JUDGMENT 1. - In this case, learned counsel for the petitioner has challenged the order taking cognizance on the ground that limitation prescribed under section 468 Cr.P.C. had already expired. The offence under section 406 IPC is only punishable with three years R.I. The offence alleged to have been committed in January- March, 1994 and the order of cognizance has been passed on 17.3.1998. Learned counsel for the complainant is not in a position-to controvert these facts. 2. In support of the contention, learned counsel for the petitioner places reliance on Dr. Dalpat Singh v. State, 1989 Cr.L.R. (Raj.) 238 , Durgalal v. State of Rajasthan, RLR 1989 (1) 931 , Arun Vyas v. Aamita Vyas, 1999 Cr.L.R. (SC) 392 , Ganpat v. State of Rajasthan, 1999 Cr.L.R. (Raj.) 366 , State of H.P. v. Tara Dutt, AIR 2000 SC 297 , Khet Singh v. State of Rajasthan, 1998 Cr.L.R. (Raj.) 849 , Iqbal Hussain v. State of Rajasthan, 1997 Cr.L.R. (Raj.) 775 , Raj Kishore v. State of Rajasthan, 1994 Cr.L.R. (Raj.) 470 , OM Kumari v. State of Rajasthan, 1994 Cr.L.R. (Raj.) ?? , Shravan Kumar v. State, 1994 Cr.L.R. (Raj.) 755 & Ram Dhan v. State of Rajasthan, 1994 Cr.L.R. (Raj.) 651 . He further submitted that in Arun Vyas's case (supra), it has been held thus:- "Section 239 has to be read along with Section 240 Cr.P.C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 240 Cr.P.C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify. 3. In Dalpat Singh's case (supra) it has been held thus : "The Court has taken cognizance against the accused- petitioner but by that time, the period of three years within which the cognizance could have been taken has expired. The learned Magistrate has given no reasons in his order for condoning the delay. A simple order taking cognizance has been passed by him after the expiry of three years. It cannot be held that it condones the delay ipso facto. Before contending the delay the Court has to be satisfied on facts and in the circumstances of the case the delay has been properly explained or the Court has to say that taking of cognizance is necessary in the interest of justice/but in this case, neither the Court while taking cognizance beyond the period, of limitation has 'observed that it was necessary to do so in the interest of justice nor has it held that delay in taking cognizance has been properly explained and, therefore, it is a clear case where no powers have been exercised under section 473 Cr.P.C. but cognizance has been taken straight-way against the provisions of Section 468 Cr.P.C." 4. I have heard learned counsel for the parties and have given my thoughtful consideration to the arguments raised. 5. The law laid down in the aforementioned cases is that once an order of taking cognizance is passed, the recourse had to be under section 473 Cr.P.C. In the instant case, before passing the order of taking cognizance, admittedly, no order for condonation of delay was passed under section 473 Cr.P.C. Learned counsel for the State urges that nothing better could have been done by the Prosecuting Officer in the Court than to file an application under section 473 Cr.P.C. The learned Court has not considered the application though application was filed alongwith application for condonation of delay. 6. 6. In view of the law laid down in the cases cited by the learned counsel for the petitioner, the order of taking cognizance deserves to be set aside as the cognizance has been taken beyond the period of limitation. It, however, cannot be ignored that an application under section 473 had been filed by the Public Prosecutor. It would be open to the trial Court to consider that application now and decide it in accordance with law. 7. With these observations, the revision petition is allowed as indicated above. The order.of taking cognizance is set aside and a liberty is granted to the trial Court to consider the application filed by the Public Prosecutor under section 473 Cr.P.C.Revision allowed. *******