Jharkhand High Court
Gulab Singh vs The State Of Jharkhand on 27 March, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 2598 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2598 of 2012
1. Gulab Singh
2. Meena Singh ... Petitioners
-Versus-
1. The State of Jharkhand
2. Rajesh Kumar Srivastava ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Jitendra Shankar Singh, Advocate
Mr. Randhir Kumar, Advocate
Ms. Sonu Kumari, Advocate
For the State : Ms. Nehala Sharmin, S.P.P.
For Opposite Party No.2 : Mr. Jitendra Nath Upadhyay, Advocate
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10/27.03.2023 Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioners, Ms. Nehala Sharmin, learned counsel for the State and Mr. Jitendra Nath Upadhyay, learned counsel for opposite party no.2.
2. This petition has been filed for quashing the entire criminal proceeding arising out of C1 Case No.29 of 2010 including the order dated 08.04.2010 passed by the learned Judicial Magistrate, Jamshedpur, whereby, cognizance has been taken against the petitioners under Sections 323, 341, 342, 384, 34 of the Indian Penal Code, now pending in the court of the learned Additional Chief Judicial Magistrate, Jamshedpur. Vide order dated 03.02.2023, I.A. No.251 of 2023 was allowed by the coordinate Bench of this Court and by the said order, the order dated 22.11.2022 passed by the learned Additional Chief Judicial Magistrate, Jamshedpur on the petition filed by the petitioners under Section 245(1) Cr.P.C. in C1 Case No.29 of 2010 was allowed to be challenged in this petition and interim order was granted.
3. The complaint case was filed by opposite party no.2 alleging therein that the complainant had given his house located at holding no.31, 2 Cr.M.P. No. 2598 of 2012 Khasmahal on rent to the accused Sunil Singh in April, 2004 for which an agreement was prepared. Since the accused Sunil Singh stopped payment of rent since July, 2004 and then on 01.11.2004, the complainant went to realise the due rent. On demand, the accused persons became furious and started abusing and assaulting the complainant with fist and slaps. Thereafter, the accused persons took the complainant in the room and confined him. After 3 hours the accused persons came and forcibly took his signature on blank papers on the point of pistol. On 20.12.2009, the complainant came to know that the accused persons have misused the said papers and prepared a deed of mortgage and agreement for sale and a money receipt and has filed a writ application bearing no. W.P.(C) No.2725 of 2007 in this Court and got the stay order for their personal benefit and thereby cheated the complainant in grabbing his house.
4. Mr. Jitendra Shankar Singh, learned counsel for the petitioners submits that the alleged occurrence was taken place on 01.11.2004, whereas, the complaint case has been filed on 05.01.2010. He further submits that cognizance has been taken against the petitioners under Sections 323, 341, 342, 384, 34 of the Indian Penal Code. According to him, sentence under Section 323 IPC is one year, under Section 341 IPC is one month, under Section 342 IPC is one year and under Section 384 IPC is three years. He submits that in view of Section 468 Cr.P.C, if maximum punishment is of three years, the complaint case is required to be filed within three years, whereas, in the case in hand, the complaint case has been filed on 05.01.2010 i.e. after approximately five years and two months of the alleged occurrence. He also submits that the learned court has taken cognizance under these Sections only. There is no cognizance order under 3 Cr.M.P. No. 2598 of 2012 Section 415 or 420 of IPC. He submits that the case of the petitioners is fully covered in view of the judgment passed by the Hon'ble Supreme Court in Japani Sahoo v. Chandra Sekhar Mohanty; [(2007) 7 SCC 394] . He relied upon paragraph 52 of the said judgment, which is quoted herein below:
"52. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/court and not of filing of complaint or initiation of criminal proceedings."
5. Learned counsel for the petitioners further relied on the same line in Amritlal v. Shantilal Soni & others; [2022 (3) JCR (SC) 76].
Paragraph 8 of the said judgment is quoted herein below:
"8. Therefore, the enunciations and declaration of law by the Constitution Bench do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. The High Court has made a fundamental error in assuming that the date of taking cognizance i.e., 04.12.2012 is decisive of the matter, while ignoring the fact that the written complaint was indeed filed by the appellant on 10.07.2012, well within the period of limitation of 3 years with reference to the date of commission of offence i.e., 04.10.2009."
6. On the other hand, Ms. Nehala Sharmin, learned counsel for the State submits that the learned court has rightly taken cognizance and the discharge petition filed by the petitioners under Section 245(1) Cr.P.C. has also been rejected by the learned court and at this stage, this Court may not interfere under Section 482 Cr.P.C.
7. Mr. Jitendra Nath Upadhyay, learned counsel for opposite party no.2 submits that the complainant came to know in the year 2009 about 4 Cr.M.P. No. 2598 of 2012 manipulation in the agreement, contained in Annexure-3 and in view of that Section 468 Cr.P.C. is not attracted. He further submits that the case is lodged within time.
8. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that admittedly alleged occurrence took place on 01.11.2004, whereas, the complaint case has been filed on 05.01.2010. The learned court has taken cognizance against the petitioners under Sections 323, 341, 342, 384, 34 of the Indian Penal Code. The sentence under Section 323 IPC is one year, under Section 341 IPC is one month, under Section 342 IPC is one year and under Section 384 IPC is three years. If maximum punishment is of three years, the complaint case is required to be filed within three years in view of Section 468(2)(c) Cr.P.C. For correct appreciation, Section 468(2)(c) Cr.P.C. is quoted herein below:
"468 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 exceeding one year but 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."
9. Looking to the aforesaid provision of Cr.P.C., it transpires that the complaint case is required to be filed within three years. The sentence for offence under Section 384 of IPC is three years and for rest of the offence, 5 Cr.M.P. No. 2598 of 2012 the punishment are lesser. The record suggests that the writ petition was filed by the co-accused pursuant the notice issued to the co-accused for vacating the plot in question. The said writ petition was dismissed for default, as submitted by Mr. Jitendra Shankar Singh, learned counsel for the petitioners. Thus, it prima facie appears that for vacating the house, criminal case has been filed. It further fortifies the case of the petitioners considering that for civil wrong, criminal case has been filed. The argument of Mr. Jitendra Nath Upadhyay, learned counsel for opposite party no.2 is not accepted by this Court considering that the learned counsel has not taken cognizance under any of section of cheating under IPC. The cognizance has been taken only under Sections 323, 341, 342, 384, 34 of IPC and the allegation of those sections are of the year 2004, whereas, the complaint case has been filed in the year 2010. Further the learned trial court has dismissed the discharge petition filed by the petitioners on the ground that only grave suspicion is there to frame charge.
10. In view of the aforesaid facts, reasons and analysis and considering that no cognizance has been taken under any of the cheating sections of IPC and cognizance has been taken only under Sections 323, 341, 342, 384, 34 of IPC and only under Section 384 IPC, the sentence is of three years and for other offences, the punishment is lesser and considering that the complaint case has been filed in the year 2010 whereas the alleged occurrence is of the year 2004 and in view of the judgments passed by the Hon'ble Supreme Court in Japani Sahoo and Amritlal (supra), the case of the petitioners is fully covered. Accordingly, the entire criminal proceeding arising out of C1 Case No.29 of 2010 including the order dated 08.04.2010 passed by the learned Judicial Magistrate, Jamshedpur and the order dated 6 Cr.M.P. No. 2598 of 2012 22.11.2022 passed in C1 Case No.29 of 2010 by the learned Additional Chief Judicial Magistrate, Jamshedpur, now pending in the court of the learned Additional Chief Judicial Magistrate, Jamshedpur are, hereby, quashed.
11. It is made clear that if any civil action is being taken by the accused for vacating the house in question, that will be decided in accordance with law without prejudiced to this order.
12. Accordingly, this petition is allowed and disposed of.
13. Interim order, if any granted by this Court, stands vacated.
(Sanjay Kumar Dwivedi, J.) Ajay/