Bijay Kumar Tandon v. State Of Bihar — 1998 DIGILAW 554 (PAT)

Judgment M.Y.Eqbal, J. 1. In the application filed under Sec. 482 of the Code of Criminal Procedure, the petitioners have challenged the order dated 21.4.1998 passed by the Judicial Magistrate, Patna. in G.R. No. 3282 of 1993 by which their application for dropping the case against them under Sec. 323 of the Indian Penal Code has been rejected. The grounds taken by the petitioners in the application is that the cognizance of the offence against the petitioners itself was barred by limitation under Secs. 468 and 469 of the Code of Criminal Procedure. 2. The prosecution story, in brief is that the informant Santosh Kumar lodged a First Information Report on 23.7.1993 with the Officer-in-Charge of Pirbahore Police Station alleging therein that his brother was assaulted by the petitioners due to which he got bleeding injuries. On the basis of the First Information Report, Pi (sic) ore P.S. Case No. 196 of 1993 was registered under Sections 341, 323/34 of the Indian Penal Code. On 24.7.1996. the Chief Judicial Magistrate, Patna, took cognizance of the offence against the petitioner only under Sec. 323, IPC and the case was transferred to another Magistrate for trial. Pursuant to the processes issued by the Magistrate, the petitioner appeared and filed a petition on 2.2.1998 before the learned Magistrate for dropping the case against them as the occurrence took place on 23.7.1993 and cognizance was taken on 24.7.1996. i.e., after lapse of three years and, therefore, it is barred by limitation under Secs. 468 and 469 of the Code. The learned Magistrate after hearing the parties on the aforesaid petition, rejected the same on the sole ground that since the cognizance was taken by the Chief Judicial Magistrate, she has no jurisdiction to pass order and drop the case. 3. I have heard Mr. N.K. Malhotra, learned Counsel appearing on behalf of the petitioners and Mr. Dilip Kumar Sinha, Addl. P.P. for the State. 4. It is well settled that Sec. 468 of the Code creates a valuable right for the accused not to be proceeded in a criminal prosecution after expiry of the period of limitation and puts embargo on the authority of the Court to take cognizance of an offence. The section specifically provides that the Court shall not take cognizance in respect of an offence after expiry of the period of limitation fixed under the Code. 5. The section specifically provides that the Court shall not take cognizance in respect of an offence after expiry of the period of limitation fixed under the Code. 5. The expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. But from the scheme of the Code, it is clear that the case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Whether the Magistrate has or has not taken cognizance of an offence will depend on the facts and circumstances of a particular case including the mode in which the case is sought to be instituted and the nature of the prelimmary action, if any, taken by the Magistrate. The Apex Court in the case of Dr. Lakshmi Narayan V/s. Narayan -- has observed: Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Sec. 200, and the succeeding section in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Sec. 190(1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation ordering investigation by the police under Sec. 156(3), he cannot be said to have taken cognizance of any offence. 6. From perusal of the order-sheet, copy of which has been annexed as Annexure 2, it appears that the Chief Judicial Magistrate passed order on 24.7.1996 taking cognizance for offence punishable under Sec. 323 of the Indian Penal Code and ordered for issuance of processes against the petitioners. From perusal of the order sheet it appears that before 24.7.1996. the Chief Judicial Magistrate did not apply his judicial mind on the records as the matter was pending for submission of investigation report by the police. 7. Be that as it may be, the Magistrate rejected the application of the petitioners not on merit but on the ground that the Magistrate has no jurisdiction or authority to consider whether the order taking cognizance passed by the Chief Judicial Magistrate is barred by limitation or not. In my opinion, the Magistrate has completely misdirected herself in law. 7. Be that as it may be, the Magistrate rejected the application of the petitioners not on merit but on the ground that the Magistrate has no jurisdiction or authority to consider whether the order taking cognizance passed by the Chief Judicial Magistrate is barred by limitation or not. In my opinion, the Magistrate has completely misdirected herself in law. It is well settled that a duty is cast upon the Court to apply its mind even before taking cognizance of the offence whether the prosecution is within time or not. It may happen that even after application of mind, the Court may wrongly take cognizance of barred offences without realising that they are barred by limitation, but cognizance taken by the Court cannot bar the accused from raising question of limitation after they entered appearance or even during trial. It is, therefore, clear that when the petitioners after appearance raised objection that the case cannot proceed because the cognizance itself was barred by limitation then it was incumbent upon the Magistrate to consider the application and dispose of the same in accordance with law. 8. Having regard to the facts and circumstances of the case, this application is allowed, the impugned order passed by the Magistrate is set aside and the matter is remitted to the Magistrate with a direction to consider the application of the petitioner on merit and pass a reasoned order in accordance with law.