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2015 DIGILAW 73 (GAU)

Deepak Das v. Kuseshwar Das

2015-01-27

C.R.SARMA

body2015
JUDGMENT : C.R. Sarma, J. 1. Heard Mr. S. Chouhan, learned Counsel appearing for the petitioners. Also heard Mr. K. Munir, learned Addl. P.P., Assam, for the State respondent and Mr. A.T. Sarkar, learned counsel appearing for the informant. By this application filed under Section 482/401Cr.P.C., the petitioners, who are the accused persons in G.R. Case No. 6285/2010 have challenged the order dated 26.12.2012 whereby the learned SDJM, No. 2(S), Kamrup (M), Guwahati has taken cognizance of the offence against the petitioners under Sections447/323/34 IPC in connection with the said G.R. Case. The private respondent as informant lodged the FIR on 22.08.2010 alleging therein, that on 21.08.2010 the petitioners along with 7/8 persons unauthorisedly entered his premises and assaulted him and his brother Sri Ranjit Das causing injuries to their person. On receipt of the said FIR police registered a case under Sections 447/323/34 IPC and launched investigation into the matter. At the close of the investigation police submitted charge-sheet on 30.09.2010 against the petitioners for committing the offence under Sections 447/323/34 IPC. On receipt of the said charge-sheet, the learned CJM, Kamrup by his order dated 26.12.2012 passed in G.R. Case No. 6285/2010 took cognizance of the offence under Section 447/323/34 IPC against the petitioners and fixed the case on 11.03.2013 for appearance Aggrieved by taking of cognizance after the statutory period prescribed by Section 468(B) Cr.P.C. the petitioners have come up with this petition for quashing the said proceeding pending before the learned SDJM No. 2(S), Kamrup (M). Referring to the provision of Section 468(B) Cr.P.C. the learned counsel for the petitioner has submitted that the maximum period of punishment provided for the offence under Sections 447/323/34 IPC not being more than one year, the learned Magistrate ought to have taken cognizance within one year from the date of offence and that the order taking cognizance, after the prescribed period of one year, cannot stand in the eye of law. Mr. A.T. Sarkar, learned counsel appearing for the informant referring to the provision of 473 Cr.P.C. has submitted that there is provision for extension of period of limitation in certain cases and that the Magistrate has the power to condone the delay and take cognizance after the prescribe period. 2. Mr. K. Munir, learned Addl. Mr. A.T. Sarkar, learned counsel appearing for the informant referring to the provision of 473 Cr.P.C. has submitted that there is provision for extension of period of limitation in certain cases and that the Magistrate has the power to condone the delay and take cognizance after the prescribe period. 2. Mr. K. Munir, learned Addl. P.P., Assam, has fairly submitted that though the I.O. has submitted charge-sheet after completing the investigation within 2 months from the date of the occurrence. The cognizance of offence was taken after about 2 years 4 months from the date of occurrence i.e. 21.08.2010. 3. Having heard the learned counsel appearing for both the parties, I find that there is no dispute that the learned Magistrate took cognizance on 26.12.2012 i.e. after statutory period prescribed by Section 468(2)(b). Section 468 has provided the period of limitation of taking cognizance. The said Section reads as follows: "468. 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. As provided by Section 468(2)(b) the period, within which cognizance in respect of an offence punishable with imprisonment for a term not exceeding one year, is one year. The maximum period of imprisonment provided for the offence under Section 447 is imprisonment for 3 months or fine of Rs. 500/- or both. The maximum punishment provided for the offence under Section 323 is imprisonment for one year or fine of Rs. 1,000/- or both. In view of above, the cognizance for the offence in the present case ought to have been taken within one year from the date of the offence. 500/- or both. The maximum punishment provided for the offence under Section 323 is imprisonment for one year or fine of Rs. 1,000/- or both. In view of above, the cognizance for the offence in the present case ought to have been taken within one year from the date of the offence. There is no dispute that the learned Magistrate took cognizance after the said period i.e. after the period of 2 years 4 months. Though there is provision of condoning delay, as prescribed by Section 473 Cr.P.C., the impugned order does not reveal anything to show that the learned Magistrate had condoned the delay. Therefore, I have no hesitation in holding that taking of cognizance by the learned Magistrate in the present case was not in conformity with the statutory provision and as such the said order cannot be maintained. Accordingly, the impugned order is set aside and the proceeding is quashed. In the present case the order sheet dated 26.12.2012 maintained in the office of the learned CJM is found to be contrary to the provision prescribed by law. The learned Magistrate has used the printed form of order sheet keeping certain portions blank and the name of the accused person, offence for which charge-sheet is submitted, and whether the offence is bailable have been kept blank. The names of the accused persons, the penal provision, the next date fixed etc. are filled up by hand. In the said printed order sheet it has been mentioned "case record containing charge sheet is put up. Seen the charge sheet submitted by the I/O against the accused................for insufficient/want of evidence. Cognizance taken against accused.......U/S.....Issue summons to accused person/persons. Fix....for appearance." 4. Cognizance of offence is taken and not for the accused persons. But in the form (order sheet) it has been shown that the cognizance has been taken against the accused persons. This is not the correct procedure. That apart use of the telephonic terms like "App." is not healthy practice. The Magistrate should himself write the order of taking cognizance, by applying his mind and not in a mechanical manner, as indicated above. Registry shall bring this order to the notice of the learned Chief Judicial Magistrate, Kamrup, if necessary by issuing a circular to all the Chief Judicial Magistrates under the jurisdiction of this Court for following the correct procedure of writing orders in respect of taking cognizance. Registry shall bring this order to the notice of the learned Chief Judicial Magistrate, Kamrup, if necessary by issuing a circular to all the Chief Judicial Magistrates under the jurisdiction of this Court for following the correct procedure of writing orders in respect of taking cognizance. 5. The learned Chief Judicial Magistrate, Kamrup be asked to immediately discontinue with the practice of following the existing printed order sheet. 6. In the present case, it has come to notice that the I.O. had submitted charge-sheet after completing the investigation promptly within 2 months, but the charge-sheet was kept in the office of the learned Chief Judicial Magistrate and the learned Magistrate took cognizance after about 2 years 4 months. This cannot be encouraged. Delay in taking cognizance lead to miscarriage of justice. Registry shall instruct all the Chief Judicial Magistrates to take steps to pass necessary order in respect of the charge-sheets submitted by the Investigating Officer without delay and positively within the period of taking cognizance as prescribed by law. 7. This be brought to the notice of the Registrar Vigilance for doing the needful. With the above, this criminal petition is disposed of.