Pokharmal vs State of Rajasthan

Prashant Kumar Agarwal, J.—The accused-petitioner has filed this Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 01.03.2012 passed by the Additional Sessions Judge No. 9, Jaipur Metropolitan, Jaipur in Criminal Revision Petition No. 63/2012 whereby the learned revisional Court by dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 24.03.2011 passed by the Metropolitan Magistrate No. 25, Jaipur Metropolitan in Criminal Case No. 564/2006 whereby learned trial Court took cognizance against the petitioner for offences under Sections 341, 323 and 336 IPC.

Brief relevant facts for the disposal of this petition are that FIR No. 128/2006 came to be registered against the petitioner and co-accused-Shri Devilal for the aforesaid offences at Police Station Harmara, Jaipur on 03.05.2006 and after investigation charge-sheet was filed against them on 08.06.2006 and learned trial Court took cognizance against co-accused-Shri Devilal for the aforesaid offences, but cognizance was not taken against the petitioner. Co-accused-Shri Devilal faced trial and learned trial Court after hearing the final arguments fixed the case for judgment on 24.03.2011. It was found by the Court that although charge-sheet was filed both against petitioner and co-accused-Shri Devilal, but cognizance was taken only against co-accused-Shri Devilal and against petitioner neither cognizance was taken nor the proceedings were stopped under Section 258 Cr.P.C. It was further found by the trial Court that inadvertently cognizance was not taken against the petitioner and with this finding vide order dated 24.03.2011 cognizance was taken against him for the aforesaid offences. It was also observed by the trial Court that although the period of limitation of one year prescribed to take cognizance for the aforesaid offences has already expired, but the Court exercising its power conferred under Section 473 Cr.P.C. condoned the delay caused in taking cognizance. Dissatisfied with the order, the petitioner challenged it by way of aforesaid Criminal Revision Petition, but without any success. In these facts and circumstances, the petitioner has come to this Court by way of this petition.

As per order dated 20.09.2012, before the Co-ordinate Bench it was submitted on behalf of the petitioner that the investigating agency brought evidence on record on the basis of which it was held that petitioner and co-accused-Shri Devilal were involved in the incident and cognizance was taken against the petitioner although no application under Section 319 Cr.P.C. was filed on behalf of the prosecution. On the submissions so made, vide order dated 20.09.2012, the petition was admitted and notices were issued. Vide order dated 7.8.2014, another Co-ordinate Bench found that the controversy raised in the petition is no longer res-integra as in the case of Dharampal and Ors. Vs. State of Haryana and Anr. reported in 2013 (2) WLC Cri. 380 and Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 , it has been held by the Hon''ble Apex Court that the Court can take cognizance of offence under Section 190 Cr.P.C., but at the same time the learned Co-ordinate Bench further observed that another plea raised in the petition is that qua offences punishable under Sections 323, 341 and 336 IPC, after period of six-years, the Court cannot take cognizance as the same is barred by way of limitation prescribed under Section 468 Cr.P.C. requires consideration.

Thus, the only question now to be considered and decided in the present petition is whether the order of cognizance dated 24.03.2011 is barred by law under Section 468 Cr.P.C. as it has been taken much after the prescribed period of one year from the date of offence as the maximum sentence of imprisonment prescribed for the aforesaid offences is one year.

Learned counsel for the petitioner submitted that the date of occurrence is 03.05.2006 for which FIR was lodged on the same day and after investigation charge-sheet was filed in the trial Court against petitioner and co-accused-Shri Devilal on 08.06.2006 and admittedly cognizance against petitioner was taken on 24.3.2011 although against co-accused it was taken on the date on which the charge-sheet was filed. It was further submitted that even if for the sake of arguments it is admitted that cognizance against the petitioner was not taken inadvertantly even then as per Section 468 Cr.P.C. in any circumstance cognizance could not have been taken against the petitioner after expiry of period of one year from the date of commission of offences as the maximum sentence of imprisonment prescribed for the aforesaid offences is one year. It was also submitted that although under certain circumstances the Court is empowered under Section 473 Cr.P.C. to condone the delay in taking cognizance for an offence, but in the present case no reasonable cause was shown by the prosecution so as to condone delay and even application for that purpose was not filed. It was also submitted that in the present case inadvertance on the part of the trial Court not to take cognizance on the date on which cognizance was taken against the co-accused cannot be said to be a sufficient cause. It was also submitted that the impugned order cannot also be held to be under Section 319 Cr.P.C. by the reason that no application was filed on behalf of the prosecution and it is not a case in which charge-sheet was not filed against the petitioner as provisions of Section 319 Cr.P.C. are applicable only when the investigation agency does not file charge-sheet against a person named in the FIR.

On the other hand, it was submitted by the learned Public Prosecutor that for the offences allegedly committed on 03.05.2006, FIR was lodged on the same day and, therefore, there is no question of cognizance to have been taken against the petitioner after the expiry of period of limitation as prescribed under Section 468 Cr.P.C. as it has been held by Hon''ble Supreme Court that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. It was further submitted that from the material available on record, it is clear that cognizance was not taken against the petitioner inadvertantly despite charge-sheet was filed against him and, therefore, undue advantage cannot be given to the petitioner merely on the ground that cognizance was taken against him after the expiry of period of limitation or without an application for condonation of delay or application under Section 319 Cr.P.C.

On consideration of submissions made on behalf of the respective parties and the material made available for my perusal and the principle of law laid down by Hon''ble Supreme Court, I do not find any illegality or perversity in the impugned orders requiring interference by this Court.

Hon''ble Supreme Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 : (2007) CriLJ 4068 : (2007) 4 CTC 740 : (2007) 9 JT 471 : (2007) 9 SCALE 400 : (2007) 8 SCR 582 : (2007) 2 UJ 941 : (2007) AIRSCW 4998 : (2007) 5 Supreme 604 , has held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. In the present case, there is no dispute that for the occurrence of 03.05.2006, FIR was lodged on the same day and, therefore, even if actual order of cognizance against the petitioner has been passed on 24.03.2011, even then it cannot be held that it was barred by limitation. As soon as FIR was lodged on 3.5.2011, criminal proceedings were initiated in the present case contemplated by the Hon''ble Court. It is pertinent to note that the aforesaid view has been approved by the Constitution Bench of Hon''ble Supreme Court in the case of Mrs. Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Others, (2013) 12 AD 1 : AIR 2014 SC 448 : (2014) CriLJ 586 : (2013) 15 JT 97 : (2014) 1 RCR(Criminal) 590 : (2013) 14 SCALE 404 : (2014) 2 SCC 62 .

In view of the fact that after investigation charge-sheet was filed both against petitioner and co-accused on 08.06.2006 and cognizance was taken against co-accused, it is more than clear that cognizance was not taken against petitioner inadvertantly and, therefore, undue advantage cannot be given to petitioner even if application under Section 319 or 473 Cr.P.C. was not filed on behalf of the prosecution.

Consequently, the criminal misc. petition being meritless is, hereby, dismissed. The stay application also stands dismissed.