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2006 DIGILAW 2220 (RAJ)

Sunil Kumar v. State of Rajasthan

2006-07-14

H.R.PANWAR

body2006
JUDGMENT 1. - Heard learned counsel for the parties. Perused the order impugned. 2. By the instant criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter), the petitioner seeks quashing of the order taking cognizance dated 30.5.2001 passed by the Judicial Magistrate, Anoopgarh (for short, "the trial Court" hereinafter), whereby the trial Court took cognizance of the offences under Section 451 and 323 I.P.C. against the petitioner and issued process. 3. Learned counsel for the petitioner submits that the cognizance is barred by Section 468 of the Code. Learned counsel for the non-petitioner has relied on a decision of this Court in Kailash Dan v. State of Rajasthan & Anr., 2005 (2) Cr LR (Raj.) 1133 , wherein, relying on a Supreme Court decision in Bharat Damodar Kale & Anr. v. State of A.P., 2003 (7) Supreme 736 , wherein the Apex Court held as under:- "A cumulative reading of various provisions of the Chapter XXXVI Cr.P.C. clearly Indicated that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the Court from taking cognizance of an offence where the complaint if filed before the Court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code contained in the said Chapter which specifically says that the-period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation, time taken during which the case was being diligently prosecuted in another Court or in appeal or in revision against the offender should be excluded. The said Section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicated that the Court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicated that the Court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This, in our opinion clearly indicates that the question of limitation arises not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking cognizance is an act of the Court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of Court. The legal phrase "actus curiae neminem gravabit" which means an act of the Court shall prejudice no man, or by a delay on the part of the Court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the Court of taking cognizance of an offence so as to defeat the case of the complainant." 4. In the instant case, the occurrence took place on 15.9.1998 and the F.I.R. was lodged on 15.10.1998. Thereafter it was the police investigation agency which consumed the time in investigating the matter and ultimately filed negative final report. Thereafter the protest petition was filed by the petitioner, which could not be decided by the Court for quite long period. Thus, the non-petitioner initiated the action well within the time and he cannot be non-suited on account of delay caused by the police and the trial Court in investigation and taking cognizance.The criminal miscellaneous petition is, therefore, dismissed. The stay petition also stands dismissed.Petition dismissed. *******