Ramesh Chandra and Another vs State

H.N. Seth, J.—Ramesh Chandra and his father Shiv Prasad Gupta have filed this application u/s 482 of the Code of Criminal Procedure praying that the proceedings pending against them in Criminal Case No. 574 of 1976 State v. Ramesh Chand and Ors. pending before the Judicial Magistrate Bhognipur, Kanpur be quashed or in the alternative they be transferred to Mainpuri.

On 3rd May 1969 a First Information Report was lodged at police station Bhognipur, by Sri Simrat Singh to the effect that Truck No. 7253 USF was owned by him and miscellaneous articles booked from Indor were brought by two drivers Nand Lal and Lallu. In the morning of 3rd May 1969, his cleaner came to him at Birhana Road Kanpur and told him that the articles had been brought to Kalpi gate and after crossing the river by boat they had again been loaded in the truck on Kanpur side. The cleaner further informed him that he and Lallu Singh went to take meals in the hotel and just then there was rain and thunder storm and when they returned at about 1.00 O''clock in the night of 1st May 1969 they found that the truck in question had been driven away by some person. The police registered a case and took up the investigation. During the investigation it was discovered that the three unknown companions of the driver were Sarvasri Balbir Singh, Sohan Lal Chawala and Ram Sanehi Pandit. On 4th and 5th May 1969 the police raided the lower portion of the house of the two applicants and from there recovered certain articles alleged to have been loaded in the truck in question. After completing the investigation the police submitted a charge-sheet dated 4th July 1976 against the two applicants as well as Balbir Singh. Consequently on 2nd February 1976 the Judicial Magistrate Bhognipur passed the following order:

Received the charge-sheet. Summon the accused for 18-3-1976.

The applicants have filed the present application with the prayer that the proceedings pending against them in the criminal case be quashed and in the alternative as they are residents of Mainpuri the case may be transferred to some competent court in Mainpuri.

The applicants pray for the quashing of the proceedings inter alia on the grounds-

(1) That no stolen property was recovered from the possession of the two applicants.

(2) That the theft having taken place on 1st May 1969 and the alleged recovery having been effected on 6th May 1969, the cognizance taken by the Judicial Magistrate Bhognipur on 2nd February 1976 was barred by time.

So far as the first question is concerned it hardly provides a ground for quashing the proceedings u/s 482 of the Code of Criminal Procedure. It is for the court which is dealing with the case to decide whether the prosecution has succeeded in establishing its case. Undoubtedly the allegation of the prosecution is that the recovery had been effected from the possession of the two applicants. Its truth or otherwise can be determined only after evidence has been led in the case.

I, however, find that there is substance in the second contention raised by learned Counsel for the applicant.

Section 468 runs thus:

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) ....

(b) ....

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

According to this section, it is not open to a criminal court to take cognizance of an offence which is punishable with imprisonment for a term exceeding one year but not exceeding three years, after three years of its commission. The prosecution case as stated above clearly makes out that the offence, if any, that would be made out against the two applicants would be one u/s 411 IPC which is not punishable with imprisonment for a term exceeding three years. Accordingly, even if it be taken that the recovery of the stolen article was effected from the possession of the applicant on 6th May 1969 the cognizance of the offence could not be taken against them on 2nd Feb., 1976.

Learned Counsel for the State however invited my attention to Section 473 of the Code of Criminal Procedure which provides that notwithstanding anything contained is Section 468 any court may take cognizance of the offence after expiry of the period of limitation, if it is satisfied from the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. The order of the Magistrate taking cognizance on 2-2-1976, already quoted above, does not show that the Magistrate applied his mind as to whether there were facts and circumstances indicating that the delay had been properly explained or that it was necessary to do so in the interest of justice. Without arriving at the requisite satisfaction it was not open to the learned Magistrate to by-pass the period of limitation prescribed in Section 468. In these circumstances it is obvious that cognizance of the offence taken against the two applicants on 2nd February 1976 was barred by limitation and the Magistrate had no jurisdiction to summon the accused on that date. In the circumstances the proceedings pending in Criminal Case No. 574 of 1976 State v. Ramesh Chandra, in so far as they relate to the two applicants alone are quashed. It is, however, made clear that this order quashing the proceedings against the two applicants would not preclude the. Magistrate from taking cognizance of the offence afresh in accordance with law.