Criminal Miscellaneous No.8828 OF 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------ 1.CHHOHARIA DEVI wife of Raudi Singh 2.Basundhara Devi wife of Ramanand Singh 3.Suresh Singh son of Dibangat Sheo Prasad Singh 4.Ramjanam Singh 5.Ramashish Singh Both sons of Raudi Singh 6.Chandrika Singh son of Dibangat Lakhan Lal Singh 7.Raj Bahadur Singh son of Dibangat Mewa Lal Singh 8.Raudi Singh son of Dibangat Parmeshwar Singh All resident of village-Panapur Kushari, P.S.-Bidupur, Dist.-Vaishali. ….. ……Petitioners Versus 1.THE STATE OF BIHAR 2.Muneshwar Siingh son of late Rupan Singh, Resident of village-Mahindra, P.O.-Jandaha, P.S.-Mahnar, Dist.-Vaishali ….. ….Opp. Parties ------- For the petitioners: Mr.Mahesh Prasad No.2 and Rewati Kant Rama For Opp.Party No.2: Mr.Ram Sagar Mahto For the State: Mr.Amarendra Prasad, APP --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. The petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 20.3.1999 passed by the Chief Judicial Magistrate, Vaishali at Hajipur in Bidupur P.S. Case No.330 of 1998. By the said order the learned Magistrate had taken cognizance for the offences under sections 147, 148, 323, 379 and 427 of the Indian Penal Code. 2. The short fact of the case is that opposite party no.2 filed a complaint case bearing Complaint Case No.2411 of 1998 in the court of Chief Judicial Magistrate, Vaishali at Hajipur. The complaint petition was filed on 14.12.1998 and on the same date the learned Magistrate directed for its investigation by the 2 police after registering case under section 156(3) of the Code of Criminal Procedure and, accordingly, on the same date i.e. 14.12.1998 a first information report vide Bidupur P.S. Case No.330 of 1998 was registered for the offences under sections 147, 148, 323, 379 and 427 of the Indian Penal Code against the petitioners, who were arrayed as accused in Complaint Case No.2411 of 1998. 3. Mr. Mahesh Prasad No.2, learned counsel appearing on behalf of the petitioners submits that after registering the case the police investigated the same and during investigation the allegation of the complainant was found false and, as such, the police while submitting final form as false case, recommended for prosecution of the complainant for the offences under sections 182 and 211 of the Indian Penal Code. He further submits that after submission of the final form, by order dated 9.3.1999 the learned chief Judicial Magistrate fixed the date in the case to 1.4.1999 for hearing the parties on protest petition as well as on final form. Learned counsel for the petitioner has also referred the order dated 17.3.1999 passed by learned Chief Judicial Magistrate. A certified copy of the same has been enclosed along with the present petition. While referring to the order dated 17.3.1999, Mr.Mahesh Prasad submits that, to the reasons best known to the learned Magistrate, on the basis of a petition filed by the informant/complainant for recording of statement of certain persons under section 164 of the Cr.P.C., learned Magistrate allowed the petition and deputed one Md.Shamim Akhtar, Judicial 3 Magistrate, Vaishali at Hajipur for recording of the statement of the witnesses under section 164 Cr.P.C.. On 18.3.1999 the Judicial Magistrate recorded the statement of two witnesses under section 164 Cr.P.C., namely Laxmi Prasad Sudhanshu and Paras Nath Singh. Learned counsel submits that Paras Nath Singh was not cited as a witness in the complaint/protest petition. Again on 19.3.1999 the statement of one witness Suresh Kumar Singh was recorded under section 164 Cr.P.C. Mr. Mahesh Prasad submits that Suresh Singh was not cited as a witness in the complaint case and Md. Shamim Akhtar, learned Judicial Magistrate, Vaishali at Hajipur fixed the date as 20.3.1999 for recording evidence of other witnesses but on 20.3.1999 none was examined and thereafter on the same date the learned Judicial Magistrate sent back the record to learned Chief Judicial Magistrate and on the same date i.e. 20.3.1999 the learned Chief Judicial Magistrate passed the order of cognizance which has been challenged by the petitioners before this court. 4. While challenging the order of cognizance and the entire proceeding, learned counsel for the petitioner has firstly argued that once the learned Chief Judicial Magistrate had fixed the case to 1.4.1999 for hearing on protest petition as well as on final form, the learned Chief Judicial Magistrate had no authority to prepone the date only with a view to pass an order on the petition filed by the complainant for recording the statement of some witnesses under section 164 Cr.P.C. He submits that by preponing the date the learned Magistrate has virtually recalled his 4 earlier order which is not permissible in the eye of law particularly in view of section 362 of the Cr.P.C. 5. Learned counsel for the petitioner has also relied upon a judgment of the Supreme Court reported in A.I.R. 1977 S.C. 2432 (Bindeshwari Prasad Singh Vs. Kali Singh). He further submits that once final form was submitted by the police in the case and protest petition was also filed by the complainant, the learned Chief Judicial Magistrate was entitled to either proceed with the protest petition treating the same as a complaint or he would have taken cognizance differing with the police report but at the same time the learned Chief Judicial Magistrate was having no authority to allow a petition filed by the complainant for recording the statement of witnesses under section 164 Cr.P.C. Learned counsel further relied upon a judgment of Hon’ble Supreme Court reported in A.I.R. 1999 S.C. 2565 (Jogendra Nahak and others Vs. State of Orissa and others). He submits that in view of law laid down by the Hon’ble Supreme Court, the learned Chief Judicial Magistrate has committed gross error while deputing a Magistrate for recording statement of the witnesses under section 164 Cr.P.C. after submission of final form by the police. He submits that on 20.3.1999 Mr. Shamim Akhtar, Judicial Magistrate, Vaishali at Hajipur had sent back the record of the case to the learned Chief Judicial Magistrate after recording the statement of the witnesses under section 164 Cr.P.C. and on the same date without any delay the learned Chief Judicial Magistrate has passed the impugned order. On these grounds learned counsel 5 for the petitioners has submitted that the order of cognizance is illegal, without jurisdiction and is liable to be set aside. 6. Mr. Ram Sagar Mahto learned counsel appearing on behalf of opposite party no.2 submits that for the ends of justice it would be necessary that the matter may be remitted back to the learned Chief Judicial Magistrate for passing an order on cognizance after hearing both the parties. He further submits that in view of allegation made in the complaint petition it is apparent that the accused persons, who are petitioners before this court, have committed serious offence. The allegation in the complaint petition is that the accused persons variously armed forcibly cut the bamboo trees of the complainant and after objection being raised by the complainant he was chased upto his residence and the accused persons entered into the house of the complainant. They assaulted him and took away house hold articles and also food grains and, as such, keeping in view the seriousness of the allegations it would be necessary that while quashing the order of cognizance this court may direct the court below to proceed further in accordance with law. 7. I have also heard Mr. Amrendra Prasad, learned A.P.P., appearing on behalf of the State, who has supported the stand of the learned counsel appearing on behalf of opposite party no.2. 8. I have also examined the materials available on the record of the case as well as perused the impugned order. Prima facie, I am of the view that the learned Chief Judicial 6 Magistrate has exceeded its jurisdiction while passing the impugned order. Once in a case final form was submitted and protest petition was also filed by the complainant, the learned Magistrate was entitled either to take cognizance on the basis of materials available in the police report differing with the final form or he would have proceeded with the protest petition treating the same as complaint petition. At the same time, he was not having any authority to entertain a petition of the complainant/informant for recording the statement of the witnesses under section 164 Cr.P.C. and, as such, all subsequent action taken pursuant to the direction of the learned Chief Judicial Magistrate is liable to be set aside and accordingly order of cognizance on the basis of such materials is liable to be set aside and is hereby set aside. However, for the ends of Justice it would be appropriate to remit back the matter to the learned Chief Judicial Magistrate, Vaishali at Hajipur, to proceed with the matter afresh. While I was dictating this order, Mr. Mahesh Prasad raised an objection that in view of section 468 of the Cr.P.C. no cognizance in the case can be taken after expiry of period of limitation. Learned counsel has referred to section 468(1)(c) of the Cr.P.C. and he submits that in this case since punishment is imprisonment for more than one year, the period of limitation of taking cognizance would be three years from the date of occurrence. 9. So far as submissions advanced by Mr. Mahesh Prasasd learned counsel for the petitioners is concerned, I am of 7 the view that unless the order of cognizance is passed afresh after remand the plea at this stage cannot be taken. Moreover, in the present case occurrence was of dated 13.12.1998 and immediately thereafter on the next day he filed the present complaint case in the court of learned Chief Judicial Magistrate. On the same day his complaint was referred to the police for its investigation. After registering the case, the police investigated the same. However, final form was submitted by the police but at the same time the complainant filed a protest petition and the learned Chief Judicial Magistrate in the present matter by the impugned order had taken cognizance of the offences. This shows that the complainant was diligently pursuing the matter and he had not slumbered over his right. Moreover, the Hon’ble Supreme Court in a case reported in 2007 AIR SCW 4998 (Japani Sahoo Vs Chandra Shekhar Mohanty) has made it clear that while hearing on limitation matter in respect of taking cognizance of the offence, the court is required to see as to whether within the prescribed time complaint or first information report was lodged or not ? It was clarified that due to failure on the part of the court one cannot be allowed to suffer. In view of the law laid down by the Hon’ble Supreme Court reported in Japani Sahoo case (supra), I am of the view that question of limitation, though at the moment is not required to be looked into, may not come in the way of taking cognizance if the learned Chief Judicial Magistrate considers to pass an order on the basis of materials available before him. Accordingly, objection raised by the Mr. Mahesh Prasad, besides not tenable in the eye of law, is 8 premature. 10. With the above observation this petition is disposed of and the case is remitted back to the court below for passing an order afresh in accordance with law. Patna High Court, The 13th April, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)