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1998 DIGILAW 947 (RAJ)

Kuldeep Singh v. State of Rajasthan

1998-09-02

ARUN MADAN

body1998
Judgment Arun Madan, J.-The petitioners have come up by way of revision petition against the orders dated 19-7-1997 and 18-11-1997 passed by the Additional Civil Judge (J.D.) No. 2-cum-Judicial Magistrate First Class, Sri Ganganagar in Criminal Case No. 3 95/97 by which the trial Court while exonerating the accused of the charge for offence under Sections 420, 467, 468, 471 and 120-B, I.P.C. held that the accused are liable to be charged and tried for the offence under Sections 323 and 324, I.P.C. .2. The questions which arise for consideration of this Court are as to :-- .(i) Whether the impugned order passed by learned Magistrate is liable to be interfered with at this initial stage whereon the basis of evidence on record only charge has been framed while culpability of the accused is yet to be established’ for the said offences? .(ii) Whether the scope of inherent powers of this Court under Section 482, Cr. P.C. extends so as to interfere with the order of the trial Court directing framing of charge against accused for offences under Sections 323 and 324, I.P.C. on the ground that it is necessary for this Court to enforce constitutional mandate to prevent abuse of process of justice or otherwise to secure ends of justice? 3. The facts which are relevant for deciding the controversy between the parties arc that the accused petitioner No. 1 in the course of discharge his official duties as to Sarpanch of Gram Panchayat of village Kotha issued Patta of Plot No. 510- B in favour of his wife petitioner No. 2 on 26th March, 1990. It is further alleged against the petitioner that he had tampered with the record of Panchayat and the size of the plot of which he made the allotment in favour of his wife was increased from 25’ x 40’ into 65’ x 40’. In this manner, he had misused his official position with a view to derive undue advantage for his family. 4. Theprosecution has further alleged against the accused that while inspecting the site relating to the plot in question, of which, he allegedly made allotment in favour of his wife, he had subjected ‘Vikas Adhikari’ of Sri Ganganagar to physical assault and also abused him, upon which, a criminal case on the basis of F.I.R. No. 198/93 was registered and investigation started. The police station of Hindumalkot proceeded with the investigation in the matter and finally filed the final report by closing further investigation in the matter oh 31-10-1994 on the basis of the complaint which was registered with the police station on 21-12-1993. Thereafter, on 5-10-1995 protest petition was filed by the complainant with the trial Court for taking cognizance against the accused notwithstanding the final report filed in the case by the Investigating Agency directing closure of investigation. It is surprising to note that notwithstanding the delay which had occasioned in the matter, the trial Court further took time in passing of order of acceptance of the F.I.R. filed by the Police belatedly on 19-7-1997 whereby it has accepted the F.I.R. in respect of offence under Sections 420, 467, 468, 471 and 120-B, I.P.C. but bifurcated the case by taking cognizance against the accused under Sections 323 and 324, I.P.C. and directed the accused to be summoned through bailable warrants. Aggrieved by the aforesaid order the accused petitioner No. 1 filed his objections before the trial Court for having taken cognizance against him for offence under Sections 323 and 324, I.P.C. on the ground that the same has been taken after expiry of the period of limitation and hence not sustainable. 5. I haveheard the learned counsel for the petitioner at length as well as the learned P.P. for the State and also the provisions of law which are attracted to the case. From the perusal of the Section 468, Cr. P.C. it is apparent that “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. The period of limitation shall be :-(a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. For the purpose of this section, the period of limitation, in relation to offence 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. 6. For the purpose of this section, the period of limitation, in relation to offence 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. 6. Further from the perusal of Section 469 of the Code, it is apparent that “the period of limitation, in relation to an offender, shall commence (a) on the date of the offence; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence conies to the knowledge of such person or to any police officer, whichever is earlier; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. Under Sub-section (2) in computing the said period, the day from which such period is to be computed shall be excluded. 7. Fromthe above discussion it is apparent that on the day when the cognizance was taken by the trial Court i.e. for offenceunder Sections 323 & 324 that on 19-7-97 while exonerating the accused for the offence under Sections 420, 467, 468, 471 & 120-B I.P.C. for the charge which was not held to be made out on the preliminary stage itself , the cognizance was clearly barred on the principle of limitation as laid down under Section 468 of Cr. P.C. Assuming that the maximum period of sentence for which the petitioner accused could be held guilty for offence under Section 324, I.P.C. of voluntarily causing hurt by dangerous weapons or means is imprisonment for 3 years or fine or both, that being the position, the bar of limitation as laid down under Section 468, Cr. P.C. in respect of the offence punishable under Sections 324, I.P.C. is clearly attracted to this case. 8. P.C. in respect of the offence punishable under Sections 324, I.P.C. is clearly attracted to this case. 8. Applying the above principle to the instant case, period of 3 years if reckoned with effect from 21-12-1993 i.e. the date of presentation of’ complaint, on basis of which, the F.I.R, was registered by the police, expired on 20th December, 1996 while cognizance in the matter was taken by the trial Court on 19-7-97 i.e. after delay of more than 1 year and about 9 months, prima-facie, I am of the view that bar of limitation was clearly attracted for taking cognizance which the learned trial Court has overlooked. Since no finding has been recorded by the trial Court in both the orders passed on 19-7-97 i.e. the date on which cognizance was taken initially and as well as the order dated 18-11-97 when its earlier order dated 19-7-97 was sought to be reviewed by the trial Court, the same arc vitiated being not sustainable. 9. My observationsin this regard are fortified from the Judgment s reported in 1990 Raj LW (1) 396 (Bhanwar Lal vs. State (1991) 1 Raj LW 86 (Banshi Lal vs. State 1994 Raj Cri C 67 Vardhman Kala vs. State of Raj). I have examined the propositions of law laid down by this Court in the above noted decisions and in my view the ratio of the said decision arc frilly attracted to the instant case. I am further of the opinion that the bar of limitation as regards to cognizance taken after the expiry of the period of limitation is stringent and there was got to be reasonable explanation by the prosecution on the record for extending the period of limitation and that too in exceptional cases where sufficient cause is explained by the prosecution for condoning the delay in not having taken adequate steps in the matter of investigation. In either case, whether on account of any lapse on the part of prosecuting agency or where the Court suo motu is of the view that even though, the final report has been filed closing the further investigation by the police as regards certain offences where the trial Court is of the view that cognizance should be taken as regards the offences under Sections 323 & 324, IPC in the instant case punishable with maximum period of imprisonment for a term not exceeding 3 years or with fine or both finding regarding limitation must be recorded. It is further noteworthy to mention that the period of limitation in relation to an offence is to be computed from the dale of presentation of complaint and no extension of period of limitation can be permitted even on the volition of the Court while taking cognizance of the offence. 10. Asa result of the above discussion, I am of the opinion that the impugned orders dated 19-7-97 and 18-11-97 passed by Additional Civil Judge (J.D.) No. 2, cum-Judicial Magistrate First Class, Sri Ganganagar in Criminal Case No. 395/ 97 taking cognizance against the petitioners for offences under Sections 323 & 324, IPC are not sustainable in law and arc accordingly quashed and set aside. The revision petition is accordingly allowed and disposed of