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2007 DIGILAW 1852 (PAT)

Ashok Kumar Gupta v. State Of Bihar

2007-12-05

REKHA KUMARI

body2007
Judgment Rekha Kumari, J. 1. This application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dated 8.7.2002 passed by Sri M. M.S. Lal, J.M. 1st Class, Bhagalpur in G.R. Case No. 687 of 1995 arising out of Kotwali P.S. Case No. 160/95 whereby and whereunder the learned Magistrate has rejected the petition filed by the petitioners for dismissal of the case being barred by limitation. The order dated 15.7.2004 passed by the 3rd Additional Sessions Judge, Bhagalpur in Criminal Revision No. 349 of 2002 is also under challenge in this application whereby the learned Additional Sessions Judge has dismissed the revision application holding that the order of cognizance.was not barred by limitation. 2. learned Counsel for the petitioners submitted that the learned Magistrate has rejected the petition filed by the petitioners on the ground that cognizance has been taken by the Chief Judicial Magistrate, who is superior to him and hence, he was not empowered to consider the legality or validity of the said order, but the law is that the point of limitation can be raised at any stage of trial and can be considered by the transferee Magistrate. In support of his submissions, he relied on a Full Bench decision of this Court in the case of Ram Kripal Prasad and Ors V/s. State of Bihar, 1985 0 BBCJ 578 . 3. He further submitted that the learned Additional Sessions Judge in revision had to consider the propriety and correctness of the order of the learned Magistrate but without doing so he has proceeded to hold that the cognizance was not barred by limitation as one of the accused caused delay in surrendering during investigation. He has, thus, over stepped his jurisdiction and the order passed in revision, hence, is liable to be set aside. No one appeared for Opposite Party No. 2 despite service of notice. 4. In the decision relied on by the learned Counsel, the Full Bench of this Court has held that the issue of limitation is a question which needs to be raised and determined at the earlier stage before the trial court, since the question of limitation is a matter for consideration and adjudication by it alone. If such plea is raised, it ought to be adjudicated as a preliminary issue. 5. If such plea is raised, it ought to be adjudicated as a preliminary issue. 5. Therefore, the questi8on of limitation can be raised during trial the learned Magistrate should have exercised his jurisdiction and should not have refused to determine the issue only because the Chief Judicial Magistrate had taken cognizance. The learned Additional Sessions Judge also should have directed the learned Magistrate to consider the question without deciding it himself. 6. The impugned orders are, hence, quashed. The learned Magistrate is directed to determine the question and pass order in accordance with law after giving liberty of hearing to both the parties.