G. P. MATHUR, J. ( 1 ) A first information Report under section 147/323 I. P. C. was lodged against the petitioner Dr. Anil Kumar Agrawal and four others by Dr. Shashi Bhushan, respondent No. 3. After investigation, the police submitted a Charge-sheet against the petitioner alone under section 323 I. P. C. The learned Magistrate took cognizance and passed an order of summoning the petitioner on 18. 12. 1987. The petitioner moved an application before the learned Magistrate on 20. 7. 1990 praying that he should be discharged as the cognizance had been taken after expiry of the period of limitation. Learned Magistrate by his order dated-14. 2. 1991 discharged the petitioner. The complainant respondent No. 3 filed revision against the said order which was allowed by the learned Sessions Judge by his order dated 24. 7. 1991 and the case was sent back to the learned Magistrate to consider it afresh in accordance with law. It is for quashing of this order that the present petition has been filed under section 482 Cr. P. C. ( 2 ) SINCE the revision filed by the respondent No. 3 has been allowed by the learned Sessions Judge, it was open to the petitioner to file a revision against the aforesaid order. However, in order to do justice between the parties, I have heard the present petition under section 482 Cr. P. C. as a criminal revision. ( 3 ) LEARNED counsel for the complainant has submitted that with regard to the incident which took place on 29. 11. 1986 a First information Report was lodged on the same day under section 147/323 I. P. C. against five accused including the petitioner. The Police investigated the case and submitted a chargesheet which bears the date 31. 7. 1987 and then by the Ahalmed of the Court on 30. 11. 1987. The Chargesheet was placed before the Presiding Officer of the court on 18. 12. 1987 who passed an order directing that the petitioner be summoned. The Complainant had also moved an application for condonation of delay under section 473, Cr. P. C. on 10. 5. 1990. 7. 1987 and then by the Ahalmed of the Court on 30. 11. 1987. The Chargesheet was placed before the Presiding Officer of the court on 18. 12. 1987 who passed an order directing that the petitioner be summoned. The Complainant had also moved an application for condonation of delay under section 473, Cr. P. C. on 10. 5. 1990. It is thus submitted that there was sufficient material on record to show that the chargesheet had in fact been submitted in court within a period on one year and even if the learned Magistrate passed the order for summoning the petitioner after expiry of one year, the delay in taking cognizance should have been condoned. Learned counsel for the petitioner has, however, submitted that what is material is the date on which has learned Magistrate took cognizance and as the cognizance was taken on 18. 12. 1987. It was after expiry of the period of limitation and therefore, the repetitioner was rightly discharged. He has further submitted that the application moved by the complainant under section 473 Cr. P. C. on 10. 5. 1990 for condoning the delay could not be taken into consideration as the same should have been moved prior to the taking of cognizance by the learned Magistrate. ( 4 ) THE incident giving rise to the present proceedings took place on 29. 11. 1986 and the complainant had lodged a F. I. R. under section 147/323 I. P. C. against the petitioner and four other on the same date. The Police, however, after investigation submitted chargesheet only against the petitioner Dr. Anil Kumar Agrawal under section 323 I. P. C. is punishable with a maximum sentence of one years R. I. , the limitation for sentence of taking cognizance of such an offence under section 323 I. P. C. is one year in view of section 468 (2) (a) Cr. P. C. The learned Sections Judge has observed in his order that the learned Magistrate has not considered the effect of receipt of the chargesheet by the court Nazir on 26. 11. 1987 and by the Ahalmed of the Court on 30. 11. 1987. He has further observed that the effect of receipt of chargesheet on 30. 11. 1987 by the Ahalmed should have been considered because it had been received by an official of the court. 11. 1987 and by the Ahalmed of the Court on 30. 11. 1987. He has further observed that the effect of receipt of chargesheet on 30. 11. 1987 by the Ahalmed should have been considered because it had been received by an official of the court. He remanded the case to the court of Magistrate to consider the effect of the receipt of the chargesheet by the Ahalmed, which in his opinion would be on behalf of the court on 30. 11. 1987, as in such a case the delay would by only of one day. The learned Session Judge has further observed that it delay of one day. ( 5 ) IN my opinion the reasons given by the learned Sessions Judge fir remaining the case are not correct. Section 468 (2) Cr. P. C. provided that except as otherwise proceeded elsewhere in this Code, no Court shall take cognizance of an offence of the category specified on sub section (2) after the expiry of the period of limitation. The language used in section 468 Cr. P. C. is different from that used by the legislature in section 3 of the Limitation Act. Section 3 (i) of the limitation Act provides that subjection to the processions contained on sections 4 to 24 inclusive every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Every court has made its own procedure for institution a suit or preferring an appeal. Therefore, if a suit or appeal is filed before an officer of the Court who is authourise for this purpose, within limitation, the fact that they are placed before the Presiding Officer of the Court subsequently would be wholly on material. What has to be seen is the date of presentation of the suit or appeal before the Officer of the court. However Section 468 Cr. P. C. creates a bar against taking cognizance by a Court after expiry of the period of limitation. The word cognizance has not been defined in the Code, but it has been judicially interpreted. Cognizance is taken of an offence as soon as a Court competent for the purpose applies its mind to the offence with the intention of initiating judicial proceedings against the offenders in respect of the offence. The word cognizance has not been defined in the Code, but it has been judicially interpreted. Cognizance is taken of an offence as soon as a Court competent for the purpose applies its mind to the offence with the intention of initiating judicial proceedings against the offenders in respect of the offence. When the Magistrate applies his mind, not for the purpose of proceedings under chapter XIV, but for taking of action some other kind like ordering investigation under section 156 (3) Cr. P. C. , or issuing a search warrant for the purpose of investigation, he can not be said to have taken cognizance of the offence (See- R. R. Ghari v. State of U. P. , D. L. Narayana v. Narayana and Darshan Singh v. State of Maharashtra. Therefore for the purpose of section of section 468 Cr. P. C. wheat is to be seen is the date in which the learned Magistrate applied its mind to the chargesheet the complaint as the case may be for the purpose of proceeding in a particular way. The dates on which the chargesheet was received by the Nazir, or Ahakned of Court are wholly irrelevant. There is no dispute that in the present case chargesheet was placed before the President Officer of the court on order for summoning the petitioner. Therefore, in the present case the cognizance of the offence was taken by Magistrate on 18. 12. 1987 which is clearly beyond the period of limitation of one year. Sub section (1) of Section 468 Cr. P. C. impose a bar upon the court from taking cognizance of an offender after expiry of period of limitation and therefore, the learned Magistrate rightly passed the order sated 14. 2. 1991 discharging the petitioner. ( 6 ) LEARNING counsel for the complaint has submits that the F. I. R. was lodged against five persons under section 147, 323 I. P. C. and in the summoning order, it was not mentioned that the petitioner was being summoned under section 323 I. P. C. and he could as well have been summoned under section 147, and 323 and I. P. C. is punishable with a sentence of two years R. I. , the period of limitation would be three years. In my opinion, the submission made by the chargesheet was submitted against in law. In my opinion, the submission made by the chargesheet was submitted against in law. The chargesheet was submitted against the petitioner along under section 323 I. P. C. There was no chargesheet on record against the remaining out person who were nominated as accused in the F. I. R. The learned Magistrate has also not passed any order for summoning the afire said four person though he could do so inspite of the fact that no chargesheet was submitted against them. In view of the fact that only on person had been summoned to face trial, the Question of applicability of section 147 I. P. C. would not arise, as it is not the case of prosecution that petitioner along with four or more unknown persons committed the crime. ( 7 ) LEARNED counsel for the complainant next submitted that the complainant had moved an application under section 473 Cr. P. C. on 10. 5. 1990 for condoning the delay and this application had been moved even before the petitioner had moved the application for discharging him on the ground of limitation and in these circumstances it was a fit case for condoning the delay in exercise of powers conferred by section 473 Cr. P. C. in my opinion section 1468 Cr. P. C. creates a complete bar upon the power of the Court to take cognizance of an offence after expiry of the period of limitation. If the cognizance of an offence is taken after expiry of the period of limitation, the order taking cognizance would be illegal. Section 473 Cr. P. C. no doubt gives power to the Court to take cognizance of an offence after the expiry of the period of limitation provided it is satisfied that on the facts and in the circumstances of the case the delay has been property explained or that it is necessary so to do in the interests of Justice. In order to get the benefit of section 473 Cr. P. C. , which is somewhat similar to section 5 of the Limitation Act, it is necessary that an application explaining the delay should be filed before the court applies its judicial mind as to whether cognizance should be taken or not. The court may entertain even an oral prayer explaining the delay in exceptional circumstances. P. C. , which is somewhat similar to section 5 of the Limitation Act, it is necessary that an application explaining the delay should be filed before the court applies its judicial mind as to whether cognizance should be taken or not. The court may entertain even an oral prayer explaining the delay in exceptional circumstances. However, the court must pass an order to the effect that the delay has been properly explained or that it is necessary to take cognizance in the interests of justice even after expiry of the period of limitation before taken cognizance. of the offence. If the court does not pass an order to the effect that the delay has been explained or it was necessary to take cognizance in the interests of justice even after the expiry of the period of limitation and proceeds to take cognizance of the offence, it would not be in accordance with the provisions of the Code. The question of explaining the delay at a subsequent stage, after taking cognizance of the offence, cannot arise in view of the bar created by Section 468 Cr. P. C. , as under the aforesaid provision there is a complete prohibition upon the power of the court to take cognizance of an offence after expiry of the period of limitation. I am supported in my view by another decision of our court in Prakash Chandra Sharma v. Kaushal Kishore, wherein it was held that it was necessary to file an application for condoning delay along with the complaint which was barred by limitation and absence of such an application, the Magistrate had no alternative but to dismiss the complaint as time barred. It was further held that the question of explaining the delay at a subsequent stage could not arise as the initial question for determination before proceeding with a time barred complaint is the question of limitation. ( 8 ) LASTLY learned counsel for the complainant has subplitted that the petitioner should have challenged the summoning order dated 18. 12. 1987 by filing a revision and as the said order had become final, it was not open to the learned Magistrate to review his earlier, order. ( 8 ) LASTLY learned counsel for the complainant has subplitted that the petitioner should have challenged the summoning order dated 18. 12. 1987 by filing a revision and as the said order had become final, it was not open to the learned Magistrate to review his earlier, order. He has also submitted that the petitioner had been summoned to face trial under section 323 I. P. C. which is a summons case and as there is no provision of discharge, the order dated 14. 2. 1991 passed by the learned Magistrate discharging the petitioner is illegal. In my opinion, the learned Magistrate has not reviewed his earlier order by which the petitioner was summoned to face trial. The order dated 14. 2. 1991 has not been passed on a reappraisal of material on record or on the ground that no offence is made out against the petitioner. The petitioner after putting in appearance in court raised a legal plea to the effect that in view of section 468 Cr. P. C. the court could not take cognizance of the offence as the period of limitation had expired. It was this question of limitation which was considered by the learned Magistrate and after holding that the cognizance had been taken after expiry of the Period of limitation, he passed the order discharging the petitioner. The word discharge may not be strictly in accordance with law in view of the fact that it was a summons case, but what the learned Magistrate meant was that proceedings against the petitioner could not go on as the cognizance itself could not be taken. ( 9 ) THERE is another aspect of matter which cannot be overlooked. According to the allegations in the F. I. R. the petitioner gave some slaps to the complainant and probably he was kicked also when he fell down. No weapon or any other object was used for assaulting the complainant. The incident took place in the premises of Medical College Gorakhpur where at the relevant time the petitioner was working as lecturer in Pathology and the complainant was working as professor in physiology. If has come in the counter-affidavit that now the petitioner is working in Meerut Medical College, while the complainant is working in Kanpur Medical College. The incident took place in the premises of Medical College Gorakhpur where at the relevant time the petitioner was working as lecturer in Pathology and the complainant was working as professor in physiology. If has come in the counter-affidavit that now the petitioner is working in Meerut Medical College, while the complainant is working in Kanpur Medical College. A departmental inquiry regarding the incident was conducted by the Joint Director, Medical Education and Training, U. P. and as a result of the said inquiry, the petitioner was issued a warning. The incident took place on 29. 11. 1986, that is, six years back. By the impugned order dated 24. 7. 1991 the learned Sessions Judge has remanded the matter to the court of learned Magistrate at Gorakhpur to reconsider the question of limitation. The proceedings have yet to commence. The offence under section 323 I. P. C. is not a very serious offence and in view of the fact that no weapon was used and no serious injury was caused to the complainant, in all probability the petitioner would not be awarded any substantive sentence even if he is held guilty. It is unfortunate that a highly educated person who was holding a responsible position of lecturer in a Medical College resorted to violence and assaulted a member of the same college. Nevertheless after lapse of six years, it would not be proper to allow the proceeding to commence again. A constitution Bench of Supreme Court in Abdul Rehman Antulay v. R. S. Nailc, has considered the effect of delay in conclusion of trial. It has been held that Article 21 of the Constitution creates a right in the accused to be tried speedily. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances including the nature of offence, number of accused and witnesses, the work load of the court concerned and prevailing local conditions. The court cannot lose sight of the fact that offence is one under section 323 I. P. C. and the accused is now posted at Meerut while the complainant is posted at Kanpur and trial will take place at Gorakhpur. It is common experience that when the accused or the witnesses are residing at great distances, the hearing is often adjourned and the trial cannot proceed expeditiously. It is common experience that when the accused or the witnesses are residing at great distances, the hearing is often adjourned and the trial cannot proceed expeditiously. Applying the balance test as laid down by the Supreme court it would not be proper to direct the Magistrate to commence the proceeding afresh. ( 10 ) IN view of the discussion made above, the petition which has been heard as criminal revision is allowed and the order dated 14. 7. 1991 passed by the learned Sessions Judge in Criminal Revision No. 47 of 1991 is set aside. Petition allowed .