JUDGMENT 1. - The present revision petition is directed against the order dated November 14, 1979 of the learned Sessions Judge, Bundi. Under the aforesaid order, the learned Sessions Judge dismissed the appeal filed by the petitioner herein before him against the order dated may 12, 1977 of the learned Chief Judicial Magistrate, Bundi. Under the aforesaid order the learned Chief Judicial Magistrate, Bundi had directed that a complaint be filed against the petitioner under section 120-B, 193, 201 and 218 IPC in the court of Judicial Magistrate No. 2 Bundi. The learned Sessions Judge has not dismissed the appeal on merits but the appeal has been dismissed by him on the ground that alongwith memo of appeal a certified copy of the order dated May 12, l977 had not been filed. 2. The circumstances upto the filing of the revision petition in this court may now be stated. They are as follows: A complaint was filed on March 19, 1968 under Section 419, 465, 497 read with Section 109 IPC by Narendra Swarup Bhatnagar, Reader in Mathematics Roorkie University in the court of Additional Munsif and Judicial Magistrate No. 2, Bundi. The accused persons, who were arrayed in the complaint besides M. Abu Baker, the petitioner herein, who was arrayed as accused No.2. were Kauhaiyalal Kaushik. Smt. Prem Pyari Bhatnagar and Smt. Kripal Devi Bhatnagar (since deceased). The complaint was sent by the learned Magistrate under section 156 (3) Cr. PC to the police station for investigation. After investigation, the police submitted a charge sheet against the accused persons including the petitioner herein for offences under sections 419, 465, 497, 201, 109 and 468 IPC. During the investigation of the said case in the police station, the SHO obtained search warrant from the learned Magistrate for search of the house of Smt. Prem Pyari Bhatnagar and Abu Baker petitioner at Udaipur and Ajmer respectively. From the house of Abu Baker in execution of search warrant some letters alleged to have been written by Smt. Prem Pyari Bhatnagar to Abu Baker were recovered. Other letters allegedly written to the petitioner by Miss Santosh Agrawal were also recovered. The police officer who was investigating the case had submitted a written report that letters etc. which had been recovered from the house of Abu Baker are being produced in the court under sealed packet. Other letters allegedly written to the petitioner by Miss Santosh Agrawal were also recovered. The police officer who was investigating the case had submitted a written report that letters etc. which had been recovered from the house of Abu Baker are being produced in the court under sealed packet. An application was filed by the accused petitioner Abu Baker and Smt. Prem Pyari Bhatnagar that the letters etc. be returned without opening the packet and the application was contested and a request was made that the sealed packet be opened in the court. Shri Shiv Kumar Vijay, who was posted as Munsif and Judicial Magistrate opened the sealed packet and it was noticed that in place of letters etc. which had been recovered from the house of Abu Baker, the sealed packet contained other documents and in other words, it appears that the contents of the sealed packets were substituted. The learned Magistrate signed each and every letter recovered from the sealed packets. 3. The learned Magistrate referred the matter to the Superintendent/of Police Bundi for investigation and on receipt of the report from the police, cognizance was taken by the learned Magistrate against Kauhaiyalal Kaushik also. It may be stated that in the house search of M. Abu Baker 97 love letters arc said to have been recovered and it is the case that they were in the sealed packet, but were substituted by other letters. The learned Magistrate heard arguments and framed charges against the accused persons. So far as the accused-petitioner is concerned, the learned Magistrate framed the charge under 497 and 465 IPC. Against the other accused persons Smt. Kripal Devi (since deceased), Kauhaiyalal Kaushik and Smt. Prem Pyari Bhatnagar, the learned Magistrate framed charges under Sections 497/109, 461 and 461 and under section 218 and 218/109 IPC respectively. As the offence under section 218 IPC was triable by the Court of Sessions under the Code of Criminal Procedure, 1898 (old Code) the learned Magistrate committed the case to the court of learned Sessions Judge, Bundi. 4. Smt, Prem Pyari Bhatnagar and her mother Smt. Kripal Devi (since deceased) moved this Court against the order of the learned Magistrate committing the case to the court of session in Cr. Misc. Petiiion No, 505/1969 and Hon'ble Kan Singh on March 30, 1970 quashed the committal order. 4. Smt, Prem Pyari Bhatnagar and her mother Smt. Kripal Devi (since deceased) moved this Court against the order of the learned Magistrate committing the case to the court of session in Cr. Misc. Petiiion No, 505/1969 and Hon'ble Kan Singh on March 30, 1970 quashed the committal order. Narendra Swarup Bhatnagar moved the Supreme Court of India by filing Cr. Appeal No. 119/1970 which ultimately was dismissed by the Supreme Court on December 10, 1973. The case then reached to the learned Chief Judicial Magistrate Bundi, who on May 24, 1975 framed charges against the petitioner herein under section 465 and 497 IPC. Regarding the offences under section 301 and 218 IPC, the learned Chief Judicial Magistrate had ordered to separate the challan case and private case. The learned Chief Judicial Magistrate then filed a complaint against the accused-petitioner and two others, namely Kanhaiyalal Kaushik and Smt. Prem Pyari Bhatnagar in the court of Judicial Magistrate No. 2 Bundi under section 218,201, 193, 120 B IPC. The learned Judicial Magistrate under his order dated May 13, 1977 took cognizance on the aforesaid complaint for the aforesaid charges. 5. The accused-petitioner filed an appeal in the court of Sessions Judge, Bundi against the order dated May 13, 1977 passed by the learned Judicial Magistrate taking cognizance against him. Alongwith the memo of appeal instead of filing certified copy of the order dated May 13, 1977 the petitioner filed a certified copy of the order dated May 24, 1975. An objection was taken on behalf of the Public Prosecutor that the appeal should be dismissed as the memo of appeal was not accompanied by the certified copy of the impugned order. The objection prevailed and the appeal was dismissed. 6. It may be stated that Smt. Prem Pyari Bhatnagar the co-accused in the case against whom also cognizance had been taken by the learned Judicial Magistrate Bundi also filed an appeal No. 19/78 in the court of Sessions Judge, Bundi against the order dated May 12, 1977 of the Chief Judicial Magistrate ordering that a complaint should be filed. An objection was taken in that appeal before the learned Sessions Judge that the same was barred by time. The appeal was dismissed by the learned Sessions Judge on July 11, 1980 being time barred. Smt. Prem Pyari Bhatnagar challenged the aforesaid order of the learned Sessions Judge in Cr. An objection was taken in that appeal before the learned Sessions Judge that the same was barred by time. The appeal was dismissed by the learned Sessions Judge on July 11, 1980 being time barred. Smt. Prem Pyari Bhatnagar challenged the aforesaid order of the learned Sessions Judge in Cr. Revision Petition No. 200/60, Smt. Prem Pyari Bhatnagar v. State and another and the learned Single Judge of this Court (Farooq Hasan J.) disposed of that revision petition under his order dated March 19, 1986 and allowed the revision petition and set aside the order dated July 11, 1980 passed by the learned Sessions Judge and the learned Sessions Judge was directed to decide the appeal No. 19/1978 Smt. Prem Pyari v. State afresh on its merits. 7. The first contention of Mr. Amrit Kumar, learned counsel for the petitioner is that so far as the petitioner is concerned, the learned Magistrate under his order dated February, 25, 1969, while framing charges under sections 497 and 465 IPC had clearly observed that no offence was made out against the accused petitioner under section 413, 468 and 201 IPC A similar observation was also made in respect of offences under section 218 IPC. A look at the order dated February 25, 1969 of the learned Magistrate will show that in the original case No. 1018/74 so far as the accused petitioner is concerned, it does appear that such observation was made. But in my opinion, merely because at one stage a charge is not framed against a person it cannot be said that thereafter on the material on record a charge cannot be framed. Under section 300(1) of the Code of Criminal Procedure, 1973 a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be trial again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221 Cr. PC or for the which he might have been convicted under sub-section (2) thereof. Thus, the bar of a second trial is only if a person has been convicted or acquitted after trial. Under explanation to section 300 Cr. PC or for the which he might have been convicted under sub-section (2) thereof. Thus, the bar of a second trial is only if a person has been convicted or acquitted after trial. Under explanation to section 300 Cr. PC, 1973 the dismissal of a complaint or the discharge of the accused is not an acquittal for the purpose of that section. Thus, not withstanding the fact that no charge was earlier framed against the accused petitioner under section 201 and or section 218 IPC the accused/ petitioner could be charged and trial and against him cognizance of offence could be taken subject to other provisions of the Code of Criminal Procedure, including the provisions of Chapter XXXVI. 8. It has already been said in the earlier part of this judgment that the learned Judicial Magistrate has taken cognizance of offence against the accused-petitioner under his order dated May 13, 1977 for offences under sections 218, 201, 193 and I20B IPC and the said cognizance was taken on a complaint having been filed by none else but the Civil Judge-cum-Chief Judicial Magistrate, Bundi. It appears that the said complaint was filed on May 13,1977 and the same day cognizance was taken. The Schedule to the Code of Criminal Procedure shows that an offence under section 218 IPC is punishable with imprisonment for three years, or fine or both and is triable by the Magistrate First Class An offence under section 201 IPC in case of causing disappearance of evidence of an offence committed or giving false information touching it to screen the offender, if a capital offence is punishable for 7 years and fine and is triable by a Court of Session, and if punishable with imprisonment for life or imprisonment for life or imprisonment for 10 years, is punish able for 3 years and fine and is triable by a court of Magistrate First Class and if the offence is punishable with less than 10 years imprisonment then it is punishable for a quarter of the longest term provided for the offence or fine or both and is triable by the court by which the offence is triable. There can be no dispute that the offences alleged to have been committed by the accused-petitioner and others in which they are said to have caused disappearance of evidence thereof or said to have given false information touching it to screen the offender were under sections 219/109, 465/109, 497/109 IPC and it appears that on investigation under section 156(3/Cr. PC the police had filed a charge-sheet under sections 465,419/109 and 497 IPC. Thus, the offence or offences in which the accused-petitioner and said to have caused disappearance of the evidence of that offence are offences which are punishable for less than 10 years imprisonment and as such the offence under section 201 IPC, the cognizance of which has been taken was such which could be punishable for a quarter of the longest term provided for the offence or fine or both. 9. The contention of the learned counsel for the petitioner is that the aforesaid offences are said to have been committed in the year 1968 and it came to the knowledge of the court in 1968 itself or on September 12, 1968 when the Dy. Superintendent of Police Circle Bundi submitted his report to the court that Kauhaiyalal Kaushik, the investigating officer had substituted certain documents which had been recovered from the accused persons and which was the evidence of the offence. He, therefore, contends that cognizance of the offence could not have been taken on May 13, 1977. In this connection, it is further contended that when the complaint was filed under the Code of Criminal Procedure, 1973 had come into force and it is the provisions of that Code which will be applicable including Chapter XXXVI, and by virtue of Section 468 of that Code the limitation for taking cognizance having expired, the learned Magistrate could not have taken cognizance of the offence and more so, when the delay was not explained and the learned Judicial Magistrate did not apply his mind of the question as to whether the complaint was time barred and whether he was satisfied in the facts and circumstances of the case that the delay has been properly explained and lie has not said that it was necessary to take cognizance in the interest of justice. 10. Code of Criminal Procedure, 1973 came into force on April 1,1974 after having received the assent of the President of India on January 25, 1974. 10. Code of Criminal Procedure, 1973 came into force on April 1,1974 after having received the assent of the President of India on January 25, 1974. It has already been said that under his order dated February 25, 1969 the learned Magistrate framed charges against Kanhayalal Kaushik, the police officer investigating the case and he also framed charge against Smt. Prem Pyari Bhatnagar under section 219 IPC So far as the accused petitioner, the charges under section 497 and 465 IPC had already been framed. It has also been said that because under the Code of Criminal Procedure. 1898, the offence under section 218 IPC was triable by the Court of Session, the learned Magistrate committed the accused persons including the accused-petitioner to the Court of Session. Smt. Prem Pyari Bhatnaar had challenged the order of commitment in Cr. Misc. Petition No. 505/69 and the learned Single Judge of this Court (Hon'ble Kan Singh J.) had quashed the commitment and allowed the miscellaneous petition and directed the Magistrate to inquire the offences alleged to have been committed prior to lodging of the complaint separately from those alleged to have been committed after filing the complaint. In other word, so far as the offences under section 497, 465, 461 IPC are concerned, which are said to have been committed before filing of the complaint which was sent under section 156(3) Cr. PC were to be tried separately from the offences under section 201 and 218 or 218/109 IPC alleged to have been committed after filing of the complaint. After the aforesaid decision of Kan Singh on March 30, 1970, the case proceeded so far as the offences other than 201 and 218 or 218/109 IPC is concerned. So far as the offence under section 201 and 218 IPC a separate file was opened. On May 24, 1975 the learned Chief Judicial Magistrate, Bundi ordered that so far as offences under section 201 and 218 IPC are concerned, it is just as ordered by the High Court that the case should be split up and the case should be tried separately. He directed the public Prosecutor to separate the papers. He also laid down the schedule for inquiry and looking to the fact that the case was old one, he ordered that the witnesses should be summoned. He directed the public Prosecutor to separate the papers. He also laid down the schedule for inquiry and looking to the fact that the case was old one, he ordered that the witnesses should be summoned. The learned Chief Judicial Magistrate, Bundi without making any inquiry into the matter on August 11, 1975 ordered that the only question was to inquiry into the matter and was not necessary to hear the accused-persons. But taking into consideration that two of the accused-petitioners were appearing for last many dates he ordered that the case be listed for arguments and after hearing arguments and without making any inquiry under his order dated May 12, 1977, the learned Chief Judicial Magistrate ordered that the complaint be filed and the complaint was filed on May 13, 1977 and cognizance was taken on the same day by the learned Judicial Magistrate. 11. From the above narration of the facts it can .be said that no inquiry was pending when the Code of Criminal Procedure, 1973 came into force. A decision to spilt the case so far as offences under section 201 and 218 IPC are concerned as, already stated earlier the Chief Judicial Magistrate under his order dated May 24, 1975 i.e. after coming into force of the Code of Criminal Procedure, 1973 he ordered the splitting the case and the case was separately registered. Under section 484 Cr. PC. 1973, the Code of Criminal Procedure, 1898 was repealed but under subsection (2) thereof notwithstanding such repeal if immediately before the date on which Code of Criminal Procedure, 1973 came into force there was any appeal, application, trial, inquiry or investigation pending then such appeal. application, trial, inquiry or investigation shall be disposed of, continued, held or made as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1893) as in force immediately before such commencement, as if Code of Criminal Procedure, 1973 had not come into force. What are saved, are appeal, application, trial, inquiry and investigation pending when the Code of Criminal Procedure, 1973 came into force on April 1, 1974, and the aforesaid appeal application trial, inquiry and investigation were to be disposed of, continued, held or made under the Code of Criminal procedure, 1898, as if the Code of 1973 had not come into force. As already stated earlier.no inquiry was pending. As already stated earlier.no inquiry was pending. Therefore, the provisions of the Code of Criminal Procedure, 1973 including Chapter XXXVI will be applicable. In Wasanta and others v. State of Maharashtra, 1984 Cr. LJ. page 419 , it was held that if investigation was not pending on April 1, 1974 when the Code of Criminal Procedure. 1973 came into force, having been completed on November 17, 1971 before coming into force of that Code the charge sheet in question would be governed by the provisions of section 468 and it will not be saved under section 484 Cr. PC. It was further held that delay in filing the charge sheet after completion of investigation was fatal. In State of Maharashtra v. Jawaharlal Shamlal Ujawane, 1979 Cr.LJ. 530 , It has been held that there is nothing in Section 484 (2) Cr. PC 1973 from which it can be spelt out that the provisions of the old Code are to apply to appeals filed after the new Code came into force. It can therefore be said that because no inquiry, investigation etc. was pending when Code of Criminal Procedure, 1973 came into force and the provisions of that Code would apply and not the provisions of the Code of Criminal procedure, 1898. If that be so, the provisions of Chapter XXXVI will also apply and under section 467 thereof for the purposes of Chapter XXXVI unless the context otherwise requires period of limitation means the periods specified in Section 468 for taking cognizance of an offence. Section 468 (I) Cr. PC, 1973 provides that except as otherwise provided elsewhere in the Code of Criminal Procedure, 1973 no court shall take cognizance of an offence of the category specified in sub section (2) after the expiry of the period of limitation. Under sub-section (2) of section 468 the period of limitation shall be (a) six months, if the offence is punishable with fine only, (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year and (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. It may be stated that each of the offences under section 201, 218 and 120 B IPC is punishable with imprisonment of three years and therefore the period of limitation for taking cognizance is three years and the cognizance could not have been taken after the period of three years. 12. It has already been said earlier that the offence at any rate had come to the knowledge of the Chief Judicial Magistrate, Bundi at least on September 12, 1968 when the report of the Dy. Superintendent of Police Bundi dated September 6, 1968 had been received. At any rate Kan Singh J. under his order dated March 30, 1970 observed that the offences which are alleged to have been committed after filing the complaint which was sent for investigation under section 156 (3) cannot be tried with the offence for which the complaint was filed and they should be tried separately. Therefore, after March, 1970 when the order of Kan Singh J. was received, a complaint should have been filed or inquiry should have been initiated as to why a complaint be not filed by the court offences under Section 201/218 IPC. No inquiry was initiated and not only this, it was not even said that in the interest of justice it is expedient to tile a complaint under section 201 and 218 or 218/109 and 120-B IPC against the accused-petitioner and others. Even in the order dated May 12, 1977 nothing as aforesaid was said and all that was said was that a complaint he filed for offences under Section 120-B, 193, 201 and 218 IPC. A look at the complaint filed on May 13,1977 will show that it is not mentioned therein that why there was delay in filing the complaint. Under Section 473 Cr. PC 1973 the court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. As already stated no averment was made in the complaint. The necessary facts are lacking. That apart the court has not taken into consideration Section 473 Cr. PC 1973 while taking cognizance of offences after expiry of period of limitation. In S K. Bajaj & Ors. As already stated no averment was made in the complaint. The necessary facts are lacking. That apart the court has not taken into consideration Section 473 Cr. PC 1973 while taking cognizance of offences after expiry of period of limitation. In S K. Bajaj & Ors. v. D. K. Bhattacharya & Ors., 1982 Cr. L.J 210 it has been held that the delay must be explained. In that case facts seeking condonation of delay were mentioned but they were not held to be sufficient, In R.C. Trivedi and Anr. v. A. H. paranjape and Anr., 1982 Cr.L J. 869 . It has been held that the complaint was belated and the delay was not explained and even if the order condoning the delay was passed on the ground of interest of justice after objections regarding the limitation was raised and not after taking cognizance, the order is bad in law. It was further held that a right accrued in favour of an accused under section 468 by virtue of a belated complaint and it can be denied to him only on an order for extension of period of limitation passed by the court concerned acting judicially under section 473 Cr. PC and not when the objection is taken but at the time of the issuance of the process itself. In Prakash Chandra Sharma v. Kaushal Kishore 1980 Cr. LJ 578 it has been held that when a complaint is filed against the accused which prima facie is barred by time, it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of delay under section 473 Cr. PC. Unless the delay is condoned, the court cannot take cognizance of the complaint. It will further held that it was not open for the Magistrate to take cognizance of the offence, issue process, record evidence and thereafter to determine the question of limitation. In that case the complaint had been filed by the Officer Incharge of the Municipal Board. There was no mention in the complaint as to the absence of knowledge of offence upto particular date. It was held that section 468(b) is not attracted. 13. The result of the aforesaid discussion is that before taking cognizance of the offence the learned Magistrate has not applied his mind that the complaint was barred by time and the limitation for taking cognizance as prescribed under section 468(2) Cr. It was held that section 468(b) is not attracted. 13. The result of the aforesaid discussion is that before taking cognizance of the offence the learned Magistrate has not applied his mind that the complaint was barred by time and the limitation for taking cognizance as prescribed under section 468(2) Cr. PC 1973 had already expired. There is no explanation in the complaint about the reasons seeking condonation of delay: There is not even prayer that the delay be condoned. As already stated earlier, in the month of September, 1968 it had come to the knowledge of the Chief Judicial Magistrate that offences under section 201 and 218/109 IPC had been committed. As already stated earlier, it was on March 30, 1970 that Kansingh J. had ordered for splitting up the two cases but it was in 1975 that the cases came to be splitted up. Thus, the cognizance has been taken after the expiry of period of limitation. The complaint was belated. No ground is made out for condonation of delay, more so as already stated earlier, the offences are said to have been committed in 1968 and it came to the knowledge of the court in September 1968 itself. Continuing the case would amount to abuse of the process of the court. 14. Consequently, I allow this revision petition and quash the Older of Chief Judicial Magistrate. Bundi dated May 12, 1977 ordering that the complaint be filed as well as the order dated May 13, 1977 of the Judicial Magistrate taking cognizance of the offence. *******