Criminal Miscellaneous No.21231 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- UMA SHANKAR PRASAD, SON OF LATE BADRI NARAIN PRASAD, RESIDENT MAHANAR, P.S. MAHNAR, DISTRICT VAISHALI. ... ... PETITIONER. Versus 1. STATE OF BIHAR 2. ASHARFI RAI SON OF BABAN RAI, RESIDENT OF PAHARPUR, P.S. JURAWANPUR, DISTRICT VAISHALI. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Ratan Deep Prasad, Adv. For the State : Mr. Jharkhandi Upadhyaya, A.P.P. ---- P R E S E N T THE HON'BLE MR. 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 quashing of order dated 3.6.1999 passed by Sri A.L. Srivastava, Judicial Magistrate, Ist Class, Hajipur, Vaishali whereby he took cognizance of offence under Section 406 of the Indian Penal Code. The petitioner has further prayed for quashing of order dated 1.7.1999 passed by learned Magistrate whereby his discharge petition was rejected. The petitioner has also prayed for quashing of entire prosecution in Complaint Case No.336 of 1997 pending in the court of Sri A.K. Pathak, Judicial Magistrate, Ist Class, Vaishali at Hajipur. 2 2. Short fact of the case is that on 26.2.1997, the opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Hajipur vide Complaint Case No.336 of 1997 alleging therein that on 8.3.1991, he had purchased land from one Bhajan Choudhary, who had executed sale deed in favour of the complainant. It was alleged that the said sale deed was prepared by the father of the petitioner, namely, Badri Narayan Prasad, who was a Deed Writer at the relevant time. It was disclosed in the complaint petition that since Badri Narayan Prasad was an old man, he was being assisted by this petitioner, who was son of Badri Narayan Prasad. After registration of the deed, the receipt (Chirkut) was endorsed to Badri Narayan Prasad, father of the petitioner. Subsequently, Badri Narayan Prasad died and thereafter, the complainant time without number approached this petitioner for giving the original deed after obtaining from the registry office. Several time, assurance was given by the petitioner, but neither receipt nor original document was ever handed over to the complainant. However, at subsequently stage, the complainant came to know that his vendor had cancelled the said sale deed, which was earlier executed in favour of 3 the complainant. On aforesaid allegation, the complaint was filed for the offence under Sections 406 and 420 of the Indian Penal Code arraying this petitioner as sole accused in Complaint Case No.336 of 1997. The complaint petition was filed on 26.2.1997. The learned Magistrate, after conducting enquiry, took cognizance of offence under Section 406 of the Indian Penal Code and thereafter, when the case reached to the stage of charge, a discharge petition was filed by this petitioner, which was rejected on 1.7.1999 by the learned Magistrate. 3. Aggrieved with the order of cognizance dated 3.6.1997 passed by learned Magistrate and order dated 1.7.11999 whereby discharge petition of the petitioner was rejected, the petitioner approached this Court by filing the present petition, which was admitted on 2.3.2000 and while directing for issuance of notice to opposite party no.2, this Court had directed that pending disposal, further proceeding in Complaint Case No.336 of 1997 pending in the court of Sri A.K. Pathak, Judicial Magistrate, Ist Class, Vaishali at Hajipur shall remain stayed and order of stay is still operative. 4. Shri Ratan Deep Prasad, learned counsel 4 appearing on behalf of the petitioner, has challenged both the orders as well as entire prosecution on several grounds. His first attack to the order of cognizance was that the order of cognizance was barred under Section 468(2)(c) of the Code of Criminal Procedure. It was submitted that the order of cognizance was passed for the offence under Section 406 of the Indian Penal Code and under that provision maximum sentence as prescribed under the Indian Penal Code is three years. He submits that in the complaint petition, specific date for occurrence was mentioned as 8.3.1991. Accordingly, the order of cognizance was passed much after expiry of the period of limitation i.e. three years as per Section 468 (2) (c) of the Code of Criminal Procedure. He further submits that it is not a case that the petitioner had noticed the occurrence at a later stage, but from Annexure-2 to the petition, it is evident that the complainant was knowing well regarding the occurrence in the year 1992 itself and, accordingly, the complainant had filed a suit vide Title Suit No.4 of 1993 for declaring deed of cancellation by his vendor as void. While referring to paragraph-17 to the copy of the plaint, which is photo copy of certified copy of the plaint annexed 5 as Annexure-2 to the petition, learned counsel for the petitioner submits that in paragraph-17, the present complainant has disclosed in Title Suit No.7 of 1993 that finally in the year 1992, he completely came to know regarding the occurrence and as such there was no occasion for the complainant to file a complaint after lapse of more than three years and similarly, the learned Magistrate before taking cognizance was required to proceed as per the provisions contained in Chapter- XXXVI of the Code particularly Section 468(2)(c) of the Code of Criminal Procedure. 5. Besides ground of limitation, learned counsel for the petitioner has argued that on perusal of the complaint petition itself, it is clear that entire allegation was levelled against the father of the petitioner as well as the vendor. Surprisingly, the complainant neither impleaded the vendor as accused nor there was no any occasion to implead father of the petitioner as accused in the complaint petition. It was submitted that if for the time being, it is assumed that offence was committed, it can be said that it was the vendor, who had committed the offence and the petitioner had got no role to play in the occurrence. On the aforesaid grounds, learned counsel for the 6 petitioner has prayed for quashing of the entire prosecution including order dated 3.6.1997 i.e. order dated 11.7.1999 whereby discharge petition of petitioner was rejected. 6. Shri Jharkhandi Upadhyaya, learned Additional Public Prosecutor, appearing on behalf of the State, has vehemently opposed the prayer of the petitioner. He submits that in view of settled law, the petitioner is required to raise all the points before appropriate court and this Court, while exercising power under Section 482 of the Code of Criminal Procedure is not required to interfere at initial stage of a criminal proceeding. Accordingly, he has prayed for rejection of the present petition. 7. In this case, despite the fact that opposite party no.2 has entered appearance through his advocate, at the time of hearing, none appeared on his behalf. 8. Besides hearing learned counsel for the petitioner and learned counsel for the State, I have also perused the materials available on record. It is true that while hearing a petition under Section 482 of the Code of Criminal Procedure, this Court is not required to look into those documents, which have neither been brought on 7 record before the court below nor same has been proved in accordance with law, but in view of the peculiar facts and circumstances of the present case, this Court had examined the Annexure-2, which is photo copy of certified copy of a plaint, which was filed in Title Suit No.4 of 1993 by the informant and his two brothers. In paragraph-17 of the plaint, at least it was made clear that on 21.2.1992, he was aware that occurrence had taken place. So the submission of learned counsel for the petitioner that complainant was knowing much prior to expiry of limitation regarding the occurrence still he did not file complaint within the prescribed time nor any petition was filed for condonation of delay before the court below. The court is satisfied that the order of cognizance, which was passed on 3.6.1997 in an occurrence, which had taken place on 8.3.1991 was squarely barred under Section 468(2)(c) of the Code of Criminal Procedure. Latches were on the part of the complainant and as such for their latches, the petitioner may not suffer. Moreover, the perusal of the complaint petition also indicates that there were no specific materials against the petitioner disclosing commission of any offence. 9. Without recording any finding on the 8 merit of the case, this Court is persuaded to quash the entire proceeding particularly order of cognizance, which was passed on 3.6.1997 and same was barred by limitation under the statutory provision of the Code of Criminal Procedure and as such the order of cognizance dated 3.6.1997 is hereby set aside. Consequently, the entire proceeding as well as order of rejection of discharge petition dated 1.7.1999 passed by learned Magistrate is also hereby set aside. 10. Accordingly, the petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 9.7.2010 N.A.F.R./N.H.