JUDGMENT 1. - This misc. petition U/s. 482 Cr.P.C. has been directed against the order of learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur dated 6.11.1999 by which he took cognizance for offence U/ss. 427 & 453 IPC. 2. I have heard learned counsel for the petitioner, learned counsel for the complainant as well as learned Public Prosecutor for the State. 3. The facts of the case are that a plot No. D-180 is situated at Kanti Chandra Road, Bani Park, Jaipur. Smt. Rasaal Kanwar is said to be in possession of one room on the date of occurrence. He lodged a report with police on 11.8.95 stating that her husband died on 28.7.95. During his life time, she was living in the room which was in possession for the last 30 years as tenant. Some place for kitchen was also being used. Water connection was taken by her father-in-law. She had gone to her parents house and started living there. On 10.8.95, it was revealed to her that the walls of the said room had been broken and the articles belonging to her which were lying inside the room were taken away by the petitioner Lokendra Singh. The police registered a case at Police Station Bani Park, Jaipur for offence U/ss. 453, 427 & 380 IPC. The police after investigation came to the conclusion that the said accommodation/room was in dilapidated condition and on account of heavy rains, the walls had fallen and that the room was found empty. The police submitted final report. Then the complainant Smt. Rasaal Kanwar filed a protest petition whereupon the learned Magistrate took cognizance U/s. 453 & 427 IPC by the impugned order ignoring the final report filed by the Investigating Officer. 4. Learned counsel for the petitioner submitted that the learned Magistrate took cognizance purely on the basis of surmises. It is admitted that no inquiry under Chapter XV of the Code of Criminal Procedure was held. He submitted that the occurrence is dated 10.8.95 while cognizance is taken by the impugned order on 6.11.99 which is barred by limitation U/s. 468 of the Code of Criminal Procedure. It is admitted that no inquiry under Chapter XV of the Code of Criminal Procedure was held. He submitted that the occurrence is dated 10.8.95 while cognizance is taken by the impugned order on 6.11.99 which is barred by limitation U/s. 468 of the Code of Criminal Procedure. He also submitted that it is borne out from the record of investigation that nobody saw the accused petitioner entering into the room and that the walls of the room were not destroyed by committing mischief so as to bring the case U/s. 427 IPC. 5. On the other hand, learned counsel for the complainant and learned Public Prosecutor have tried to support the order taking cognizance. 6. So far as limitation is concerned, as per section 468 of the Code of Criminal Procedure provides that the period of limitation shall be three years in this case. Offence under Section 453 IPC is punishable for a maximum period of two years and offence U/s. 427 IPC is also punishable for a maximum period of two years, therefore, Section 468(2)(c) will be applicable in this case. This offence is definitely said to have been committed in the night of 10.8.95 and the order taking cognizance was passed on 6.11.99 which shows that the cognizance has been taken for the offences after the expiry of three years. 7. Learned counsel for the complainant and learned Public Prosecutor submitted that Section 472 of the Code of Criminal Procedure would be applicable as the offence U/s. 453 is a continuing offence. I am of the view that in the facts and circumstances of the case, it is not found that the petitioner committed the offences. Smt. Rasaal Kanwar first stated to the police that her cousin brother Kailash was looking after the house who had inspected the room on 9.8.95, but he informed on 10.8.95 that two gates of the door were broken and that tin shed was also removed. Smt. Rasaal Kanwar came to the place of occurrence and inquired from Yashoda. Yashoda was examined twice during investigation. First she stated that during the night she heard some noise and when the walls of the room collapsed she came out. She stated that three persons were breaking the walls and she objected and then they went away. She did not identify anyone of them. Yashoda was examined twice during investigation. First she stated that during the night she heard some noise and when the walls of the room collapsed she came out. She stated that three persons were breaking the walls and she objected and then they went away. She did not identify anyone of them. Thus, it is found even from her statement that she did not see the accused petitioner committing any offence. In second statement she sand that the room damaged dor to rains. The police came to the conclusion that the room collapsed because of rains which fact has been disputed by the learned counsel for the complainant. I am of the view that when the petitioners name does not appear either in the statement of Smt. Yashoda or any other witness and the witnesses of the prosecution who were examined during investigation have not supported the case that it was the petitioner who might have broken the walls, the learned Magistrate was in error in passing the order taking cognizance. It is on record that Smt. Yashoda was examined again during investigation and she stated that the walls of the room collapsed because of rains. The learned Magistrate while passing the order did not taken care of period of limitation nor did he taken into consideration the fact that at the dead hour of night nobody saw the accused petitioner either committing the house trespass or house breaking in order to commit mischief as defined U/s. 427 IPC. 8. Consequently, this petition is allowed and the impugned order taking cognizance is set aside.Petition is allowed. *******