IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20806 of 1998 1. R.K.P.VERMA SON OF LATE BIRJU PRASAD 2. PRABHAT RANJAN SON OF R.K.P. VERMA 3. PRANAY DEV RANJAN SON OF R.K.P. VERMA ALL ARE RESIDENTS OF BANCHAPRA,P.S.M,UFFASIL, BETTIAH, DISTRICT- WEST CHAMPARAN………………………………. PETITIONERS VERSUS 1. STATE OF BIHAR 2. GOPALJI RAI SON OF LATE RAJESHWAR RAI, RESIDENT OF MOHALLA- BANU CHAPRA, P.S. BETTIAH MUFASSIL, DISTT. WEST CHAMPARAN…OPP.PARTIES. - ---------- FOR THE PETITIONER:- MR.ANISH KUMAR,ADVOCATE FOR THE OPP.PARTIES:- MR.MURARI NARAIN CHOUDHARY – ADVOCATE FOR THE STATE :- MR.DAMODAR PD.TIWARY,APP. ------------ 3 16-4-2010 Heard learned counsel for the petitioners, learned counsel for the State and learned counsel appearing for opposite party no.2, the complainant. 2. Petitioners are accused in Complaint Case No. 961(C )/1997 in which learned Chief Judicial Magistrate, Bettiah has taken cognizance by the impugned order dated 30-5-1998 for offences under sections 448,341,323,506/34 of the Indian Penal Code. 3. From the order dated 22.9.1998 whereby this quashing application was admitted and further 2 proceedings were stayed, it appears that the main point urged against the order of cognizance was plea of limitation as provided under section 468(2) of the Code of Criminal Procedure. 4. It has been submitted on behalf of the petitioners that the alleged occurrence is of 28-7-1992 and the complaint petition has been filed on 17-11- 1997. It was pointed out that the offences in which cognizance has been taken are minor offences requiring trial as `summons case’ and the maximum punishment for the offences in question can be only two years rigorous imprisonment, hence the learned Chief Judicial Magistrate should have kept the issue of limitation in his mind and applied himself to the question whether the explanation given in the petition of complaint to the effect that earlier the complainant had filed a police case in which police found the allegation false and submitted final form and protest of the complainant was rejected and he persued his 3 remedy up to the Supreme Court but lost, provided sufficient explanation for delay or not specially in view of proviso to Section 470 of the Code of Criminal Procedure. 5. Section 468(2) provides the period of limitation for the offences in question as three years but under section 470 while computing the period of limitation the time during which the complainant had been prosecuting with due diligence another prosecution, against the offender shall be excluded. The proviso further provides 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. Learned counsel for the petitioners has submitted that the earlier prosecution in the present case failed not bcause of defect of jurisdiction or a cause of like nature but as would appear from the order of the Sessions Judge 4 passed in Cr.Revision No. 89 of 1994 dated 8th July,1994 ( Annexure-5), the entire aspect of the prosecution case was considered on merits and the learned Sessions Judge held on merits that the I.O. had correctly submitted the final report and the learned Chief Judicial Magistrate was also right in accepting the same. Hence, it has been submitted that for the purpose of excluding the time taken by the prosecution ( the complainant) the earlier prosecution failed not because of defect of jurisdiction or some other similar cause but on merits and hence the delay could not have been explained and accepted by exclusion of time when the complainant was pursuing with due diligence proceedings in respect of a police case before the Sessions Judge or through quashing application before this Court or by way of further appeal before the Apex Court. 6. On careful consideration of the facts and circumstances appearing from the records of this case 5 and the aforesaid submissions this Court finds merit in the submissions advanced on behalf of the petitioner. In the present case the earlier prosecution though related to the same facts and may have been prosecuted in good faith but still further requirement of the proviso of Section 470 was not satisfied and hence for such minor offences the learned Chief Judicial Magistrate was not justified in excluding the period spent in earlier litigation and to condone the limitation prescribed by section 468(2) Cr.P.C. on that basis. 7. It is further noticed that now 18 years have elapsed since minors offences were allegedly committed. Considering the long delay and the issue of limitation as discussed above this application is allowed and the impugned order of cognizance is hereby quashed. ( Shiva Kirti Singh,J) 6 Naresh