Allahabad High Court
Ram Bux And Ors. vs The State Of U.P And Anr. on 8 August, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 24.07.2024 Delivered on 08.08.2024 Neutral Citation No. - 2024:AHC-LKO:54451 A.F.R. Court No. - 30 Case :- APPLICATION U/S 482 No. - 556 of 2014 Applicant :- Ram Bux And Ors. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Vipin Kumar Mishra Counsel for Opposite Party :- Govt. Advocate,Jitendra Bahadur Singh Hon'ble Om Prakash Shukla,J.
1. Heard Shri Vipin Kumar Mishra, learned Counsel for the applicants and Shri Arvind Kumar Tripathi, learned A.G.A.-I for the State respondent.
2. The applicants by invoking the inherent powers of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') have challenged the summoning order dated 07.12.2013 passed by Judicial Magistrate-III, Faizabad in Case No.1197/2012, State Vs. Ram Ajore & others, arising out of N.C.R. No. 85 of 2008, under Sections 323, 504, 506 I.P.C., Police Station Gosainganj, District Faizabad as well as the impugned charge sheet dated 10.04.2012, submitted in N.C.R. No.85/2008, under Sections 323, 504, 506 I.P.C. along with the entire proceedings of Case No.1197/2012.
3. Briefly stating, the story put forth by the prosecution is that as the complainant was on his way to his house from the field he was abused by the applicants and one Ram Ajore with fists and kicks in front of the house of Hari Ram. Further it has been alleged that the complainant was threatened and even when his wife came to save him, she was also beaten by them which led to the lodging of N.C.R. No. 85 of 2008 on 03.09.2008 under Sections 323, 504 and 506 I.P.C.
4. Although, learned Counsel for the applicants has disputed the aforesaid facts and claimed that the applicants as well as opposite party no.2/complainant belonged to the same village, there was partibandi and the story put forth is concocted and false. However, the fulcrum of the argument of the learned Counsel for the applicants are two fold; firstly, he has argued that Explanation appended to Section 2(d) of Cr.P.C. provided that a report made by the police officer in a case which discloses, after investigation, commission of a non-cognizable offence shall be deemed to be a complaint and the Investigating Officer, who has made the said report, shall be deemed to be a complainant and as such the same ought to have been proceeded as per procedure laid down for treating the same as a complaint and no cognizance could have been taken on the said report treating the same as a police report as has been sought to be done in the impugned summoning order dated 07.12.2013. The second leg of argument addressed by the learned Counsel for the applicants is relating to limitation for taking cognizance by the Magistrate in view of Section 468 of Cr.P.C. According to learned Counsel, admittedly, the Investigating Officer has filed a report and a cognizance of the same has been taken by the learned Magistrate after expiry of more than three and a half (3½) years for an offence which prescribes the minimum punishment of one year. Thus, according to him, the said cognizance is clearly barred by limitation under Section 468 Cr.P.C. and the present impugned summoning order as well as the entire proceedings is bad in law specially when there is no compliance or application of Section 473 Cr.P.C. relating to explanation for condoning the delay.
5. It has been pointed out by learned Counsel for the applicants that while entertaining the present application, the entire proceedings in Case No.1197/2012 was stayed by a Co-ordinate Bench of this Court vide order dated 14.02.2014.
6. Learned Additional Government Advocate, on the other hand, opposed the submissions made by the learned Counsel for the applicants.
7. Having heard the learned Counsel for the parties and gone through the record available before this Court, this Court finds that charge-sheet in N.C.R. No. 85 of 2008 has been filed by the Investigating Officer under Sections 323, 504 and 506 I.P.C. So far as the offence under Section 323 I.P.C. is concerned, maximum punishment that could be awarded for the offence is one year and fine up to Rs.1000/-, whereas for the offence under Sections 504 and 506 I.P.C. is concerned, the maximum punishment awarded is of two years respectively.
8. First & foremost, it has to be understood that cognizance indicates the point when a Court takes judicial notice of an offence with a view to initiating process in respect of the offence. Cognizance is entirely different from initiation of proceedings, rather it is the condition precedent to the initiation of proceedings by the Court. Cognizance is taken of the case and not of a person. Under Section 190 of Cr.P.C., it is the application of mind to the averments in the complaint that constitute cognizance. The stage of process is not relevant for the purpose of computing limitation under Section 468 of Cr.P.C.
9. It is not disputed that the offences under Sections 323, 504 and 506 I.P.C. are non-cognizable, hence in view of the Explanation to Section 2 (d) of Cr.P.C. a case could not proceed as a State case and it has to proceed as a complaint case. That Explanation of 2(d) of Cr.P.C. reads as under :-
"Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant."
10. Thus, in view of the said explanation, charge-sheet submitted by the Investigating Officer, after investigation, disclosing commission of non-cognizable offence is to be deemed to be a complaint and a police officer, who submitted the report, has to be deemed to be a complainant. In other words, the charge sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for claiming a complaint case shall be applicable to the case.
11. In the present case, the learned Magistrate, instead of treated the charge sheet submitted by the Investigating Officer as a complaint, took cognizance of it as a State case by the impugned summoning order dated 07.12.2013, which is not permissible under law.
12. Further issuance of process of summons is not an empty formality. The Hon'ble Supreme Court in the case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors. : 1998 (5) SCC 749 has held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set in motion as a matter of course for alleged offence. It would be apt to take note of para 28 of the aforesaid judgment, which reads as thus :-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
13. In the present case, this Court finds that the learned Magistrate did not even care to note that as to whether the offences, for which the charge-sheet has been filed by the police, is as to whether cognizable or not, so to expect that there had been any application of mind would be a misnomer. Apparently, the summoning order dated 07.12.2013 seems to have been issued in a routine manner, which cannot withstand the parameters of Sections 203/204 of Cr.P.C. and is liable to be set aside.
14. Further, there is another aspect of the matter. At this stage, it would be apt to refer to the provisions of Sections 468, 469 and 473 Cr.P.C., which read thus:-
"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;
1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), s. 2 and Sch. 191(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.]
469. Commencement of the period of limitation.--(1) The period of limitation, in relation to an offender, shall commenc--
(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.
(2) In computing the said period, the day from which such period is to be computed shall be excluded;
473. Extension of period of limitation in certain cases--Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, 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."
15. Section 468 Cr.P.C. clearly mandates that no Court shall take cognizance of an offence after the period of limitation of three years if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years. Further, Section 469 Cr.P.C. also makes it amply clear that the period of limitation, in relation to an offender shall commence on the date of the offence.
16. In the present case, the date of offence of reporting of N.C.R. is of 03.09.2008 and the impugned charge sheet has been filed on 10.04.2012 and the learned Magistrate has issued the summons on 07.12.2013. Apparently, the charge sheet itself has been filed after more than three and a half (3½) years from the date of N.C.R. and since the said charge sheet ought to have been construed as a complaint and the investigating officer to be a complainant in view of Explanation of Section 2(d) of Cr.P.C., therefore, taking a cognizance of offence after three and a half (3½) years by the learned Magistrate is barred by limitation as per Section 468 (2)(c) of Cr.P.C.. Further, it is neither case of the parties that any application under Section 473 Cr.P.C. has been filed or that the learned Magistrate has passed any order under Section 473 Cr.P.C. justifying the issuance of the impugned summoning order dated 07.12.2013.
17. The Hon'ble Supreme Court in the case of Sarah Mathew Vs. Inst., Cardio Vascular Diseases & Ors., 2014 (1) SCC 721 had an occasion to consider the scope and ambit of Sections 468 and 473 Cr.P.C. The Hon'ble Supreme Court observed as under :-
"In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. 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. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Cr.P.C."
18. A similar view has been take by Hon'ble the Supreme Court in the case of P.K. Choudhury Vs. Commander, 48 Brtf (Gref), 2008 SCC Online SC 510. The relevant paragraph of the decision reads as under :-
"As an option to get the appellant tried in a ordinary criminal court had been exercised by the respondent, there cannot be any doubt whatsoever that all the pre-requisites therefor in regard to the period of limitation as also the necessity to obtain the order of sanction were required to be complied with.
A Court of law cannot take cognizance of an offence, if it is barred by limitation. Delay in filing a complaint petition therefore has to be condoned. If the delay is not condoned, the court will have no jurisdiction to take cognizance. Similarly unless it is held that a sanction was not required to be obtained, the court's jurisdiction will be barred."
19. Even in the case of Rakesh Kumar Sharma Vs. State of U.P. and another, 2007 ADJ 478 specifically para nos.5 and 6, a Co-ordinate Bench of this Court has considered the matter wherein FIR was lodged under Section 307 I.P.C., but subsequently charge sheet was submitted under Section 504 I.P.C. The Court concluded that it should not be proceeded as a police case which is barred under the Explanation of Section 2(d) of Cr.P.C. The relevant para nos. 5 and 6 are reproduced hereinafter :-
"5. He submitted that in the present case originally the F.I.R. was lodged under Section 307 I.P.C., but after investigation the Investigating Officer came to the conclusion that no offence under Section 307 I.P.C. was made out and only a case under Section 504 I.P.C. was made out against the applicant and so a charge-sheet under Section 504 I.P.C. was submitted against the applicant. He contended that in view of the aforesaid Explanation to Section 2(d) Cr.P.C. the case could not proceed as a police case in respect of an offence punishable under Section 504 I.P.C. because the offence under Section 504 I.P.C. is non-cognizable and so the case could proceed only as a complaint case in view of the aforesaid Explanation.
6. The above contention of the learned Counsel for the applicant is correct. I, therefore, allow this application under Section 482 Cr.P.C. to this extent that the cognizance taken by the Magistrate in the case on the basis of the report of the police for the offence punishable under Section 504 I.P.C. and the orders passed by him for issuing warrant against the applicant are hereby quashed. The Magistrate shall not proceed with the case as a State case but he shall proceed with it as a complaint case as provided in the Explanation to Section 2(d) Cr.P.C. and he shall follow the procedure prescribed for hearing of a complaint case."
20. In view of the settled law, the learned Magistrate-III, Faizabad ought to had not proceeded on the police report without applying judicial mind inasmuch as all the offences as mentioned in the N.C.R. as non-cognizable and proper course of the action for the Magistrate was to treat the matter as complaint under the provisions as enshrined under Explanation to Section 2(d) Cr.P.C. Further the Magistrate could not have taken cognizance of the offence after three years from the date of offence as the offences alleged under Sections 323, 504, 506 I.P.C. are punishable with maximum sentence of one year and two years respectively. Further perusal of the impugned order shows that the learned Judicial Magistrate-III had no occasion to condone the delay in terms of Section 473 Cr.P.C. before taking cognizance, therefore, the impugned order is without jurisdiction.
21. This being the position, this Court is of the considered view that the instant application deserves to be allowed.
22. Consequently, the summoning order dated 07.12.2013, passed by Judicial Magistrate-III, Faizabad in Case No.1197/2012, State Vs. Ram Ajore & others, under Sections 323, 504, 506 I.P.C., Police Station Gosainganj, District Faizabad and all other consequential proceedings emanating therefrom are quashed.
23. The application is allowed.
(Om Prakash Shukla, J.) Order Date :- 08.08.2024 Anand/-