Smt. Hem Lata and Others vs Dharam Veer Singh Tyagi and Others

N.N. Sharma, J.—This revison is directed against the order dated 12-10-1984 recorded by Sri R.K. Singh, Munsif Magistrate III, Dehradun in Criminal Case No. 372 of 1984 filed by Sri Dharam Veer Singh Tyagi, O.P. No. 1 against the revisionist and four others summoning the accused on 15-11-1984 for appearance and for proceeding against them under Sections 403/406/120A IPC. Parties are inter-related. Revisionist No. 1 was married with late Ajit Kumar, son of Dharamveer Singh on 22-2-1977. Ajit Kumar died in an accident on 7-5-1979. It was laid in the complaint that accused Nos. 2 to 5 hatched a criminal conspiracy with dishonest intention for their unlawful gain and to cause wrongful loss to the complainant and his family and, therefore, approached the complainant''s house in police quarters situated in the compound of police station Kotwali Dehradun on 2-5-1979 and misrepresented before Smt. Gyan Bala, wife of complainant that Smt. Hemlata was to participate in a marriage of near relation in district Ghaziabad on 8-5-1979 and so persuaded Smt. Gyan Bala to give her personal jewellery and clothes details of which have been given in para 4 of the complaint to Smt. Hemlata so that she may wear and use it in the said marriage to keep up the dignity of the family before others. All the ornaments and clothes were entrusted to Hemlata by Smt. Gyan Bala. These articles were never returned, although Smt. Hemlata and co-accused visited the house of complainant on 7-5-1960. When the aforesaid articles worth Rs. 41,550/- were not returned despite the efforts of complainant and his wife a complaint was filed on 18-9-1984 under Sections 403, 406/34 and 120B IPC.

An application dated 12-10-1984 was also filed by Counsel for the complainant to condone the delay in filing the complaint vide Annexure-CA 1. Learned Magistrate considered the reasons for the delay as given by complain- ant and his wife and Nandlal in their statements u/s 200 and 202, Code of Criminal Procedure and held that the delay has been properly explained and so in exercise of his power conferred by Section 473 Code of Criminal Procedure the learned Magistrate treated the ground as sufficient for proceeding against them under Sections 403/406/34 and 120B IPC and summoned them for appearance on 15-11-1984.

In this Court parties filed affidavit, counter-affidavit and rejoinder-affidavit alongwith annexures in support of their rival contentions.

On behalf of revisionists it was pointed out that Section 403 IPC provided a maximum sentence of two years; Section 406, IPC, provided a maximum sentence of three years and Section 120B, IPC provides that in such a case the offence shall also be punishable in the same manner as if he had abetted such offence. Section 468, Code of Criminal Procedure (Act No. 2 of 1974) reads as below:

Section 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 exceeding one year but not exceeding three years.

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

Thus according to the Section it'' was not open to the Court to take cognizance of the offence which was punishable with imprisonment for a term not exceeding three years after efflux of three years.

According to Annexure-I (Copy of complaint filed by revisionist alongwith stay application) the offence took place on 2-5-1979; complaint was filed on 18-9-1984 No explanation for the delay was laid in the complaint. Annexure-II copy of plaint of Misc. Case no, 65/80 was filed by the revisionist to show that Smt. Hemlata Tyagi had already filed a suit against opposite parties for recovery of articles including the ornaments on 11-12-1980 in Ghaziabad. Under such circumstances it is obvious that Section 468, Code of Criminal Procedure aforesaid placed a bar on the jurisdiction of a Court in taking cognizance of the aforesaid offences.

Section 473, Code of Criminal Procedure relied upon by the learned Magistrate is worded as below:

Section 473-Extension of period of limitation in certain cases;-Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

Thus the contention was that the revisionists were illegally summoned by learned trial Magistrate without affording an opportunity to the accused of being heard when the complaint was prima facie time barred.

In this connection reliance was placed upon Prakash Chand Sharma v. Kaushal Kishore 1980 ACR 179 ; Krishna Sanghi and Others Vs. The State of Madhya Pradesh, and Bharat Hybrid Seeds and Agro Enterprises and Another Vs. The State, . So the rights which had accrued to the accused that there would be no prosecution after efflux of the aforesaid period was denied to them even without affording them reasonable opportunity.

Reliance was also placed on Ramesh Chandra v. State 1977 AWC 133. In that case also similar plea prevailed with the Court and it was held that the Magistrate had no jurisdiction to summon the accused after expiry of the period of limitation. So the summoning order against the applicants in that case was quashed.

Learned Advocate for the revisionists also relied upon Kripa Ram v. State of U.P. (DB) 1981 ACR 64. It related to an offence under Sections 161 and 165A of the Indian Penal Code.

Learned Advocate for the complainant relied upon Chandra Deo Singh Vs. Prokash Chandra Bose and Another, which posited:

The entire Scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a Counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interest of justice. But beyond that, he cannot go.

Thus the contention was that the accused had absolutely no right to be heard by the Magistrate who had already condoned the delay in filing the complaint.

I do not subscribe to this view. The aforesaid authority of Supreme Court does not deal with taking cognizance of the offence by the Magistrate. Cognizance of the offence is taken by the Magistrate u/s 190 Code of Criminal Procedure. In the instant case the proceedings were initiated on a complaint u/s 190, Sub-clause (1)(a). There are two stages only in this proceeding (1) Enquiry conducted by the Magistrate u/s 200 and 202 Code of Criminal Procedure (2) trial. That stage is subsequent to the framing of charge.

A mere look at Section 468 as well as Section 190 Code of Criminal Procedure shows that the material expression is "taking cognizance" of an offence. This expression has not been defined in the Code. It means taking judicial notice of an offence which includes the intention of initiating judicial proceedings against the offender in respect of an offence or taking steps to see whether there is any basis for initiating judicial proceeding or for other purpose. When once the Court has taken cognizance of an offence it gets jurisdiction which is not ousted by riling a document relating to several offences. The Magistrate has to apply his mind to the offence for the purpose of proceedings in a particular way as enumerated in the subsequent provisions viz. Section 200 and 204, 209 and 210 Code of Criminal Procedure. The case commences before the Magistrate when the complaint or charge-sheet or information is received by him and when he takes notice of the offence on application of his mind. If accused is denied the right to be heard on the plea of limitation also on the ground that he does not come in the picture at the stage of enquiry, it shall negate the mandatory provision of Section 468 Code of Criminal Procedure. This point came up for consideration in Panney Singh and Others Vs. State of Rajasthan, . In that case cognizance of the offence was taken by Magistrate on a police report (under Section 173, Code of Criminal Procedure) after expiry of three years on 15-2-1978 in connection with an occurrence of dated 19-10-1974 for offences under Sections 147/148/149 and 323 IPC. Some of the accused who appeared on 17-5-1978 raised the plea of limitation. This contention was repelled by learned trial Magistrate and so the accused moved an application u/s 482, Code of Criminal Procedure for quashing the order of the learned Magistrate, on the ground that in case order about taking cognizance after extension of period of limitation is sought to be challenged it would not be possible for the Court to recall such order. In such situation the Court has to act in conformity with the accepted principles of natural justice which demand that an opportunity of being heard should be given to the accused even on the question of extension of the period of limitation.

Reliance was also placed on several aforesaid authorities which provide that such right which accrued to the accused would not be allowed to be taken always so lightly.

I respectfully agree with the view laid above which is perfectly in consonance with the principles of natural justice. Accordingly 1 quash the impugned order and send the case back to the learned Magistrate concerned to proceed further in the light of observations made by me herein above. It would be open to the accused to be heard on the application of the complainant for extention of the period of limitation and after affording such an opportunity to the accused learned Magistrate shall proceed in the matter in accordance with law.

Thus the revision is allowed and the interim order dated 27-11-1984 is vacated herewith.

Revision allowed.