Kishore Chouhan and Chandradeo Chouhan Vs. State of Bihar - Court Judgment

Excerpt:
criminal procedure code, 1973, section 482-excise act, sections 47(a) and 96-quashing of order taking cognizance under-contention-order bad in law as cognizance taken beyond period of limitation-prosecution report submitted after more than expiry of ten months-cognizance could not have been taken beyond period of limitation-held, cognizance under section 47(a) could be taken only when suit is instituted within six months after date of complained act-court below did not consider this aspect of section 96 before taking cognizance-order of cognizance cannot be sustained-application allowed-order impugned set aside. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 2. the ground advanced in support of the prayer for quashing the impugned order of cognizance is that it is bad in law as because it was taken beyond the period of limitation. section 96 of the bihar excise act provides that no court can take cognizance under this act against any other person unless the prosecution is instituted within six months after the date of the act complained of. - no civil court shall try any suit against the government in respect of anything done, or alleged to have been done, in pursuance of this act, and, except with the previous sanction of the state government, no magistrate shall take cognizance of any charge made against any excise officer against this act or any other law relating to the excise-revenue or made against any other person under this act, unless the suit or prosecution is instituted within six months after the date of the act complained of it is apparent that as per mandate of the provisions, cognizance in the case could be taken only when the suit or prosecution is instituted within six months after the date of the act complained of.d.g.r. patnaik, j.1. petitioners by invoking inherent jurisdiction of this court under section 482 of the code of criminal procedure, have prayed for quashing the order dated 5.7.1997 including the entire criminal proceeding pursuant to the aforesaid order passed by the learned chief judicial magistrate, dhanbad in c.e. case no. 506 of 1996, whereby the learned court below has taken cognizance for the offence under section 47(a) of the excise act against the petitioners.2. the ground advanced in support of the prayer for quashing the impugned order of cognizance is that it is bad in law as because it was taken beyond the period of limitation.3. learned counsel for the petitioners explains that as per the prosecution's case, a raid was conducted in the premises of the petitioners on 2.9.1996, in course of which, certain quantities of illicit excise materials was seized, inviting cause for prosecuting the petitioners for the offence under section 47(a) of the excise act. learned counsel submits that though the alleged date of occurrence is 2.9.1996, but the prosecution report was submitted after expiry of more than ten months and thereafter, cognizance for the offence was taken by the learned court below. referring to the section 96 of the excise act, learned counsel explains that according to the provisions of section 96 of the act, cognizance could not have been taken by the learned court below, since prosecution was instituted beyond the period of limitation i.e. six months. learned counsel explains that as per provision under section 96 of the excise act, there is embargo upon the court to take cognizance for the offence under section 47(a) of the act beyond the period of six months.4. heard learned counsel for the state.5. the facts and circumstances indicate that the date of offence is said to be 2.9.1996 on which date, in course of raid conducted by the excise personnel, certain quantities of illicit liquor was seized from the possession of the petitioners. it also appears that the prosecution against the petitioners in respect of the aforesaid offence under section 47(a) of the excise act was initiated on the basis of the prosecution report filed on 5.7.1997 and the learned court below proceeded to take cognizance of the offence on the same date i.e. on 5.7.1997. it is apparent, therefore, that prosecution was initiated after more than ten months of the alleged date of offence and cognizance of the offence was obviously taken after the prosecution report was filed. section 96 of the bihar excise act provides that no court can take cognizance under this act against any other person unless the prosecution is instituted within six months after the date of the act complained of. section 96 read as under:96. limitation of suits and prosecutions.- no civil court shall try any suit against the government in respect of anything done, or alleged to have been done, in pursuance of this act, and, except with the previous sanction of the state government, no magistrate shall take cognizance of any charge made against any excise officer against this act or any other law relating to the excise-revenue or made against any other person under this act, unless the suit or prosecution is instituted within six months after the date of the act complained ofit is apparent that as per mandate of the provisions, cognizance in the case could be taken only when the suit or prosecution is instituted within six months after the date of the act complained of.6. from perusal of the impugned order of cognizance, it appears that the learned court below has not considered this aspect of provisions of section 96 of the act before proceeding to take cognizance of the offence. the order of cognizance, therefore, cannot be sustained, since it is against the provisions of law.7. in the light of the discussions made above, i find merit in this application. accordingly, this application is allowed. the order dated 5.7.1997 including the entire criminal proceeding pursuant to the order passed by the learned chief judicial magistrate, dhanbad in c.e. case no. 506 of 1996, which is pending before sri v. kumar, no. 1, judicial magistrate, dhanbad, is hereby quashed.