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1998 DIGILAW 1138 (RAJ)

Khet Singh v. State of Rajasthan

1998-11-02

G.J.GUPTA

body1998
Honble GUPTA, J.–This revision is directed against the order dt. 3.12.1997 passed by the learned Addl. Chief Judicial Magistrate No.1, Jodhpur whereby he directed the trial to continue u/s. 448 IPC against the petitioners. (2). The relevant facts are that a complaint was filed by the complainant Shri Sidhkaran on 4.10.1991 about an incident which took place on 12.7.1991. This com- plaint was sent to the police under Section 156(3) Cr.P.C. for investigation. The complainant filed protest petition on 1.9.1992. On 13.10.1992 the learned Magistrate ordered that an enquiry shall be held in the Court and thereafter the statements of the witnesses were recorded under Sec. 200 and 202 Cr. P.C. Vide order dt. 18.5.93 the learned Magistrate ordered the summoning of the accused in the case. Satya Dev, petitioner appeared in the Court for the first time on 9.2.96. On 7.10.1996 the learned A.C.J.M. closed the proceedings against the petitioners on the basis of the directions given by the Apex Court in the case of ``Common cause A Registered Society Through its Director vs. Union of India (1). This order was challenged by the complainant in revision before this Court. The Criminal Revision Petition No. 1/97 was disposed of by this Court on 28.7.97 directing the learned A.C.J.M. to decide whether the case is covered by the second judgment of the Supreme Court in the case of ``Common cause (supra). The learned A.C.J.M. by the impugned order held that the case is covered by the second judgment of the ``Common cause A Registered Society Through its Director vs. Union of India (2). He, there- fore, proceeded with the trial. (3). Mr. Mathur contends that the proceedings are liable to be quashed on two grounds. (i) The cognizance was not taken within one year of the commission of the offence and the cognizance taken on 18.5.93 was barred by Section 468 Cr. P.C. (ii) The case is covered by the third para of Direction No.III of the judgment of the Apex Court in the case of ``Common cause A Registered Society Through its Director Vs. Union of India (supra). (4). Mr. Mohanani, on the other hand, contends that the plea of limitation was not raised by the petitioners in the earlier proceedings and, therefore, this plea is not available to them. Union of India (supra). (4). Mr. Mohanani, on the other hand, contends that the plea of limitation was not raised by the petitioners in the earlier proceedings and, therefore, this plea is not available to them. He urges that as the trial had not commenced the benefit of the first case of ``Common cause (supra) cannot be claimed by the petitioners. (5). I have considered the above arguments. It is noticed that for the occurrence dated 12.7.1991, the learned Magistrate directed for issuance of process on 18.5.93. Section 468 Cr. P.C. bars the taking of cognizance after the lapse of period of limitation provided thereunder for the offences which are punishable with imprisonment for a term not exceeding one year, the period of limitation for taking cognizance is one year. In the instant case; obviously cognizance was not taken within a period of one year. Even on 13.10.1992 when the learned Magistrate for the first time applied his mind to the complaint and proceeded to hold enquiry, the period of one year had elapsed and, therefore, the cognizance was clearly barred. (6). On the ground that the petitioners did not raise this plea in the earlier revision petition, they cannot be refused the benefit of Section 468 Cr. P.C. If the proceedings are time barred, it is purely a legal question and can be raised at any stage of the case. The petitioners have raised this issue before the trial Court and, therefore, even it cannot be said that the petitioners have waived their right of challenging the plea of limitation. In my opinion, on the sole ground that the cognizance was not taken within the stipulated period of one year, the proceedings are liable to be quashed. (7). Coming to the second contention, it may be stated that the Apex Court in the first case of ``Common cause (supra) had directed at para no. 2(e) that all cases pending in criminal courts for more than one year in which the trial had not commenced shall be disposed of either by discharging or acquitting the accused as the case may be. In pursuance of these directions, the trial Court had closed the proceedings and discharged the accused vide order dt. 7.10.1996. (8). 2(e) that all cases pending in criminal courts for more than one year in which the trial had not commenced shall be disposed of either by discharging or acquitting the accused as the case may be. In pursuance of these directions, the trial Court had closed the proceedings and discharged the accused vide order dt. 7.10.1996. (8). In the second case of ``Common cause (supra) it has been observed at para three of direction No. III as follows:- ``It is however made clear that in trials regarding other offences which are covered by the time limit specified in our earlier order dt. 1.5.1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuant to the present clarificatory order which qua such offences will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order. (9). The `other offences in this para clearly means the offences other than those mentioned as item no.(a) to (m) of the first Judgment and (n) to (r) of the second judgment. The offence u/s. 448 IPC is not the offence specified in this paragraph. In view of the clear direction of the Supreme Court that if accused had already been discharged pursuant to the first judgment of the ``Common cause (supra), it cannot be reopened on the basis of the second judgment of the ``Common cause (supra), it is not permissible to reopen the case pursuant to the second judgment of the ``Common cause case (supra). (10). It is true that the order dt. 7.10.1996 discharging the petitioners had been challenged by the complainant by filing a revision petition but by the order of this Court the order dt. 7.10.1996 was not set aside. What this Court had directed was to review the order if the learned Magistrate was satisfied in the light of the second judgment of the ``Common cause case (supra). This follows that the order dt. 7.10.1996 closing the proceedings remained in force when the second judgment in the case of ``Common cause (supra) was pronounced. As such,the direction reproduced in the preceding para shall be operative and the proceedings cannot be reopened pursuant to the second judgment in the ``Common cause case (supra). (11). This follows that the order dt. 7.10.1996 closing the proceedings remained in force when the second judgment in the case of ``Common cause (supra) was pronounced. As such,the direction reproduced in the preceding para shall be operative and the proceedings cannot be reopened pursuant to the second judgment in the ``Common cause case (supra). (11). The order of the trial Court is obviously illegal and is not sustainable in law. The revision petition deserves to be allowed. (12). Consequently, the revision petition succeeds. The impugned order is set aside and the trial against the petitioners is directed to be treated as closed.