Patna High Court
Vasudeo Agrawal And Ors. vs State Of Bihar on 23 June, 1976
Equivalent citations: 1977(25)BLJR249
JUDGMENT Birendra Prasad Singh, J.
1. The question that arises for consideration in this case is whether the cognizance of the offence taken against the petitioners under Section 323 of the Indian Penal Code by the Chief Judicial Magistrate, on the 12th June, 1975, is barred in terms of Section 468 of the Code of Criminal Procedure, 1973. It arises in this manner.
2. On the 27th of October, 1972, a first information report was lodged by one Ram Abhilakh Tiwari at the Kadamkuan police station alleging, inter alia, that he had been assaulted by petitioner No. 2 (Muralidhar Mishra) and had later been confined in the office of petitioner No. 1 (Vasudeo Agrawal) located in Mohalla Kankar Bagh. The police registered a case under Sections 323, 324 and 341 of the Indian Penal Code, which was numbered as Kadamkuan P.S. Case No. 72 dated 27.10.72. Investigation was taken up by the police and, ultimately, a final report non-cognisable under Section 323 of the Indian Penal Code was submitted. It appears that the said final report was forwarded to the Chief Judicial Magistrate, Patna, for acceptance, on the 25th February, 1975 on receipt of the final report, the Chief Judicial Magistrate, Patna recorded the following order on the 12th of June, 1975.
In this case police has submitted F.R. non-cog, under Section 323 I.P.C. It may be accepted, which is accepted. Cognizance taken against accused persons named in column 4 of the final report. Summon the accused fixing 9.8.75 (for) appearance.
The present application is directed against this order and it has been urged on behalf of the petitioners that the Chief Judicial Magistrate had no jurisdiction to take cognizance of the offence under Section 323 after the expiry of one year from the date of the occurrence.
3. The Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) came into force on the 1st of April, 1974. Certain provisions providing for limitation in taking cognizance of certain offences were inserted in Chapter XXXVI of the new Code. There were no such provisions in the old Code (Criminal Procedure Code, 1898). Section 467 of the new Code mentions that the period of limitation means the period specified in Section 468 for taking cognizance of an offence. Section 468 imposes a bar on taking ocgnizance after the lapse of the period of limitation. It reads as under:
468 (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.
Section 469 only lays down the point of time from which limitation against prosecution shall commence. Section 470 provides for exclusion of time in certain cases in computing the period of limitation.
4. The point urged on behalf of the petitioners is simple. It is stated that the case against the petitioners was instituted on the 27th of October. 1972, when the old Code was in existence. The police investigation having been initiated in accordance with the old Code, could be continued and disposed of under the old Code, but no further steps such as taking cognizance of the offence could be taken under the old Code after the new Code came into existence. In the present case, although cognizance was taken after the new Code came into existence, the same could not be done in view of the express provisions engrafted in the new Code.
5. A bar has been imposed under Section 468 on taking cognizance after the lapse of certain period in relation to certain categories of cases. Such cases enumerated in Sub-section (2) of Section 468 are those which are punishable with fine only or with imprisonment for a term not exceeding one year or with imprisonment for a term exceeding one year but not exceeding three years. The period of limitation has been prescribed on a graded scale. The intention of Parliament appears to be to make provision for securing speedy disposal of cases, specially those of patty nature. It is of prime importance that an offender should not be kept under continuous apprehension. Even the effect of punishment is sometimes impaired if the prosecution is not launched and punishment not inflicted before the offence has been wiped off the memory of the persons concerned. The present case comes within the ambit of Sub-section (2)(b) of Section 469. Section 323 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. Under Section 468 cognizance of an offence punishable with imprisonment for a term not exceeding one year cannot be taken after the expiry of one year from the date on which the offence was committed. As stated earlier, the period of limitation commences from the date of the occurrence. Sub-section (2)(a) and (c) of Section 468 does not apply to the present case. In this case the offence is said to have been committed on the 27th of October, 1972, and cognizance was taken on the 12th of June, 1975. It is evident that the cognizance was taken much after one year, the period prescribed in Section 468. It is, therefore, clearly barred by limitation and on this ground alone the order taking cognizance must be quashed.
6. The question that still remains to be considered is whether the police investigation having been initiated under the old code, further proceedings in respect of such investigation should be finally disposed of in accordance with the old code or the new Code. The Code of Criminal Procedure, 1898, was repealed by Section 484 of the new Code. The relevant portion of Section 484 reads as under:
484 (1). The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.
(2) Notwithstanding such repeal.
(a) if immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898) as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force:
Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;
X X X X X It refers to pending appeal, application, trial, inquiry or investigation which shall be disposed of, continued, held or made in accordance with the old Code. Appeal, application, trial, inquiry or investigation or different steps in a criminal prosecution. In some of them, e.g. an appeal, a party to the prosecution has vested right but in others, viz. the procedural provisions, there is no such vested right. Thus, a police investigation initiated under the old Code has to be completed in accordance with the old Code but, on completion thereof, any further step in the prosecution has to be taken according to the provision of the new Code. A person acquires a vested right only after the court takes cognizance of the offence against him In the present case, if cognizance has been taken under the old Code further proceedings in the matter of prosecution of the petitioners should have been disposed of or continued in accordance with the provisions of the old Code ; but the cognizance was taken under the new Code although the police investigation has started under the old Code. It is, therefore, obvious that the provision of Section 468 providing for limitation in the matter of taking cognizance shall apply to the present case. I am supported in taking this view by a Full Bench decision of the Gujarat High Court in Hiralal Nanse Bhavsar v. The State of Gujarat 1976 Cr. L.J. 84. In this view of the matter, the order dated 12th June, 1975, by which cognizance was taken against the petitioners has got to be quashed.
7. The other point urged by Shri Thakur Prasad, appearing for the petitioners, is equally well founded. He submitted that the learned Chief judicial Magistrate did not apply his judicial mind while taking cognizance in the case. The police after investigation had submitted a final report. The learned Magistrate could take different view but only after applying his mind judicially. Learned Counsel appearing on behalf of the State submitted that the Magistrate may take a different view and is not bound to accept the final report. He relied upon a decision of the Supreme Court in Abhinandan Jha v. Dinesh Mishra , There is not much controversy on this question. A Magistrate may take a different view but on a consideration of the final report that the opinion formed by the police is not based on a full and complete investigation. In that event the Magistrate shall have ample jurisdiction to direct the police to make further investigation. The police after such further investigation may again submit a final report depending upon the result of the further investigation made by them. Ultimately, if the Magistrate is of the opinion that the facts set out in the final report constitute an offence, he can take cognizance and differ from the opinion of the police expressed in the final report ; but, while disagreeing with the final report, the Magistrate must act judicially and consider the final report. The order passed by the learned Chief Judicial Magistrate taking cognizance has been quoted above in full. It is not only arbitrary but also makes no sense. The learned Magistrate states, "In this case police has submitted F.R. noncogn. under Section 323 I.P.C. It may be accepted. Which is accepted" It is not understandable how. while accepting the final report, he has also taken cognizance of the offence against the petitioners. It is obvious that the learned Chief Judicial Magistrate has carelessly passed this order without understanding the implications thereof.
8. In the result, the application succeeds and the order dated the 12th June, 1975, by which cognizance was taken against the petitioners as also the entire prosecution pending against the petitioners based on such cognizance is set aside and quashed.