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2010 DIGILAW 1830 (PAT)

Uday Kumar v. State Of Bihar

2010-08-12

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Five 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 22.6.2000 passed by the learned Chief Judicial Magistrate, Vaishali at Hajipur in Case No. C2-66/96. By the said order, the learned Magistrate had taken cognizance of offences under Sections 33. 41 and 42 of the Indian Forest. Act, 1927. The petitioners have also prayed for quashing of an order dated 31.1.2001 passed by the learned 4th Addl. Sessions Judge, Vaishali at Hajipur in Cr. Revision No. 308 of 2000. By the said order, the learned Revisional Court has rejected the revision petition, which was preferred against the order of cognizance dated 22.6.2000. 2. Short fact of the case is that on 6.4.1996 the Forest Range Officer, Lalganj conducted search on Railway Wagons at Sonepur Railway Station and found several wagons loaded with wooden logs and thereafter the Forest Range Officer of the Forest Department seized six wagons loaded with wooden logs. The seizure was made under the provision of Section 52 of the Indian Forest Act and thereafter vide letter No. 8/Ha 6.4.1996 the Range Officer of Forest Department intimated the Chief Judicial Magistrate, Vaishali and it was further informed that a detailed report will be sub- mitted subsequently. After receipt of the seizure list, on 15.4.1996 the learned Chief Judicial Magistrate directed for registering the case. After conducting enquiry, the prosecution report against the petitioners was submitted on 22.6.2000 and thereafter on the same day, the learned Chief Judicial Magistrate took cognizance of offences under Sections 33, 41 and 42 of the Indian Forest Act and directed for summoning the petitioners. 3. Aggrieved with the order of cognizance, both the petitioners initially filed a revision petition vide Cr. Revision No. 308 of 2000 in the Court of learned 4th Addl. Sessions Judge, Vaishali at Hajipur and by order dated 31.1.2001, the learned 4th Addl. Sessions Judge, Vaishali at Hajipur rejected the revision petition solely on the ground that the order under challenge was an interlocutory order and as per Section 397(2) Cr PC revision against an interlocutory order was not maintainable. Accordingly, the revision petition was rejected. Against the rejection order of revision petition, the petitioners approached this Court by filing the present petition. On 29.11.2001, while issuing notice to Opp. Accordingly, the revision petition was rejected. Against the rejection order of revision petition, the petitioners approached this Court by filing the present petition. On 29.11.2001, while issuing notice to Opp. Party No. 2, it was directed that till the next date of hearing, further proceeding in Case No. C2-66/96. pending in the Court of Judicial Magistrate, 1st Class, Hajipur, shall remain stayed. On 13.3.2002 the order of stay passed on 29.11.2001 was ordered to be vacated and one 2.7.2003 the case was admitted and it was directed that during the pendency of the application, further proceeding in Case No. C-66/1996 pending in the Court of Judicial Magistrate, 1st Class, Hajipur, shall remain stayed. It was further directed that this application shall be heard along with Cr. Misc. No. 4615 of 2001. The order of stay is still continuing. 4. Sri Anjani Kumar, learned counsel appearing on behalf of the petitioners, while challenging both the orders, has confined his arguments on the point of limitation in taking cognizance. It was submitted that in the present case, order of cognizance was passed after three years after the date of occurrence. It was submitted fhat though in the present case, seizure list was prepared on 6.4.1996, the Forest Officials sat tight over the matter for a considerable time and after expiry the period of three years, a prosecution report was filed on 22.2.2000. It was submitted that since the order of cognizance was passed after the period of limitation without any prayer or petition filed on behalf of the prosecution to condone the delay and also without condoning the delay, the order of cognizance is iiable to be set aside on this ground alone. It was submitted by Sri Kumar, learned counsel for the petitioners that for the offences, under which cognizance order was passed the maximum period of imprisonment is two years and, as such, the period of limitation prescribed as per Section 468(2) (c) is three years and, accordingly, the order of cognizance was passed beyond the period of limitation. Learned counsel for the petitioners has submitted that the settled principle of law on the points that if the order is passed within the period of limitation without condoning the delay as prescribed under Section 473 of the Code of Criminal Procedure, the order of cognizance is liable to be set aside and. Learned counsel for the petitioners has submitted that the settled principle of law on the points that if the order is passed within the period of limitation without condoning the delay as prescribed under Section 473 of the Code of Criminal Procedure, the order of cognizance is liable to be set aside and. accordingly, it has been prayed to quash the impugned order. It was further submitted that the order of cognizance was a final order and, as such, the learned Addl. Sessions Judge has committed error, while rejecting the revision petition on the ground that it was an interlocutory order. Accordingly, it has been prayed to set aside both the orders i.e. order of cognizance dated 22.6.2000 passed by the learned Chief Judicial Magistrate, Vaishali at Hajipur as well as order dated 31.1.2001 passed by the learned 4th Additional Sessions Judge, Vaishali at Hajipur in Cr Revision No. 308 of 2000. 5. Mrs. Veena Kumari Jaiswal, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. 6. Besides hearing learned counsel for the petitioners and the State. I have also perused the materials available on record, particularly the entire order sheet of the Court below, the certified copies of which has been brought on record by the petitioners. On perusal of the order sheet, it is not in dispute that in the case even the prosecution report was filed after expiry of a period of limitation and, as such, the learned Magistrate before taking cognizance of the offence was required to examine as to whether there was any requirement to hear the prosecution on the points of limitation. The order does not indicate that any step was taken for condoning the delay. 7. Accordingly, the Court is of the view that the order dated 22.6.2000 is not sustainable in the eye of law and, accordingly the impugned order of cognizance is set aside. In view of the fact that the order of cognizance has been set aside, there is no requirement to pass specific order with regard to rejection of the revision petition. Accordingly, the petition stands allowed.