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2011 DIGILAW 183 (ALL)

GANESH PAL SINGH v. GANESH PAL SINGH

2011-01-25

YOGESH CHANDRA GUPTA

body2011
JUDGMENT Hon’ble Yogesh Chandra Gupta, J.—Heard learned counsel for the applicant, learned AGA and perused the record. Applicant-Ganesh Pal Singh is an accused and through this application is seeking to quash the entire proceedings of Criminal Case No. 1621 of 2004 (State v. Ganesh Pal Singh), pending before the Judicial Magistrate, Etah. 2. Few facts necessary for the disposal of this application are, that one Smt. Sarla Devi lodged an FIR against the applicant at Police Station-Jalesar, District-Etah. The matter was investigated and after investigation, a charge-sheet under Sections 323, 353, 504 I.P.C. was filed in the Court of concerned Magistrate on 3.1.2002. The Magistrate taking cognizance on the same day i.e. 3.1.2002 itself, summoned the applicant-Ganesh Pal Singh for facing trial under Sections 323, 353 and 504 I.P.C. 3. The applicant challenged the summoning order in the Court of Sessions Judge, Etah on the ground that the summoning order was in the form of rubber stamp which clearly indicated that the Magistrate while summoning the applicant did not apply his mind. The order was set aside by the revisinal Court and the matter was remanded back to the Magistrate for taking decision afresh in the light of the settled principles of law. 4. When the matter reached before the Magistrate, the applicant moved an application before Magistrate, now claiming that the proceedings of the case were barred by time. This application was rejected by the Magistrate on 27.11.2007 holding that the cognizance had already been taken by the order dated 3.1.2002 itself, therefore, there was no delay in taking the cognizance and the case was not barred by limitation. Accordingly, the Magistrate by his order dated 27.11.2007 directed the applicant/accused to appear before the Court and face trial under the aforesaid Sections. The revision filed against the order dated 27.11.2007 was dismissed by Addl. Sessions Judge, Court No. 4, Etah by his order dated 11.8.2010.Hence this application. Both the orders dated 27.11.2007 and 11.8.2010 are impugned in this application. 5. The main contention raised on behalf of the applicant accused is that cognizance is without jurisdiction being taken beyond the period prescribed by law. It is contended that in view of the provisions of Section 468 (2) (c) Cr.P.C. the period of limitation for taking cognizance of offences under Sections 323, 353, 504 I.P.C. is three years. 5. The main contention raised on behalf of the applicant accused is that cognizance is without jurisdiction being taken beyond the period prescribed by law. It is contended that in view of the provisions of Section 468 (2) (c) Cr.P.C. the period of limitation for taking cognizance of offences under Sections 323, 353, 504 I.P.C. is three years. It is contended that the alleged incident took place on 20.9.2001 while its cognizance was taken on 27.11.2007 much after the period of three years as provided under Section 468 Cr.P.C. As regards the order dated 3.1.2002, taking cognizance by Magistrate in the matter, learned counsel contends that the same was not only in the form of rubber stamp, without application of mind by the Magistrate but has also been set aside in revision and, therefore, is non-est in the eye of law. Learned counsel submits that the provisions regarding the limitation for taking cognizance are mandatory and since they were not abide by the trial Court and cognizance, was taken much after the period of limitation, the entire proceedings of the above mentioned criminal case are vitiated and are liable to be quashed as being not permissible under law and barred by time. 6. Refuting the submissions advanced on behalf of the applicant, learned AGA argues that the prosecution of the applicant is within time and is not hit by the provisions of Section 468 Cr.P.C., therefore, the application of the applicant is devoid of any merits and is liable to be dismissed. 7. Upon a careful consideration in the matter, I am of the view that the submissions advanced by learned counsel of the applicant are ill founded and misconceived. In fact, Section 468 Cr.P.C. prescribes the period of limitation for filing a complaint in the Court either by State or a private person. It also puts a bar to taking cognizance after lapse of the period of limitation. Section 468 Cr.P.C. is as under : “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-Section (2), after the expiry of the period of limitation. Section 468 Cr.P.C. is as under : “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-Section (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 purpose 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.” A bare perusal of the Section would show that the limitation prescribed is only for filing of the complaint or initiation of prosecution and not for taking cognizance of offence and the Court is enjoined not to take cognizance of an offence specified under sub-section (2) after the expiry of limitation. It may be pointed out that a complaint filed within the limitation period cannot be made infructuous by the act of the Court, namely by taking cognizance after the expiry of the limitation period. It is not in dispute that the period of limitation starts from the date of commission of offence or from the date of knowledge of commission of offence. The point of time the Court takes cognizance of a Criminal complaint is the stage at which the complaint is presented to the Court or filed in the Court. It is this date which is material and not the date on which the process is issued. The limitation period has to be read with reference to filing of the complaint and not with the date of cognizance or issue of process. 8. In the present case the applicant is charge-sheeted under Sections 323, 353 and 504 I.P.C. Offences under Sections 353 and 504 I.P.C. are punishable upto two years. In view of the provision of Section 468 (2) (c) Cr.P.C. the limitation for filing the complaint shall be three years. The incident in the present matter took place on 20.9.2001. The charge-sheet was filed on 3.10.2002. In view of the provision of Section 468 (2) (c) Cr.P.C. the limitation for filing the complaint shall be three years. The incident in the present matter took place on 20.9.2001. The charge-sheet was filed on 3.10.2002. Thus the charge-sheet was filed much before the completion of three years, therefore, in view of settled law the case is not barred by limitation. The submission of learned counsel that the cognizance was taken on 27.11.2007 and therefore, the cognizance was illegal and without jurisdiction, is misconcieved. In fact it was the process against the accused which was issued on 27.11.2007. It may be remembered that the Court may have its own reason chosen to issue process after taking cognizance on a date later than the date of filing of a complaint but this does not effect the limitation. In view of the foregoing discussions, I do not find any illegality or demerit in the impugned orders passed by the Courts below. This application under Section 482 Cr.P.C. has no merits, therefore, deserves to be dismissed and is accordingly dismissed. ————