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2010 DIGILAW 1524 (PAT)

Ramesh Rajgarhia © Ramesh Kr. Rajgarhia v. State Of Bihar

2010-07-13

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 24.5.2000 passed in Complaint case No. 244(C) of 2000, Trial No. 1166 of 2000. By the said order, the learned Judicial Magistrate, 1st Class, Khagaria has taken cognizance of offence under Section 379 of the Indian Penal Code and directed for summoning the petitioners. 2. Short fact of the case is that the Opposite Party No. 2 filed a complaint petition vide Complaint case No. 244(C) of 2000 alleging therein that on 26.4.1995 at 11.30 a.m., while he was going on a Maxi Taxi, it was forcibly intercepted by petitioners and they directed the complainant to get down from the vehicle and thereafter, the accused persons took the vehicle to some unknown place. It was disclosed that in the vehicle, the accused persons, while carrying the vehicle, also carried some articles of the complainant, which was kept in a bag. On the aforesaid allegation, the complaint petition was filed for the offence under Sections 143 and 379 of the Indian Penal Code. After examination of the complainant on SA as well as examination of enquiry witnesses, the learned Magistrate, by its order dated 24.5.2000, took cognizance of the offence under Section 379 of the Indian Penal Code and directed for summoning the petitioners. 3. Aggrieved with the impugned order, the petitioners approached this Court by filing the present petition, which was admitted on 6.12.2000 and while admitting, this Court directed that in the meanwhile, further proceeding in Complaint case No. 244(C) of 2000/Trial No. 1166 of 2000 pending before Judicial Magistrate, 1st Class, Khagaria shall remain stayed and order of stay is still continuing. 4. Shri Rajiv Sinha, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, at the very outset, submitted that the order of cognizance is fit to be set aside on the ground that same was passed much after the expiry of period of limitation as prescribed under Section 468(2)(c) of the Code of Criminal Procedure. It was sub- mitted that for the offence under Section 379 of the Indian Penal Code, maximum sentence prescribed is three years imprisonment and as such in view of Section 468(2) (c) of the Cr PC for taking cognizance period of limitation was three years. It was sub- mitted that for the offence under Section 379 of the Indian Penal Code, maximum sentence prescribed is three years imprisonment and as such in view of Section 468(2) (c) of the Cr PC for taking cognizance period of limitation was three years. It was submitted that the complainant himself has admitted in complaint petition that occurrence had taken place on 26.4.1995 as such the learned Magistrate was not required to proceed with the complaint petition after expiry of period of limitation and, accordingly, order dated 24.5.2000 whereby learned Magistrate had taken cognizance is liable to be set aside. It was submitted that complaint petition in this case was filed on 10.5.200Q, i.e. after three years from the date of occurrence. 5. Learned counsel for the petitioners, besides raising technical plea, on merit also, has argued that the case prima facie appears to be concocted and false. It was submitted that for the alleged occurrence i.e. occurrence relating to forcibly taking away the vehicle i.e. Maxi Taxi bearing registration No. BR 34-0295, on the basis of fardbeyan on the driver of vehicle, an FIR vide Khagaria P.S. case No. 94 of 1995 was registered on 26.4.1995 for the offence under Sections 143 and 379 of the Indian Penal Code. In that case, after investigation, the police found that the vehicle in question was purchased on hire purchase and the petitioners on the strength of an order passed by a Court of Calcutta had taken possession of the vehicle in question and thereafter, it was produced before the concerned police station. After investigating the case, police submitted final form, which was accepted by the learned Magistrate on 29.2.2000. Learned counsel for the petitioners has referred to Annexure-6 to the petition, which is the order passed by the Chief Judicial Magistrate, whereby final report was accepted by the learned Magistrate. It was submitted that in the said FIR itself, name of complainant was mentioned and during investigation, complainant was also examined by the Investigating Officer. Learned counsel for the petitioners, while referring to last paragraph of the present complaint petition i.e. Annexure-1 at page-20, submits that even this complainant had admitted in his complaint petition that earlier Chief Judicial Magistrate had rejected the case on the ground of civil dispute, but no enquiry was conducted in respect of looted articles of the complainant. Learned counsel for the petitioners, while referring to last paragraph of the present complaint petition i.e. Annexure-1 at page-20, submits that even this complainant had admitted in his complaint petition that earlier Chief Judicial Magistrate had rejected the case on the ground of civil dispute, but no enquiry was conducted in respect of looted articles of the complainant. It was submitted that this statement of the complainant itself indicates that the matter relating to so-called loot of the article of the complainant was also enquired and investigated by the police and as such for the same allegation the second complaint was required to be rejected. Accordingly, it has been sub- mitted that the order of cognizance is liable to be set aside. 6. Shri Vivekanand Vivek, learned counsel appearing on behalf of opposite party No. 2, has vehemently opposed the prayer of the petitioners. On the point of limitation, Shri Vivek has argued that there is provision under Section 473 of the Code of Criminal Procedure for condoning the delay and it was suggested that while quashing the impugned order, this Court may remit back the matter to the concerned Court for hearing on the limitation point. It was also argued that the learned Magistrate on the basis of the materials available on record was satisfied that prima facie case was made out and thereafter, the impugned order was passed. According to Shri Vivek, there is no defect in the impugned order and this petition is required to be rejected. 7. Smt. Veena Kumari Jaiswal, learned Additional Public Prosecutor appearing on behalf of the State, has supported the stand taken by Shri Vivek, learned counsel appearing on behalf of opposite party No. 2. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. On perusal of the record, it is not in dispute that occurrence had taken place long back on 26.4.1995 and in the present case, cognizance order for offence under Section 379 of IPC was passed on 24.5.2000. Even the complaint was filed after expiry of period of limitation. It is also evident from the order that no step was taken by the complainant for getting the delay condoned and as such the learned Magistrate was required not to proceed with the complaint petition in view of specific bar prescribed under Section 468(2) (c) of the Code of Criminal Procedure. It is also evident from the order that no step was taken by the complainant for getting the delay condoned and as such the learned Magistrate was required not to proceed with the complaint petition in view of specific bar prescribed under Section 468(2) (c) of the Code of Criminal Procedure. Besides the order of cognizance being liable to be quashed on the ground of limitation, on merit also, the Court is satisfied that the complaint was initiated with some oblique motive. Once the name of the complainant was mentioned in the FIR, which was registered in the year 1995 and the complainant was also examined by the Investigating Officer, there was no occasion for the complainant to wait for such a long time. The Court is satisfied that the complaint, petition was unwarranted. 9. Accordingly, on both the grounds i.e. on the ground of limitation as well as on merit, the petition succeeds. The order of cognizance dated 24.5.2000 passed by Shri S.K. Sinha Mukul, Judicial Magistrate, 1st Class, Khagaria in Complaint case No. 244(C) of 2000 is hereby set aside and petition stands allowed.