Geeta Devi and Vijay Singh vs State of Bihar

S.N. Mishra, J.—The Petitioners, in this application, have challenged the order taking cognizance dated 5.4.95 of an offence punishable u/s 3/4 of the Supression of Immoral Traffic in Women and Girls Act, 1956 including the order dated 27.9.95 by which the trial court has refused to drop the proceeding on the ground mentioned in the order itself. The Petitioners had earlier filed quashing application challenging the order taking cognizance of the alleged offence which was subsequently withdrawn with a direction to raise the question before trial court which shall be considered in accordance with law. Pursuant thereto, Petitioners filed a petition in the trial court praying therein to drop the proceeding on the ground that the very initiation of the proceeding is barred by limitation in terms of Section 468 of the Code of Criminal Procedure (hereinafter referred to as the Code) which has been rejected by the trial court.

learned Counsel submits the very order taking cognizance of the alleged offence is barred by limitation in as much as the learned Magistrate without considering the delay in terms of Section 473 of the Code passed the impugned order. Admittedly, the first information was lodged on 20.1.91 the chargesheet, after investigation, was submitted on 16.2.95 and the cognizance of the offence was taken on 5.4.95. The offence is punishable with imprisonment upto 3 years and as such the cognizance is to be taken within three years from the date of the occurrence. Admittedly, cognizance was taken beyond the period prescribed u/s 468 of the Code. learned Counsel submits that since the very order taking cognizance is barred under the statute and, as such, all subsequent orders, pursuant thereto, are wholly illegal and without jurisdiction. In order to appreciate the arguments of the learned Counsel, Section 468 which bars the court to take cognizance of the alleged offence after the expiry of the period of limitation reads thus:

(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 any offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year.

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

The provision as quoted above not only prescribes the bar of limitation but also prohibits the Magistrate from taking cognizance of the offence. The object of the Code in prescribing the limitation of initiating criminal prosecution is to prevent the parties from filing case beyond the period prescribed under the statute. The object of the Code is in consonance with the fairness of the trial as enshrined in Article 21 of the Constitution of India. In that view of the matter, it is incumbent to the parties to proceed strictly in accordance with the command as envisaged in Section 468 of the Code. I am supported by a decision in the case of Surinder Mohan Vikal Vs. Ascharaj Lal Chopra, . Similar is the view taken in the case of State of Punjab Vs. Sarwan Singh, . It is true that u/s 473 of the Code the Magistrate is posted with the power to condone the (sic) but mere perusal of order under (sic), it appears that neither the Magistrate, while taking cognizance, nor (sic) trial court has considered this aspect of the matter except stating that the Magistrate while taking cognizance of the (sic) offence, must have condoned the (sic). As stated above, the learned Magistrate without condoning the delay, has passed the order. In the premises, it would thus appear that the Petitioners are entitled to the benefit of the provision which prohibits the court from taking cognizance of the offence in terms of Clause (5) of Sub-section (2) of Section 468 of the Code. This Court in the case of Gulab Chand Jain v. State reported in 1980 PLJR 156, has held that the court must assign the reason for its satisfaction while condoning the delay. The order must show the material on which satisfaction of the Magistrate is based. Having heard learned Counsel for the parties and going tough the materials on record including the order under challenge. I am of the view that the very order taking cognizance of-the alleged offence against the Petitioner is barred by limitation and, accordingly, the aforesaid orders dated (sic) and 27.9.95 are hereby quashed and consequently this application is allowed.