IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Misc.No.3328 of 2010 Rajiv Pandit, son of Sohan Pandit, resident of Mohalla – Chandi Asthan Kumhar Toli, Police Station – Kotwali, P.O. - Munger, District – Munger. …… Petitioner. Versus. The State of Bihar. …… Opp. Party ---------- For the petitioner : Mr. Harshwardhan Sahay, Advocate. For the State : Mr. Nityanand Tiwary, A.P.P. ---------- 2. 5.2.2010. In this petition preferred under Section 482 of the Code of Criminal Procedure (for short the ‘Code’) the petitioner has prayed for quashing of the order dated 5.10.2009 passed by the learned Chief Judicial Magistrate, Munger in G.R.Case No.1962 of 2002 arising out of Munger Sadar Kotwali P.S.Case No.592 of 2002 whereby he has taken cognizance under section 323 of the Indian Penal Code. The facts, which are essential to be stated for disposal of this application, are that on the basis of a F.I.R. lodged by one Uttam Kumar a case was registered under sections 341, 323 and 379 at Munger Sadar Kotwali forming the subject matter of P.S. Case no.592 of 2002. The - 2 - investigating agency investigated into the allegations made in the F.I.R. and eventually charge sheet was submitted under section 323 of the Indian Penal Code on 12th February, 2004. After a lapse of four and half years the learned Chief Judicial Magistrate, Munger took cognizance of the offence under section 323 of the Indian Penal Code against the petitioner by order dated 17.9.2008. Being dissatisfied with the aforesaid order passed by the learned Chief Judicial Magistrate the petitioner preferred Criminal Revision No. 138 of 2009 before the learned Sessions Judge, Munger, who by order dated 16.5.2009 remitted the matter to the trial court to consider the matter in the light of provisions contained in Section 473 of the Code. After the remit the learned Chief Judicial Magistrate by order dated 5.10.2009 came to the conclusion that it is necessary to extend the period of limitation, regard being had to the facts and circumstances of the case. Questioning the correctness of the said order it is submitted by the learned counsel for the petitioner Mr. Harshwardhan Sahay, that the learned Magistrate taking cognizance has applied the principle and object under - 3 - Section 473 of the Code in a routine and mechanical manner and, in fact, the facts and circumstances did not warrant to extend the period of limitation. It is also urged by him that there was no justification to extend the period regard being had to the nature of the offence. Mr. Nityanand Tiwary, learned counsel for the State, supported the order passed by the learned Chief Judicial Magistrate. To appreciate the submissions raised at the Bar I have carefully perused the order passed by the learned Chief Judicial Magistrate and the allegations on the basis of which the case was registered. The thrust of the matter is in the obtaining factual matrix whether the learned Magistrate should have extended the period of limitation. In this context I may refer with profit to the decision of the Apex Court in State of Himachal Pradesh Vrs. Tara Dutt and another, AIR 2000 SC 297, wherein it has been held as follows :- “7. Section 473 confers power on the Court taking cognizance after the 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 and that it is - 4 - necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in S. 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well recognised principles. This being a discretion conferred on the Court taking cognizance, wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence.” In the said case again it has been held as follows :- “ 8. We have already indicated in the earlier part of this Judgment as to the true import and construction of Section 473 of the Code of Criminal Procedure. The said provision being an enabling provision, whenever a Magistrate invokes the said provision and - 5 - condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay. But without such an order being there or in the absence of such positive order, it cannot be said that the Magistrate has failed to exercise jurisdiction vested in law.” Tested on the anvil of aforesaid enunciation of law I am of the considered view that the order passed by the learned Chief Judicial Magistrate only stating that the circumstances warranted extension of time is not in accord with section 473 of the Code. That apart, I am also of the considered opinion that keeping in view the nature of offence extension of time is unwarranted. Therefore, the order passed by the learned Magistrate extending the time for the purpose of taking cognizance is quashed and resultantly the proceedings stand quashed. The petition is allowed. Psc/ (Dipak Misra, CJ)