Dr. Anil Kumar Agrawal vs State of U.P. and Others

G.P. Mathur, J.—A first information report u/s 147/323 IPC was lodged against the Petitioner Dr. Anil Kumar Agrawal and four others by Dr. Shashi Bhushan, Respondent No. 3. After investigation, the police submitted a chargesheet against the Petitioner alone u/s 323 IPC. The learned Magistrate took cognizance and passed an order of summoning the Petitioner on 18-12-1987. The Petitioner moved an application before the learned Magistrate on 20-7-1990 praying that he should be discharged as the cognizance had been taken after expiry of the period of limitation. Learned Magistrate by his order dated 14-2-1991 discharged the Petitioner. The complainant Respondent No. 3 filed a revision against the said order which was allowed by the learned Sessions Judge by his order dated 24-7-1991 end the case was sent back to the learned Magistrate to consider it afresh in accordance with law. It is for quashing of this order that the present petition has been filed u/s 482 Code of Criminal Procedure.

Since the revision filed by the Respondent No. 3 has been allowed by the learned Sessions Judge, it was open to the Petitioner to fie a revision against the aforesaid order. However, in order to do justice between the parties, I have heard the present petition u/s 482 Code of Criminal Procedure as a criminal revision.

Learned Counsel for the complainant has submitted that with regard to the incident which took place on 29-11-1986 a first information report was lodged on the same day u/s 147/323 IPC against five accused including the Petitioner. The Polio investigated the case and submitted a chargesheet which bears the date 31-7-1987 and it was received by Court Nazir on 26-11-1987 and then by the Ahalmed of the Court on 30-11-1987. The chargsheet was placed before the Presiding Officer of the court on 18-12-1987 who passed an order directing that the Petitioner be summoned. The Complainant had also moved an application for condonation of delay u/s 473 Code of Criminal Procedure on 10-5-90. It is thus submitted that there was sufficient material on record to show that the chargesheet had in fact been submitted in court within a period of one year and even if the learned Magistrate passed the order for summoning the petioner after expiry of one year, the dalay in taking cognizance should have been condoned learned Counsel for the Petitioner has, however, submitted that what is material is the date on which the learned Magistrate took cognizance and as the cognizance was taken on 18-12-1987, it was after expiry of the period of limitation and therefore, the Petitioner was rightly discharged. He has further submitted that the application moved by the complainant u/s 473 Code of Criminal Procedure on 10-5-1990 for condoning the delay could not be taken into consideration as the same should have been moved prior to the taking of cognizance by the learned Magistrate.

The incident giving rise to the present proceedings took place on 29-11-1986 and the complainant had lodged a FIR u/s 147/323 IPC against the Petitioner and four others on the same date. The Police, however, after investigation submitted chargesheet only against the Petitioner Dr. Anil Kumar Agrawal u/s 323 IPC. Since an offence u/s 323 IPC is punishable with a maximum sentence of one year''s R.I, the limitation for taking cognizance of such an offence u/s 323 IPC is one year in view of Section 468(2)(a) Code of Criminal Procedure. The learned Sessions Judge has observed in his order that the learned Magistrate has not considered the effect of receipt of the chargesheet by the court Nazir on 26-11-1987 and by the Ahalmed of the Court on 30-11-87 He has further observed that the effect of receipt of chargesheet on 30-11-1987 by the Ahalmed should have been considered because it had been received by an official of the court. He remanded the case to the court of Magistrate to consider the effect of the receipt of the chargesheet by the Ahalmed, which in his opinion would be on behalf of the court on 30-11-87, as in such a case the delay would be only of one day. The learned Sessions Judge has further observed that it would be in the interest of justice to condone the delay of one day.

In my opinion the reason given by the learned Sessions Judge for remanding the case are not correct. Section 468(2) Code of Criminal Procedure provides that 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. The language in Section 468 Code of Criminal Procedure is different from that used by the Legislature in Section 3 of the Limitation Act-Section 3(i) of the Limitation Act provides that subject to the provisions contained in Section 4 to 20 inclusive every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Every court has made its own procedure for instituting a suit or preferring an appeal. Therefore, if a suit or appeal is filed before an officer of the Court who is authorised for this purpose, within limitation, the fact that they are placed before the presiding Officer of the Court subsequently would be wholly immaterial. What has to be seen is the date of presentation of the suit or appeal before the Officer of the Court However Section 468 Code of Criminal Procedure creates a bar against taking cognizance by a Court after expiry of the period of limitation. The word ''cognizance'' has not been defined in the Code, but it has been judicially interpreted. Cognizance is taken of an offence as soon as a Court competent for the purpose applies its mind to the offence with the intention of initiating judicial proceedings against the offenders in respect of the offence. When the Magistrate applies his mind, not for the purpose of proceeding under Chapter XIV, but for taking action of some other kind like ordering investigation u/s 156(3) Code of Criminal Procedure, or issuing a search-warrant for the purpose of investigation, he can not be said to have taken cognizance of the offence (See R.R. Chari Vs. The State of Uttar Pradesh, ; D.L. Narayana v. Narayana AIR 1976 SC 1972 and Darshan Singh Ram Kishan Vs. The State of Maharashtra, . Therefore for the purpose of Section 468 Code of Criminal Procedure what is to be seen is the date on which the learned Magistrate apolied his mind to the chargesheet or the complaint as the case may be for the purpose of proceeding In a particular way. The dates on which the chargesheet was received by the Nazir, or Ahalmed of the Court are wholly irrelevant. There is no dispute that in the present case charge sheet was placed before the Presiding Officer of the court on 18-12-1987 and on the said date he passed an order for summoning the Petitioner. Therefore, in the present case the cognizance of the offence was taken by the Magistrate on 18-12-1987 which is dearly beyond the period of limitation of one year Sub-section (1) of Section 468 Code of Criminal Procedure imposes a bar upon the court from taking cognizance of an offence after expiry of period of limitation and therefore, the learned Magistrate rightly passed the under dated 14-2-1991 discharging the Petitioner.

Learned Counsel for the complainant has submitted shat the FIR was lodged against five persons under Sections 147, 323 IPC and in the summoning order, it was not mentioned that the Petitioner was being summoned u/s 323 IPC and the could as well have been summoned under Sections 147 and 323 IPC. Since the offence u/s 147 IPC is punishable with a sentence of two years'' R.I., the period of limitation would be three years. In my opinion, the submission made by the learned Counsel is not tenable in law. The chargesheet was submitted against the Petitioner alone u/s 323 IPC. There was no chargesheet on record against the remaining four persons who were; nominated as accused in the FIR. The learned Magistrate has also not passed any order for summoning the aforesaid four persons though he could do so inspite of the fact that no chargesheet was submitted against them. In view of the fact that only one person had been summoned to face trial, the Question of applicability of Section 147 IPC would not arise, aS it is not the case of prosecution that Petitioner along with four or more unkown persons committed the crime.

Learned Counsel for the complainant next sumitted that the complainant had moved an application u/s 473 Code of Criminal Procedure on 10-5-90 for condoning the dealy and this application had been moved even before the Petitioner had moved the application for discharging him on the ground of limitation and in these circumstances it was a fit case for condoning the delay in exercise of powers conferred by Section 473 Code of Criminal Procedure. In my opinion Section 468 Code of Criminal Procedure creates a complete bar upon the power of the Court to take cognizance of an offence after expiry of the period of limitation. If the cognizance of an offence is taken after expiry of the period of limitation, the order taking cognizance would be illegal. Section 473 Code of Criminal Procedure not doubt gives power to Court to take cognizance of an offence after the expiry of the period of limitation provided it is satisfied that on the facts and in the circumstances of the case the delay has been property explained or that it is necessary so to do in the interests of justice in order to get the benefit of Section 473 Code of Criminal Procedure, which is some what similar to Section 5 of the Limitation Act, is necessary that an application explaining the delay should be filed before the Court applies its judicial mind as to whether cognizance should be taken or not. The Court may entertain even an oral prayer explaining the delay in exceptional circumstances. However, the Court must pass an order to the effect that the delay has been properly explained or that it is necessary to tike cognizince in the interests of justice even after expiry of the period of limitation before taking cognizince of the offence. If the court does not pass an order to the effect that the delay has been explained or it was necessary to take cognizance in the nearest of justice even after the expiry of the period of limitation and proceeds to take cognizance of the offence, it could not be in accordance with the provisions of the Code. The question of explaining the delay at a subs quern stage, after taking cognizance of the offence, can not arise in view of the bar created by Section 468 Code of Criminal Procedure as under the of resaid provision there is a complete prohibition upon the power of the Court to take cognizance of an offence after expiry of the period of limitation i am supported in my view by another decision of our court in Prakash Chandra Sharma v. Kaushal Kishore 1980 ACR 179, where in it was held that it was necessity to file an application for condoning delay along with the complaint which was barred by limitation and in absence of such an application, the Magistrate had no alternative but to dismiss the complaint as time barred. It was further held that the question of explaining the delay at a subsequent stage could not arise as the initial question for determination before proceeding with a time barred complaint is the question of limitation.

Lastly learned Counsel for the complainant has submitted that the Petitioner should have challenged the summoning order dated 18-12-1987 by filing a revision and as the said order had become final, it was not open to the learned Magistrate to review his earlier order. He has also submitted that the Petitioner bad been summoned to face trial u/s 323 IPC which is a summons case and as there is no provision of discharge, the order dated 14-2-1991 passed by the learned Magistrate discharging the Petitioner is illegal. In my opinion, the learned Magistrate has not reviewed his earlier order by which the Petitioner was summoned to face trial. The order dated 14-2-1991 has not been passed on a reappraisal of material on record or on the ground that no offence is made out against the Petitioner. The Petitioner after putting in appearance in court raised a legal plea to the effect that in view of Section 468 Code of Criminal Procedure the court could not take cognizance of the offence as the period of limitation had expired It was this question of limitation which was considered by the learned Magistrate and after holding that the cognizance had been taken after expiry of the period of limitation, he passed the order discharging the Petitioner. The word ''discharge'' may not be strictly in accordance with law in view of the fact that it was a summons case, but what the learned Magistrate meant was that proceeding against the Petitioner could not go on as the cognizance it self could not be taken.

There is another aspect of matter which can not be overlooked. According to the allegations in the FIR the Petitioner gave some slaps to the complainant and probably he was kicked also when he fell down. No weapon or any other object was used for assaulting the complainant. The incident took place in the premises of Medical College Gorakhpur where at the relevant time the Petitioner was working as lecturer in Pathology and the complainant was working as professor in physiology. It has come in the counter-affidavit that now the Petitioner is working in Meerut Medical College, while the complainant is working in Kanpur Medical College A departmental inquiry regarding the incident was conducted by the Joint Director, Medical Education and Training, U.P. and as a result of the said inquiry, the Petitioner was issued a warning. The incident took place on 29-11-1986, that is, six years back. By the impugned order dated 24-7-1991 the learned Sessions Judge has remanded the matter to the court of learned Magistrate at Gorakhpur to reconsider the question of limitation. The proceedings have yet to commence. The offence u/s 323 IPC is not a very serious offence and in view of the fact that no weapon was used and no serious injury was caused to the complainant in all probability the Petitioner would not be awarded any substantive sentence even if he is held guilty, It is unfortunate that a highly educated person who was holding a responsible position of lecturer in a Medical College resorted to violence and assaulted a member of the same college Nevertheless after lapse of six years, it would not be proper to allow the proceeding to commence again. A constitution Bench of Supreme Court in Abdul Rehman Antulay v. R.S. Naik 1992 SCC 93. has considered the effect of delay in conclusion of trial. It has been held that Article 21 of the Constitution creates a right in the accused to be tried speedily While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances including the nature of offence, number of accused and witnesses, the work load of the court concerned and prevailing local conditions. The court can not lose sight of the fact that offence is one u/s 323 IPC and the accused is now posted at Meerut while the complainant is posted at Kanpur and trial will take place at Gorakhpur. It is common experience that when the accused or the witnesses are residing at great distances, the bearing is often adjourned and the trial can not proceed expeditiously. Applying the ''balance test'' as laid down by the Supreme Court it would not be proper to direct the Magistrate to commence the proceeding afresh.

In view of the discussion made above, the petition which has been heard as criminal revision is allowed and the order dated 14-7-1991 passed by the learned Sessions Judge in Criminal Revision No. 47 of 1991 is set aside.