CRIMINAL MISCELLANEOUS No.1662 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. SHEO SHANKAR TIWARY 2. JAI PRAKASH NR. TIWARY BOTH SONS OF RAM CHANDRA TIWARY, RESIDENT OF GANESH STHAN MANJHA, POLICE STATION MIRGANJ, DISTRICT GOPALGANJ. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. UDAY NARAIN TIWARY, SON OF LATE CHIRKUT TIWARY, RESIDENT OF VILLAGE GANESH ASTHAN MANJHA, P.S. MIRGANJ, DISTRICT GOPALGANJ. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Dhananjay Kumar, Adv. Sunil Prasad, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 10.6.1998 whereby the learned Judicial Magistrate, Gopalganj had taken cognizance of offence under Sections 341 and 323 of the Indian Penal Code in Mirganj (Hathwa) P.S. Case No.221 of 1995/Trial No.582 of 1999, which was instituted on the basis of a complaint case vide Complaint Case No.690 of 1995. The petitioners have also prayed for quashing of order dated 18.12.1999, whereby 2 discharge petition filed by the petitioners was rejected. 2. Short fact of the case is that the opposite party no.2 on 24.7.1995 filed a complaint vide Complaint Case No.690 of 1995 in the court of Chief Judicial Magistrate, Gopalganj for the offence under Sections 392/34 of the Indian Penal Code with an allegation that on the date of occurrence i.e. on 23.7.1995, while he was returning, he was intercepted by the two petitioners and on the point of country made pistol, he took Rs.500/- of the complainant as well as they forcibly took his Avon Bicycle. After filing the complaint petition, it was referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure and, accordingly, an F.I.R. vide Mirganj (Hathwa) P.S. Case No.221 of 1995 was instituted. During investigation, the allegation in respect of snatching Rs.500/- and bicycle of the complainant was found untrue. However, the police submitted charge sheet under Sections 341 and 323 of the Indian Penal Code. In this case, after submission of charge sheet, the 3 matter was kept pending for a long and thereafter, on 10.6.1998, the learned Magistrate took cognizance of the offence under Sections 341 and 323 of the Indian Penal Code. 3. At the stage of charge, a petition was filed on behalf of the petitioners for their discharge. The ground for discharge was mainly raised that the order of cognizance was passed after expiry of more than three years from the date of occurrence and as such it was barred under Section 468(2)(b) of the Code of Criminal Procedure. Other grounds were also taken for their discharge that the complaint petition was filed maliciously by the complainant since the petitioners and complainant were neighbours and regarding land dispute proceeding under Section 144 as well as under section 107 of the Code of Criminal Procedure was going on in between the parties. However, the learned Magistrate, by its order dated 18.12.1999, rejected the plea of the petitioners and directed for remaining physically present for framing of the charge. The learned Magistrate, while fixing the case for framing of the charge, 4 observed that accused will be charged for the offence under Sections 341, 323 and 379 of the Indian Penal Code. 4. Aggrieved with both the orders i.e. order dated 10.6.1998 as well as order dated 18.12.1998, both the petitioners approached this Court by filing the present petition and by an order dated 15.1.2001, the present petition was admitted. This court directed for issuance of notice to opposite party no.2. In the meanwhile, it was directed that further proceeding dated 18.12.1999 shall remain stayed and order of stay is still continuing. 5. Shri Dhananjay Kumar, learned counsel appearing on behalf of the petitioners, while pressing the present petition, submits that the order of cognizance was bad in law since it was barred by limitation under Section 468(2)(b) of the Code of Criminal Procedure. It was pointed out that alleged occurrence in the present case had taken place on 23.7.1995. However, order of cognizance was passed on 10.6.1998. Accordingly, the order of cognizance was liable to be set aside on the ground of 5 delay. It was further submitted that the present case was initiated maliciously on all allegations by opposite party no.2 with whom the petitioners were in litigation term. While referring to paragraph-9 at page-7 to the petition, learned counsel for the petitioners has argued that proceeding under Sections 144 and 107 of the Code of Criminal Procedure was going on in between the parties and petitioners were neighbours of the complainant and as such there was no occasion for the petitioners to commit such crime. On the contrary, it was submitted that the present case was filed with a view to put pressure in respect of land dispute between the parties. It was further submitted that in the case alleged trivial occurrence had taken place long back in the month of July, 1995 and after lapse of more than 15 years, it would not be appropriate to direct both the petitioners to participate in the proceeding before the court below. It was argued that at the time of admission of this case, the court was ‘prima facie’ satisfied that allegations were false and as such this Court had passed an order of stay on 15.1.2001 and notices 6 were also issued to the opposite party no.2, but opposite party no.2 has not preferred either to appear personally or through his advocate. According to Shri Dhananjay Kumar, by efflux of time, it appears that the complainant has also lost his interest in the present case and as such the entire proceeding is liable to be set aside. 6. In this case, notices were issued and validly served on opposite party no.2. However, he has not entered appearance in the present case. 7. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has opposed the prayer of the petitioners. It was submitted by her that in view of recent judgment of Hon’ble Supreme Court reported in 2007 AIR SCW 4998 (Japani Sahu Vs. Chandra Shekhar Mohanti), order of cognizance on the ground of limitation cannot be set aside in the facts and circumstances of the present case. It was submitted by State counsel that in the case, occurrence had taken place on 23.7.1995 and immediately on the next date i.e. on 24.7.1995, the opposite party no.2 filed a 7 complaint vide Complaint Case No.690 of 1995, which was referred to the police and thereafter, an F.I.R. vide Mirganj (Hathwa) P.S. Case No.221 of 1995 was instituted on 1.1.1995 and thereafter, charge sheet was submitted under Sections 341 and 323 of the Indian Penal Code on 9.1.1996 i.e. within the period of one year has contemplated under Section 468(2)(b) of the Code of Criminal Procedure. Accordingly, it was argued that there were no latches on the part of the complainant and as such on the ground of limitation, order of cognizance may not be quashed. Accordingly, she has prayed to reject the present petition. 8. Besides hearing learned counsel for the petitioners as well as learned Additional Public Prosecutor, I have perused the materials available on record. I am in agreement with the submission of the learned Additional Public Prosecutor that in view of the facts and circumstances of the present case as well as recent judgment of Hon’ble Supreme Court in Japani Sahu’s case (Supra), order of cognizance in the present case cannot be quashed on the ground of 8 limitation. So far as other points are concerned, the court feels that there are some substances. The petitioners were neighbours of the complainant. It has not been disputed that litigation in between the parties was going on. In such situation, it is difficult to accept the contention that the petitioners had committed the crime in respect of snatching of Rs.500/- and bicycle of the complainant. Moreover, during investigation, allegation in respect of snatching Rs.500/- and bicycle of the complainant was found false and charge sheet was submitted only under Sections 323 and 341 of the Indian Penal Code. For the offences under Sections 323 and 341 of the Indian Penal Code, maximum sentence is imprisonment for one year and as such after lapse of more than 15 years, as submitted by learned counsel for the petitioners, the court considers that it would not be just and proper to direct the petitioners to participate in the proceeding before the court below in view of peculiar facts and circumstances of the present case. Fact remains that after rejection of the discharge 9 petition, this Court has stayed the proceeding by its order dated 15.1.2001 and order of stay is still continuing and as such allowing the prosecution in the facts and circumstances of the present case to further proceed will amount to abuse of the process of the court and for the ends of justice as well as with a view to prevent abuse of the process of the court, it is necessary to exercise inherent jurisdiction in favour of the petitioners and, accordingly, both the orders i.e. order dated 10.6.1998 as well as order dated 18.12.1999 passed by the Judicial Magistrate, Gopalganj in Mirganj (Hathwa) P.S. Case No.221 of 1995, Trial No.582 of 1999 are hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 12.7.2010 N.A.F.R./N.H.