Gauhati High Court
Shyam Sunder Sarma vs State Of Assam And Ors. on 11 March, 1987
Equivalent citations: 1988CRILJ1560
ORDER Srivastava, J.
1. This is a revision against the order dated 18-2-81 passed by the learned Additional Chief Judicial Magistrate, Gauhati, dismissing the G.R. Case No. 1600 of 1974, as barred by limitation under Section 468 of the Code of Criminal Procedure, hereinafter referred as the 'Code'.
2. The petitioner had lodged an 'ejahar', at Gauhati Sadar Police Station, about an occurrence on 28-5-74 involving commission of cognizable offences. The case was registered. The police, after investigation, submitted charge sheet, under Section 448/427/336/323/34IPC on 8-12-78, against the respondents. On 2-1-79, the learned Magistrate issued process. Accused (respondents) appeared. On 18-2-81 by the impugned order the learned Magistrate took the view, that the case was barred by limitation and accordingly dismissed the same.
3. The complainant has come up in revision, and Sri B.K. Goswami, learned Counsel appearing on his behalf, has submitted that, firstly the petitioner had lodged the ejahar on28-5-74 and the police had submitted the matter before the Chief Judicial Magistrate, who had seen the same on 11-6-74. It, therefore, followed that the cognizance had been taken on 11-6-74 itself and that on 2-1-79, the learned Magistrate had merely issued process, accordingly, the case was not barred by limitation; secondly the offence under Section 448 IPC, criminal trespass was a continuing offence and therefore under the provisions of Section 472 of the Code, the period of limitation was extended and the case was not barred by the provision of Sub-section (2) of Section 468, and lastly by issuing process on 2-1-79, it should follow, that the learned Magistrate had condoned the delay, under Section 473 of the Code. Sri Goswami has contended that the impugned order was not at all justified or correct and accordingly it should be set aside.
4. Sri A.K. Bhattacharyya, learned Counsel for the respondents, on the other hand, has refuted the above submissions and has argued, that firstly submission of the ejahar for information of the Magistrate on 11-6-74, was not taking cognizance of the offence, that it was merely an administrative matter, in pursuance of the law, for Magistrate to exercise control over investigation of cases that cognizance of the offence was taken only on 2-1-79 when there was application of the judicial mind to the charge sheet submitted by the police and on that date, i.e. 2-1-79 the case was barred by time under Sub-section (2) of Section 468 of the Code, cognizance having been taken long after the expiry of 3 years lirnitation,'for taking cognizance of offences; secondly that by mere taking cognizance it could not rightly be contended that there had been any condonation of the delay, because the delay had not been explained, because there had been no observation of finding of the Court, to the effect that it was in the interest of justice to do so, that there was no prayer, and that in the G.R. Case, which was dismissed on the grounds of limitation, the State has not come before this Court, and lastly that the offence of criminal trespass under Section 448 of the IPC was not a continuing offence and there could not be any question of extension of limitation. He has referred to the allegations in the FIR itself, which do not support the argument on behalf of the petitioner that the said offence was continuing offence. He has also referred to the definition of Criminal Trespass under Section 441 IPC to argue that on the allegations made in the FIR it could not be construed that the offence alleged to have been committed under Section 448 of the IPC was a continuing offence. Sri Bhattacharyya has also submitted that no useful purpose or end of justice would be served by reviving the case, after more than 12 years.
5. I have considered the respective submissions of the learned Counsel on both sides. Section 468 of the Code reads:
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 pategory 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.
As regards the submission that on 11-6-74 the FIR had been placed before the Chief Judicial Magistrate who had seen it and put his signature and that it should be construed that the Magistrate had taken cognizance, it is not at all tenable. The matter during investigation, by a 'report' was submitted for information before the Magistrate, in pursuance of the provision of Section 157(1) of the Code. The relevant portion of Section 157(1) reads:
If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to" a Magistrate empowered to take cognizance of such offence upon a police report It may be clear, from the above, that at this stage, the 'report' sent to the Magistrate is not the 'police report', on the basis of which, Magistrate takes cognizance of offence. The above provision is for control over police action, investigation, etc. by the Magistrate. The purpose of the above provision was explained in Pala Singh v. State of Punjab where it was observed Section 157, Cr.P.C. requires such report to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159.
Moreover, at that stage, it could not be said that the commission of offence had even been established, which could be, only after completion of the investigation nor it could even be said, that after investigation the police would have submitted charge-sheet against the accused persons. Obviously, therefore, no question of taking cognizance of offence by the Magistrate as is contemplated, could arise on 11-6-74. The Magistrate takes cognizance of offence, by application of judicial mind for the purpose of taking some proceeding or action in the matter. It may be noted that in such cases cognizance of offence is taken, on the police report, under Section 190(l)(b) of the Code and police report is defined in CL (r) of Section 2 of the Code, as a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173, It should, therefore, be clear that what was submitted to the Magistrate on 11-6-74, is only report under Section 157(1) of the Code and not police report' on which the Magistrate could be said to have taken cognizance. The learned Counsel for the respondent has cited R.R. Chari v. State of Uttar Pradesh , where after considering the views, in Gopal v. Emperor AIR 1940 Patna 245, that "the word 'cognizance' is used in the Code to indicate the point when the Mag. or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Mag. The Ct. notices that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense" and the view in Supdt. & Remembrancer of Legal Affairs W.B. v. Abani Kumar , that "What is taking cognizance has not been defined in the Cr.P.C. and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. has taken cognizance of any offence Under Section 190(l)(a), Cr.P.C. he must not only have applied his mind to the contents of the petn. but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap, proceeding Under Section 200 and thereafter sending it for inquiry and report Under Section 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigatioa. Under Section 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence". The Supreme Court observed "In our opinion that is the correct approach to the question before the Ct."
It may be clear that on 11-6-74 the Magistrate had not taken cognizance, which was taken by the Magistrate on 2-1-79 only after the submission of the police report, i.e. charge-sheet.
Jailok Thakur v. State of Bihar , Full Bench has been relied upon by the learned Counsel for the petitioner. In the said case cognizance had been taken within the period of limitation but process was issued later and it was held that cognizance having had been taken within limitation process could issue later after expiry and there was an illegality. I am in respectful agreement with the view, but this authority does not help the petitioner's case for, cognizance itself was taken long after the expiry of period of three years.
For the aforesaid reasons, the first submission of the learned Counsel for the petitioner cannot be accepted.
6. In regard to the next submission, the FIR dated 28-5-74 itself would show that alleged criminal trespass was, that, the respondents had entered the premises and had assaulted the complainant, and others. There is nothing in the FIR to show that trespass continued after the alleged incident. The learned Counsel for the petitioner has referred to the allegation that there was blockade in the premises, but the alleged trespass was not stated to beby the blockade, but by entry on the premises for assault. The allegations therefore, do not, at all support, that there was any continuing trespass. I am, therefore, satisfied that the said offence alleged to have been committed was not a continuing offence and consequently the provision of Section 472 of the Code was not attracted and there could not be any question of extension of the period of limitation under Section 473 of the Code.
7. As regards the third submission, that because on 2-1-79, the learned Magistrate had issued process, it should be construed, that he had condoned the delay, it is also not tenable, for the simple reason, that no explanation for delay in submission of the charge-sheet by the State had been given, and on behalf of the State there was no prayer for condonation of the delay. There is nothing on record to show that the Magistrate had applied his mind to the question of delay and had condoned the same or that the interest of justice were considered and decided. It is also significant that the State has not come up before this Court against the aforesaid order. It is, therefore, not possible to take the view, that merely because the learned Magistrate had issued the process on 2-1-79, the delay was condoned. The case was, therefore, clearly barred by limitation under Sub-section (2) of Section 468 of the Code and the learned Magistrate had rightly made the impugned order dismissing the case and acquitting the accused.
Considering that the offence were committed more than twelve years ago, it shall not at all be in the interest of justice to revive the matter which allegedly took place on 28-5-74 and which from the statements made by the learned Counsel at the bar appears to have been due to dispute among close relations.
For the aforesaid reasons, the petition is dismissed.