ORDER [ENTITY], J.
1. This revision petition has been preferred against the order dated 1-6-1991 passed by the learned MJM, [ENTITY], whereby he took cognizance for the offence under [SECTION], [ACT] against the petitioner. .
2. The facts necessary for the disposal of this revision petition lie in a narrow compass and can be recapitulated like this. It appears that on 26-6-87, the respondent filed a criminal complaint in the court of MJM, [ENTITY] for the offences under [SECTION], [SECTION], [SECTION] and [SECTION], [ACT] against the petitioner alleging that she was working as a Class IV employee in Seth Budhmal Dugar Govt. College, [ENTITY], wherein the petitioner was posted as Principal that on 10-1-87 at about 9.15 a.m., when she went inside the office of the' petitioner and was cleaning the tiolet attached to his office, the petitioner came inside the toilet, bowed down over her back, caught hold of her breast and attempted to commit rape with her and that thereupon she raised alarm, which attracted [ENTITY], who was working nearby in front of Rooms Nos. 8 and 9 of the college building. It was further alleged that on seeing [ENTITY], the petitioner, who was under intoxication, came out of the toilet and sat on the chair of his office and threatened her as well as [ENTITY] that in case, they complained against him, they would be removed from service. It was further alleged that due to fear of being removed from the service, she did not lodge any report in the police station but complained against him to the Director, Education Department and other senior officers in writing but ho action was taken that thereupon she along with [ENTITY], President of the Sahayak Karamchari Sangh, [ENTITY] and the Provincial Secretary of the said Sangh met the Education Minister but no action was taken. She again sent a complaint dated 12-2-87 against the petitioner to the Director, College Education, Jaipur and forwarded copies thereof to Superintendent of Police and District Magistrate, Churu. In the State Legislative Assembly also, the question in respect of the said incident was put by the MLAs of the opposition side for taking action against the petitioner. It was also alleged that her complaint was sent by the S.P. to S.H.O., P.S., [ENTITY], who did not take any action that since the petitioner was an influential and resourceful person, no action has been taken and, therefore, she was filing the criminal complaint in the court. The learned Magistrate by his order dated 28-8-87 by sending a copy of the complaint, directed the S.H.O., P.S., [ENTITY] to send the factual report and the progress of the investigation, alleged to be pending in the police station. The S.H.O. after recording the statements of complainant Smt. [ENTITY], [ENTITY], [ENTITY], [ENTITY] and Smt. [ENTITY] submitted his report dated 24-10-87 and submitted that in the past, the then S.H.O. had also conducted an enquiry into the matter and found that no such incident took place arid that a false complaint was made against the petitioner. He further submitted that on his enquiry, the facts mentioned in the criminal complaint were found to be false and that the S.P., Churu vide his order dated 8-4-87 has already ordered for filing a complaint under [SECTION], [ACT] against Smt. [ENTITY]. The S.H.O. also submitted the copy of the previous enquiry report dated 24-3-87. The learned Magistrate vide his order dated 19-12-87 directed the respondent to ad Juce her evidence. However, for one reason or the other, the respondent Smt. [ENTITY] sought adjournments and examined herself under [SECTION], [ACT] as late as on 28-1-89. The statements of her witnesses namely [ENTITY] and [ENTITY] were recorded under [SECTION], [ACT] on 25-3-89 and 21-4-90. It may be mentioned here that on 8-10-87, the S.H.O., P.S., [ENTITY] submitted a criminal complaint against the respondent for the offence under [SECTION], [ACT] in the court of learned MJM, who took cognizance against her on the same day for the said offence. On 1-6-91, an application under [SECTION], [ACT] was filed on behalf of the respondent, wherein she submitted that though, the criminal complaint was filed by her on 26-10-87 but delay in taking cognizance has been caused bonafidely in "this judicial proceeding (and the same may be condoned and cognizance may be taken against the petitioner. The learned Magistrate by his impugned order dt. 1-6-91 allowed the said application, condoned the delay holding that though the evidence in the case was closed long back and the case was fixed for hearing arguments for last one and a quarter years but the delay was caused bonafidely for which the respondent had shown sufficient reasons and took cognizance against the petitioner for the offence under [SECTION], [ACT], only. Hence this revision petition.
3. I have heard Mr. [ENTITY], learned counsel for the petitioner and Mr. [ENTITY], learned counsel for the respondent and perused the record of the learned lower court in extenso.
4. Mr. [ENTITY] has vehemently canvassed that the learned Magistrate had sent for the report of the S.H.O. by sending a copy of the criminal complaint, who did submit his negate report on 24-10-87 holding that the criminal complaint filed by Smt. [ENTITY] was patently false and motivated but the learned Magistrate did neither consider the evidence collected by the S.H.O. nor the reasons given by him in his report. Thus, he has violated the provisions of [SECTION], [ACT] and thereby committed a grave illegality in taking cognizance against the petitioner. For this Mr. [ENTITY] has placed reliance on the case of [PRECEDENT], wherein it has been held that if a Magistrate has not taken into consideration the material placed on record by the police and taken cognizance against the accused on the basis of the evidence recorded by him under [SECTION] and [SECTION], [ACT], it amounts to abuse of the process of the court and grave miscarriage of justice.
5. His another limb of argument is that a criminal complaint under [SECTION], [ACT] was filed by the police against the respondent on 8-10-87 in respect of the alleged incident and that by that time, the respondent did not adduce any evidence under [SECTION] and [SECTION], [ACT] before the learned Magistrate that the alleged incident took place on 10-1-87 and, as such, the period of limitation of three years for taking cognizance expired on 10-1-90. The respondent filed an application dated 1-6-90 much after the expiry of period of limitation for condonation of delay but no notice of the said application was given to the petitioner nor any opportunity of hearing was afforded to him before taking the cognizance and that the delay was caused by the respondent, which was not bona fide and, as such, the impugned order offends the principles of natural justice and is patently illegal and the same deserves to be quashed. In support of his contention, he has cited the case of [PRECEDENT] and the case of [PRECEDENT], , wherein it has been reiterated that before taking cognizance of an offence after expiry of period of limitation, accused is entitled-to be given a notice and afforded an opportunity of hearing on the question of extension of period of limitation under- [SECTION], [ACT]
6. On the other hand, Mr. [ENTITY] has asserted that an accused has no right to be heard before any process is issued against him and that the Magistrate is not bound to accept the result of the enquiry and investigation under [SECTION], [ACT] He has contended that the Magistrate is not debarred from taking cognizance under [SECTION], [ACT] of a criminal complaint filed before him merely on the ground that he had earlier declined to take cognizance on the police report accepting the final report.
7. For this, Mr. [ENTITY] has placed reliance on the cases of [ENTITY] v. Bhuneshwar Prasad Sinha, ([CASE NUMBER]) and [ENTITY] v. The State of Rajasthan, ([PRECEDENT]) (Raj). He has submitted that in view of the law laid down in [PRECEDENT], , bar of [SECTION], [ACT] should be ignored in the interest of justice in view of the allegations of the complainant, who is a lady and was subjected to cruelty. He has, however, conceded that no notice of the application dated 1-6-91 of the respondent filed under [SECTION], [ACT] for condonation of delay was given to the petitioner.
8. I have bestowed my anxious consideration to the rival submissions. Admittedly, the respondent did not prefer to lodge the report in the police station about the incident. Instead, she made complaint to the Director, College Education and Education Minister of the State and a copy thereof was sent to the S.P., Churu, who forwarded the same to the S.H.O., P.S., Churu on 3-2-87 directing him to conduct an enquiry and submit the factual report. The S.H.O. vide his report dated 24-3-1987 found that the complaint was false, without foundation and motivated. The respondent filed the criminal complaint against the petitioner as late as on 26-6-1987. The learned Magistrate by sending a copy of the criminal complaint, also directed the S.H.O. to send the factual report, who after recording the statements of the respondent and her witnesses and conducting the enquiry, reported that the complaint was false and actuated by ulterior motive, giving detailed reasons. The learned Magistrate as early as on 19-12-1987, decided to record evidence under [SECTION] and [SECTION], [ACT] but the respondent sought umpteen opportunities and examined herself as late as on 28-1-89 and closed her evidence under [SECTION], [ACT] on 21-4-90. On 19-5-90, 23-6-90, 15-9-90, 3-11-90, 15-12-90, 2-2-91 and 27-4-91, the counsel for the respondent repeatedly sought adjournments for arguments. On 1-6-1991, the respondent submitted an application under [SECTION], [ACT] for extension of the period of limitation and condonation of delay. The learned Magistrate did not issue notice of the said application to the petitioner and without affording an opportunity of hearing to him on the same day allowed that application condoning the delay holding that the delay was caused as the respondent was bona fidely pursuing the proceedings and that she had explained the delay satisfactorily and took cognizance under [SECTION], [ACT] against the petitioner. A careful perusal of the impugned order unmistakably reveals that the learned Magistrate did not consider at all the material collected by the S.H.O., P.S., [ENTITY] and the reasons given by him in his report dt. 24-10-1987.
9. In [PRECEDENT], interpreting the provisions of [SECTION], [SECTION], [SECTION] and [SECTION], [ACT], the Apex Court while holding that an accused person does not come into picture at all till the process is issued and that he has no right to take part in the proceedings, has clearly pointed out that no doubt, one of the objects behind the provisions of [SECTION], [ACT] is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as an accused from being called upon to face an obviously frivolous complaint. It has been further held that there is another object behind the said provision and it is to find out what material there is to support the allegations made in the complaint and that it is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused but also with a view to bring to book a person or persons against whom grave allegations are made.
10. In [PRECEDENT], their Lordships of the Supreme Court have held that the scope of the inquiry under [SECTION], [ACT] is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
11. Thus, the Court before taking cognizance of an offence against an accused, is required to scrutinise the material placed before it to find out as to whether prima facie any offence is made out or whether the complaint is frivolous and the accused has no locus standi at that stage and not entitled to be heard.
12. In [PRECEDENT]'s case (supra), this Court has held that the record which has been submitted by the police is a material placed on the record and it is the duty of the Court to consider that record and then to arrive at its own conclusion whether in such a case, process should be issued against the accused or not and that if the Magistrate has not looked into such material and issued process then it amounts to abuse of the process of the Court and grave miscarriage of justice. It is true that a Magistrate is not debarred from taking cognizance on a complaint merely on the ground that he earlier declined to take cognizance on the police report as has been held in [ENTITY]'s case [CASE NUMBER] (supra) and followed by this Court in [ENTITY]'s case [PRECEDENT] (supra) but it is the bounden duty of the Magistrate to consider the allegations made in the complaint and the statements of the complainant under [SECTION], [ACT] and witnesses under [SECTION], [ACT] as also the result of the inquiry or investigation, if any under [SECTION], [ACT] and if he is of the opinion that prima facie an offence is made out then he is competent to take cognizance against the accused and issue process and in case, if he is of the opinion that there is no sufficient ground for proceeding then he shall dismiss the complaint.
13. In the case on hand, the learned Magistrate has not at all considered the report of the S.H.O., P.S., [ENTITY] dated 24-10-1987, which was accompanied with the statements of the complaint and her witnesses. As mentioned earlier, the report was sent for by the Magistrate by sending a copy of the criminal complaint. Thus, the said report constituted material under [SECTION], [ACT], Consideration of the material under [SECTION], [ACT] is not an empty formality. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non-consideration of the aforementioned material under [SECTION], [ACT] ignoring the same and taking cognizance is tantamount to abuse of the process of the Court and on this ground, the impugned order cannot be sustained.
14. There is no dispute that the offence under [SECTION], [ACT] is punishable with imprisonment for two years or fine or with both and as per provisions of [SECTION], [ACT], the period of limitation, for taking cognizance is three years from the date of the offence. [SECTION], [ACT] specifically lays down that except as otherwise provided elsewhere in the Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2) after the expiry of period of limitation. In the instant case, the period of limitation for taking cognizance of the offence under [SECTION], [ACT] expired on 10-1 -1990. Prior to that, a complaint under [SECTION], [ACT], was also filed against the-respondent in the Court of the learned Magistrate on which he had taken cognizance against her on the same day and issued process. By that time, no evidence was adduced by the respondent under [SECTION] and [SECTION], [ACT] She closed her evidence under [SECTION] and [SECTION], [ACT] On 21-4-1990 and thereafter numerous adjournments were sought till 1-6-1991, when an application for condonation of delay under' [SECTION], [ACT] was filed by her. In that application, she asserted that delay in taking cognizance in this case had occurred due to bona fide judicial proceedings, which is not at all borne out from her conduct and the order sheets of the file of the Court below. On the other hand, it is manifestly borne out from the record that the respondent had deliberately delayed the proceedings and sought indiscriminate adjournments on lame excuses and, therefore, a valuable right had vested in the accused petitioner on 10-1-1990 because the period of limitation for taking cognizance under [SECTION], [ACT], had come to an end by that time.
15. In [PRECEDENT] and [PRECEDENT], it has been repeatedly held by this Court that before taking cognizance of an offence after expiry of period of limitation, the accused is entitled to be given a notice and that he shall be heard on the question of extension of the period of limitation under [SECTION], [ACT] In [PRECEDENT], the Chief Judl. Magistrate was satisfied with the sufficiency of the material placed by the prosecution of the material placed by the prosecution before him with the report for taking cognizance of the offence. He took, cognizance of the offence and directed the issuance of process against the accused. Since he condoned the delay for launching prosecution without notice to the accused and without affording any opportunity to have their say, the Apex Court held that such delay could not be condoned without notice to the saccused and quashed the order of taking cognizance and remitted the matter to the Magistrate for deciding the application for condonation of delay after hearing the parties and to proceed further in accordance with law.
16. Smt. [PRECEDENT]'s case (supra), relied on behalf of the respondent, has no application to the facts and circumstances of the present case. It was a case under [SECTION], [ACT], which is continuing offence. The Apex Court held that bar of [SECTION], [ACT] is to be ignored in the interest of justice in view of the allegation that complaint was being subject to cruelty by the respondents and that the maxim that the vigilant, and not the sleepy, are assisted by the laws, cannot be applied in connection with the offence relating to cruelty against women.
17. In view of aforementioned well crystalised principle of law, the order, of condoning the delay and extending the period of limitation without issuing notice to the petitioner is clearly violative of the principles of natural justice and as such, it suffers from patent illegality and impropriety and' the same deserves to be set aside and the matter needs to be remitted to the learned Magistrate.
18. In the premise of the above discussion, this revision petition is allowed and the order dated 1-6-1991 is set aside and the matter is remitted to the learned Civil Judge (Jr. Div.) cum Judicial Magistrate, [ENTITY] with the direction that he shall first decide the application dated 1 -6-1991 filed by the respondent after hearing the parties and, in case, the delay is condoned, then he shall pass necessary orders in accordance with law after considering all the material. The parties are directed to appear before him on 3-8-1995. The record be immediately sent back.