Jagmohan Singh v. State Of Bihar — 1995 DIGILAW 310 (PAT)

Judgment I. P. Singh, J. 1. These three cases have been heard together and this judgment will govern all of them. 2. The order dated 28.3.1995 passed in Cr. Misc. No.17787 of 1994 runs as follows: "heard. Since three cases, namely, Cr. Misc. Nos.17848 of 1994, 14612 of 1994 and this case seem to have been filed against the same impugned order, it appears proper that all the cases be listed together for consideration analogous. It appears that there is already a note in the record of Cr. Misc. No.14612 of 1994 indicating that Honble the Chief Justice and honble N. K. Sinha, J. had observed to place this case before The Bench of honble I. P. Singh, J. Let all three cases be listed for admission before the same bench in the week. " 3. In Cr. Misc. No.14612 of 1994 the order dated 6.10.1994 runs as follows: "issue notice to opposite party No.2, in the admission matter so that this application may be finally disposed at the stage of admission itself on process etc. , being filed by tomorrow (7.10.94) failing which this application as against him shall stand rejected without further reference to a Bench. " similarly in Cr. Misc. No.17848 of 1994 the order dt.4.1.1995. has been passed as follows: "issue notice to opposite party No.2 in the admission matter to show cause as to why this application be not admitted and, if possible, finally disposed of at the admission stage itself for which requisites etc. must be filed within one week failing which the application as against O. P. No.2 shall stand rejected without further reference to a Bench. " 4. In Cr. Misc. No.17787 of 1994 the order dated 18.1.1995 was passed as follows: "issue notice to opposite party No.2 in admission matter to show cause as to why this application be not admitted and, if possible, disposed of at the admission stage itself, for which, process, etc. must be filed within one week failing which the application as against him shall stand rejected without further reference to a bench. " 5. This is how all these three cr. Misc. Cases have been heard together at the stage of admission itself and are being disposed of at this stage. 6. In Cr. Misc. must be filed within one week failing which the application as against him shall stand rejected without further reference to a bench. " 5. This is how all these three cr. Misc. Cases have been heard together at the stage of admission itself and are being disposed of at this stage. 6. In Cr. Misc. No.17787 of 1994 opposite party No.2, Sardar swam Singh Bagga, is the complainant while the petitioner, Indrajit singh Khanna and others have been made accused. In Cr. Misc. No.14612 of 1994 also opposite party no.2, Sardar Swarn Singh Bagga, is the complainant while the petitioner jitendra Pal Singh is the accused. 7. In all three Cr. Misc. Cases a common point has been taken by the petitioners that since the cognizance against them has been taken beyond the statutory period as provided by section 468 of the Code of Criminal procedure (in short the code) the same should be quashed and criminal cases against them should not be allowed to proceed. 8. This takes up to the consideration of the true scope of Sec.468 of the Code to which I will refer to subsequently, but firstly the facts have to be stated. 9. In Cr. Misc. No.17787 of 1994 arising out of the Complaint case No.171 (C)/1992 the Fardbeyan of opposite party No.2, Sardar swarn Singh Bagga, was filed on 8.8.1988, on the basis of which Kotwali P. S. Case No.884 of 1988 was instituted under Sec.341, 323, 371 and 184 of the Indian Penal code. In course of investigation a protest petition was filed on 11.12.1988. The final form was submitted by the police on 24.4.1991 as "case not true" with a request to prosecute the informant under Sections 182 and 211 of the Indian penal Code. This Final form was accepted by the Magistrate and the protest petition was transferred under section 192 of the Code to another magistrate who proceeded to examine opposite party No.2 on solemn affirmation and to take cognizance of the offence under Sections 379 and 323 of the Indian Penal Code by the impugned order dated 16.2.1994. It is this order which has been challenged in the present application. 10. Similarly in Cr. Misc. No.17848 of 1994 also opposite party no.2, Sardar Swarn Singh Bagga, is the complainant in the same Complaint Case No.171 (C) of 1992. It is this order which has been challenged in the present application. 10. Similarly in Cr. Misc. No.17848 of 1994 also opposite party no.2, Sardar Swarn Singh Bagga, is the complainant in the same Complaint Case No.171 (C) of 1992. The other facts of this case has already been stated in Cr. Misc. No.17787 of 1994. Here also the fardbeyan was recorded under Sections 341, 323, 379 and 384 of the indian Penal Code and the final report as stated above was submitted on 24.4.1991. In the meantime, the protest petition was filed on 11.12.1988. While the cognizance taking Magistrate accepted the final report submitted by the police he transferred the protest petition to another Magistrate under Sec.192 of the Code who examined the complainant on solemn affirmation and took cognizance on 16.2.1994 for the offence under Sections 379 and 323 of the Indian Penal Code. 11. The facts in Cr. Misc. No.14612 of 1994 are also the same. Here also opposite party No.2, Sardar Swarn Singh Bagga, is the complainant and Complaint Case No.171 (C) of 1992 was started on the basis of his complaint. The matter went to the police which submitted final form on 24.4.1991 as "case not true" with a request to prosecute the informant under Sections 182 and 211 of the Indian Penal Code. In the meantime, the protest petition was filed on 11.12.1988. The cognizance taking Magistrate accepted the final report on 23.3.1992 and transferred the protest petition for inquiry and disposal under Sec.192 of the code to another Magistrate who took cognizance of the offence by the impugned order dated 16.2.1994 under Sections 379 and 323 of the indian Penal Code. 12. The main contention on behalf of the petitioners in all these three cases is that the alleged date of occurrence is 8.8.88 the day on which the Fardbeyan was recorded. Even Kotwali P. S. Case No.884 of 1988 was registered on 9.8.1988 and the cognizance has been taken on 16.2.1994. The main thrust of argument is that this cognizance against the petitioners in all these three cases is directly hit by Sec.468 of the Code and, therefore, the orders taking cognizance are liable to be quashed. 13. This takes us to the consideration of Sec.468 of the code which runs as follows : "468. The main thrust of argument is that this cognizance against the petitioners in all these three cases is directly hit by Sec.468 of the Code and, therefore, the orders taking cognizance are liable to be quashed. 13. This takes us to the consideration of Sec.468 of the code which runs as follows : "468. Bar to taking cognizance after lapse of the period of limitation- (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence punishable with imprisonment for a term no exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term not exceeding one year; (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. " 14. This section clearly provides that no Court shall take cognizance of the offences of the category specified in sub-section 2 (c) after the expiry of the period of limitation. Under sub-section 2 (c) the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 15. Coming to the allegations made against the petitioners they are under Sections 341, 323, 379 and 348 of the Indian Penal Code whereas the cognizance against them has been taken only under Sections 379 and 323 of the Indian Penal Code. Even if all the allegations made against the petitioners are taken into consideration Sec.384 of the Indian penal Code is punishable with imprisonment for three years or fine or both. Similarly the offence under section 379 of the Indian Penal code is punishable with imprisonment for three years or fine or both. Offences under Sections 341 and 323 of the Indian Penal Code call for lighter punishments. Similarly the offence under section 379 of the Indian Penal code is punishable with imprisonment for three years or fine or both. Offences under Sections 341 and 323 of the Indian Penal Code call for lighter punishments. While the offence under Sec.341 of the Indian Penal Code is punishable with the simple imprisonment for one month or fine or Rs.500/- or both, the offence under Sec.323 of the indian Penal Code is punishable with imprisonment for one year or fine of rs.1000/- or both. From this it would appear that for all these offences the most severe punishment is imprisonment for three years which could be awarded for the offence under Sec.379 or Sec.384 of the Indian Penal Code. Hence they will clearly come within the scope of section 468 (2) (c) of the Code for which the period of limitation for taking cognizance would be only three years and not more. In the present case while the alleged offences said to have taken place on 8.8.1988 and the police case was registered on 9.8.1988 the cognizance against the petitioners in all these applications was taken on 16.2.1994 namely, after a period of five years four months and seven days. Thus, the cognizance taken against the petitioners in the present cases is clearly hit by Sec.468 of the code. The present cases do not come under the various exceptions given in this Chapter (Chapter xxxvi ). According to Sec.473 of the Code the period of limitation can be extended in certain cases authorising a Court to take cognizance of an offence even after the expiry of 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 interest of justice. In the present case there is no prayer on behalf of the complainant (O. P. No.2) for the extension of period of limitation. Even the Court taking cognizance of the offences has not extended the period of limitation on any ground whatsoever. Under the circumstances, the opposite party No.2 cannot claim the benefit of Sec.473 of the code. The offences alleged against the petitioners are not of continuing nature and, therefore, the provision of Sec.472 of the Code would also be not attracted. 16. Under the circumstances, the opposite party No.2 cannot claim the benefit of Sec.473 of the code. The offences alleged against the petitioners are not of continuing nature and, therefore, the provision of Sec.472 of the Code would also be not attracted. 16. Under the aforesaid circumstances, it is clear that the contentions raised by the petitioners are correct and have to be accepted. It also becomes clear that the cognizance against the petitioners in all these three cases were taken after expiry of the period of limitation and are, accordingly, liable to be quashed. 17. On behalf of the petitioners reliance has been placed on the case of Rama Kant Singh V/s. The State of bihar, 1990 (2) P. L. J. R.70. This was a case Of an accused being charged with an offence for which a maximum term of one year imprisonment could be awarded. However, the cognizance of the offence was taken by the Court after the expiry of this period. It was, accordingly, held by this Court that taking of cognizance and the criminal prosecution of the petitioner must be quashed. In this reported decision reliance has been placed on the case of Surinder mohan Vikal V/s. A. L. Chopra AIR 1978 S. C.986, in which the Honble supreme Court has clearly held that in a clear case of limitation and on admitted facts if the cognizance is taken after the expiry of period of limitation it can be quashed by the high Court in exercise of the powers vested in it under Sec.482 of the code. In this very decision reliance has also been placed on the case of state of Punjab V/s. Swam Singh, AIR 1981 S. C.1054. 18. On behalf of the respondents reliance has been placed on the case of Rabri Karshan V/s. The state of Gujrat, 1977 Cr. L. J.107. This decision is, however, of no help to the respondents inasmuch as it is a decision with respect to what should be treated to be the First Information Report and what could be excluded as the subsequent complaint hit by Sec.162 of the Code. The respondents have also relied on the decision of Bhagwan Singh V/s. The commissioner of Police, 1985 PLJR 53. This decision is also of no assistance to the respondents. 19. The respondents have also relied on the decision of Bhagwan Singh V/s. The commissioner of Police, 1985 PLJR 53. This decision is also of no assistance to the respondents. 19. From the detailed discussions made above, it becomes perfectly clear that the prayer of the petitioners in all these cases are completely justified and are fit to be allowed. 20. In the result, these Criminal misc. cases are allowed and the order taking cognizance against the petitioners in all these three cases on 16.2.1994 or on any other date as also the criminal prosecution against them are quashed. The petitions are allowed, accordingly. Petitions allowed.