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2002 DIGILAW 1099 (PAT)

Jitendra Narain Singh v. State Of Bihar

2002-10-09

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. This application filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, the Code) has come up for admission. It is directed against the order dated 8.5.2002 passed by the learned Chief Judicial Magistrate, Gaya in Protest/Complaint Petition No. 108/97 whereby and whereunder cognizance was taken against the petitioners under Sections 447 and 504 of the Indian Penal Code. 2. From the facts stated in this petition it appears that opposite party No. 2 submitted a written report before Chandauli Police Station in the district of Gaya on the basis of which Chandauli P.S. Case No. 169 of 1996 dated 25.10.1996 was instituted against the present petitioners. The police after completing investigations submitted final report false dated 30.11.1996 before the Court of Chief Judicial Magistrate, Gaya which was accepted by him on 4.2.1997. In the meantime on 21.11.1996, opposite party No. 2 filed a protest petition- cum- complaint petition before the Court. The complainant (opposite party No. 2) was examined on solemn affirmation and in the course of inquiry under Section 202 of the Code, three witnesses were examined. On the conclusion of this inquiry, the learned Chief Judicial Magistrate, by the impugned order took cognizance of the offences as stated above. 3. In this petition it has been contended that the learned Chief Judicial Magistrate has committed serious error of record by not verifying the fact that the witnesses examined had not supported the case of the prosecution. Still the learned Court below has committed serious error of record by taking the cognizance of the offence. Since already Title Suit No. 187/1996 filed on 4.10.1996 by the petitioners was pending between the parties in the Court of Munsif II, Gaya with respect to Plot No. 291 Khata No. 67. This false case has been instituted against them out of enmity. Hence it was prayed that the impugned order be quashed. 4. It is worthwhile to mention here that in this application the petitioners have not challenged the impugned order on the ground of limitation. However, in the course of the submissions made on their behalf the learned counsel has strongly contended that in any view of the matter, the impugned order cannot be sustained since it is hopelessly barred by limitation and therefore this application be admitted. However, in the course of the submissions made on their behalf the learned counsel has strongly contended that in any view of the matter, the impugned order cannot be sustained since it is hopelessly barred by limitation and therefore this application be admitted. Since this question was raised by the petitioners, at this stage, the parties have been heard at length on this point as it goes to the very root of the matter and has to be decided at this stage itself. 5. The parties have been heard at length on various questions of law raised on their behalf. On behalf of the petitioners it has been submitted that taking of cognizance of the offence in this case is hopelessly barred by limitation and therefore, the entire proceedings against them be quashed. On behalf of the opposite party this contention of the petitioners is seriously challenged. Before, however, I take up for consideration the various submissions made on behalf of the parties on this point, I will briefly refer to the facts of this case and the provisions of law on this point as contained in various sections of the Code. 6. I will firstly refer to the facts. In this case the FIR was lodged on 25.10.1996 with respect to an occurrence which took place on 23.10.1996. The police after completing investigations submitted final report false on 30.11.1996. In the meantime, however, on 21.11.1996 a protest petition was filed in the Court. The learned Magistrate perused the protest petition and examined the complainant (informant) on solemn affirmation (as appears from the order sheet dated 8.5.2002). Thereafter an enquiry was held under Section 202 of the Code in course of which witnesses were examined on 24.2.1998, 12.5.1998 and 18.11.1998. Finally the Magistrate passed the order on 8.5.2002 that he had taken cognizance of the offence under Sections 447 and 504 of the Indian Penal Code. 7. On behalf of the petitioners it has been submitted that this order dated 8.5.2002 taking cognizance of the offence is barred by limitation since the alleged date of occurrence is 23.10.1996. In this connection it has been firstly submitted that under Indian Penal Code, the offence under Section 447 is punishable with imprisonment for one year, while that under Section 504 is punishable with imprisonment for two years. In this connection it has been firstly submitted that under Indian Penal Code, the offence under Section 447 is punishable with imprisonment for one year, while that under Section 504 is punishable with imprisonment for two years. Referring to Section 468(l)(c) of the Code, it has been submitted that in this case the cognizance should have been taken within a period of three years. Since the offences were punishable with terms exceeding one year but not exceeding three years. In this connection my attention has also been drawn to Section 468(3) of the Code, according to which the period of limitation, in relation to offences tried together shall be determined with reference to the offence which is punishable with more severe punishment. In the present case more severe punishment under Section 504 is imprisonment for two years and this will determine the period of limitation which as per Section 468(l)(c) will be three years. In this connection my attention has also been drawn to Section 469 of the Code, according to which the period of limitation, in relation to an offence shall commence on the date of the occurrence. Applying the aforesaid law to the facts of the present case, it was submitted that since here the alleged occurrence had taken place on 23.10.1996 the cognizance in this case could not have been taken beyond 23.10.1999. It was further pointed out that since in the present case the cognizance has been taken on 8.5.2002, it is obvious that the same is hopelessly barred by the law of limitation. On this ground it has been contended that the entire proceeding is fit to be quashed. 8. On behalf of the opposite party these contentions raised on behalf of the petitioners have been seriously challenged. On this ground it has been contended that the entire proceeding is fit to be quashed. 8. On behalf of the opposite party these contentions raised on behalf of the petitioners have been seriously challenged. It has been contended that the averment made in the order dated 8.5.2002 that the cognizance is taken is redundant and a misnomer inasmuch as the moment the Magistrate, on receipt of the protest petition on 21.11.1996 applied his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI or Section 204 of Chapter XVII of the Code, it can be positively stated that he had applied his mind and had therefore, taken the cognizance of the offence on 21.11.1996 itself and positively before 24.2.1998, the date on which the examination of the witnesses under Section 202 of the Code was started in course of the inquiry under this section. In this connection, he has also drawn my attention to Section 202, according to which the examination of the witness and complainant by the Magistrate takes place after "taking cognizance of an offence on complaint". On this basis it was his submission that in this case, since the examination of the witnesses was started within two years of the alleged occurrence on 23.10.1996 it cannot be said that the present proceeding is hit by Section 468 of the Code. This contention of the opposite parties has been challenged on behalf of the petitioners who had strongly relied on the order sheet dated 8.5.2002 in which the learned Magistrate has stated that he took cognizance of offence meaning thereby that he took cognizance of the offence on this dated 8.5.2002. 9. This takes us to the consideration of the question what is meant by "taking of cognizance" and under law when it takes place ? At the outset it may be stated that the word "cognizance" has nowhere been defined in the Code. The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means being aware of and when used in reference to a Court or a Judge "to take notice of judicially" as held in the case of Ajit Kumar Palit V/s. State of West Bengal & Anr., AIR 1963 SC 765 . In this very decision it has been held that taking cognizance is a mental as well as a judicial act. In this very decision it has been held that taking cognizance is a mental as well as a judicial act. Taking cognizance does not involve any formal action or indeed any action of any kind; but occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. This view also finds support from the decision in the case of Darshan Singh Ram Kishan V/s. State of Maharashtra, AIR 1971 SC 2372 . In para 7 of the decision in the case of Satrughan Prasad V/s. Rajbhan Surajmal, 1997 Cr LJ 212 (SC), it has been held that taking cognizance of an offence would include the intention of the Magistrate to initiate judicial proceeding or taking steps to see whether there is any basis for initiating judicial proceeding. In the case of Anil Sharma V/s. State, (1995) 6 SCC 142 , it has been held that the word cognizance is of infinite import but in broad workable definition it would be taking notice of an offence. In the case of Narayan Das V/s. State, AIR 1959 SC 1118 : 1959 Cr LJ 1368, it has been clearly laid down that obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI or Section 204 of Chapter XVII of the Code, that it can be positively stated that he has applied his mind and has therefore taken cognizance. The same view has been re-affirmed by the Honble Supreme Court in a sub-sequent decision in the case of D. Laxmi Narayana V/s. Narayana Reddy, AIR 1976 SC 1672 . 10. It is well settled that taking of cognizance is a judicial function as held in the case of State V/s. Laxmi, AIR 1983 SC 439 . In the case of Tula Ram V/s. Kishore Singh, AIR 1977 SC 2401 , it has been held that the Magistrate takes cognizance once he makes himself fully aware of the allegations made in the complaint petition and decides to test the validity of such allegation. In the case of Tula Ram V/s. Kishore Singh, AIR 1977 SC 2401 , it has been held that the Magistrate takes cognizance once he makes himself fully aware of the allegations made in the complaint petition and decides to test the validity of such allegation. A word of caution may be sounded here that mere application of the mind by the Magistrate does not amount to taking of cognizance unless the Magistrate does so for the purpose of proceeding under Sections 200 and 204 of the Code, as held in the case of Kishun Singh V/s. State, (1993) 2 SCC 16 : 1993 East Cr C 195. For example, if the Magistrate, on receipt of the complaint petition does not decide to proceed under Section 200 or 204 of the Code but sends the complaint petition to police under Section 156(3) of the Code, he cannot be said to have taken cognizance of the offence. 11. Now applying the above propositions of law to the facts of the present case, it would appear that a protest petition was filed before the Magistrate on 21.11.1996 even before submission of final form by police on 30.11.1996. It further appears that on the receipt of the protest petition, the Magistrate decided to examine the informant/complainant on solemn affirmation and. thereafter to hold the inquiry under Section 202 of the Code in the course of which he examined the witnesses. From the aforesaid facts it would appear that the Magistrate took cognizance of the offence when he received the protest petition on 21.11.1996 or soon thereafter but certainly before the examination of the complainant on solemn affirmation and starting the inquiry under Section 202, in the course of which he examined the witnesses on 24.2.1998 and on subsequent dates. It is thus clear that taking cognizance of the offence took place on 24.2.1998 or before this, which is well within the period of limitation from 23.10.1996, the alleged date of occurrence. It is thus clear that taking cognizance of the offence took place on 24.2.1998 or before this, which is well within the period of limitation from 23.10.1996, the alleged date of occurrence. In this view of the matter it cannot be said that the cognizance was taken on 8.5.2002 by the Magistrate as mentioned in the order sheet of this date obviously under some mistaken impression, which is, however, is not going to change the well settled position of law, as noticed above that it was taken on 21.11.1996 and at least before 24.2.1998 notwithstanding anything to the contrary mentioned in the order sheet dated 8.5.2002. 12. On behalf of the petitioners it has been contended that a protest petition is some thing unknown to law and the Code and the learned Magistrate should not have treated it to be a complaint petition and should not have acted on it. There is, however, no force in this contention also. No doubt "protest petition" has nowhere been defined in the Code, but in the case of Rameshwar Prasad V/s. Bhattu Mahton, AIR 1958 Pat 11 , it has been held that a protest petition can be classed to be complaint petition when there is an accusation against some persons, with a prayer to take action as upon a complaint petition under Sections 200 and 204 of the Code. In the case of State of Bihar V/s. Sakaldeep, AIR 1966 Pat 473 , it has been held that the protest petition alleging that Investigating Officer was not investigating the case properly and that the accused be summoned and put on trial can be treated to be complaint petition. A similar view has been taken by this Court in the case of Sarjug Ram V/s. H.R. Tewari, 1970 Cr LJ 1117. In the case of Bhirappa Bassappa Bhu Sannavar V/s. Laxman Shivarayappa Samagouda and others, AIR 1970 SC 1153 , the Honble Supreme Court has observed as follows : "The word complaint has a wide meaning since it includes even oral allegations. It must therefore be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which, prima facie, discloses the commission of an offence with necessary facts for the Magistrate to take action. It must therefore be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which, prima facie, discloses the commission of an offence with necessary facts for the Magistrate to take action. Section 190(l)(a) makes it necessary that the alleged facts must disclose the commission of an offence." From the above it becomes clear that the words "protest petition" is well recognised in law and may be treated to be a complaint petition, if the necessary requirements of law are satisfied. 13. Lastly it was contended on behalf of the opposite party that the disputed question of limitation as contained in Sections 468 and 473 of the Code cannot be directly raised in the High Court to quash a criminal proceeding by a petition under Section 482 of the Code. In support of this contention reliance has been placed on a Full Bench decision of this Court in the case of Ram Kripal Prasad V/s. State of Bihar, 1985 Cr LJ 1048 : 1985 East Cr C 397 (Pat) (FB). I feel inclined to agree to this submission made on behalf of the opposite party. 14. In view of what has been stated above, it appears that this application is not fit for admission as the petitioners have failed to make out a case for the exercise of the inherent powers of this Court under Section 482 of the Code. Since it is well settled that the inherent powers under Section 482 of the Code should be exercised sparingly and for compelling reasons only for preventing any abuse of the process of law or any glaring injustice. The application is, accordingly, rejected.