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2006 DIGILAW 807 (PNJ)

Baljit Singh v. State Of Punjab

2006-03-01

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. Vide this petition filed under Section 482 of the Code of Criminal procedure, petitioner seeks for quashing of FIR No. 183 dated 20.7.1999, under Section 379 read with Section 34 of the Indian Penal Code, Police Station Kotwali, Bathinda and orders dated 9.6.2004 (Annexure P-1) passed by Judicial Magistrate 1st Class, Bathinda and dated 1.12.2004 (Annexure P-2) passed by Additional Sessions Judge, Bathinda. 2. Facts, in brief, are that on 21.5.1999 Gurpal Singh Romana, respondent No. 2, made a complaint to the Senior Superintendent of Police, Bathinda stating therein that on 3.5.1998 Baljit Singh, petitioner, along with Gulab Singh and one Manvinder Singh forcibly entered into his field bearing khasra Nos. 4165, 4166, 4169 and 4170 situated at Patti Jhuti. They took away the wheat crop after harvesting the same with a combine. Complainant-respondent No. 2 approached the Incharge, Police Post Vardhman, Bathinda, with a complaint, who visited the spot and found the aforementioned persons taking away the wheat crop from the land as mentioned above. On an inquiry made by the Incharge, Police Post Vardhman, Bathinda the petitioner and the aforementioned persons informed him that they were owners of the land. Accordingly, a DDR was lodged in the Police Post on 3.5.1998, but no action was taken against the guilty persons by the police. 3. Complainant-respondent No. 2 submitted an application to the Senior Superintendent of Police, Bathinda, who marked an inquiry to the Superintendent of Police (H). As per inquiry report, Baljit Singh, petitioner, along with Gulab Singh and Manvinder Singh entered the fields of respondent No. 2; harvested the wheat crop. After the inquiry, FIR No. 183, dated 20.7.1999, under Section 379 of the Indian Penal Code was registered against them. 4. Charge-sheet was submitted before the learned Magistrate on 11.4.2000, but by that time, Gulab Singh had already expired. Ultimately, charge against the petitioner was framed on 9.6.2004. Aggrieved against the order dated 9.6.2004, petitioner preferred a revision petition before the Additional Sessions Judge, Bathinda, which was dismissed vide order dated 1.12.2004 (Annexure P-2). 4. Charge-sheet was submitted before the learned Magistrate on 11.4.2000, but by that time, Gulab Singh had already expired. Ultimately, charge against the petitioner was framed on 9.6.2004. Aggrieved against the order dated 9.6.2004, petitioner preferred a revision petition before the Additional Sessions Judge, Bathinda, which was dismissed vide order dated 1.12.2004 (Annexure P-2). It is pleaded that order dated 9.6.2004 framing charge against the petitioner and order dated 1.12.2004 passed by the Court of Additional Sessions Judge, Bathinda, cannot be sustained in view of the provisions of Section 468 of the Code of Criminal Procedure, as cognizance could not be taken by the learned Magistrate, after the expiry of three years of the occurrence. 5. Learned counsel submitted that the occurrence in this case took place on 3.5.1998 and the FIR was registered on 20.7.1999, therefore, cognizance of the allegations could only be taken up upto 2nd May, 2001 or at the most upto 20th July, 2002. Charge-sheet was submitted on 11.4.2000, but the learned Magistrate has framed the charge only on 9.6.2004. Learned counsel referred to the provisions of Section 468 of the Code of Criminal Procedure, which provide the bar for taking cognizance after lapse of the period of limitation. As per the provisions of Section 468(2)(c) of the Code of Criminal Procedure, cognizance could be taken within three years as the offence under Section 379 of the Indian Penal Code is punishable with three years rigorous imprisonment. Learned counsel further referred to the provisions of Section 469 of the Code of Criminal Procedure, which provide that the limitation has to be commenced from the date of commission of offence to the date of taking of cognizance by the Court. In support of his contention, learned counsel referred to a decision of the Apex Court rendered in the case of Narsingh Dass Tapadia v. Goverdhan Dass Partani, 2000(4) RCR(Criminal) 39. Learned counsel also referred to a decision of the Andhra Pradesh High Court rendered in the case s of Ahmed Nawaj Alladin v. Station House Officer, Team-I, Vidyut Soudha, Hyderabad, 1999(3) RCR(Criminal) 40; and Mandan Lal Steels v. State, 1995(IV) CCR 84. 6. Learned counsel further argued that in the complaint, respondent No. 2 has referred to four khasra numbers i.e. 4165, 4166, 4169 and 4170. However, khasra Nos. 4169 and 4170 have been held to be in possession of the petitioner in the civil litigation. 6. Learned counsel further argued that in the complaint, respondent No. 2 has referred to four khasra numbers i.e. 4165, 4166, 4169 and 4170. However, khasra Nos. 4169 and 4170 have been held to be in possession of the petitioner in the civil litigation. As regards khasra No. 4165, wheat crop was not even sown as per khasra girdwari for the relevant period. Khasra No. 4166 is not even owned by complaint-respondent No. 2, rather it is owned by one Varinder Singh son of Gurpal Singh and as such, respondent No. 2 does not have any cause of action. On the other hand, learned counsel for the State assisted by the learned counsel for complainant-respondent No. 2 argued that at the stage of framing of charge, the trial Court is nor to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. The Court is only to examine the materials with a view to be satisfied that a prima facie case of commission of the offence alleged has been made out against the accused persons. Learned counsel further argued that it is also well settled that in a petition filed by the accused under Section 482 of the Code of Criminal Procedure seeking quashing of charge, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court, charge framed against the accused needs to be quashed. In support of his contention, learned counsel referred to a decision of the Honble Apex Court rendered in the case of State of Delhi v. Gyan Devi and others, 2000(4) R.C.R.(Criminal) 517 : (2000)8 Supreme Court Cases 239; State of Andhra Pradesh v. Goloconda Linga Swamy and another, 2004(3) RCR(Criminal) 831 and State of Orissa v. Debendra Nath Padhi, 2005(1) RCR(Criminal) 297. 7. Having considered the arguments raised in behalf of the learned counsel for the parties, I am of the view that at the stage of framing of charge, the trial Court is not to examine and assess the materials placed on record by the prosecution in detail. 7. Having considered the arguments raised in behalf of the learned counsel for the parties, I am of the view that at the stage of framing of charge, the trial Court is not to examine and assess the materials placed on record by the prosecution in detail. At this stage, framing of charge can be decided only on the basis of prima facie case made out from the material available on record. I fully agree with the observations made by the learned Additional Sessions Judge, Bathinda that the trial Court is not to consider the khasra girdawaris and other documents placed on record at the time of framing of charge. It is not necessary to enter or probe into pros and cons of the case, nor is the Court required to evaluate the material with niceties or scanning with the subtleties. The Court is required to apply its judicial mind to the facts of the case in order to determine as to whether prima facie case for the trial has been made out or not by the prosecution. Therefore, the documents placed on record by the accused cannot be taken into consideration at the stage of framing of charge. 8. I, however, do agree with the argument raised by the learned counsel for the petitioner on the point of limitation. It is well settled propositions of law that the learned Magistrate, as per the provision of Section 468 of the Code of Criminal Procedure, could take cognizance within three years from the date of commission of the offence. The mere filing of challan or prosecution of the complaint in the Court cannot be held to mean that its cognizance has been taken by the Magistrate. Taking cognizance of an offence by the Magistrate would only be on the date when he applied his mind to the facts of the case. In the present case, the occurrence took place on 3.5.1998; FIR was registered on 20.07.1999; the charge-sheet was submitted in the Court by the prosecution on 11.4.2000 and charge was ordered to be framed on 9.6.2004. Admittedly, cognizance had been taken beyond three years from the date of commission of offence. Even if computation of the period of limitation is taken from 20.7.1999, date of registration of FIR, still the cognizance taken by the learned Magistrate is beyond three years. 9. Admittedly, cognizance had been taken beyond three years from the date of commission of offence. Even if computation of the period of limitation is taken from 20.7.1999, date of registration of FIR, still the cognizance taken by the learned Magistrate is beyond three years. 9. Argument of the learned counsel for the State assisted by the learned counsel for the complaint-respondent No. 2 that the prosecution had submitted the charge-sheet well within time, i.e., on 11.4.2000, and it was for the Magistrate to take cognizance of the offence, but he failed to do so cannot be accepted in view of the provisions of Sections 468 and 469 of the Code of Criminal Procedure. The Honble Apex Court in Narsingh Dass Tapadias case (supra), held that the date of cognizance would be the date when the Magistrate applies his mind to the facts for the purpose of proceeding further in the matter. Mere presentation of the complaint or the charge-sheet in the Court, cannot be held to mean that its cognizance has been taken by the Magistrate. As per the provisions of Section 468 of the Code of Criminal Procedure, the Magistrate should take cognizance of the offence within the period prescribed under the Act. If cognizance is taken after the period of limitation, it will be clearly out of the purview of the jurisdiction of the Magistrate. 10. In view of the above, the petition is allowed. FIR No. 183 dated 20.7.1999, under Section 379 read with Section 34 of the Indian Penal Code, Police Station Kotwali, Bathinda is quashed and others dated 9.6.2004 (Annexure P-1) passed by Judicial Magistrate 1st Class, Bathinda and dated 1.12.2004 (Annexure P-2) passed by Additional Sessions Judge, Bathinda are hereby set aside.