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2003 DIGILAW 628 (CAL)

HARDEV SINGH v. STATE OF WEST BENGAL

2003-12-12

P.N.SINHA

body2003
P. N. SINHA, J. ( 1 ) THIS revisional application under Section 482 of the Code of Criminal procedure (hereinafter called the Code) is for quashing the entire proceeding of G. R. Case No, 1535 of 96 on the basis of charge-sheet No. 50 of 2001 dated 14. 8. 2001 arising out of Rajganj P. S. Case No. 82 dated 6. 12. 1996 under Sections 379 of the Indian Penal Code (hereinafter called i. P. C.) read with Sections 39 and 44 of the Indian ELECTRICITY ACT, 2003 (hereinafter called the Act ). ( 2 ) LEARNED Advocate for the petitioners contended that the F. I. R. was lodged on 6. 12. 1996 against unknown persons for alleged offence under Section 379 of the I. P. C. and Section 39 of the Act by one K. K. Bhowmick, Assistant Engineer, Jalpaiguri (OS. M.) of W. B. S. E. B. On the basis of the complaint or F. I. R. , Rajganj P. S. Case No. 82 dated 6. 12. 1996 was started and subsequently Section 44 of the Act was added. After completing investigation the Investigating Officer submitted charge-sheet no. 50 dated 14. 8. 2001 and receiving it on 23. 8. 2001 learned S. D. J. M. , jalpaiguri took cognizance of the offence against the petitioners. Taking of congizance by the learned Magistrate was bad-in-law and illegal being barred by limitation as the charge-sheet was filed on 14. 8. 2001 under section 379 of the I. P. C. and 39 and 44 of the Act, though the F. I. R. was lodged on 6. 12. 1996 wherein date of occurrence was mentioned as prior to 5. 12. 1996. The mandatory provisions of Section 468 of the Code were violated and the learned Magistrate erred in law in taking cognizance of offence. The entire prosecution has become barred by limitation in view of provisions of Section 468 of the Code. Therefore, the entire proceeding including the charge-sheet in G. R. Case No. 1535 of 1996 now pending before learned Judicial Magistrate, 2nd Court, Jalpaiguri should be quashed. In support of his contention he placed two decisions reported in 1981 (3) scc 34 , 1988 (4) SCC 36 and 1986 C Cr. LR (Cal) 1. ( 3 ) LEARNED Advocate appearing for the State submitted that there is no illegality in the order and taking cognizance. In support of his contention he placed two decisions reported in 1981 (3) scc 34 , 1988 (4) SCC 36 and 1986 C Cr. LR (Cal) 1. ( 3 ) LEARNED Advocate appearing for the State submitted that there is no illegality in the order and taking cognizance. Learned S. D. J. M. taking cognizance of offence after receiving charge-sheet transferred the case to the learned Magistrate for trial and there is no illegality. . ( 4 ) AFTER considering the submissions of the learned Advocate of the parties and going through the application and annexures made therein i find that the F. I. R. was lodged on 6. 12. 1996 by one K. K. Bhowmick, the assistant Engineer of W. B. S. E. B. , against unknown persons for alleged offence under Section 379 of I. P. C. read with Section 39 of the Act and on the basis of F. I. R. Rajganj P. S. Case No. 82 dated 6. 12. 1996 was started. In the F. I. R. it was mentioned that the occurrence took place prior to 5. 12. 1996. Subsequently, Section 44 of the Act was added on 10. 12. 1996. Certified copy of the order sheet produced before this Court reveals that on 23. 8. 2001 learned S. D. J. M. , Jalpaiguri received charge-sheet No. 50 dated 14. 8. 2001 under Section 379 of I. P. C. read with Sections 39/44 of the Act against these petitioners and on that day the learned Magistrate took cognizance of offence. Subsequently, by order dated 10. 6. 2003 learned s. D. J. M. transferred the case to learned Judicial Magistrate, 2nd Court for disposal. ( 5 ) SECTION 379 of I. P. C. prescribes punishment for three years. Sections 39 and 44 of the Act prescribes punishment for 3 years each respectively. Section 468 sub-clause (2) of the Code clearly lays down the bar to take cognizance after lapse of period of limitation and (c) of sub- clause (2) of Section 468 prescribes that the period of limitation shall be three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Section 468 sub-clause (2) of the Code clearly lays down the bar to take cognizance after lapse of period of limitation and (c) of sub- clause (2) of Section 468 prescribes that the period of limitation shall be three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Section 469 of the code lays down commencement of period of limitation and it shows that the period ot limitation shall commence from the date of the offence or, whether 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 comes to the knowledge of such person or to police officer, whichever is earlier, Copy of F. I. R. clearly reveals that the alleged offence was reported at the police station on 6. 12. 1996 giving date of occurrence of offence prior to 5. 12. 1996. In the instant case the limitation, therefore, commences at least from 6. 12. 1996 and the charge-sheet should have been submitted before the learned Magistrate on or before 5. 12. 1999. It is clear that the charge-sheet in the instant case was placed before the learned magistrate on 23. 8. 2001 and it was charge-sheet No. 50 dated 14. 8. 2001. The filing of charge-sheet was thus beyond the period of limitation and the learned Magistrate took cognizance of offence on 23. 8. 2001, when the entire prosecution case became barred by limitation. The order sheet do not reflect at all that the Investigating Officer submitted prayer or prayers time to time before the learned Magistrate for extension of time to complete investigation and as there was no order by the learned Magistrate extending time for investigation, taking of cognizance after expiry of three years was clearly barred by limitation. Order dated 23. 8. 2001 passed by the learned magistrate does not reflect at all that the learned Magistrate exercised his discretion to extend period of limitation for the interest of justice considering facts and circumstances of the case. ( 6 ) THE cases of State of Punjab v. . Sarwan Singh reported in 1981 (3) SCC 34 , Srinivas Gopal v. Union Territory of Arunachal Pradesh reported in 1988 (4) SCC 36 and 1986 C Cr LR (Cal) 1 are quite apposite in the instant case. ( 6 ) THE cases of State of Punjab v. . Sarwan Singh reported in 1981 (3) SCC 34 , Srinivas Gopal v. Union Territory of Arunachal Pradesh reported in 1988 (4) SCC 36 and 1986 C Cr LR (Cal) 1 are quite apposite in the instant case. The Supreme Court has clearly observed that "the object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of offence. The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein become non est. " ( 7 ) IT is clear that the object which the statute seeks to promote by introducing bar on limitation is in harmony with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It acts as guarantee or protection of personal liberty under Article 21 of the constitution under which no person can be deprived of his life or personal liberty except according to the procedure established by the law The above discussion makes it clear that the submission of charge-sheet in the instant case is barred by limitation under provisions of Section 468 (2) (c) of the code. Taking of cognizance by the learned S. D. J. M. on 23. 8. 2001 was, therefore, bad-in-law and the criminal proceeding being G. R. Case No. 1535 of 1996 cannot be permitted to continue with any further. ( 8 ) THE revisional application is accordingly allowed. The impugned order of the learned S. D. J. M. dated 23. 8. Taking of cognizance by the learned S. D. J. M. on 23. 8. 2001 was, therefore, bad-in-law and the criminal proceeding being G. R. Case No. 1535 of 1996 cannot be permitted to continue with any further. ( 8 ) THE revisional application is accordingly allowed. The impugned order of the learned S. D. J. M. dated 23. 8. 2001 taking cognizance of offence in the instant case being not in accordance with law is set aside and the entire proceeding of G. R. Case No. 1535 of 1996 now pending in the Court of (earned Judicial Magistrate, 2nd Court, Jalpaiguri is quashed. ( 9 ) SEND a copy of this order be communicated to the learned Judicial magistrate, 2nd Court, Jalpaiguri for information and necessary action. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.