Document Fragment View
Matching Fragments
Now Ld. Counsel for accused has virulently argued that from the facts of this case the only offence which can be said to have been committed by the accused was that of house trespass punishable u/s 448 IPC and it is also argued that after preliminary inquiry, a case was registered only u/s 448 IPC on 4.5.1998. There are no allegations of offence of theft u/s 380/411 IPC. Even in the statement u/s 161 Cr.PC of the witnesses no witness has been cited by the prosecution who had seen the accused committing the offence as alleged in the charge sheet. The security guards who were allegedly guarding the premises have not been produced by the complainant and not cited as a witness of this case. The statements of Sh. T.K. Dey and Sh. M.L. Wahi relating to the incident are inadmissible in evidence, the same are hearsay as they have not seen the accused committing the theft of the articles. During the investigation the accused has produced all the articles of the complainant on 4.4.99 which were lying intact in store room and were left by the complainant. It is also argued that it was the complainant who left the articles and in case there would have any malafide intention on the part of accused, he would not have retained those articles for over a year and would have disposed them off. It is also argued that the charge sheet was for commission of offence u/s 448/380/411 IPC but sections 380/411 IPC have been malafidely added by the police to circumvent the provisions of section 468 Cr.PC because the charge sheet u/s 448 IPC was barred by limitation. Section 380/411 IPC were added only to give jurisdiction to this Court to proceed with this case and therefore, at the time of framing of the charge, the Court has to come to the conclusion that actually the offence of theft has been committed or not.
In reply it was argued by counsel for the accused that even the possession of the tenanted premises was in dispute at the time this incident occurred and the case is still pending in Civil Court and the issue of possession is dependent only upon the outcome of the civil proceedings of that case.
Having heard, Ld. Counsel for both the parties, the first issue to be decided is what offences are committed by the accused in the present case. The accused is charged with the offences punishable under section 448/380/411 IPC. The counsel for the complainant would say that charge for all the three ofences be framed on the strength of his aforesaid arguments. The counsel for the accused, however for the purpose of framing charge only, does not agitate on the issue of the commission of the offence under section 448 IPC on merits. He however submits that the court has no jurisdiction to try the accused for section 448 IPC as the same is barred by limitation. He argued that other offences punishable under section 380/411 not made out on aforesaid arguments. Therefore before deciding the issue of limitation,it is essential to adjudicate first upon the issue of law that whether on the facts as stated the accused can be charged for offence under section 380/411 IPC or not because this issue will substantially decide the future course of action in this case.
Now left with offence of trespass under section 448 IPC.
As far as section 448 IPC is concerned, counsel for accused has relied upon section 468 of Criminal Procedure Code to show that its cognizance was barred by limitation which provides that:
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 the offence of the category specified in subsection (2), after the expiry of period of limitation. (2) The period of limitation shall be
That brings me to the last limb of this discussion. Whether the accused at this stage can be discharged or not. The answer lies in the judgment of Arun Vyas& Anr. Vs. Anita Vyas V (1999) SLT 184 where Hon'ble Supreme Court on the issue that whether the Magistrate can discharge an accused after taking cognizance of an offence by him but before the trial of the case was pleased to observe that where a Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C., the complaint being barred by limitation, he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify. In order to further strengthen his submissions the counsel for the accused has relied upon the judgment of Hon'ble High Court of Delhi titled as " Hema Bhalla Vs. State" (2003) JCC 115. The issue seems to be the same in this case and Hon'ble Court was pleased to observe " Ld. Counsel for the petitioner states that the Ld. MM did not consider his arguments that the cognizance for the offence under Section 448 IPC cannot be taken after 3 years which is the period of limitation nor did he refer to the authorities cited by him in this regard. The matter was taken to the Ld. ASJ by way of revision petition. However, the Ld. ASJ did not touch the order of the Ld. MM whereby the petitioner was discharged for the offence under Section 380 IPC and banked under the charge sheet wherein offence under Section 448 IPC figured. Admittedly the state did not prefer any revision against the order of Ld. Magistrate, discharging the petitioner so far as offence under Section 380 IPC is concerned. That being so the Ld. ASJ was only concerned with the proposition whether charge for the offence under Section 448 IPC could be framed or congnizance for the said offence can be taken beyond the period of three years as prescribed under Section 468 (3) Cr. P. C. Admittedly charge sheet including both the offences under Section 448 and 380 IPC was filed and, therefore, the plea that the cognizance beyond the period of three years could not be taken was not available to the petitioner as no limitation has been prescribed for taking cognizance for the offence under Section 380 IPC.