Crl.Misc.No.M. 34139 of 2008. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M. 34139 of 2008. Date of decision 17 .09.2010. Gian Singh ...... Petitioner. versus State of Punjab ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Vivek Goel, Advocate for the petitioner. Mr. Sudhir Nehra, Additional Advocate General, Punjab for the respondent. K.C.PURI, J. Gian Singh has filed petition under Section 482 of the Code of Criminal procedure, 1973 ( in short – Cr.P.C.) for setting aside order dated 21.8.2007 (Annexure P-1) and order framing charge dated 7.12.2007 (Annexure P-2) passed by learned Chief Judicial Magistrate, Bathinda and order dated 31.10.2008 (Annexure P-3) passed by the learned Additional Sessions Judge, Bathinda in case FIR No.239 dated 2.5.2006 under Sections 447 and 511 of the Indian Penal Code ( in short – IPC) registered at Police Station Kotwali, Bathinda. Crl.Misc.No.M. 34139 of 2008. 2 It has been alleged by the petitioner that FIR No.239 dated 2.5.2006 under Sections 447 and 511 of the IPC was registered at Police Station Kotwali, Bathinda against him on the allegations that he tried to take forcibly possession of plot No.88 belonging to one Darshan Kumar. However, the police could not be able to put up the challan in the Court for almost one and half years and the challan was presented on 21.8.2007 in the Court of learned Chief Judicial Magistrate, Bathinda. The Court can not entertain and act upon charge sheet or a police report submitted under Section 173 Cr.P.C. on the basis of investigation conducted after expiry of six months as provided under Section 167(5) of the Cr.P.C. It has been further alleged that the offences under Sections 447 and 511 IPC both are to be tried summarily and should have been tried according to the procedure prescribed for summons case in the Code. It has been further alleged that both the Courts below failed to appreciate the aforesaid provisions of law and passed untenable impugned orders. The petition has been opposed. Respondent by way of reply took preliminary objections that case FIR No.239 dated 2.5.2006 under Sections 447 and 511 of the IPC registered at Police Station Kotwali, Bathinda was registered against the petitioner on the application of Gian Singh and the accused was arrested on 20.5.2006 and after completion of investigation challan was presented in Court on 21.8.2007 and charges have also been framed against the petitioner on 7.12.2007 by the learned Chief Judicial Magistrate, Bathinda. On merits, it denied all the allegations and prayed for dismissal of the petition. Crl.Misc.No.M. 34139 of 2008. 3 On 7.12.2007, charge under Section 447 read with Section 511 of the IPC was framed against the accused-petitioner to which he pleaded not guilty and claimed trial. Feeling dissatisfied with the order dated 7.12.2007 for framing charge, Gian Singh accused-petitioner filed revision petition against the said order of framing charge under Sections 447 read with Section 511 IPC in FIR No.239 dated 2.5.2006 registered at Police Station Kotwali, Bathinda. Shri S.K.Sachdeva, learned Additional Sessions Judge, (Fast Track Court), Bathinda vide judgment dated 31.10.2008 dismissed the said revision petition. Feeling dissatisfied with the order dated 7.12.2007 framing the charge and order dated 31.10.2008 passed by learned Additional Sessions Judge, Bathinda, the present petition under Section 482 of the Cr.P.C. has been filed. Learned counsel for the petitioner has submitted that offence under Section 447 of the IPC carries imprisonment for three months or fine of Rs.500/- or both. The occurrence, according to the prosecution, has taken place on 2.5.2006. Challan was presented on 21.8.2007 i.e. after a period of one year and three months. The investigation in this case was not conducted within six months as provided under Section 167 clause (5) of the Cr.P.C. and as such the cognizance could not be taken by the trial Court. To support this contention, learned counsel for the petitioner has relied upon authority State of West Bengal vs. Falguni Dutta 1993 Crl.Misc.No.M. 34139 of 2008. 4 (2) RCR (Criminal) 431. In reply to the above noted submission, learned counsel for the respondent has submitted that investigation in the case was completed on 30.6.2006 i.e. much prior to the six months of the occurrence. In authority State of West Bengal vs. Falguni Dutta's case (supra) relied upon by the learned counsel for the petitioner, it has been clearly laid down that Section 167(5) of the Cr.P.C. does not preclude the police to present challan under Section 173(2) Cr.P.C. In the present case, all the investigation has been completed up to 30.6.2006. So, the trial Court could have taken the cognizance. I have considered the said submission and have gone through the records of the case. Learned counsel for the petitioner has relied upon authority State of West Bengal vs. Falguni Dutta's case (supra), handed down by the Hon'ble Apex Court does not help the petitioner. In that case, it has been held that if the investigation done during the period of six months discloses an offence, Court can take cognizance of the same. It has been further laid down in this authority that Section 167(5) of the Cr.P.C. lays down that in a case triable by the Magistrate as a summon case, if the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence. Section 167(6) of the Cr.P.C. further lays down that whether an order stopping further investigation into offence has been made under sub section (5), the Sessions Judge may if he is satisfied, on an application made to him or otherwise, Crl.Misc.No.M. 34139 of 2008. 5 that further investigation into the offence ought to be made, vacate the order made further investigation. In the present case, according to the respondent, the investigation was completed on 30.6.2006 i.e. within a period of six months. So, in view of authority State of West Bengal vs. Falguni Dutta's case (supra), the trial Court could take cognizance of the offence. The same view was expressed in authority Mrs. Susie Rehmer vs. State W.P. (Crl.No.1304/2009 decided on 21.12.2009) by the High Court of Delhi. However, on the ground of limitation, the prosecution cannot continue. To properly appreciate that aspect of the case, sections 468 and 469 of the Cr.P.C are reproduced as under :- “468. Bar to take cognizance after lapse of the period of limitation. -(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2). The period of limitation shall be - (a) six months, if the offence is punishable with fine only ; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year ; © three years, if the offence is punishable with imprisonment for a team exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable Crl.Misc.No.M. 34139 of 2008. 6 with the more severe punishment or, as the case may be, the most severe punishment. 469. Commencement of the period of limitation. - (1) The period of limitation, in relation to an offence, shall commence, - (a) on the date of the offence ; or (b) where the commission of the offence was not known to the period aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier ; or © where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. Admittedly, in this case, the occurrence took place on 2.5.2006 and the challan was presented on 21.8.2007. The offence is punishable with imprisonment of three months or Rs.500/- as fine or both and in view of Section 468 (2) clause (b) of the Cr.P.C., the cognizance can be taken within one year of the commission of the offence. The challan was presented after more than one year and three months. So, in view of the bar created by Section 468(2) clause (b) of the Cr.P.C., the trial Court could not take the cognizance of the offence. So, in view of the above discussion, the petition is allowed and Crl.Misc.No.M. 34139 of 2008. 7 both the impugned orders stand set aside and the FIR No.239 dated 2.5.2006 under Sections 447 and 511 of the Indian Penal Code ( in short – IPC) registered at Police Station Kotwali, Bathinda stands quashed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 17, 2010 sv