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Judgment
Prafulla C. Pant, J.—By means of this petition, moved u/s 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioners have sought quashing of the proceedings of Criminal Complaint Case No. 595 of 2004 Ishwar Singh v. Dan Singh and Anr., relating to offence punishable u/s 448 of I.P.C., pending in the court of Judicial Magistrate First, Dehradun.
Heard learned Counsel for the petitioners and learned Counsel for the State. No one turned up on behalf of respondent No. 2, even after sufficient service.
Brief facts of the case are that respondent No. 2/complainant filed a criminal complaint before the Judicial Magistrate First, Dehradun, alleging that in March 1996, complainant (respondent No. 2) had gone out, when the petitioners broke open the lock of his house and occupied the same, forcibly. It is further alleged in the criminal complaint that a report was made to the police, and a notice was got served through an Advocate to the petitioners to handover the possession of the house. However, they failed to vacate the premises. Hence, the criminal complaint is filed against the petitioners Dan Singh and his wife Hemlata, for their trial in respect of offence punishable u/s 448 of I.P.C.
The Magistrate, after recording the statement of complainant u/s 200, and that of witness u/s 202 of Cr.P.C., appears to have summoned the petitioners, namely Dan Singh and Hemlata, in respect of offence punishable u/s 448 of I.P.C., vide his order dated 11.08.2000. The petitioners filed their objections, which were dismissed by the trial court vide its order dated 30th of October 2004. A revision was filed by the petitioners before Sessions Judge, Dehradun, which was also dismissed vide order dated 03.02.2005. Hence, this petition.
Learned Counsel for the petitioners submitted that the offence punishable u/s 448 of I.P.C. is punishable with imprisonment for a period of one year. Attention of this Court if drawn to Section 468 of Cr.P.C. which provides that the period of limitation for taking cognizance of an offence punishable with imprisonment not exceeding one year, is one year. As such, it is contended that the criminal complaint in question is barred by time. I have gone through the copy of the criminal complaint, which is annexed as Annexure -2 to the petition. In paragraph 2 of the criminal complaint, offence is said to have been taken place on 23rd of March 1996, at about noon. The criminal complaint is filed after a period of three years on 29th of November 1999. As such, the criminal complaint is hit by provision contained in Section 468 of Cr.P.C. No condonation/extension of limitation has been sought from and granted by the trial court. In the circumstances, on the face of it, the impugned criminal complaint is barred by time. Merely for the reason that earlier also the criminal complaint was filed, which was dismissed, it cannot be said that the complainant is automatically exempted from the clutches of Section 468 of Cr.P.C. He should have sought extension or exclusion of time u/s 470 read with Section 473 of Cr.P.C.
Assuming for a moment the complaint is not barred by time, on merits, it is shown by learned Counsel for the petitioners before this Court that petitioner No. 1 Dan Singh and complainant Ishwar Singh (respondent No. 2) are real brothers. It is pleaded on behalf of the petitioners that the property in question was a joint property, as such, there was no question of trespassing one''s own house, unless the property is shown to have been partitioned. In this connection, attention of this Court is also drawn to the copy of the report dated 24.06.1989, submitted by police to the City Magistrate (copy of which is annexed as Annexure -1 to the supplementary affidavit dated 16th October 2005). In said report, the police has reported that the property in question was owned by Hari Singh, father of petitioner No. 1 Dan Singh and complainant Ishwar Singh. In view of the apprehension of breach of peace, proceedings u/s 145 of Cr.P.C. are recommended in said report. On the basis of said report, the City Magistrate appears to have passed the orders u/s 145 of Cr.P.C., in the year 1990. However, said order was set aside vide order dated 07.05.1992, passed by First Addl. Sessions Judge, Dehradun, in Criminal Revision No. 44 of 1991, copy of which is Annexure -3 to the aforesaid supplementary affidavit. In said judgment, learned First Addl. Sessions Judge has observed that the disputed property is in joint possession of the parties, and therefore, the proceedings u/s 145 of Cr.P.C., are not maintainable.
In the above circumstances, this Court finds that the trial court has committed grave error of law in entertaining a time barred criminal complaint in which no offence could be said to have been made out in respect of the property jointly owned by the complainant and the petitioner No. 1. Therefore, the petition u/s 482 of Cr.P.C., is allowed. The proceedings of Criminal Complaint Case No. 595 of 2004 Ishwar Singh v. Dan Singh and Anr. relating to offence punishable u/s 448 of I.P.C., pending in the court of Judicial Magistrate First, Dehradun, are hereby quashed. Registry is directed to inform the court concerned.