Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 98 (CHH)

HARlSHANKAR v. STATE OF M. P.

2008-04-03

S.K.SINHA

body2008
ORDER 1. This petition under Section 482 of Cr.P.C. has been filed by the applicants Harishankar and Chotelal whose application under Section 468 of Cr.P.C. (hereinafter referred to as 'Code') was dismissed by JMFC Begumganj, Raisen in Regular Trial No. 73/2007. Further applicants have prayed that FIR dated 9-10-2006 and R.T. No. 73/07 pending before JMFC, Begumganj under Section 224 of IPC and 31 (B) of Prisoners Act 1900 be quashed. 2. Applicants case is that, both the applicants were convicted by Second Additional Sessions Judge Begumganj, Raisen under Sections 302, 34 and 324 of IPC on 10-8-1992 in Sessions Trial No. 87/1986 for life imprisonment and one year sentence. While applicants were in jail, applicant No.1 Harishankar was released on Parole on 21-8-1998 and Applicant No.2 Chotelal on 28-1-1999. However, applicant No.1 was to surrender on 5-9-1998 and applicant No.2 on 12-2-1999 after parole but they did not surrender and applicant Nos. 1 and 2 were arrested respectively on 20-11-1998 and on 13-04-2000. 3. On 9-1-2006, PSO Begumganj registered Crime No. 286/06 against these applicants under Section 31 (B) of Prisoners Act, 1900 and filed a challan before the JMFC Begumganj, Raisen and the learned Magistrate has framed charges against these applicants under Section 224 of IPC and 31 (B) of Prisoners Act, 1900 on 13-12-2007. However, applicants moved an application before JMFC Begumganj the incident took place on 21-8-1998 and 28-1-1999 and after lapse of 8 years Court cannot take cognizance in view of Section 468 of the Code. However, learned Magistrate vide impugned order dated 4-10-2007 and learned Additional Sessions Judge, Begumganj, vide order dated 15-11-2007 dismissed their prayer hence, this petition under Section 482 of the Code has been filed. 4. It has been contended by Shri Priyank Choubey, learned Counsel for the applicants that applicant No. 1-Harishankar was released on Parole on 21-81998 and Applicant No. 2-Chotelal on 28-1-1999 up to 5-9-1998 and 12-21999. However, both the applicants absconded and applicant No.1 was arrested on 20-11-1998 and applicant No.2 on 3-4-2000. The FIR against these applicants was lodged by Town Inspector Begumganj on 9-10-2006 almost 8 years of the offence under Section 31 (B) of Prisoners Act, 1900. 5. Learned Panel Lawyer of the State/respondent Shri Pankaj Dixit has argued that as soon as information was received by Town Inspector Begumganj, F.I.R was lodged on 9-10-2006 and supported the impugned order. 6. 5. Learned Panel Lawyer of the State/respondent Shri Pankaj Dixit has argued that as soon as information was received by Town Inspector Begumganj, F.I.R was lodged on 9-10-2006 and supported the impugned order. 6. It will be profitable to reproduce Section 468 of Cr.P.C. which reads as under : "Section 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 subsection (2) after the expiry of the period of limitation. (2) The period of limitation shall be( a) six months, if the 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 more severe punishment or, as the case may be, the most severe punishment." 7. Applicants are charged under Section 224 of IPC and 31 (B) of Prisoners Act, 1900, in both these offences, applicants can be punished with imprisonment for either description for a term which may extend to 2 years or with fine or with both. In these circumstances, as provided in Section 468 (2) (C) of Cr.P.C. the period of limitation is 3 years in these circumstances the Court could not have taken cognizance of the offence under Section 224 of IPC and 31 (B) of Prisoners Act, 1900 after 3 years. Further Section 473 of Cr.P.C. provides extension of period of limitation in certain cases which reads as under :" 473. Extension of period of limitation in certain cases Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice." 8. This section has given judicial powers and discretion to take cognizance even after the limitation period, but if sufficient cause is shown or interest of justice demand so. Power under Section 4 73 are discretionary and wider than Section 5 of Limitation Act. Whenever a challan is filed, Court must see that it is in limitation as provided in Sections 468 of the Code. If it is time bar, opportunity should be given to both parties to satisfy the Court for purpose of condonation of delay. Delay has to be condoned with exercise of judicial discretion as well as by speaking order as held in Krishna Sanghi and others Vs. State oj MP 1 and State of Himachal Pradesh Vs. Tara Dutt. 9. In this case, neither prosecution has moved any application under Section 473 of Cr.P.C. neither applicants were heard nor learned Magistrate has condoned the delay by any speaking order and Trial Court took cognizance of the offence without satisfying itself about the delay which is contrary to the provision of the law. 10. For the reasons stated above, the petition succeeds and allowed. Consequently, Regular Trial No. 73/2007 pending before JMFC Begumganj is barred by limitation and hereby quashed. Petition Allowed.