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2013 DIGILAW 2170 (RAJ)

Shankar Lal v. State of Rajasthan

2013-12-04

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners challenging the order dated 16.2.2013 passed by the learned Sessions Judge, Balotra in revision, whereby, the order dated 29.6.2012 passed by the learned Judicial Magistrate, First Class, Balotra in Case No. 610/2012 taking cognizance against the petitioners for the offences under Sections 384, 342 and 500 I.P.C. was affirmed. 2. Learned counsel for the petitioners submits that the order taking cognizance against the petitioners is per see illegal and amounts to a gross abuse of the process of the Court. He submits that the alleged offences were committed in the month of June, 2007. The complaint was filed after a delay of 24 days and the cognizance was taken on 29.6.2012 i.e. after a delay of nearly five years and, thus, the order taking cognizance is illegal in view of the bar contained in Section 468 Cr.P.C. Learned counsel thus prays that the order taking cognizance against the petitioners deserves to be quashed. 3. Per contra, learned Public Prosecutor as well as learned counsel Shri Shambhoo Singh appearing on behalf of the respondent No. 2 vehemently opposed the submissions advanced by the learned counsel for the petitioners. 4. Learned counsel Shri Shambhoo Singh appearing on behalf of the respondent No. 2 submits that firstly the proceedings are not barred by limitation at all and secondly he submits that in view of the fact that the complainant filed the complaint within the period of limitation, therefore, in view of the decision rendered by the Hon'ble Apex Court in the case of Japani Sahoo v. Chandra Sekhar Mohanti, (2007) 7 SCC 394 , the proceedings of the complaint cannot be quashed.' 5. Heard and considered the arguments advanced at the bar and perused the orders passed by the learned Subordinate Courts. 6. The argument advanced by learned counsel for the petitioners for assailing the proceedings on the ground of the same being barred by limitation are misconceived on the face of the record. 7. The respondent No. 2 filed the complaint in relation to the above mentioned offences in the Court of the learned Judicial Magistrate, First Class, Balotra on 13.7.2007. The complaint was forwarded to the Police for investigation under Section 156(3) Cr.P.C. The police registered an F.I.R., investigated the case and ultimately filed a negative final report in the Court concerned. 7. The respondent No. 2 filed the complaint in relation to the above mentioned offences in the Court of the learned Judicial Magistrate, First Class, Balotra on 13.7.2007. The complaint was forwarded to the Police for investigation under Section 156(3) Cr.P.C. The police registered an F.I.R., investigated the case and ultimately filed a negative final report in the Court concerned. The complainant filed a protest petition in the Trial Court on 12.5.2008 and examined himself under Section 200 Cr.P.C. on 3.7.2008. The law in this regard is well settled that the moment the Court decides to proceed on the complaint by adopting the procedure under Sections 200 and 202 Cr.P.C., cognizance on the complaint is deemed to have been taken. The order dated 29.6.2012 as a matter of fact is an order issuing process under Section 204 Cr.P.C. The order issuing process cannot be equated with or termed as the order taking cognizance. 8. That apart, the Hon'ble Apex Court in the case of Japani Sahoo (supra) held that the relevant date for considering the question of limitation would be the date of filing of the complaint and not the date on which the process was issued. The judgments rendered by the Hon'ble Apex Court in the cases of Japani Sahoo v. Chandra Shekhar Mohanti reported in (2007) 7 SCC 394 , and Bharat Damodar Kale v. State of A.P. reported in (2003) 8 SCC 559 . were reaffirmed by the Hon'ble Apex Court in the case of Mrs. Sarah Mathew v. The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Ors. reported in 2013(14) SCALE 404 . 9. One of the offences for which the accused are being prosecuted is under Section 384 I.P.C. The said offence is punishable with a sentence of three years. The limitation for taking cognizance for such offence would be three years as per Section 468(2)(c) Cr.P.C. As, in this case, the learned Magistrate proceeded to resort to the provisions under Section 200 Cr.P.C. well within the period of three years from the date of the offence, the learned counsel for the petitioners is not even entitled to raise the argument that the cognizance in this case was time barred. Apart from the fact that the complaint preferred by the complainant was well within the limitation prescribed for the said offence, the learned Magistrate duly applied his mind to the complaint and took cognizance against the accused just within a period of one year from the date of the commission of the offence. In this view of the matter, this Court is of the opinion that the argument advanced by learned counsel for the petitioners that the proceedings of the case deserve to be quashed as the order taking cognizance is time barred is misconceived.Resultantly, this misc. petition as well as the stay petition being bereft of any are hereby dismissed.Petition dismissed. *******