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2008 DIGILAW 2031 (ALL)

RAM SIYA v. STATE OF U. P.

2008-09-24

SHASHI KANT GUPTA

body2008
JUDGMENT SHASHI KANT GUPTA, J. – This application under section 482 Cr.P.C. is filed for quashing the criminal Case No. 346 of 2006, (State v. Ram Siya and others), under sections 324, 323, 504 IPC, pending before the Additional Civil Judge (J.D.), Court No. 13, Fatehpur. 2. The brief facts as alleged in this application are as follows – The alleged incident took place on 4.11.2002 at 5 p.m. wherein opposite party No.2 sustained injuries caused by the applicants, therefore N.C.R. No. 76 of 2002 was lodged on the same day at P.S. Gazipur District Fatehpur, under sections 323, 504, IPC against the applicants. After two and half years, the opposite party No. 2 moved an application on 18.2.2005 before the concerned Court under section 155(2) Cr.P.C. for a direction to the concerned police for investigation and for adding section 324 IPC. In pursuance of the aforesaid application the learned Magistrate by order dated 30.3.2005 directed the S.H.O. P.S. Gazipur to add section 324 IPC and investigate the matter. Opposite party No. 2 was medically examined on 4.11.2002 at 11.30 p.m. and injury No.2 was shown as incised wound and remaining other injuries were shown as contused swelling and duration has been mentioned about 3 days back. Investigating Officer after recording the statements filed the charge-sheet on 19.9.2006, on the basis of which the Court below took cognizance on 13.11.2006 and summoned the accused under sections 323, 504, 324, IPC. 3. Learned Counsel for the applicants stated that in view of section 468 Cr.P.C. the Court was barred from taking cognizance of the alleged offence under sections 323, 324 and 504, IPC after the expiry of 3 years. Learned Counsel for the applicants elaborating his submission has contended that the date of occurrence is alleged to be 4.11.2002 and the cognizance is taken much after a lapse of 4 years on 19.9.2006. As such no cognizance could have been taken against the applicants after 3 years as provided under section 468 Cr.P.C. Thus the order taking cognizance and summoning the accused is illegal and the criminal proceedings pending before the Court below are liable to be set aside. 4. It is further submitted by the, learned Counsel for the applicants that the incident occurred at 5 p.m. on 4.11.2002 and N.C.R. was lodged at 11.20 on 4.11.2002, which is not possible. 4. It is further submitted by the, learned Counsel for the applicants that the incident occurred at 5 p.m. on 4.11.2002 and N.C.R. was lodged at 11.20 on 4.11.2002, which is not possible. It is further submitted that the application under section 155(2) was filed after more than 2 years without explaining any reasons for delay but still the Magistrate directed the concerned Police Officer to investigate and register the FIR. It is further submitted that the injured was examined on 4.11.2002 at 1.30 p.m. and the doctor opined that the duration of the injuries caused to the opposite party is about 3 days back. As such the report of the doctor also shows that the alleged incident never occurred on 4.11.2002. It is further contended that the case filed against the applicants by opposite party No.2 is to counterblast and pressurise the applicants to withdraw the criminal case against the opposite party No. 2 which was filed by the applicant on 3.11.2002, one day earlier to the FIR lodged by the opposite party No.2. 5. On the other hand the' learned Counsel for the opposite party No. 2 has placed reliance on the provision of section 473 Cr.P.C. and submitted that the Court may take cognizance of an offence even after the expiry of the period of the limitation fixed, if it is satisfied on the facts and circumstances of the case and the delay has been properly explained. It is further stated that since the efforts for compromise was going on between the parties, thereafter the applicants filed an application under section 155(2) Cr.P.C. after the lapse of 2 years. Heard learned Counsel for the applicants, learned Counsel for the opposite party No.2 and learned A.G.A. 6. The N.C.R. was filed on 4.11.2002 and thereafter the application was filed under section 155(2) on 18.2.2005 after lapse of 2 years to investigate the matter. After the investigation the I.O. submitted the charge-sheet on 10.9.2006 and the Court below took cognizance on 13.11.2006 under sections 323, 324 and 504 Cr.P.C Thus the cognizance was taken after more than 4 years from the date of occurrence. According to section 468 Cr.P.C Magistrate is barred from taking cognizance after 3 years when the offence is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. According to section 468 Cr.P.C Magistrate is barred from taking cognizance after 3 years when the offence is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. In the present case the maximum punishment prescribed under sections 323, 324 and 504 IPC is 3 years. The Court below has not given any reasons for taking cognizance of the offence after the lapse of 3 years. Thus the cognizance has been taken after the expiry of the limitation period, therefore, the order dated 13.11.2006 taking the cognizance is illegal and liable to be quashed. 7. Apart from the aforesaid ground it has also come on the record that the N.C.R. was filed at 11.20 a.m. on 4.11.2002 but the time of occurrence shown is 5 p.m. on 4.11.2002 and even the doctor has opined on 4.11.2002 that the duration of injuries are 3 days back. Therefore, the whole incident alleged by the opposite party No.2 appears to be concocted and fictitious. Moreover without giving any proper explanation the application under section 155(2) Cr.P.C was filed by opposite party No.2 after the lapse of 2 years. 8. It is also on record that a day before the alleged incident dated 4.11.2002, a complaint was filed by the applicant on 3.11.2002 against the respondent No.2 under section 325 IPC and the criminal trial is pending against the opposite party No.2. Learned Counsel for the opposite party No. 2 failed to give any plausible reply to the aforesaid contentions made by the learned Counsel for the applicant. 9. In view of the above, the criminal proceedings of criminal Case No. 346 of 2006, (State v. Ran Siya and others), under sections 324, 323, 504 IPC, pending before the Additional Civil Judge (J.D.), Court No.13, Fatehpur are hereby quashed. In the result the application under section 482 Cr.P.C. is accordingly allowed. Application Allowed.