Radha Vallabh Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 468--limitation for taking cognizance--date of taking cognizance--private complaint--date of taking cognizance for purpose of section 468 is the date on which the magistrate decided to hold enquiry and not the date on which he decided to issue summons.;revision petition dismissed - - 5 of the judgment held that even on 13.10.1992, when the learned magistrate for the first time applied his mind to the complaint and proceeded to hold enquiry, the period of one year had elapsed and, therefore, the cognizance was clearly barred, therefore, hon. sawant, will, therefore, have to be rejected, since the date on which the complaint in the present case was presented before the learned magistrate was well within the period of limitation.sharma, j. (1). this criminal revision is filed by accused petitioner radha vallabh, against the order dated 15.12.2000 passed by learned judicial magistrate, wair, district bharatpur, whereby that court dismissed the application under section 168 cr. p.c. filed by this petitioner. (2). brief facts giving rise to this criminal revision are as under:- that the complainant filed a private complaint on 16th september 1989, before the trial court, alleging that accused had beaten him on 14.9.1989. on 18th september, 1989, that complaint, was fixed for recording statement for 4th of october 1989; that, on 3rd of october, 1991, statement of complainant was recorded, on 3rd march, 1992, statement of ganga ram witness was recorded and on 23rd of april 1993, arguments were heard. on 26th of april, 1993, the trial court decided to issue summons against the accused persons. after that, accused persons filed an application before the trial court and prayed that in the matter, cognizance was taken on 26th april, 1993, which was time barred, therefore, proceedings should be quashed against them. (3). in this revision, arguments were heard at admission stage. it is argued on behalf of revisionist that in this matter, occurrence took place on 14th september, 1989 and cognizance was taken on 26th of april 1993, because on that date the court decided to issue summons against the accused persons, therefore in this matter the court took cognizance after expiry of limitation, which was barred under section 468 cr.p.c. in support of his arguments, learned counsel for the petitioner has placed reliance on mohd. sadiq v. state of rajasthan (1), wherein my brother justice dalela (the then) has referred the judgment of hon. supreme court passed in antulay v. r.s. nayak, (2). learned counsel for the petitioner has also referred this authority of hon. supreme court. i have also gone through this authority. this authority is not directly on the point on section 468 cr.p.c. in antutay's case (supra) hon' supreme court held as under:- 'when a private complaint is filed, the court has to examine the complainant on oath same in the cases set out in the proviso to section 200 cr.p.c. after examining the-complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. when it is said that court issues process, it means the court has taken cognizance of the offence and has decided to initiate the proceeding and as a visible manifestation of taking cognizance, process is issued which means that the accused is called upon to appear before the court. this may either take the form of a summons or a warrant, as the case may be.' (4). the above paragraph was also quoted by hon. mr. justice d.c. dalela in his judgment passed in mohd. sadiq's case (supra) and alone on the basis of above lines. justice dalela decided that date of cognizance should be taken as the date when the magistrate comes to the conclusion that a prima facie case for offence is made out. (5). mr. justice dalela has not given any reasoning for coming to the conclusion that the date on which court decides to issue process is the date of taking cognizance. (6). in my view, antulay's case (supra), decided by hon. supreme court is not directly on section 468, and as such it is not of much help for deciding the issue involved in the present case. there are many other cases which are directly on section 468. (7). learned counsel for the petitioner has also placed reliance on khet singh and ors., v. the state of rajasthan and anr. (3). (8). i have gone through this authority. in my view this judgment does not help to petitioner. in khet singh's case (supra) a complaint was filed by the complainant in the court, which was sent to police for investigation. police submitted final report and complainant filed protest petition on 1st of sept., 1992 and on 13th of oct., 1992, learned magistrate ordered that an enquiry shall be held in the court and thereafter the statements of the witnesses were recorded under section 200 & 202 cr. p.c. and on 18th may, 1993, the learned magistrate ordered the summoning of the accused in the case. in this judgment, the then hon. mr. justice g.l. gupta in para no. 5 of the judgment held that even on 13.10.1992, when the learned magistrate for the first time applied his mind to the complaint and proceeded to hold enquiry, the period of one year had elapsed and, therefore, the cognizance was clearly barred, therefore, hon. mr. justice gupta was of the view that the date of taking cognizance was 13th of oct., 1992, on which the learned magistrate for the first lime applied his mind to the complaint and proceeded to hold enquiry. whereas in the matter in my hand, learned counsel for the petitioner wants me to say that the date of cognizance should be the date when the magistrate decided to issue summons. in khet singh's case (supra), such date when the magistrate decided to issue summons was not 13th october 1992, but was 18th may, 1993. therefore, i am of the view that this authority, which is relied upon by learned counsel for the petitioner, himself does not help him but goes against him and even according to this authority, the date for computation of limitation should be 18th of sept. 1989 and not 26th of april 1993. in this way, cognizance was taken within time. (9). on this point, there are so many cases, in which matter has been discussed in detail. there is one more authority of this court of hari ram and ors. v. state of rajasthan and anr. (4), in which the then hon. mr. justice g.l. gupta had discussed this point in detail and had also referred the same authority of apex court reported in antulay's case (supra) and had referred the same para, which was referred by the then hon. mr. justice dalela in mohd. sadiq's case (supra). in hari ram's case (supra), the then hon. mr. justice gupta had specifically held as under:- . '6. the magistrate takes cognizance of an offence under section 190(1)(a) cr. p.c. upon receiving a complaint on facts which constitute such offence. it is obvious that taking of cognizance precedes the summoning of an accused. it is not correct to say that cognizance of the offence is taken by the magistrate when he issues process against the accused. the correct legal position is that the stage at which the magistrate embarks upon the enquiry under chapter xv of the code of 1973, it can be said that he has taken cognizance of the offence. the magistrate takes cognizance of the offence and not against the offenders. the process of summoning accused in a case takes place subsequent to taking of the cognizance of the offence by the magistrate. vide nathu v. state (supra) which judgment is based on the two decisions of the hon. supreme court v.n. reddy (supra) and nirmaljit singh v. state of bengal (1973) (3) scc 753, wherein it has been held that the magistrate can be said to have taken cognizance on a complaint when on receiving a complaint, he applies his mind for the purpose of proceedings under sections 200 and succeeding sections in chapter xv of the code of 1973.' in the instant case, the complainant had lodged a report with the police. the police after investigation gave final report. the learned magistrate gave notice to the complainant vide order dated 5.7.1995. the complainant appeared before the magistrate and filed a protest petition on 11.9.95, on which the magistrate ordered that the witnesses shall be examined. in my opinion, it is the date 11.9.1995 on which cognizance of the offence can be said to have been taken by the magistrate. of course, in the order dated 22.2.1996, it was recorded by the magistrate that he was taking cognizance of the offence: under section 447 and 323/34 ipc but these observations will not make the order dated 22.2.1996, the order of taking cognizance. as a matter of fact, the magistrate had already taken cognizance of the offences on 11.9.1995, when he proceeded to enquire into the matter under chapter xv of the code of 1973.' (10). in this case, the then hon. mr. justice gupta has referred many cases of apex court any many cases of this court and has rightly held that process of summoning accused in a case takes place subsequent to taking of the cognizance of offence by the magistrate. the facts of that case were similar to the problem before me. in that case hon. justice gupta also held that complainant lodged a report with the police and police submitted final report. learned magistrate gave notice to the complainant and the complainant appeared before me magistrate and filed the protest petition on 11.9.1995, on which the magistrate ordered that the witnesses shall be examined. in that case, it was held that the date 11.9.1995, was the date on which cognizance of offence could be said to have taken by the magistrate. looking to this authority, i come to the conclusion that in the present matter, date of taking cognizance was not 26.4.1993, on which the court decided to issue summons but it was 18.9.1989, on which date, court applied its mind and decided to record statement. (11). on this section 468, there are two more authorities which are of much help. firstly, in anand r. nerkar v. rahimbi shaikh madar and ors. (5), bombay high court has held as under:- '12. it is very clear from these sections of the code of criminal procedure that the magistrate takes cognizance of the complaint when it is received, that he is required at that point of lime to consider the preliminary issues, such as jurisdiction, that he is required to hold a preliminary inquiry into the matter or direct such inquiry through the police and thereafter dispose of the complaint or take steps for securing the appearance of the accused and proceed with the case. it stands to reason, therefore, that the point of time when the court takes cognizance of a criminal complaint is the stage at which the complaint is presented to the court or filed in the court. it follows by necessary implication that for the purpose of computing limitation, it is this date that is material and not the date on which the process is issued. the subsequent stage, such as the examination of the complainant and witnesses, the consideration of the case on merits, the preliminary enquiry, etc. would all take considerable time and it would, therefore, be unreasonable and irrational to compute the period of limitation from the date when the process is issued. furthermore, these processes are dependent on the time available to the court which is something over which the complainant has no control and it would, therefore, be wholly untenable to hold that a complaint, even if presented within the period of limitation, would be barred merely because a certain amount of time elapsed until the order of process was passed. the submission of mr. sawant, will, therefore, have to be rejected, since the date on which the complaint in the present case was presented before the learned magistrate was well within the period of limitation.' (12). another authority is zain sait v. intex-painter, interior decorators, civil workers, maintenance workers and water profors and ors. (6), in which hon. kerala high court held as under:- '6. there could be a case where the complaint is filed on the last date of limitation and on account of the inconvenience or otherwise of the court the sworn statement of the complainant could be recorded only on a later date and the magistrate took cognizance after the expiry of limitation. if the date of taking cognizance is taken the date to determine the period of limitation that would amount to penalising the party for no fault of his. such a construction cannot be placed under section 468 of the code. a construction possible in the circumstance is that the bar under section468 of the code from taking cognizance will operate only when the complaint is barred by limitation. 7. in the decision in kamal h. javeri v. chandulal gulab chand, 1985 cr. lj 1215 the bombay high court held in a similar circumstance that 'having regard to the scheme of chapter xxxvi, cr. p.c. and having regard to the provisions of section 468 the only proper construction that could be placed on section 468, in connection with the limitation is that if the complaint is filed beyond the prescribed period of limitation under sub section (2) of section 462, then no court shall take cognizance of an offence under section 468(1) subject however to the power vested in court to extend the period of limitation under section 473.' same view is taken in the decision in basavantappa basappa bannihali v. shankarappa maricallapopa banbnihalli, 1990 cri. lj 360. cognizance taken by magistrate after the period of limitation is not invalid, provided the complaint was filed within the period of limitation. this conclusion also gets support from the observation of the supreme court in the decision in surinder mohan vikal v. ascharaj lal chopra, 1978 (2) scc 403: (1978 cr. lj 764). there the complaint was under section 500, ipc and the question that arose for determination was whether the date of the allegation was the date from which the period of limitation started or the date of acquittal. adverting to the same, the supreme court observed in paragraph 3; ...but as has been stated, the compliant under section 500, ipc was filed on february 11, 1977, much after the expiry of that period. it was therefore not permissible for the court of the magistrate to take cognizance of the offence after the expiry of the period of limitation.' the said observation would show that the date of filing the complaint is material date.' (13). both these authorities of bombay high court and kerala high court are very important. in these authorities, entire scheme and object have been discussed. i have also gone through all the cases mentioned above and examined section 468 and other relevant clauses. i am of the view that for the purpose of section 468, the date of taking cognizance is the date on which the magistrate embarks upon the inquiry under chapter 15 of the code of 1973. i am of the view that process of summoning accused in a case takes place subsequent to the taking of the cognizance of the offence by the magistrate. i am of the view that in the present matter, relevant date is not 26th april 1993, on which the magistrate decided to issue summons but the relevant date was 18th september 1989, on which the magistrate decided to record statement and in this way magistrate rightly rejected the application on 15.12.2000, filed by the accused. in my view the impugned order is neither illegal nor perverse. this criminal revision is without merit and liable to be rejected. (14). in the result the revision is dismissed at the admission stage.