Diwan Singh and ors. Vs. Ram Singh and anr. - Court Judgment

Excerpt:
penal code - sections 147, 323 and 447 and criminal procedure code - sections 156(3), 200 and 202-limitation--condonation of--delay to be condon when it is properly explained or it is in interests of justice--cognizance taken after limitation--held, magistrate did not take in to consideration this aspect and order of cognizance is liable to be set aside.;the provisions of section 473 cr. p.c. are applicable only in those cases where, if on an application made by the prosecution the court is satisfied from the facts and circumstances of the case that the delay has been properly explained or if the court comes to the conclusion that it is necessary to do so in the interest of justice to condone the delay. the court below has not considered this aspect of the case and has taken the cognizance. the cognizance taken by the learned lower court after the expiry of the period of limitation, thus, deserves to be set-aside.;petition allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 4. it is contended by the learned counsel for the petitioners that the alleged incident, complained in the complaint, took place on september 16, 1984, while the cognizance was taken on january 12, 1988. the offence under section 147 i. are applicable only in those cases where, if on an application made by the prosecution the court is satisfied from the facts and circumstances of the case that the delay has been properly explained or if the court comes to the conclusion that it is necessary to do so in the interest of justice to condone the delay.b.r. arora, j.1. this petition under section 482 cr. p.c. has been directed against the order dated january 12, 1988, passed by the munsif and judicial magistrate, first class, rajgarh (district churu), by which the learned magistrate took cognizance against the petitioners under sections 147, 323 and 447 i.p.c.2. complainant ram singh, on september 22, 1984, filed a complaint in the court of the munsif and judicial magistrate, first class, rajgarh, against the present petitioners with respect to the agricultural land, measuring 207.7 bighas, situated in village dhanodi badi. teshil rajgarh, district churu under sections 147, 323 and 447 i.p.c. the learned magistrate sent this complaint under section 156(3) cr. p.c. to the police station rajgarh, for further investigation. the police, after necessary investigation, presented the final report in the matter. the learned magistrate, after the receipt of the final report, issued notice to the complainant and the complainant filed a protest petition on january 5, 1983. the learned magistrate recorded the statements of the complainant ram singh under section 200 cr. p.c. and his witnesses hardoi, khajani, and tara chand under section 202 cr. p.c. and thereafter, perusing the evidence and the record of the case, the learned magistrate took cognizance against the petitioners under sections 147, 323 and 447. i.p.c. by his order dated january 12, 1988. it is against this order that the present petition under section 482 cr. p.c. has been filed.3. heard learned counsel for the petitioners, learned counsel for the complainant and the learned public prosecutor and perused the record of the case.4. it is contended by the learned counsel for the petitioners that the alleged incident, complained in the complaint, took place on september 16, 1984, while the cognizance was taken on january 12, 1988. the offence under section 147 i.p.c. is punishable for a period of two years and under section 323, i.p.c., it is punishable for a period of one year and the offence under section 447 i.p.c. is punishable for a period of three years. he, therefore, submitted that as per the provisions under section 468(2)(c) of the code of criminal procedure. the time limit prescribed for taking the cognizance, where the offence is punishable by three years, is three years, and, therefore, the cognizance taken by the learned magistrate is barred by time and hence the order taking cognizance deserved to be set-aside. the learned counsel for the complainant is not in a position to controvert this factual aspect of the matter, but he submitted that the court, under section 473 cr. p.c, has power to condone the delay and as the learned magistrate has taken the cognizance, it amounts to condoning the delay by the learned magistrate.5. i have taken the respective submissions into consideration.6. the order dated january 12, 1988, passed by the learned magistrate, taking cognizance against the petitioners, does not show whether the court has applied its mind regarding consideration of the question of limitation. it is not in dispute that the learned magistrate has taken cognizance after expiry of the period of limitation. the incident took-place on september 16, 1984, and the court was competent to take cognizance against the petitioners for the aforesaid offence only upto september 15, 1987. admittedly, no cognizance was taken during this period. the provisions of section 473 cr. p.c. are applicable only in those cases where, if on an application made by the prosecution the court is satisfied from the facts and circumstances of the case that the delay has been properly explained or if the court comes to the conclusion that it is necessary to do so in the interest of justice to condone the delay. the court below has not considered this aspect of the case and has taken the cognizance. the cognizance taken by the learned lower court after the expiry of the period of limitation, thus, deserves to be set-aside.7. in the result, the order dated january 12, 1983, passed by the learned munsif and judicial magistrate, rajgarh (district churu), taking cognizance against the petitioners under sections 147, 323 and 447, i.p.c., and the proceedings pending against the petitioners in that court quashed.