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2007 DIGILAW 247 (PAT)

Md. Kamal v. State Of Bihar

2007-02-05

M.SARAN

body2007
Judgment M.Saran, J. 1. This application u/s. 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 13.9.2004, by which order has been passed to confirm the proceeding u/s. 188 of the Indian Penal Code (in short as Indian Penal Code, 1860 ) against the petitioners and also for quashing the order dated 20.9.2004 passed by learned Chief Judicial Magistrate, Jehanabad whereby and whereunder cognizance has been taken against the petitioners. 2. It is said that the learned Sub-divisional Magistrate, Jehanabad on being satisfied regarding apprehension of breach of peace initiated a proceeding under Sec. 144 of the Code restraining the parties from going near or upon a strip of land measuring 12 long north to south and 5 wide east to west being a portion of plot No. 1060/2141 under khata No. 5748 with specified boundary situated at Mohalla Kanchia Tola, Ward No. 6 of the town Jehanabad. The notice under sec. 144 of the Code restraining the parties was served upon them on 30.8.2003. It is alleged that inspite of service of notice petitioners/opposite party on 3.9.2003 at about 4.00 PM went over the land in dispute and opened a door towards west measuring 10 long and 5 wide and also a window and fitted the same in old door frame and old plank as well old window frame with plank. The opposite party/first party on 4.9.2003 filed a petition in the court of Sub-divisional Magistrate, Jehanabad for initiating the proceeding against the petitioners u/s. 188 Indian Penal Code, 1860 . On 13.9.2004 learned Sub-divisional Magistrate after hearing the parties passed order to initiate a proceeding under Sec. 188 Indian Penal Code, 1860 against the petitioners. Thereafter the prosecution report was filed in the court of Chief Judicial Magistrate, Jehanabad who by order dated 20.9.2004 took cognizance u/s. 188 Indian Penal Code, 1860 . Against the said order of cognizance the petitioners have preferred the present application for quashing. 3. It was contended on behalf of the petitioners that the learned Chief Judicial Magistrate, Jehanabad could not have taken cognizance of the offence aforesaid in view of Clause (b) of Sub-sec. (2) of sec. 468 of the Code which provides one year as the period of limitation for taking cognizance of offence which is punishable for a term not exceeding one year. (2) of sec. 468 of the Code which provides one year as the period of limitation for taking cognizance of offence which is punishable for a term not exceeding one year. In support of his contention, learned Counsel placed reliance on the following two decisions: (i) 2004 (2) PLJR 809 (Sanjeev Kumar Mishra V/s. State) (ii) 2004(2) PLJR 208 (Upendra Prasad Yadav V/s. The State of Bihar) 4. In order to appreciate the argument raised on behalf of the petitioners certain facts have to be noted. The learned Sub-divisional Magistrate after hearing first party/opposite party on 29.8.2003 initiated the proceeding under Sec. 144 of the Code, the notice of which was duly served upon the parties on 30.8.2003. 5. On 6.9.2003 the first party informed the Court by filing a petition that petitioners after service of notice violated the prohibitory order on 3.9.2003. It appears that thereafter learned Sub-divisional Magistrate called for police report from the Police. The Police submitted report dated 20.9.2003 to the Court. Thereafter on 22.9.2003 the learned Magistrate directed the petitioners to file show cause. The show cause was filed and after hearing the parties the learned Magistrate passed the order directing the filing of prosecution report against the petitioners. 6. An offence u/s. 188 Indian Penal Code, 1860 is punishable with imprisonment for a term less than one year. sec. 468 of the Code 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-sec. (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if any 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 purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the mere severe punishment or, as the case may be, the most severe punishment. 7. Now in the present case Clause (b) of Sub-sec. (2) of sec. 468 of the Code is applicable. 7. Now in the present case Clause (b) of Sub-sec. (2) of sec. 468 of the Code is applicable. In this connection sec. 469 of the Code is also relevant which reads as follows: 469. Commencement of the period of limitation.- (1) The period of limitation, in relation to an offender, shall commence, - (a) on the date of the offence: or (b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence conies to the knowledge of such person or to any police officer, whichever is earlier; or (c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. 8. Learned Counsel on behalf of the petitioners further contended that the limitation shall be calculated from 4.9.2003, the day the complainant that is Sub-divisional Magistrate, Jehanabad came to know about the violation of the prohibitory order. In support of his contention, he placed reliance on a decision reported in 2004(2) PLJR 809 (supra). 9. On the other hand, learned Counsel for the opposite party contended that on 22.9.2003 after being satisfied the learned Sub-divisional Magistrate directed the petitioners to file show cause as to why they should not be prosecuted under Sec. 188 Indian Penal Code, 1860 and so the period of limitation would run from that date. In support of his stand learned Counsel placed reliance on a decision reported in 1979 PLJR 393 (DB) (Sheo Nandan Singh and Ors. V/s. Surajdeo Singh and Ors.). 10. I find substance in his argument. The only question is as to when the Magistrate became satisfied that an offence u/s. 188 Indian Penal Code, 1860 has been committed. It appears from Annexure-7 to the supplementary affidavit that on 22.9.2003 the Magistrate called upon the members of the second party/petitioners to file show cause as to why they should not be prosecuted. Learned Magistrate, therefore, on 22.9.2003 became satisfied about the allegations of the commission of the offence u/s. 188 Indian Penal Code, 1860 . It appears from Annexure-7 to the supplementary affidavit that on 22.9.2003 the Magistrate called upon the members of the second party/petitioners to file show cause as to why they should not be prosecuted. Learned Magistrate, therefore, on 22.9.2003 became satisfied about the allegations of the commission of the offence u/s. 188 Indian Penal Code, 1860 . The period of limitation will start running from that date, as cognizance has been taken within one year from that date and so the same is not hit by limitation. 11. It was next contended that the petitioners have not violated the prohibitory order as there is nothing to show that, otherside has suffered any annoyance, injury etc. 12. It is true that sec. 188 Indian Penal Code, 1860 does not make punishable, disobedience, simplicitor. In the present case the first party/opposite party in his petition vide Annexure-1 had taken the stand that by doing the acts the members of the second party not only has caused obstruction, annoyance and fear of assault to the first party but have also become the subject matter of criticism and so the first party in their petition did disclose the important ingredients of Section 188 Indian Penal Code, 1860 . 13. It appears from the impugned order dated 20.9.2004 that learned Magistrate after being satisfied that prima facie case has been made out, took cognizance. The order indicates application of judicial mind and satisfaction of learned Magistrate. 14. In the aforesaid facts and circumstances, at this stage, I do not find any error in the impugned order of cognizance. This application accordingly stands dismissed.