IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.816 of 2002 1. Meera Devi, wife of Late Shivandra Narayan Singh, resident of village-Murho, P.S. & District- Madhepura. 2. Jhakash Rishidev, son of Late Moti Rishideo, resident of village-Murho, P.S. & District- Madhepura. ………Petitioners Versus 1. The State of Bihar. 2. Mr. Ashok Kumar, son of Mr. Bishun Kumar, resident of village-Murho, P.S. & District- Madhepura. .... .... Opposite parties ================================================== Appearance : For the Petitioners : Mr. U.N. Singh, Advocate : Mr. Akhilesh Kumar, Advocate For the State : Mrs. Indu Bala Pandey, A.P.P. For the O.P.No.2 : Mr. Mritunjay Kumar, Advocate ================================================== ========= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Amaresh Kumar Lal, J. The accused petitioners have preferred this revision application against the order dated 30.07.2002 passed by the learned Sub-Divisional Judicial Magistrate, Madhepura in Complaint Case No.20C/2000 by which cognizance has been taken against them for the offence punishable under Section 379 of the I.P.C. Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 2 Ashok Kumar, the opposite party no.2 filed a Complaint Case No.670/1998 in the court of Chief Judicial Magistrate, Madhepura, which was sent to the police station and registered as Madhepura P.S. Case No.10/1999. After investigation, it was found a land dispute and final form was submitted. The complainant filed the protest petition, which was registered as Complaint Case No.20C/2000 and after inquiry, the learned S.D.J.M, Madhepura has taken cognizance for the offence punishable under Section 379 of the I.P.C. against the petitioners. The main contention of the learned counsel for the petitioners is that the date of occurrence is 24.11.1998 and the allegation is under Section 379 of the I.P.C. The maximum period for sentence under Section 379 of the I.P.C. is three years, whereas, the cognizance has been taken on 30.07.2002 under Section 379 of the I.P.C. by the impugned order without hearing the accused or without condoning the delay. The learned counsel for the petitioners further submits that it appears from the cognizance order that the period of limitation as mentioned in Section 468 Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 3 Cr.P.C. has not been considered nor the period of limitation has been extended under Section 473 Cr.P.C. As such, the impugned order taking cognizance against the petitioners is bad in law. In support of his contention, he has relied upon a decision in the case of P.K.Chaudhary Vs. Commander, 48 BRTF (GREF) reported in (2008) 13 SCC 229. The learned counsel for the opposite parties submits that there is no delay on the part of the complainant, opposite party no.2 in filing the case. The date of occurrence is 24.11.1998 and the complaint case was filed on the same very date on 24.11.1998 as complaint case no.670/1998. Later on, it was sent to the police station and Madhepura P.S. Case No.10/1999 was instituted. After investigation, final form was submitted on 4.06.1999 holding a civil case. The complainant filed the protest petition, which has been registered as Complaint Case No.20C/2000. The complainant has been examined on S.A. on 24.01.2000 and other witnesses have been examined. The court remained vacant. As such, the cognizance could not be taken at an early date. Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 4 Therefore, in view of the provisions contained in Section 470 Cr.P.C. in computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a court of first instance or in a court of appeal or revision, against the offender shall be excluded. The complainant was not in error. He has filed the complaint case on the date of the occurrence itself i.e.24.11.1998 He has further submitted that under Section 471 Cr.P.C., the period of limitation has to be excluded when the court is closed and he has further submitted that under Section 473 Cr.P.C., the learned Magistrate has power to take cognizance even after expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. Apparently, the cognizance has been taken on 30.07.2002 beyond the period of limitation. It means that the learned magistrate has considered that it is necessary to take cognizance in the interest of justice. In support of his contention, he has relied Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 5 upon a decision in the case of Ramesh & Ors. Vs. State of Tamil Nadu reported in 2005 (2) PLJR (SC) 193. After hearing the learned counsel for both the parties and considering the material on the record, it appears that it is admitted position that the date of occurrence is 24.11.1998 and the cognizance has been taken under Section 379 of the I.P.C. on 30.07.2002 by the learned Sub-Divisional Judicial Magistrate, Madhepura. It appears that the period of limitation for taking cognizance for the offence punishable under Section 379 of the I.P.C. is three years and the maximum period of sentence is also three years. It does not appear from the impugned order that the learned Magistrate has considered the period of limitation as to whether the cognizance is barred by the period of limitation and it is necessary to condone the delay in the interest of justice or not. In case of Ramesh & Ors. (Supra), it has been held in paragraph 8 that “……..the learned Magistrate should have paused to consider the question of limitation before taking cognizance and he should Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 6 have addressed himself to the question whether there were grounds to extend the period of limitation. On account of failure to do so, we would have, in the normal course, quashed the order of the Magistrate taking cognizance and directed him to consider the question of applicability of Section 473. However, having regard to the facts and circumstances of the case, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution to remit the matter to the trial court for taking a decision on this aspect…………..” It appears that in that decision also, the Hon’ble Supreme Court has taken note of the fact that the learned Magistrate should have considered the question of limitation before taking cognizance. In this view of the matter, the decision in the case of Ramesh and others (Supra) is not helpful to the opposite parties; rather, it appears that it is helpful to the petitioners. Admittedly, it does not appear from the impugned order that while taking cognizance, the learned Magistrate has taken note of the fact that the occurrence has taken place on 24.11.1998 and the cognizance is Patna High Court CR. REV. No.816 of 2002 dt.19-12-2011 7 being taken for the offence punishable under Section 379 of the I.P.C. It must appear from the order taking cognizance that the learned Magistrate has considered as to whether it is a fit case in which the delay should be condoned or there is sufficient explanation for condoning the delay. Considering the facts and circumstances stated above, in my opinion, the impugned order is not fit to be sustained. The impugned order is set aside. The case is remanded to the learned Sub-Divisional Judicial Magistrate, Madhepura for passing a fresh order after hearing both the parties on the question of limitation. In the result, this revision application is allowed. Patna High Court, Patna Dated, the 19th of December, 2011 A.F.R./V.K. Pandey ( Amaresh Kumar Lal, J.)