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2016 DIGILAW 3563 (ALL)

KRISHNA KUMAR SONI v. STATE OF U. P.

2016-10-25

PRAMOD KUMAR SRIVASTAVA

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JUDGMENT : Pramod Kumar Srivastava, J. 1. Heard Sri Manish Tiwary for revisionist, Sri Namit Srivastava for respondent no. 2, learned AGA for respondent no. 1-State and perused the records. 2. The incident relating to this matter had taken place on 20.11.2009 regarding which FIR relating to case crime no. 500/2009 dated 20.11.2009 was lodged and after investigation charge-sheet dated 8.1.2016 was filed in court. The proceeding relating to said case is continuing before the court of Judicial Magistrate. 3. Thereafter, for same incident application under section 156(3) CrPC was moved, which was allowed by Judicial Magistrate on 23.1.2010. Said order was challenged before this court through Criminal Misc. Writ Petition No. 1752/2010 (Krishna Kumar Soni and Others vs. State of U.P. and Another), by which interim order dated 10.2.2010. This court had stayed the operation of order dated 23.1.2010 passed by CJM, Chandauli. But on 13.12.2013, said writ petition no. 1752/2010 was dismissed by this court. After it, matter was investigated and charge-sheet was filed against present revisionist in court on 25.3.2014 for offences under sections 287, 337, 338, 304A IPC. 4. The trial court had taken cognizance and summoned the accused-revisionist. After appearance, accused-revisionist moved application dated 11.8.2014 for his discharge on the ground that order of cognizance is time barred. Said application of discharge was rejected by the order dated 21.2.2015 of the court of CJM, Chandauli. Against this impugned order, present revision has been preferred by said accused. 5. Learned counsel for the revisionist submitted that none of the offences of sections 287, 337, 338, 304A IPC are punishable with imprisonment of more than two years, therefore, period of limitation for taking cognizance of such offences cannot be more than three years in accordance with mandatory provisions of section 468 CrPC. Therefore, order of cognizance by trial court in this matter as well as impugned order dated 21.2.2015 are legally erroneous, which should be quashed and accused persons should be discharged. 6. Learned counsel for the respondent-complainant refuted these submissions and contended that delay in investigation and order of cognizance was due to interim order dated 10.2.2010 passed by High Court. If this period of interim stay is ignored, then remaining period is less than three years and order of cognizance cannot be said to be time barred. 7. Section 468 and 470 of CrPC reads as under:- "468. If this period of interim stay is ignored, then remaining period is less than three years and order of cognizance cannot be said to be time barred. 7. Section 468 and 470 of CrPC reads as under:- "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 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." “470. Exclusion of time in certain cases. (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.-In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded. (4) In computing the period of limitation, the time during which the offender:- (a) has been absent from India or from any territory outside India which is under the administration of the Central Government. (b) has avoided arrest by absconding or concealing himself, shall be excluded.” 8. Although section 468 provides that no court shall take cognizance of an offence of the category specified in sub-section (2), after expiry of period of limitation, but the pre-condition of this provision is “except as otherwise provided in this regard.” In present matter, admittedly none of the offences punishable under sections 287, 337, 338 or 304A IPC is punishable with imprisonment for more than two years and in ordinary course, the cognizance of such offences would have been barred after more than three years' period of limitation. But the exception to this ordinary general rule of section 468 (1) is mentioned in section 470 which provides, that if prosecution is delayed by any stay or injunction order, then that period of stay would be excluded in computing the period of limitation. In present matter, as discussed above, the process of investigation and initiation of prosecution was stayed from 10.2.2010 till 13.12.2013, i.e., about four years. In present matter, as discussed above, the process of investigation and initiation of prosecution was stayed from 10.2.2010 till 13.12.2013, i.e., about four years. If this period from 10.2.2010 to 13.12.2013 is excluded in period between time of incident from 20.11.2009 to time of filing charge-sheet, then remaining period is much less than three years. Therefore, the order of cognizance passed by trial court in this matter is well within limitation and cannot be said to be time barred. Therefore, the order of cognizance being within period of limitation is not erroneous, which is hereby confirmed. 9. The pertinent point is that impugned order has been passed on application of revisionist for discharge only on point of limitation, but it is settled legal position that whether any application is made or not, the court, at the time of framing of charge has to afford opportunity of hearing the defence side on point of charge. It is immaterial as to whether any submission is made or not by accused/defence on point of framing of charge, but the trial court at the time of passing order on point of charge has to sue moto consider all relevant points, irrespective of the fact that order of cognizance of the case has become final. 10. In present matter, learned counsel for the revisionist submitted as alternative argument that admittedly informant-complainant was not eye witness of the incident and none of the witnesses had seen the incident in question, and also that informant had not supported the averments of his FIR, but charge sheet has been submitted by the Investigating Officer erroneously. These points alongwith other pertinent points, has to be considered by the trial court at the time of framing of the charge, irrespective of the fact as to whether any application is moved or not by defence side in that regard. Trial court has to consider at the time of framing of the charge that whether there has been possibility of conviction is there or not, and if prospective evidences of prosecution witnesses are taken to be true in its entirety, would may lead to conviction or not. 11. Trial court has to consider at the time of framing of the charge that whether there has been possibility of conviction is there or not, and if prospective evidences of prosecution witnesses are taken to be true in its entirety, would may lead to conviction or not. 11. On the basis of above discussion, although contentions of learned counsel for the revisionist on point of order of cognizance being time barred, is not being accepted by this Court, but it is directed that at the time of framing of charge, trial court would consider all other factual and legal aspects, as discussed above. 12. This contention of learned counsel for the revisionist is also pertinent that two charge sheets has been filed against different set of accused persons for same offence which are not in consonance with each other. The effect of those two charge sheets may also be considered by trial court at the time of framing of charge or at any appropriate time. 13. On the basis of above discussion this revision is disposed of with observation that contentions of revisionist side on point of limitation is unacceptable, but trial court will again afford opportunity of hearing on point of charge to parties before passing any order in that regard. 14. The copy of this order be communicated to trial court immediately.