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1997 DIGILAW 1281 (RAJ)

Champa Lal v. State of Rajasthan

1997-11-03

AMRESH KUMAR SINGH

body1997
Honble SINGH, J. –Heard the learned counsel for the petitioner and the learned Public Prosecutor. Both of them agree that the main petition may be disposed of today. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 6th October, 95 passed by the learned Additional Sessions Judge, Bali in Criminal Revision No. 18/95 Tolchand & Ors. vs. State of Raj., whereby the learned Additional Sessions Judge partly rejected the criminal petition and directed that the trial of the accused petitioners for the offences under Section 448 IPC may be continued according to law. The proceedings initiated by the lower court against Tolchand, Banshi Lal, Nenmal in respect of offences under Sections 147, 452 and 323 were completely quashed. The proceedings initiated against the present petitioner Champa Lal and Dinesh in respect of offences under Sections 147, 452 and 323 IPC were quashed, but the proceedings in respect of offences under Section 448 IPC were directed to be continued. (3). The main submission made by the learned counsel for the petitioner is that the cognizance of the offences punishable under Section 448 IPC was barred by Section 468 (2) (b) Cr.P.C., in as much as the alleged offence was committed on 4th July, 92 and the cognizance of the offence was taken on 17.9.94 after the submission of the final report by the police. (4). A perusal of the record of the lower court shows that a first information report No. 62/92 was lodged at Police Station, Takhatgarh (Pali) alleging the commission of offences punishable under Sections 451, 147 and 323 IPC. The aforesaid offences were alleged to have been committed on 3rd July, 92 at 2 p.m. After investigation, the police submitted a final report. On 17.9.94 after hearing the arguments advanced by the learned A.P.P., the learned Judicial Magistrate took cognizance of the offences under Sections 452, 147 and 323 IPC and directed the issue of process against the five accused persons, namely, Tolchand, Banshilal, Champa Lal, Nenmal and Dinesh. (5). Feeling aggrieved by the order dated 17.9.94 passed by the learned Judicial Magistrate all the five accused persons preferred a revision petition, which was disposed of by the learned Additional Sessions Judge, Bali vide order dated 6th October, 95. (5). Feeling aggrieved by the order dated 17.9.94 passed by the learned Judicial Magistrate all the five accused persons preferred a revision petition, which was disposed of by the learned Additional Sessions Judge, Bali vide order dated 6th October, 95. The learned Additional Sessions Judge, Bali quashed the order passed by the learned Judicial Magistrate in respect of offences under Sections 452, 147 and 323 IPC against all the five accused persons. The initiation of proceedings against three accused persons, namely, Tolchand, Banshi Lal and Nenmal were also set aside, but it was directed that the proceedings against the two accused (petitioners) namely Champalal and Dinesh would continue in accordance with law. Since the State does not appear to have filed any revision petition against the order passed by the learned Additional Sessions Judge, Bali, that order has become final. This petition, is therefore, entitled to be decided on the footing that the only offence against the accused petitioners is the offence punishable under Section 448 IPC, for which maximum sentence of imprisonment prescribed by law is one year. (6). In support of his submission that the petitioners are entitled to the protection of Section 468 (1) (b), the learned counsel for the petitioner has relied on the judgment of the Honble Supreme Court reported in State of Punjab vs. Sarwan Singh (1). (7). In the case of State of Punjab vs. Sarwan Singh (supra), the High Court after recording the evidence acquitted the accused respondent (Sarwan Singh) of the charge under Section 408 IPC, but convicted him of the charge under Section 406 IPC and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1000/-. The accused Sarwan Singh filed an appeal before the Punjab and Haryana High Court and the Punjab and Haryana High Court allowed the appeal and acquitted the accused mainly on the ground that the prosecution launched against the respondent was barred by limitation under Section 468 and 469 Cr.P.C. The High Court was of the view that the charge-sheet clearly showed that the embazzlement was said to have been committed on 22nd August, 1972 and the audit report, through which the offence was detected was dated 5th January, 1973 and taking any of these dates into consideration, the prosecution was barred by limitation under Section 468 (2) (c) of the Criminal Procedure Code. (8). (8). The Honble Supreme Court after considering the provisions of Section 468 (2) (c) as well as the provisions of Section 469 Cr.P.C. observed :– ``The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecution long after the date of the offence. The object which the statute seeks to observe is clearly in consonance with the concept of fairness of trial as enshrined in Art.21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein is non-est. For these reasons given above, we hold that the point of law regarding the applicability of Section 468 of the Code of Criminal Procedure has been correctly decided by the Punjab and Haryana High Court. This Court has also taken the same view in number of decisions. (9). In view of the authoritative pronouncement of the Honble Supreme Court, if cognizance is taken after the expiry of the period of limitation prescribed by various clauses of sub-section (2) of Section 468 Cr.P.C., after computing the period of limitation in accordance with the provisions of Sections 469, 470, 471 and 472 Cr.P.C., then such prosecution would be against the authority of law. (10). In the instant case, the only offence which according to the order passed by the learned Additional Sessions Judge was made out by the facts placed before the learned Judicial Magistrate, was the offence under Section 448 IPC. This offence is punishable with not more than one years imprisonment and therefore, Clause (b) of sub-section (2) of Section 468 is applicable. The cognizance of the aforesaid offences should have been taken within one year. This offence is punishable with not more than one years imprisonment and therefore, Clause (b) of sub-section (2) of Section 468 is applicable. The cognizance of the aforesaid offences should have been taken within one year. Since the cognizance was taken after the expiry of one year, the contention that the taking of cognizance of the offence in this case by the learned Judicial Magistrate barred, must be upheld as correct. (11). For the reasons mentioned above, the petition deserves to be allowed and it is hereby allowed. The proceedings initiated against the accused petitioners by the learned Judicial Magistrate and allowed to be continued by the learned Additional Sessions Judge in respect of offences under Section 448 Cr.P.C. are hereby quashed. The petition is disposed of accordingly.