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2005 DIGILAW 851 (RAJ)

Dara Singh v. State of Rajasthan

2005-03-18

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal miscellaneous petition under Section 482 CrPC, accused-petitioners have challenged the orders dated 22.07.2004 and 112.2004 passed by the learned Judicial Magistrate, Kuchaman City (for short, "the trial Court" hereinafter) in Criminal Case No. 151/2004. By the impugned order dated 22.07.2004, the trial Court took cognizance of the offences under Sections 147, 148, 341, 323/149 IPC against the petitioners. By the impugned order dated 112.2004, the trial Court rejected the application filed by the petitioners under Section 468 CrPC and allowed the application filed by the prosecution under Section 473 CrPC. 2. The facts of case, relevant and necessary for disposal of this miscellaneous petition, are that complainant Tej Singh Rajput lodged an FIR with Police Station, Kuchaman City on 112.1998 stating therein that in the preceding night, when he was coming from village Rasal with Rs. 30,000/-, the accused-petitioners came in jeeps and blocked his jeep. The accused-petitioners alighted from the jeeps, pulled the complainant out of the jeep, hurried abuses and threatening his life inflicted Farsi blows on his person. They also gave beatings to his driver. When some persons came and tried the intervene, the accused-petitioners fled away after snatching Rs. 30,000/-which he had brought from one Bhagirath Singh of village Rasal. After investigation, the police filed challan against the petitioners on 22.07.2004 for the offences punishable under Sections 147, 148, 341, 323/149 IPC without any information to the petitioners. The learned trial Court, vide impugned order dated 22.07.2004, took cognizance of the aforesaid offences against the petitioners and issued bailable warrant. The petitioners filed an application under Section 468 CrPC for dropping the criminal proceedings against them on the ground that the FIR was lodged in 16.02.1998 whereas the challan was filed on 22.07.2004, which is beyond the period of limitation prescribed under Section 468 CrPC. Simultaneously, the prosecution filed an application under Section 473 CrPC for condoning the delay. The trial Court, vide impugned order dated 112.2004 rejected the application filed by the petitioners under Section 468 CrPC and allowed the application under Section 473 CrPC filed by the prosecution and condoned the delay in filing the challan. 3. I have heard learned Counsel for the petitioners and Public Prosecutor for the State. Perused the orders impugned. Section 468 CrPC reads as under:-"468. 3. I have heard learned Counsel for the petitioners and Public Prosecutor for the State. Perused the orders impugned. Section 468 CrPC reads as under:-"468. Bar to taking cognizance after lapse of the period of limitation.-(1) 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. (2) 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. (3) For the purposes of this section, the period of limitation, in relation to offences 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. 4. As offences under Sections 147, 148, 341, 323/149 IPC, for which the cognizance has been taken by the trial Court vide impugned order dated 22.07.2004, are punishable with an imprisonment for two years, three years, simple imprisonment for one month and one year, respectively. Since the offence under Section 148 IPC is punishable with the imprisonment for 3 years, therefore, in view of the provision of Sub-section (3) of Section 468 CrPC, the period of limitation for taking cognizance is three years. 5. In the instant case, the FIR was lodged on 16.02.1998 and the trial Court took cognizance on 22.07.2004, i.e. after expiry of the period of limitation. However, the trial Court dismissed the application filed by the petitioners under Section 468 CrPC and allowed the application of the prosecution filed under Section 473 CrPC and condoned the delay in filing challan against the petitioners beyond statutory period of limitation. The cognizance was taken by the trial Court vide impugned order dated 22.07.2004 and on the date of taking cognizance, prosecution, neither filed an application seeking extension of time nor trial Court extended the period by condoning the delay. 6. In Dr. The cognizance was taken by the trial Court vide impugned order dated 22.07.2004 and on the date of taking cognizance, prosecution, neither filed an application seeking extension of time nor trial Court extended the period by condoning the delay. 6. In Dr. Dalpat Singh vs. State of Rajasthan, 1989 CrLR 238 (Raj), this Court held that delay cannot be condoned after taking cognizance and observed as under:-"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 condoning the delay the Court has to be satisfied on facts and in the circumstances of the case that 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 CrPC but cognizance has been taken straight-way against the provisions of Section 468 CrPC." 7. In M/s. Zandu Pharmaceutical Works Ltd. & Ors. vs. Md. Sharaful Haque & Ors., 2005 (1) WLC 103 Cr. (SC), the Honble Supreme Court observed that the cognizance taken after the period of limitation is abuse of the process of law and held as under :- "The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468(2) (c) CrPC is three years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468(2) (c) CrPC is three years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of the learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. " 8. In State of Punjab vs. Sarwan Singh, AIR 1981 SC 1054 , the Honble Supreme Court observed that the object of the Code in putting a bar of limitation on prosecution is clearly to prevent the parties from filing cases after a long time as a result of which the 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 the offence. Thus, 468 CrPC puts a statutory obligation upon the Court not to take cognizance of the offences of the category which is specified in Sub-section (2) after the lapse of period of limitation. The Apex Court further held that Section 473 CrPC is a non-obstante clause which provides that the Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. 9. In Macleod Pharmaceutical Pvt. Ltd. Ors. vs. State of Rajasthan, 2005 WLC (Raj.) UC 111, a coordinate Bench of this Court held the Court is duty bound on the presentation of charge-sheet to consider the question of limitation. The order condoning the delay has to be passed objectively considering facts and circumstances of the case to the satisfaction of the Magistrate. The Court further held that no Court can be permitted to by-pass the provisions of limitation as contained in Chapter XXXVI of the Code of Criminal Procedure. The order condoning the delay has to be passed objectively considering facts and circumstances of the case to the satisfaction of the Magistrate. The Court further held that no Court can be permitted to by-pass the provisions of limitation as contained in Chapter XXXVI of the Code of Criminal Procedure. It is well established that the plea of limitation can be raised at any stage during the trial. 10. In the instant case, admittedly the trial Court took cognizance much after expiry of the period of limitation provided under Section 468 CrPC and provision of Section 473 CrPC on the date of taking cognizance was not invoked and period of limitation was not extended or condoned and, therefore, the trial Court erred in law in condoning the delay even without notice to the accused-petitioners subsequent to the date of order taking cognizance and as such the trial Court erred in allowing the belated application under Section 473 CrPC after taking cognizance. In this view of the matter and the law discussed hereinabove, I am of the view that the trial Court has erred in law and on facts in taking cognizance of the offences after the expiry of statutory period of limitation and allowing the application under Section 473 CrPC. In this view of the matter, the orders impugned passed by the trial Court deserves to be set aside. 11. Consequently, the miscellaneous petition is allowed. The impugned orders dated 22.07.2004 and 112.2004 are set-aside and the criminal proceedings pending against the accused-petitioners before the trial Court are hereby quashed. The stay petition also stands disposed of .