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2017 DIGILAW 1094 (JK)

Sanjay Kumar v. Kuldeep Kumar

2017-12-26

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : Dhiraj Singh Thakur, J. 1. This petition has been filed under Section 561-A Cr.P.C. for quashing the complaint titled Sonia Gupta v. Sanjay Kumar and others along with the order dated 23.11.2016, whereby the Court of learned Judicial Magistrate, 1st Class Hiranagar, District Kathua has taken the cognizance under Section 498-A RPC. Briefly stated the material facts are as under: A complaint came to be preferred under Section 156(3) by one Sonia Gupta, wife of the petitioner herein on 23.09.2013 before the learned Judicial Magistrate, Hiranagar. The learned Magistrate forwarded the same to the concerned police station for appropriate action. Subsequently, it appears that no action was taken by the police probably on the statement of the girl that there had been some compromise between her and the petitioner. 2. When the things perhaps did not work out between the couple, the wife of the petitioner, namely, Sonia Gupta yet again approached the same Court on 19.10.2013. A preliminary statement was recorded on 21.12.2013 in regard to the offence under Section 498-A of the RPC. Based on the complaint so filed and on the basis of the statement of the complainant, the Court took cognizance and issued process on 22.02.2014. This was filed by the petitioner herein before the High Court on the ground that the statement of the complainant based upon which the cognizance been taken by the Court was not on oath. It appears that by virtue of order dated 10.02.2016 the Court set aside the order dated 22.02.2014 and remanded the matter to Court below for passing a fresh order. 3. It appears that by virtue of order dated 23.11.2016, the Court below passed a fresh order after having recorded the statement of the complainant on oath and while taking cognizance issued process. It is this order dated 23.11.2016 that has been challenged before this Court primarily on the ground that the same is barred by limitation, inasmuch as, the occurrence in regard to which the complaint had been filed by the complainant is alleged to have taken place on 05.07.2013 and the order of cognizance dated 23.11.2016 was thus passed more than three years after the date of occurrence and, therefore, was hit by the law of limitation as prescribed under Section 538-B of the Cr.P.C. 4. While it is true that section 538-B of the Cr.P.C. envisaged that no Court shall take cognizance of an offence after the expiry of period of limitation, which in the present case is three years, yet what cannot be lost sight of the fact is that the complainant had infact approached the Court earlier by way of an application under Section 156(3) and subsequently by way of a complaint before the Court of Learned Judicial Magistrate, Hiranagar on 21.12.2013. Even the second complaint preferred before the learned Judicial Magistrate, Hiranagar was filed well within the period of limitation prescribed under Section 538-B. The fact that the order of cognizance passed by the Court below was held to be bad in law for a technical reason, for which the matter stood remanded, whereafter the Court yet again passed an order of cognizance on 23.11.2016, would not in any manner be treated to be an order, which could be hit by the principles of Section 538-B of the Criminal Procedure Code. 5. In fact the complainant having done all that she could do in approaching the Court by filing a complaint with within a period of limitation prescribed in terms of section 538-B of the Cr.P.C., was not required to do anything more and it was then for the Court to proceed on the basis thereof. The fact that the cognizance was taken yet again on 23.11.2016 would not, therefore, prejudice the right of the complainant to file a complaint. 6. Reliance in this regard can be placed upon "Japani Sahoo v. Chandra Sekhar Mohanty" (2007) 7 SCC 394 , wherein paragraph 52 the Apex Court held as under: 52. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings. Be that as it may, testing the facts of the present case on the touchstone of the law aforementioned, the assertion of the learned counsel for the petitioner does not hold good. Be that as it may, testing the facts of the present case on the touchstone of the law aforementioned, the assertion of the learned counsel for the petitioner does not hold good. Petition in that regard is held to be without any merit and is, accordingly, dismissed along with connected MP.