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2012 DIGILAW 1406 (PAT)

Ashwini Kumar Choubey v. State Of Bihar

2012-10-04

RAKESH KUMAR

body2012
ORDER Heard Sri N.K. Agrawal, learned Senior Counsel, who was assisted by Sri Diwakar Upadhyaya, learned counsel for the petitioner and Sri Sanjay Kumar, learned Addl. Public Prosecutor. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 31.03.2001 and entire criminal proceeding arising out of Kotwali P.S. Case No.452 of 1999, G.R.No.1757 of 1999 ( District Bhagalpur) passed by the learned Chief Judicial Magistrate, Bhagalpur. By the said order, the learned Chief Judicial Magistrate has taken cognizance of offence under Section 188 of the Indian Penal Code. 3. Short fact of the case is that the petitioner, who was at the relevant time M.L.A. from Bhagalpur, was made accused in Kotwali P.S. Case No.452 of 1999 on an allegation that the petitioner along with mob had entered into the premises of Kotwali Police Station and demanded for release the “Toran Dwar”, which was seized by the police and he also gave speech and on that accusation, the case was instituted and finally charge-sheet was submitted for the offence under Section 188 of the Indian Penal Code in the year 2001. 4. Sri N.K. Agrawal, learned Senior Counsel appearing on behalf of the petitioners besides raising other points has assailed the order of cognizance, mainly on the ground that the order of cognizance was passed beyond the period of limitation , as prescribed under Section 468 (2)(b) of the Code of Criminal Procedure. It was submitted that for the offence under Section 188 of the Indian Penal Code, maximum punishment is imprisonment for one month and, as such, the period of limitation in such cases would be one year from the date of occurrence/knowledge of offence. He submits that cognizance order for offence under Section 188 of the Indian Penal Code can be passed within a period of one year, whereas in this case occurrence, as alleged in the F.I.R., had taken place on 11.09.1999 and immediately on the next date i.e. on 12.09.1999 an F.I.R. was lodged. However, the police itself submitted charge-sheet in the year 2001. According to learned counsel for the petitioner, even charge-sheet was submitted after expiry of period of limitation, as prescribed under Section 468(2) (b) of the Code of Criminal Procedure. However, the police itself submitted charge-sheet in the year 2001. According to learned counsel for the petitioner, even charge-sheet was submitted after expiry of period of limitation, as prescribed under Section 468(2) (b) of the Code of Criminal Procedure. He further submits that the learned Magistrate would have passed order of cognizance, had there been a prayer for condoning the delay, but from the impugned order itself, it is evident that neither any prayer for condoning the delay was made nor the learned Magistrate has recorded any finding for condoning the delay. On this ground alone, it was submitted that order of cognizance is liable to be set aside. Besides this, it has further been argued that nor in the F.I.R. nor during investigation sufficient materials were brought on record showing commission of offence, as alleged by the prosecution. 5. Learned Addl. Public Prosecutor though has opposed the prayer of the petitioner, he was not in a position to dispute the fact that the order of cognizance was passed much after expiry of period of limitation. 6. After hearing the parties and considering the facts and circumstances of the case, the Court is of the opinion that the learned Magistrate has committed error in passing the impugned order even after noticing the fact that charge-sheet in the case was submitted beyond the period of limitation. It is also evident from the order impugned that neither any prayer for condoning the delay was made nor finding for condoning the delay was recorded by the learned Magistrate. 7. Keeping in view the nature of accusation and the fact that the order of cognizance was passed beyond the period of limitation, there is no option but to set aside the impugned order. Accordingly, order dated 31.03.2001 and entire criminal proceeding arising out of Kotwali (Bhagalpur) P.S. Case No.452 of 1999, G.R. Case No.1757 of 1999 is hereby set aside. 8. The petition stands allowed.