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2007 DIGILAW 1719 (PAT)

Kanti Singh v. State Of Bihar

2007-11-05

DHARNIDHAR JHA

body2007
Judgment 1. Heard both sides. 2. The two petitions arise out of Complaint Case No. 498 of 2004 and seek same relief of quashing the order of taking cognizance and summoning dated 26.2.2007 in the above noted complaint case which was passed by Sri Ramayan Ram, Judicial Magistrate, Bikramganj, Rohtas. By the impugned order the two petitioners one each in the two petitions have been summoned to stand their trial for committing, allegedly, an offence under Section 5 of the Child Marriage Restraint Act. The two petitioners have been heard together and are being disposed of by this common order. Sri Krishna Pd. Singh appears on behalf of the petitioner Smt. Kanti Singh, while Sri K.B. Nath appears on behalf of the petitioner Bhaglu Rajak, Mr. Ansuman appears on benalf of the O.P. No. 2, Sri Ramchandra Singh appears on behalf of the State. 3. The facts of the case are not required to be stated. The complaint petition was filed admittedly on 18.12.2004 in respect of an offence under the above Section of the above noted Act taking place on 12.12.2004. It appears that after examination of the complainant on S.A. and some of the witnesses during the course of enquiry, the learned Magistrate passed the impugned order holding that there were sufficient grounds for proceedings against the petitioners by summoning them. 4. The learned counsel appearing for the petitioners has placed reliance upon Krishna Pillai vs. T.A. Rajendran and another reported in 1990(Supp) Supreme Court Cases 121 and has submitted that in the light of the above noted case decided by the Apex Court the order of summoning and cognizance was hopelessly time barred. Sri Pandey appearing on behalf of the Opposite Party, on the other hand, has placed reliance on 1987 Criminal Law Journal 1765 to submit that the very day the learned Magistrate applied his mind to the facts of the complaint petition and decided that the allegations required to be enquired into, the cognizance had already been taken and as such there could not be any such argument available to the petitioners had been made. 5. It will be useful to notice the decision of the Apex Court specially in paragraph 4 of the report in Krishna Pillai (supra). The paragraph 4 of the above judgment is as under: Taking cognizance has assumed a special meaning in our criminal jurisprudence. 5. It will be useful to notice the decision of the Apex Court specially in paragraph 4 of the report in Krishna Pillai (supra). The paragraph 4 of the above judgment is as under: Taking cognizance has assumed a special meaning in our criminal jurisprudence. We may refer to the view taken by a five Judge Bench of this Court in A.R. Antulay vs. Ramdas Sriniwas Nayak 1. At p. 530 (para 31) of the reports this court indicated: "When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr PC. After examining the complainant on oath and examining the witnesses present. if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court." The extract from the Constitution Bench judgment clearly indicates that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Since the magisterial action in this case was beyond the period of one year from the date of the commission of the offence the Magistrate was not competent to take cognizance when he did in view of the bar under Section 9 of the Act. We accordingly allow the appeal and quash the prosecution. The writ petition is permitted to be withdrawn as not pressed. 6. It may be found from the above that as regards the calculation of the period of limitation, the time elapsed since the date of occurrence and filing of the complaint as also the passing of the summoning order was to be taken into account. The Apex Court appears using the word taking cognizance of the offences to include and mean the whole judicial exercise of recording of evidence right after the examination of the complainant on S.A. till the passing of the summon order. The Apex Court appears using the word taking cognizance of the offences to include and mean the whole judicial exercise of recording of evidence right after the examination of the complainant on S.A. till the passing of the summon order. It is true that this court and some of the other courts have taken the view as was submitted by Sri Pandey, the learned counsel appearing on behalf of the Opposite Party that cognizance means application of judicial mind by a court empowered to take cognizance so as to deciding where it required proceedings further. But after going through Krishna Pillai (supra) it could be found in terms of calculating the period of limitation that the situation could be different and that may include the passing of the order of summoning as well. 7. Herein the present case, as indicated above, the date of occurrence is 12.12.2004. I find from the certified copy of the complaint petition that it was presented before the court on 18.12.2004 and the summoning order which is the impugned order was passed on 26.2.2007. The sentence prescribed by law for an offence under Section 5 of the Child Marriage Restraint Act is an imprisonment for three months. Section 468 requires that the order of summoning could have been passed within a period of one year from the date of occurrence. Undisputedly, the order of summoning was passed on 26.2.2007 after more than two years of the occurrence which is hopelessly time barred. In the light of the above discussion of the facts and the law on the point as noted above the order appears hopelessly time barred and the same is hereby quashed.