Vipin Kalra and Another vs State

S.K. Agarwal, J.—This revision petition u/s 397/401 of the Code of Criminal Procedure 1973 (for short, "Cr.P. C.") is directed against the order dated 16th November, 1998, passed by the court of Metropolitan magistrate holding that, prima facie, offence under Sections 341/323/34 IPC is made out in the case FIR No. 23/97 P.S. Chitranjan Park against the petitioners and framing of the formal notice u/s 251 Cr.P.C. on 26th November, 1998.

Facts in brief are: that on 10th January, 1997 at about 8:00 p.m. Sh. Himanshu Khurana lodged a report alleging that when he reached home, his father and brother-in-law (Jija) were going to the Police Station. He went upstairs and sat down in his room after closing the door. At about 11.15 p.m. his sister Kamini Pahuja from Pitampura informed him on phone that Smt. Krishna her sister-in-law (Bhabi) had abused her on phone in the manner which cannot be described; she was threatened that in case she and her husband Vinay Pahuja do not mend their ways they would be killed. She was weeping. After 5-10 minutes, Smt. Veenu, daughter-in-law of Prem Dass Kalra telephoned him and started extending threats that he and his parents would be killed. The complainant became nervous and came down for going to the Police Station for his safety. At the gate Vipin Kalra and his two servants (including Chottu) surrounded him and gave him beating. Vipin Kalra gave a fist blow on his face and stomach, as a result of which his spectacles were broken and he suffered injuries. Case under Sections 506/323/34 was registered. On medical examination he was found having scratches over the left side of his cheek. Injuries were found to be simple. After completion of investigation, challan was filed on 23rd March, 1998. Arguments were heard and prima facie offence under Sections 341/323/34 IPC was held to be made out. This order has been challenged. I have heard learned counsel for the petitioner, learned APP for the State and have been taken through the record.

Learned counsel for the petitioners argued that as per the allegations in the charge-sheet, no offence u/s 506 IPC was made out; that this Section was deliberately added to fill up the lacunae in the prosecution case and to avoid the bar of limitation; charge-sheet was filed in a mechanical manner and the impugned order dated 16th November, 1998 directing framing of notice u/s 341/323/34 IPC is not sustainable as the same is barred by limitation. Learned counsel for the petitioner also argued that before the magistrate can be said to have taken cognizance of an offence u/s 190 Cr.P.C., it must be shown that he applied his mind to the contents of the challan for the purpose of proceeding in a particular way, as indicated in the Code. Merely releasing the accused on bail and supplying him copies would not amount to taking cognizance. Reliance was placed on the decision in Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee,

The question which arises for consideration is whether in this case cognizance was taken within the period of limitation as prescribed u/s 468 Cr.P.C.? Section 468 Cr.P.C. creates a bar for taking or cognizance of the offence after lapse of the period of limitation prescribed in the section; Clause (b) of Sub-section (2) of this section provides the period of limitation as one year if the offence is punishable with imprisonment for a term not exceeding one year. Sub-Section (3) of Section 468 Cr.P.C. provides that limitation in relation to the offence being tried together shall be determined with reference to the offence which is punishable with more severe punishment. The offence u/s 323 IPC is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 1,000/- or with both. Thus, valid cognizance of the offence could be taken within the period of one year form the date of commission of offence. In this case, the offence was committed on 10th January, 1997. Police submitted the charge-sheet on 23rd March, 1998, i.e., after the expiry of period of one year. Prosecution also did not file any application for extension of the period of limitation u/s 473 Cr.P.C. In view of the unexplained delay, cognizance could not be taken after the lapse of period of limitation.

For the foregoing reason, the petition is allowed and impugned order dated 16th November, 1998 framing charge against the petitioner is hereby quashed.

Petition stands disposed of.