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Allahabad High Court · body

2015 DIGILAW 750 (ALL)

AMAR SINGH v. STATE OF U. P.

2015-04-09

ARVIND KUMAR MISHRA I

body2015
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—Heard learned counsel for the applicants and learned counsel for the private respondents and the learned A.G.A. for the State. By means of instant application under Section 482 Cr.P.C. the applicants have challenged the summoning order dated 1.8.2011 whereby the applicants have been summoned to face the trial for the offences under Section 147, 323, 504 I.P.C. Police Dhanghata district Sant Kabir Nagar. 2. Learned counsel for the applicants submits that in this case, private respondent/opposite party No. 3 preferred an application under Section 156 (3) Cr.P.C. against the applicants wherein an order for registering and investigating the case, was passed. Pursuant to above order, a first information report was lodged on 10.11.2003. In this case, cross first information reports were lodged at crime No. 344 of 2003 and 344-A of 2003. In the case pertaining to case crime No. 344 of 2003 the matter was investigated into and a charge-sheet was filed against private respondent No. 2 and others. However, in cross-case i.e. case crime No. 344-A of 2003, a Final Report was submitted after investigation. Consequently, notice was issued to respondent No. 2. Thereafter, the respondent No. 2 moved a protest petition on 4.2.2006 before the learned Lower Court. The Lower Court allowed the protest petition and treated the same as a complaint case whereafter, the Court concerned proceeded with the case and recorded the statement of the complainant and witnesses under Sections 200 and 202 Cr.P.C. and on the consideration of the matter, summoned the applicants to face the trial vide impugned order dated 1.8.2011 passed in complaint case No. 1002 of 2011 Om Prakash v. Amar Singh and others, under Sections 147, 323, 504 Police Station Ghanghata district Sant Ravidas Nagar. 3. Learned counsel for the applicants submits that the incident in question took place in the year 2003 whereas the summoning order was issued on 1.8.2011. The maximum sentence provided under the aforesaid sections of I.P.C. is confined to only three years’ period of imprisonment and fine. In that view of the matter, the cognizance was barred under the relevant provisions of Cr.P.C. and the learned Magistrate while passing the summoning order failed to take notice of the above provisions and erroneously issued summons against the applicants in utter disregard to the manifest provisions of Cr.P.C. consequently, the entire proceedings are vitiated. 4. In that view of the matter, the cognizance was barred under the relevant provisions of Cr.P.C. and the learned Magistrate while passing the summoning order failed to take notice of the above provisions and erroneously issued summons against the applicants in utter disregard to the manifest provisions of Cr.P.C. consequently, the entire proceedings are vitiated. 4. The learned counsel for the private respondent No. 2 submitted that the allegation to the extent that cognizance is barred by relevant provisions of Cr.P.C. is not tenable in view of clear cut mandate contained under Section 473 Cr.P.C. which empowers the Magistrate to proceed further with the case on two eventualities; first being proper explanation of the delay and second being in the interest of justice. If the interest of justice is served then the Magistrate will be competent to take cognizance and proceed further with the case which in fact has been done by the Magistrate and the impugned order is legal and one within the ambit of law and the same cannot be assailed on the ground that the summoning order is hit by the provisions of limitation for taking cognizance under the provisions of Cr.P.C., say Section 468. 5. I have considered the rival submissions and perused the record. Before proceeding further with the case, it would be appropriate to take note of contents of Section 468 Cr.P.C. which provides for limitation for taking cognizance of certain offences. Section 468 Cr.P.C. is extracted herein-below: 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 purposes 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.] 6. [(3). For the purposes 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.] 6. A reading of aforesaid section shows that the period prescribed for taking cognizance of offences categorizes three types of offences. If offence is punishable with fine only- the period of limitation prescribed for taking cognizance of offence is upto 6 months. This period is further extended to one year and three years, respectively in relation to offences punishable with the prescribed period of imprisonment as detailed in sub-clause (b) and (C) to sub-section(2) of Section 468 Cr.P.C. Thus, the maximum period of limitation prescribed for taking cognizance of offence is confined to three years in relation to the offences punishable with imprisonment upto three years. Now, we may conveniently cross over to Section 473 Cr.P.C. which stipulates that cognizance can be taken even after expiry of the period prescribed for limitation. Section 473 Cr.P.C. is extracted herein below: “473. Extension of period of limitation in certain cases.—Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice.” 7. In view of above, it is obvious that it is not a universal mandate that no cognizance can be taken of offences punishable with fine only or for imprisonment upto one year and extending from one year to three years as described under Section 468 Cr.P.C. after expiry of period of limitation The period of limitation may be extended in two circumstances as laid down under Section 473 Cr.P.C. ; first one is to take place when delay occasioned is appropriately explained and the second one is barred in interest of justice i.e. when it is necessary so to do in the interest of justice. Certainly, the learned Magistrate while proceeding further with the case and while passing the impugned summoning order has perhaps not indicated specifically about any finding on limitation in taking cognizance of the offence and issuing summons against the applicant. Certainly, the learned Magistrate while proceeding further with the case and while passing the impugned summoning order has perhaps not indicated specifically about any finding on limitation in taking cognizance of the offence and issuing summons against the applicant. The point of limitation as raised before this Court at this stage can be suitably dealt with by the Court below, if so urged. Therefore, it would not be in the fitness of things that this Court should usurp the right of the Magistrate, under Section 473 Cr.P.C. and decide the point of limitation as to whether the cognizance of the offence can be taken and the applicants can be proceeded with or not; as it is the jurisdiction of the Magistrate alone at this point of time. 8. Perusal of the impugned summoning order reveals that there is no factual error in it. The summoning order is discovered to be based very much on the facts alleged in the protest petition which facts are supported by the statements recorded under Section 200 and 202 Cr.P.C. In so far as the plea of limitation is concerned, no such point was considered by t he learned Magistrate as the point was never raised before him. This can be suitably raised by the applicant as and when they appear before the Court below. 9. Therefore, the applicants are directed to move before the Court concerned for adjudication on the point of limitation and in case any such application is moved, the Court below will, after affording opportunity of hearing to the prosecution as well as complainant, will dispose of the application in accordance with law by speaking order within 15 days from the date of filing of the application alongwith certified copy of this order within a month from today. For the period of 45 days from today, no coercive action shall be taken against the applicants pursuant to the aforesaid summoning order dated 1.8.2011 which shall abide by the finding recorded by the Magistrate on the point of limitation. In case no such application is moved within a month from today, this order will be of no avail to the applicants and the Court below shall follow further course of action in accordance with law. With these observations, this application is disposed of finally. ——————