circle Officer, he was satisfied about the allegation of the commission of the offence under section 188 of the Penal Code. As cognizance has been taken beyond the period of one year since that day, in my opinion, section 4681) (b) of the new Code was a bar and the Magistrate could not have taken cognizance and summoned the petitioners. As cognizance has been taken beyond the period of one year since that day, in my opinion, section 4681) (b) of the new Code was a bar and the Magistrate could not have taken cognizance and summoned the petitioners. In such a situation, I am left with no option but to hold that the action which was launched against these petitioners for prosecution under section 188 of the Penal Code was barred by limitation and the learned Magistrate should have dismissed the petition of complaint on that ground alone. 8. In the result, this application is allowed and the impugned order dated 30.6.1975 taking cognizance and summoning the petitioners is quashed. Application allowed.