Upendra Prasad Yadav vs The State of Bihar and Others

I.P. Singh, J.—This application has been filed for quashing the order dated 1.3.2001 passed by the Judicial Magistrate, 1st Class, Vaishali at Hajipur in Tr. No. 170/2000 by which the learned Magistrate has taken cognizance against the Petitioner u/s 406 of the Indian Penal Code.

learned Counsel appearing on behalf of the Petitioner has submitted that the first complaint case sent for investigation u/s 156 (3) of the Code of Criminal Procedure (in short ''the Code'') and police after investigation submitted final form. A protest petition was also filed earlier treating the case as complaint case cognizance was taken and thereafter direction was given to file requisites. It has been further submitted that the complainant did not pursue the case and it was dismissed. Thereafter a fresh complaint was filed and cognizance has been taken which is bad in law. It has been further submitted that second complaint is not maintainable as the same facts have been stated in the present complaint petition.

Since the first complaint petition was not dismissed on merit but was dismissed for failure to file requisites u/s 204(4) of the Code. As such in such cases there is no bar in considering the second complaint petition. However, the submission of the learned Counsel that the occurrence took place on 21.4.1997 u/s 406 of the Indian Penal Code in which maximum sentence is three years. As such the cognizance taken by the learned court below is barred by limitation u/s 468 of the Code. From the impugned order it is clear that the occurrence took place on 21.4.1997 and cognizance was taken on 21.3.2001 i.e. more than three years from date of occurrence and the order of cognizance does not mention condonation of delay u/s 473 of the Code. As such the cognizance taken by the learned Magistrate is not sustainable in the eye of law as it is barred by limitation u/s 468 of the Code.

Accordingly, the order dated 21.3.2001 is hereby quashed and this application is allowed.