Sameer Kumar Sharma vs Renu Rangwani

S.K. Palo, J.—The petitioner has requested to invoke the inherent powers of this Court under Section 482 of Cr.P.C. and requested to quash the order dated 10.07.2012 passed by the 9th Additional Sessions Judge, Gwalior in Criminal Revision No. 217/2012, in which the learned Additional Sessions Judge has reversed the order dated 15.05.2012 passed by JMFC, Gwalior in Criminal Case No. 3472/2008.

Brief facts just necessary for disposal of this petition are that the petitioner filed a private complaint before the JMFC, Gwalior, which is registered as Criminal Case No. 3472/2008 under Sections 294, 323 read with Section 504/ 34 of IPC against the respondents No. 1 to 6. In this case, cognizance was taken under Section 323 of IPC vide order dated 09.04.2008 and charges against the non-petitioners/accused persons were framed on 14.12.2009. Subsequently, an application was filed by the non-petitioners under Section 468(2) of Cr.P.C. alleging that the complaint is barred by limitation. The said application was decided by the learned JMFC, Gwalior on 15.05.2012 and observed that once the Court has taken cognizance and proceeded ahead for trial, the Court does not have the power to discharge the accused persons on the ground that the complaint is barred by limitation. The non-petitioners challenged the said order before the 9th Additional Sessions Judge, Gwalior in Criminal Revision No. 217/2012, in which the learned 9th Additional Sessions Judge, Gwalior, held that the complaint has been registered under Sections 323 (2 counts) and 323/ 34 (2 counts) of IPC against the non-petitioners is barred by limitation and discharged the accused persons (non-petitioner).

Aggrieved by this order, the complainant has preferred this petition under Section 482 of Cr.P.C. for quashing the order dated 10.07.2012 and to restore the order dated 15.05.2012 passed by the learned JMFC, Gwalior in Criminal Case No. 3472/2008.

In the written arguments, it is claimed by the petitioner that filing of said application under Section 468(2) of Cr.P.C. after four years is not permissible under law and the non- petitioners No. 1 to 6 have mislead the Court. It is also requested that if this Court is of the opinion that the present petition is not maintainable then the petitioner may be given liberty to file application for conversion of this petition into petition for revision.

For better understating of the matter, Section 468(2) of Cr.P.C. is reproduced as follows:-

"S. 468. (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 the 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.

(3) xxx xxx xxx"

Cognizance was taken under Section 323/ 34 of IPC by the learned JMFC, Gwalior. For offence under Section 323 of IPC, the punishment prescribed is imprisonment either description for a term which may extend to one year or with fine which may extend to Rs. 1000/- or with both.

Thus, in the present case, the limitation starts from the date of alleged offence, i.e., 12.07.2006. The complaint is filed on 06.08.2007. No exemption was claimed under Section 470 and 473 of Cr.P.C. or any other provisions of the Cr.P.C. by the complainant/petitioner. Extension of period of limitation was not claimed by the petitioner before the learned JMFC, Gwalior.

On behalf of the petitioner, it is argued that complaint was also filed for grievous offences, however, cognizance was not taken by the learned JMFC, Gwalior, therefore, the limitation period would not be a hurdle. In State of Himachal Pradesh Vs. Tara Dutt and Another, , it is held that:-

"(A) Criminal P.C. (2 of 1974), S. 468(3) - Limitation for taking cognizance - Charges framed for major offences for which no limitation is provided - Conviction however, in respect of minor offences - Cognizance not barred if on date of cognizance for minor offences, the same was barred under S. 468. -- Limitation provided under S. 468 - Is in respect of offence charged and not offence finally proved."

(1998 3 Crimes 523 (Him Pra), Reversed."

Therefore, as per the dictum of the Apex Court, the limitation provided under Section 468 of Cr.P.C. in respect of offence for which cognizance has been taken has to be taken into account and not for the offence for which the complaint has been filed.

Learned Magistrate while taking cognizance has not expressed anything about the period of limitation. No doubt while taking the cognizance by the Court, the Court can take cognizance of any offence after the expiry of period of limitation by assigning reasons and using its discretion judiciously. But this discretion must be exercised by speaking order. In absence of positive order to that effect, it cannot be deemed that the Court has taken cognizance by condoning delay when the cognizance was barred by limitation. Hon''ble the Supreme court in case of Taradatt (supra) observed so at Para 7.

Keeping in view the above legal aspect, the present petition filed under Section 482 of Cr.P.C. has no merit and is hereby dismissed.