Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 1805 (RAJ)

Chandmal Tak v. State of Rajasthan

2007-09-20

G.S.SARRAF

body2007
ORDER This criminal revision petition is directed against the judgment dated 11-10-2006 passed by Sessions Judge, Ajmer in criminal revision petition No. 195/2006 whereby the order dated 13-7-2006 of Judicial Magistrate No. 4, Ajmer in criminal case No. 453/1999 taking cognizance of the offence under Section 447, IPC against the respondent No. 2 on an application filed under Section 319, Cr. P.C. has been set aside. 2. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the respondent No. 2. 3. Learned Sessions Judge, Ajmer has held that cognizance of the offence under Section 447, IPC can be taken within a period of one year as laid down in Section 468(2)(b) Cr. P.C. whereas the Magistrate on an application under Section 319, Cr. P.C. took cognizance by order dated 13-7-2006 of the offence under Section 447, IPC committed on 4-2-1999 and, therefore, the order of the Magistrate is not in accordance with law. 4. The view of learned Sessions Judge, Ajmer is clearly based on an erroneous interpretation of law. 5. Under Section 319(4) (b) Cr. P.C. it is specifically made clear that it will be presumed that the newly added person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced. As a matter of fact by virtue of sub-section (4)(b) of Section 319, Cr. P.C. a legal fiction is created that the cognizance would be presumed to have been taken sofar as the newly added accused on the date on which the Court initially took cognizance of the offence upon which the inquiry or trial was commenced. It is this clear that in a trial of the case if the Court had already taken cognizance of the offence within the limitation and some other persons are summoned subsequently to stand trial as accused then no bar of limitation shall arise by such inclusion. Provisions of Section 468, Cr. P.C. will not be attracted in view of Section 319(4)(b) Cr. P.C. and the added accused will also be deemed to be the accused against whom cognizance had been taken at the initial stage. 6. Provisions of Section 468, Cr. P.C. will not be attracted in view of Section 319(4)(b) Cr. P.C. and the added accused will also be deemed to be the accused against whom cognizance had been taken at the initial stage. 6. In the instant case, the Magistrate took cognizance of the offence by order dated 13-5-1999 of the occurrence dated 4-2-1999 and in view of the above discussions, the cognizance would be presumed to have been taken against respondent No. 2 on the date on which the Court took cognizance of the offence i.e. 13-5-1999. 7. Consequently, the revision petition is allowed, the impugned order is set aside and the matter is remanded to the Sessions Judge, Ajmer for passing fresh order on merits in accordance, with law after affording an opportunity of hearing to the parties. The parties are directed to appear before the Sessions Judge, Ajmer on 22-10-2007. 8. Record of the case be sent back to the Sessions Judge, Ajmer immediately. Petition allowed.