Criminal Miscellaneous No.2530 OF 1998 IN THE MATTER OF AN APPLICATION U/S 482 OF THE CODE OF CRIMINAL PROCEDURE --------------- 1. Kameshwar Singh @ Kameshwar Pd. Singh, Son of Makhan Singh 2. Makhan Singh, Son of Late Harbans Singh 3. Arun Singh, Son of Makhan Singh 4. Tapeshwar Prasad, Son of Makhan Singh All residents of Village-Taranpur, Post- Lakhanpur( Punpun), P.S. Gaurichak, Distt- Patna. -------------------- Petitioners Versus 1. The State Of Bihar 2. Upendra Singh, Son of Ram Shankar Singh,resident of Village- Taranpur, Post- Lakhanpur( Punpun), P.S. Gauri Chak, District-Patna --- Opp.Parties. ------------ For the petitioners: S/Shri Bibhakar Tiwary & Sushil Kumar Singh,Advocates. For the State : Dr. Mayanand Jha, A.P.P. For Opp.Party No.2: None. ------------ P R E S E N T THE HON'BLE SHRI JUSTICE RAKESH KUMAR Rakesh Kumar, J The petitioners invoking inherent jurisdiction of this Court under Section 482 Cr.P.C. have questioned the order dated 19.12.1997 passed by Sri Jafar Imam, Judicial Magistrate, 1st Class, Patna in Complaint Case No.679 (C) of 1995. By the impugned order, the learned Magistrate has rejected the petition dated 1.5.1997 filed by the petitioners pursuant to the order dated 17.2.1997 passed in Cr.Misc.No.21573 of 1996 by this Court. In sum and substance, in the petition dispute relates to application of Section 468 of the Code of Criminal Procedure, 1973 (Cr.P.C.) 2. The short fact of this case is that earlier on - 2 - 8.3.1990, an occurrence took place in which Opp.Party no.2 approached the police with a complaint that the petitioners committed the offence of house trespass. Petitioner no.1 opened fire through his double barrel gun on the orders given by petitioner no.2, though none received any injury. As per the said information, a case vide Phulwari P.S. Case No.73 of 1990 for offences under Sections 307,448/34 of the Indian Penal Code and Section 27 of the Arms Act was registered on 10.3.1990. While the police was investigating the case, the informant/Opp.Party no.2 on an apprehension that police may not do justice to him filed a protest petition on 4.6.1990 in the court of the learned Chief Judicial Magistrate. Subsequently, the police came to the conclusion that the allegation levelled by Opp.Party no.2 was not true and police prepared a final report on 30.4.1992. Subsequently, as informed by the learned counsel for the petitioners, final report was submitted on 1.11.1993 in the court of the learned Chief Judicial Magistrate, Patna and on the same day , final report was accepted by the court below and the protest- cum- complaint petition was kept on complaint side. On 16.8.1995, the learned Chief Judicial Magistrate transferred the case under Section 192(1) Cr.P.C. to the Court of Sri S.K.Srivastava, Judicial Magistrate, 1st Class, Patna for enquiry and disposal and thereafter the learned Magistrate passed an order for issuance of processes under Section 204 Cr.P.C. vide his order dated 5.9.1995. - 3 - 3. Aggrieved with the order of cognizance, which was passed in the year 1995, the petitioners, who were made accused in the protest-cum- complaint petition, filed an application raising a plea that order of cognizance was barred under Section 468 Cr.P.C. However, the learned Magistrate rejected the said petition by his order dated 14.10.1996. Against the said order dated 14.10.1996, the petitioners approached this Court vide Cr.Misc.No.21573 of 1996 and the said petition was disposed of by the order dated 17.2.1997 (Annexure-1 to the petition). While disposing of the petition, this Court observed that “In case the petitioner files a fresh application stating that the prosecution is barred by limitation under Section 468 of the Cr.P.C., the court without being prejudice by the order dated 14.10.1996 shall dispose of the same after hearing both the parties by a reasoned order.” 4. After disposal of Cr.Misc.No.21573 of 1996, the petitioners filed a petition on 1.5.1997 raising the plea that the order of cognizance was barred under Section 468 Cr.P.C. . The learned Magistrate, in my opinion, has passed a very reasoned and elaborate order, whereby he has rejected the petition filed by the petitioners. I do not find any error in the order of the learned Magistrate, particularly in view of the facts and circumstances of the present case. Though the petitioners have vehemently questioned the order of cognizance on the ground of limitation - 4 - and heavily relied on Section 468 Cr.P.C., they failed to appreciate the provision contained in Section 470 Cr.P.C. In the present case, it is not in dispute that the informant/ complainant was vigilant with his case and right from the very beginning he was reasonably pursuing his case. Due to said reason after apprehending that the police may not do justice to him, before filing of the final form, he filed a protest petition before the Court on 4.6.1990. After filing of the protest petition by Opp.Party no.2, the police submitted final form almost after about three years of the said protest petition. His protest petition was never rejected by the court but the same was under active consideration. 5. The learned counsel appearing for the State has rightly pointed out that the complainant/Opp.Party no.2 was prosecuting the case with due diligence and in view of Section 470 Cr.P.C. the limitation , as imposed under Section 468 Cr.P.C., would not be applicable in the facts and circumstances of the present case. It is evident that there were no laches on the part of Opp.Party no.2 and he was pursuing the matter before the court and, as such, in the present case by way of taking cognizance, learned Magistrate has committed no error nor he has committed any mistake in rejecting the petition filed on behalf of the petitioners on 1.5.1997 before the court below. 6. In view of the facts and circumstances mentioned herein above, the impugned order,i.e. 19.12.1997 is just and proper .I do not find any merit in the petition and the - 5 - petition stands rejected. 7. In this case vide order dated 24.4.1998, proceeding in Complaint Case No.679(C) /95 was ordered to remain stayed. Since the present petition stands rejected, the interim order automatically stands vacated. 8. Earlier in this case lower court record was called for. Let the same be sent back to the court below forthwith. Patna High Court,Patna Dated : the 18th March,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J)