Patna High Court
Sahdeo Das And Ors. vs Lila Dai Kisku on 17 July, 1978
Equivalent citations: 1978(26)BLJR791
JUDGMENT Udya Sinha, J.
1. This is an application under Section 482 of the Code of Criminal procedure 1973 for quashing the order of Chief Judicia Magistrate, Purnea dated the 13th of August, 1976 whereby processes bail-able warrant of arrest) were issued against the petitioners. The application was originally listed for hearing before M.M. Prasad, J. After hearing the application for three days, Prasad, J. referred This application for hearing before a Division Bench. The application was accordingly listed before us for final disposal.
2. The facts essential for disposal of the present application are that in September, 1970 jute and maize crops from the field of the complainant Lila Dai Kisku were dishonestly cut and removed. On 6-5-1971 she filed a complaint before Subdivisional Magistrate, Purnea in which she alleged that the petitioners had committed thet of her jute and maize crops worth Rs. 1500/-. On 7-5-1971 the Subdivisional Magistrate took cognizance of the offence by examining the complainant on solemn affirmation. By order of the very same date the learned Magistrate referred the matter for inquiry and report to Mr. John Murmu, Magistrate Purnea, who examined two witnesses but failed to submit any report. The matter was sent to different Magistrates for inquiry and report. Suffice it to say no report was received by the Subdivisional Magistrate. The question relating to issuance of processes was kept hanging without any progress. In April, 1974 the new code came into force. Consequent upon coming into force of the new code the file was placed before Chief Judicial Magistrate, Purnea. On 13-8-1976 the learned Chief Judicial Magistrate further examined the complainant perused the statements of witnesses examined in her support before Mr John Murmu and issued processes against the petitioner by order dated 13-8-1976.
3. The first submission urged on behalf of the petitioners is that the learned Chief Judicial Magistrate had erred in law and in fact acted without jurisdiction in looking into the evidence of witnesses examined before Mr John Murmu. I am unable to see any force in this submission. The order for inquiry by Mr. Murmu was certainly not without jurisdiction. The recording of evidence by him was, therefore, within the framework of law. The fact that Mr. Murmu did not submit any report could not wipe out the existence of the statements of the witnesses examined by him. They were very much pat of the record and any Magistrate succeeding the sub-divisional Magistrate was not only entitled but was in fact bound to peruse the entire records before deciding whether processes should issue or not. In my view therefore, the learned Chief Judicial Magistrate committed no error in looking into the evidence of witnesses examined by Mr. Murmu. I should and that the Chief judicial Magistrate relied not only upon the evidence of such of those witnesses, but it also examined the complainant himself No exception can be taken, therefore, to the course adopted by the Chief Judicial Magistrate. The submission in this behalf urged by counsel for the petitioners is devoid of any substance and must be rejected.
4 Learned Counsel for the petitioners contended that the Chief Judicial Magistrate had no jurisdiction to take cognizance of the offences alleged to have been committed, as the allegations of fact in the complaint made out offences punishable only under Sections 147,148 and 379 of the Indian Penal Code, the maximum sentence for which was three years rigorous imprisonment. Learned Counsel relied upon the provisions of Section 468 of the Code of Criminal Procedure, 1973 which places a bar upon taking of cognizance after the period of limitation prescribed in Section 468(2) The instant case will be covered by Clause (c) of Section 468(2) which provides a period of three years for taking cognizance if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The maximum sentence to which the accused could have been liable was rigorous imprisonment for three years punishable under Section 379 of the Indian Penal Code. Learned Counsel drew my attention to the impugned order in which the learned Magistrate has recorded that he was taking cognizance in respect of the alleged offences. This submission fails to take note of the fact that cognizance had already been taken in May, 1971 itself it is now well settled that the process of examining the complainant on solemn affirmation itself amounts to taking cognizance. It is, therefore, obvious that cognizance of the offences had been taken in 1971 itself much before the new code came into force. The fact of recording of taking cognizance in 1976 is of no consequence. It is well known that once cognizance has been taken, taking of cognizance subsequent thereto is redundant. To that extent the order to' the learned Magistrate taking cognizance must be held to be redundant. But so far as the question of application of Section 468 of the new code is concerned, it has no application for the simple reason that cognizance had already been taken in 1971.
5. Learned Counsel for the petitioners contended that the expression "cognizance" in Section 468 must be read in a special sense, different from the meaning given to that expression in Section 190 of the code. According to Learned Counsel for the petitioners, the word "cognizance'' in Section 468 must be read as connoting issuance of processes. I regret, I find no force in this submission. The word "cognizance" is an expression of well-known connotation. Cognizance is always taken of an offence and not of the offender. I am unable to give any extended meaning to the expression "cognizance" in Section 468 different from the well-known connotation. It must, however, be conceded that Section 469 of the new code has injected a new concept in relation to issuance of processes. Prior to Coming into force of the new code, once cognizance had been taken there was no limitation upon courts issuing processes. Section 469 now places a bar in that regard. Section 469(1) of the new code reads as follows:
469(1). The period of limitation, in relation to an offender, shall commence-
(a) on the date of the offence ; or
(b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) Where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
It will be seen that Sub-section (1) of Section 469 of the new code provides that the period of limitation in relation to an offender shall commence at a particular point of time as laid down in Clauses (a)(b) and (c). The placing of limitation for issuance of processes appears jarring to well established rules and procedure in this country, but the communed of the Legislature has to be respected. Giving the ordinary grammatical meaning of the expression used in Section 469, there can be no escape from the position that processes to accused cannot be issued after the expiry of period of limitation. The justification for such a provision is not for courts to decide. The intention of the Legislature appears to be unambiguous in this regard. Learned Counsel for the opposite party tried to repel this position in law by contending that once cognizance of the offence had been taken within the period of limitation, the question of placing any limitation upon issuance of processes did not arise, as in that situation Chapter XXXVI of the Code of Criminal Procedure would not be attracted. In my view, this is no answer to the submissions urged on behalf of the petitioners. It now appears certain that the provisions of Chapter XXXVI can look back even to the period prior to coming into force of the new code just as the provisions of Section 428 of the new code can look back for giving content to the provisions contained therein. If the provisions contained in Section 469 can take hind view of the facts, it is obvious that processes were issued in 1976 much after the offences had been committed and much after the offenders were known to the complainant. In that view of the matter, the issuance of processes against the petitioners was certainly in derogation of the provisions of Section 469 of the new code. The impugned order must, therefore, be quashed.
6. Quashing the impugned order, however, does not conclude matters. It appears that the attention of the learned Magistrate was not directed either to the provisions contained in Section 468 or 469 or towards those contained in Sections 470 and 473 of the new code. The matter must, therefore, be remanded back to the Chief Judicial Magistrate to consider whether issuance of processes against the petitioners was barred by time or not. The matter has been hanging fire for several years and, therefore, the learned Magistrate will take speedy steps in the case. He will be at liberty to issue fresh processes if he is satisfied that the delay in issuing processes be condoned.
7. For the reasons, indicated above, the application is allowed and the order of the learned Magistrate dated 13-8-1978 is hereby quashed. The file must now be placed expeditiously before the Chief Judicial Magistrate for considering whether he considers it to be a fit case for condoning the delay in terms of Section 473 of the Code of Criminal Procedure, 1973.
P.S. Sahay, J.
8. I agree.