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Delhi District Court

Pawan Kumar vs The State (Nct Of Delhi) on 18 November, 2014

              IN THE COURT OF MS. RAVINDER KAUR,
        DISTRICT & SESSIONS JUDGE : SOUTH WEST DISTRICT
                  DWARKA COURTS : NEW DELHI.

CA No. 74/2014
Unique I.D No. 02405R0209362014

1. Pawan Kumar
   S/o Munsi Ram
   R/o WZ-58, Palam Village
   New Delhi.

2. Dheeraj
   S/o Munsi Ram
   R/o WZ-57, Palam Village
   New Delhi.                                                                                              .....Appellants

Versus

The State (NCT of Delhi)                                                                                  .....Respondent

Date of Institution : 13.08.2014
Date of Arguments: 05.11.2014
Date of Decision : 18.11.2014


                                                      JUDGMENT

1. Present appeal has been filed against the impugned order of the trial court dated 22.7.2014, whereby the application of the appellants under Section 468 Cr.P.C was dismissed by the trial court.

2. Notice of appeal was issued to the State. The trial court record was summoned.

3. I have heard arguments addressed by Advocate Sh. Mahipal Singh counsel for the appellants and Sh. R.K. Pandey, Public Prosecutor and have gone through the material on record carefully.

4. Brief facts necessary for disposal of present appeal are that case FIR No. 270/2012 was registered with PS Palam Village CA No. 74/2014 , Pawan Kumar & ors Vs. State Page 1/6 under Section 336/323/34 IPC on the complaint of Sh. Sandeep with the allegations that he is working as building material supplier and is resident of WZ-44B, Palam Village, Delhi. On 23.9.2012, at about 11.00 pm, he was present at his house when someone called him outside. When he went out, he saw the accused persons i.e. Pawan Kumar and Dhiraj i.e. the appellants, who used to consume hukka very often in front of his house. Accused Pawan Kumar told him, "tum zayada badmash ho rahe ho". The complainant inquired from him as to what badmashee he had done. At this, he was threatened by accused Pawan by uttering, "saale tu aapne dost ko bula jo niker main ghumta rehta hai, aaj tumahri badmashee nikalenge". In the meantime, Rakesh, friend of the complainant also came out of his house. Accused Pawan fired from the pistol in the air and gave him beatings. The statement of Rakesh was also recorded under Section 161 Cr.P.C wherein he too corroborated the incident narrated by the complainant in his complaint and further stated that both the complainant and Rakesh were beaten up by both the accused persons. PCR was informed at 100 number vide DD No. 53A. Both the complainant and PW Rakesh were sent to DDU hospital for examination and treatment. The perusal of their MLC's reveals that complainant had sustained abrasions on his person whereas, Rakesh had suffered bruise marks as well as CLW on his cheek.

After completion of investigation, the chargesheet was filed in the court for trial of the accused persons under Section 336/323/34 IPC on 26.3.2014 and Ld. trial court took cognizance for the offence as alleged in the chargesheet.

5. Present appellants preferred revision petition bearing No. 95/2014, against the aforesaid order of the trial court which was dealt with by this court itself. Therein the appellants were directed to move an appropriate application under Section 468 Cr.P.C before the trial court to raise all the issues taken up in the revision petition.

Thereafter, the revision petition was dismissed as withdrawn with an undertaking to move appropriate application before the concerned court under Section 468 Cr.P.C.

Consequently, an application under Section 468 Cr.P.C was moved before the trial court by the present appellants seeking discharge of the accused persons on the ground that the cognizance of the offence against the accused persons under Section 336/323 IPC taken by the trial court, was beyond the period of limitation prescribed under Section 468(2) Cr.P.C.

The said application was dismissed by the trial court vide order dated 22.7.2014 on the ground that it was not maintainable since the court had already taken cognizance of the offence vide order dated 26.3.2014.

6. The present appeal has now been filed against the impugned order dated 22.7.2014.

7. I have heard arguments at length addressed by Sh. Mahipal Singh counsel for the appellants and Sh. R.K. Pandey Public Prosecutor and have also gone through the material on record.

8. In the present case the date of commission of offence is 23.9.2012 and the charge sheet was filed on 26.3.2014 i.e. approximately after 1 ½ year of the commission of the offence. The sentence prescribed for the offence punishable under Section 336 IPC may extend upto three months whereas the sentence prescribed for the offence punishable under Section 323 IPC may extend upto one year.

Section 468 Cr.P.C reads as follows :

468 Cr.P.C - Bar to taking cognizance after lapse of the period of limitation- (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 not exceeding three years; (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

In view of the provisions of Section 468(2)(c) Cr.P.C, the cognizance of the offence punishable 336/323 IPC could be taken by the concerned Metropolitan Magistrate within one year from the date of commission of the offence, in terms of Section 469 Cr.P.C. However, the period of limitation can be extended in certain cases. Section 473 Cr.P.C deals with the extension of period of limitation in certain cases. The Section 473 Cr.P.C is reproduced as follows :

473. Extension of period of limitation in certain cases -

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, 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.

As such, in view of the provision of Section 473 Cr.P.C the court has power to take cognizance of the offence after the expiry of period of limitation, if the court is satisfied from the facts and circumstances of the case that the delay has been properly explained. The period of limitation can also be extended if the court is satisfied that it is necessary to do so.

9. In the present case, as referred above, charge sheet was filed against both the appellants for their trial under Section 336/323/34 IPC. The date of commission of offence in the present case is 23.9.2012 whereas, the charge sheet was filed beyond the period of one year i.e. on 26.3.2014. The trial court vide order dated CA No. 74/2014 , Pawan Kumar & ors Vs. State Page 4/6 26.3.2014, had taken cognizance of the offence as alleged in the charge sheet and framed the charges against both the appellants under Section 323/34 IPC and also framed charge under Section 336 IPC against appellant Pawan Kumar vide order dated 9.9.2014. The order of the trial court dated 22.07.2014 does not find mention, recording of satisfaction of trial court that in the facts and circumstances of the case, the delay was properly explained by the prosecution or it was necessary to extend the period of limitation. Rather it appears, trial court did not even notice that chargesheet was filed after more than one year from the date of commission of offence. However, the said approach of the trial court has not caused any prejudice to the appellants in the facts and circumstances of the present case as the perusal of the complaint shows that apart from the charges under Section 336/323/34 IPC, charge under Section 506(1) IPC is also made out, from the allegations contained therein. Ld. trial court at the stage of framing of charge has failed to appreciate material available on record that charge under Section 506(1) IPC was also prima facie made out against the appellants. It seems that trial court was swayed away by the Sections mentioned in the charge sheet only and he did not apply his judicial mind on the facts of the case to find out prima facie what charges were actually made out against the appellants, from the record. In the complaint itself, it is specifically mentioned that both the appellants had called the complainant at about 11.00 pm outside his house and had threatened him by uttering "tum zayada badmash ho rahe ho"

and that when the complainant asked as to what badmashee he had done, appellant told him "saale tu aapne dost ko bula jo niker main ghumta rehta hai, aaj tumahri badmashee nikalenge" in the meantime, took out pistol and fired in the air and both of them gave beatings to the complainant. This act on the part of the appellants amounts to criminal intimidation to the complainant which is an offence punishable under Section 506 (1) IPC. The CA No. 74/2014 , Pawan Kumar & ors Vs. State Page 5/6 sentence prescribed under 506 (1) IPC may extend upto two years. As per section 468(2)(C) Cr.P.C the limitation prescribed for the said offence is three years. The date of offence in the present case is 23.9.2012, the charge sheet was filed in the court on 26.3.2014, when the cognizance of the offence was taken by the trial court, which was well within limitation prescribed under Section 468(2) (C) Cr.P.C. Argument of counsel for the appellants, that no cognizance of the offence under Section 506(1) IPC was taken by the Ld. trial court, is of no consequence, as the trial court vide order dated 26.9.2014 had taken cognizance of all the offences made out in the charge sheet which also includes offence of Criminal Intimidation punishable under Section 506(1) IPC though in the charge sheet this section has not been mentioned by the IO for reasons best known to him. The trial court has erred in not framing charge under 506(1) IPC though prima facie there is sufficient material on record to this effect. In view of the above discussion, the appeal is devoid of merits and is hereby dismissed. However, the trial court is impressed upon that in future while taking cognizance of the offence, he must peruse the record carefully to satisfy himself, that the cognizance of the offence alleged is not barred by limitation.

Trial court record be sent back alongwith the copy of this judgment with the directions to frame additional charge under Section 506(1) IPC against both the appellants.

Appeal file be consigned to record room.

Announced in open court on 18.11.2014 (Ravinder Kaur) District & Sessions Judge:

South West District Dwarka Courts/Delhi.

Pawan Kumar Vs. The State 18.11.2014 Present: Both the appellants in person with counsel Sh. Mahipal Singh.

Sh. R.K Pandey, Ld. Public Prosecutor, S.W on behalf of the State.

Vide separate judgment, announced in open court, the appeal is dismissed being devoid of merits.

Trial court record be sent back alongwith the copy of the judgment with the directions to the trial court to frame additional charge under Section 506(1) IPC against both the appellants.

Appeal file be consigned to record room.

(Ravinder Kaur) District & Sessions Judge:

South West District Dwarka Courts/Delhi/18.11.2014 CA No. 74/2014 , Pawan Kumar & ors Vs. State Page 7/6