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2006 DIGILAW 726 (ORI)

KAILASH OJHA v. STATE OF ORISSA

2006-10-20

A.K.PARICHHA

body2006
JUDGMENT : A.K. Parichha, J. - The order of cognizance dated 23.12.2005 passed by the Learned S.D.J.M. (S), Cuttack In I.C.C. Case No. 14 of 2000 is under challenge in this revision. 2. Mr. D.R. Mohapatra, Learned Counsel for the Petitioner submits that the cause of action as noted in the complaint petition by Opp. Party No. 2, arose on 10.10.1999, but the order of cognizance was passed on 23.12.2005, i.e., more than three years after the date of occurrence and so the proceeding is barred by limitation u/s 468 of the Code of Criminal Procedure. Despite valid service of notice, no one appears on behalf of Opp. Party No. 2 to counter the claim of the Petitioner. 3. Learning Standing Counsel appearing for Opposite Party No. 1, however, submits that in view of the provision of Section 473, Code of Criminal Procedure., the impugned order cannot be scrapped summarily. Section 468, Code of Criminal Procedure. reads as follows: 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 purpose of this Section, the period of limitation, in relation to offence 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. The Section thus clearly says that in case of offences punishable with imprisonment for a term of more than one year but not exceeding three years, the period of limitation for cognizance is three years from the date of offence. 5. Section 473 of the Code of Criminal Procedure. 4. The Section thus clearly says that in case of offences punishable with imprisonment for a term of more than one year but not exceeding three years, the period of limitation for cognizance is three years from the date of offence. 5. Section 473 of the Code of Criminal Procedure. says that if 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 so to do in the interest of justice, then it may take cognizance of the offence after the expiry of period of limitation. 6. In the present case, in the complaint petition (Annexure-2) the date of occurrence has been noted as 10.10.1999. In paragraph 8 thereof it has been clearly mentioned that after commission of offence, the complainant reported the matter to the 'sahi people' on 11.10.1999 and being advised also lodged an F.I.R. on 12.10.1999. So Opposite Party No. 2 himself mentoined that the Offence was committed on 10.10.1999 and he lodged the report on 12.10.1999. Now, Learned Magistrate has taken cognizance of the offence u/s 406, Indian Penal Code basing on the complaint petition of Opposite Party No. 2 more than six years after the date of commission of offence. Section 406, Indian Penal Code carries maximum imprisonment for three years. So, for the purpose of limitation it comes under the purview of Section 468(2)(c), Code of Criminal Procedure., which prescribes the period of limitation for three years. 7. Learned Magistrate has not mentioned anything about the condonation of delay nor he has assigned any reason why cognizance beyond the period of limitation was taken. In such a situation, the order of cognizance is hit u/s 468(2)(c), Code of Criminal Procedure. and as such the proceeding of the complaint in I.C.C. Case No. 114 of 2000 of the Court of Learned S.D.J.M. (S), Cuttack is not maintainable. 8. The revision is accordingly allowed. The impugned order of cognizance is set aside and the proceeding of I.C.C. Case No. 114 of 2000 of the Court of the S.D.J.M. (S), Cuttack is held to be not maintainable being barred by limitation. Final Result : Allowed