Criminal Miscellaneous No.4238 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ Arun Kumar @ Arun Kumar Gupta, Son of Sri Jagarnath Pd. Gupta, resident of Village-Deo, District- Aurangabad --- Petitioner Versus THE STATE OF BIHAR ------------- Opp.Party ------------ For the petitioner: Mr. Ramesh Kumar Agrawal, Advocate For the State : Mr. Parmanand Prasad, A.P.P. ------------- P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for the quashing of entire criminal prosecution including quashing of the order dated 27.8.1997 passed by the learned Special Judge ( E.C.Act) , Aurangabad in G.R. Case No.11 of 1993 ( arising out of Deo P.S. Case No.12 of 1993). By the order dated 27.8.1997,the learned Special Judge has taken cognizance of offence under Section 7 of the Essential Commodities Act,1955 ( herein after referred to as “the E.C. Act”). 2. The short facts of the case is that on 20.2.1998 an F.I.R. vide Deo P.S. Case No.12 of 1993 was registered on an allegation that on 20.2.1993, the Dy. Superintendent of Police, C.I.D. searched a truck near the shop of the petitioner and the said truck was found loaded with 46 bags of wheat . It was informed by the petitioner that he was carrying on business of food grains and said wheat was 2 being sent outside for selling at higher rate. Thereafter godown of the petitioner was also searched , from there 41 bags of wheat were recovered and accordingly in view of violation of the provision of Bihar Trade Articles( Licences Unifications) Order, 1984, the bags of wheat were seized and F.I.R. under Section 7 of the E.C.Act was lodged. After investigating the case, chargesheet was submitted in the case and thereafter the learned Special Judge ( E.C. Act), Aurangabad vide its order dated 27.8.1997 took cognizance of the offence under Section 7 of the E.C. Act and directed to issue process for appearance of the accused. 3. Sri Ramesh Kumar Agrawal, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance has taken a ground that the order of cognizance dated 27.8.1997 is liable to be set aside only on the ground of limitation as prescribed under Section 468 of the Code of Criminal Procedure. He submits that in the case date of occurrence was 20.3.1993 and on the same day , F.I.R. vide Deo P.S. Case No.12 of 1993 was registered and admittedly cognizance order was passed after the expiry of period of limitation , as prescribed under Section 468 of the Code of Criminal Procedure . Sri Agrawal has also submitted that in the confiscation preceding the District Magistrate had passed an order of confiscation. However, the said confiscation order was challenged by the petitioner and finally the Commissioner (food) had quashed the confiscation proceeding. He submits that since for the same allegation, the confiscation proceeding has finally ended in 3 favour of the petitioner; the criminal proceeding in the present case cannot be allowed to further proceed. Learned counsel for the petitioner further submits that the petitioner was a student and he was not having any connection with the business affairs. 4. On the aforesaid grounds, learned counsel for the petitioner has prayed for quashing of the order. Learned counsel during the course of hearing has produced a photo copy of the true copy of the order dated 16.1.1992 passed in Cr.Misc.No.8611 of 1989 by a Bench of this Court. He submits that in the said case, this Court had held that after expiry of period of limitation, no cognizance could have been taken and order of cognizance and proceeding in the said case was set aside by this Court. 5. Sri Parmanand Prasad, learned Addl. Public Prosecutor, has vehemently opposed the prayer of the petitioner. He submits that the ground, which has been taken by the petitioner regarding limitation in taking cognizance, is not at all sustainable in the eye of law. He submits that immediately after the occurrence virtually on the same date, F.I.R. was lodged by the police and thereafter chargesheet was submitted on 31.8.1993. He further submits that for the offence under Section 7 of the E.C. Act maximum punishment prescribed is imprisonment for two years and, as such, in the present case the period of limitation would be three years. He further submits that ending confiscation proceeding in favour of the petitioner has got no relevant in relation to the criminal proceeding, which has been initiated against this petitioner. So far as the stand 4 taken by the petitioner that the petitioner was student also has got no relevance in relation to the prosecution of the petitioner on the basis of allegation made in the F.I.R. 6. I have also examined the materials available on the record and from the F.I.R. itself specific case against the petitioner is made out. Perusal of the order dated 27.8.1997 makes its clear that the learned Special Judge, while taking cognizance of the offence by the said order, had examined the materials available on the record and by assigning reason he has passed order of cognizance. Prima facie, I do not find any defect in the order dated 27.8.1997 passed by the learned Special Judge. So far as the ground taken by Sri Agrawal that the order impugned is liable to be set aside in view of limitation as prescribed under Section 468 of the Code of Criminal Procedure is concerned, I am of the view that the submission of the learned counsel for the petitioner has got no force. The copy of the order, which was produced by the petitioner, passed in Cr.Misc.No.8611 of 1989 dated 16.1.1992, does not help the petitioner in the facts and circumstances of the present case. In the said case, it appears that only two facts were brought to the notice of the court i.e. the date of occurrence and date of taking cognizance. In the present case immediately after the occurrence, i.e. on 20.2.1993, an F.I.R. was lodged on the same day. After investigation, chargesheet was submitted on 31.8.1993, as has been stated in paragraph 5 of the petition. Meaning thereby that the F.I.R. was lodged within the prescribed period as well as even the chargesheet was submitted by the police within the prescribed period 5 of three years. As per Section 468(1)(c) of the Code of Criminal Procedure in a case punishable with imprisonment for a term exceeding one year but not exceeding three years, period of limitation is three years. While examining the period of limitation, I am of the view that it is required to be looked into as to whether from the date of occurrence either F.I.R. or complaint was filed within the period of limitation or not. Recently in a case reported in 2007 AIR SCW 4998 (Japani Sahu Vrs. Chandra Shekhar Mohanti) it has been held that if the complaint or F.I.R. was lodged within the period of limitation then it hardly matters when cognizance is taken. At this stage, it would be appropriate to quote the views of Hon’ble Supreme Court in Japani Sahu’s case (Supra) recorded in paragraph 51 of its Judgment, which is as follows: “51. ---------- To us, two things, namely, (1) filing of complaint or initiation of criminal proceedings; and (2) taking of cognizance or issuing process are totally different, distinct and independent . So far as complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything, which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustration cases and not exhaustive in nature), it may not be possible for the court or the magistrate to issue process or take cognizance. But a complainant cannot be penalized for 6 such delay on the part of the court nor can he be non- suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such cases, the doctrine “actus curiae neminem gravabit” (an act of Court shall prejudice none) would indeed apply (vide Alexandar Rodger V. Comptoir D’ Escompte,( 1871) 3 LRPC 465). One of the first and highest duties of all courts is to take care that an act of Court does no harm to suitors. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.” 7. Accordingly, in view of the Japani Sahu’s case (Supra), I am of the view that in the facts and circumstances of the present case , the order of taking cognizance cannot be set aside on the ground of limitation as suggested by Sri Agrawal , learned Counsel appearing on behalf of the petitioner. 8. So far as the second ground, which has been taken by the petitioner that in view of termination of confiscation proceeding in favour of the petitioner, the criminal proceeding in the 7 present case cannot proceed , is concerned, I am of the view that this submission has got no substance. On similar point, earlier a case was referred to a larger Bench and finally by a Judgment and order dated 14.9.2009 passed in Cr.Misc.No. 17707 of 1995 with Cr.Misc.No.17417 of 1995, a Full Bench of this Court has held that merely on the ground of dropping of confiscation proceeding on the same allegation criminal prosecution cannot be set aside. In view of the law set at rest by Full Bench of this Court I do not have any option but to hold that the plea of the petitioner regarding quashing of criminal prosecution in the present case on the ground of allowing confiscation case in favour of the petitioner is simply to be noticed for its rejection. Similarly the ground taken by the petitioner that the petitioner was a student and he was not having any connection with the business in question, I am of the view that such thing cannot be looked into by this Court at the initial stage of the case while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 9. In view of the facts and circumstances of the case, I am of the view that the petitioner has not made out a case warranting exercise of power under Section 482 of the Code of Criminal Procedure of this Court in favour of the petitioner. There is no merit in the petition. 10. Accordingly, the petition stands rejected. 11. By the order dated 9.8.1999 while admitting the present case, this Court had directed that during the pendency of this 8 case, further proceedings as regards the petitioner in G.R. No.11/93 (arising out of Deo P.S. Case No.12 of 1993 dated 20.2.93 (State V.Arun Kumar) in the court of Special Judge (E.C. Act), Aurangabad, shall remain stayed and the order of stay is still continuing. In view of rejection of the present petition, the order of stay stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated: the 16th April,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )