Ramanand And Others vs State Of U.P. And Anr.
2013 Latest Caselaw 6085 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Case :- CRIMINAL REVISION No. - 1062 of 2011
 

 
Revisionist :- Ramanand And Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Ravindra Nath Rai,A.K. Rai
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

1. This Criminal Revision is directed against the order dated 11.11.2010 passed by Judicial Magistrate, Mau in Case No. 198 of 2009 (Suryanath Vs Ramanand and others) whereby the learned Magistrate has summoned the revisionists to face the trial for the offences under Section 323 IPC.

2. Brief facts of the case are that the wife of revisionist No. 1 namely Smt Savitri had lodged an FIR on 6.11.2008 against the opposite party no. 2 vide Case Crime No. 1064 of 2008 alleging therein that there is a long drawn enmity between the family of opposite party no. 2 and her family members on account of some land dispute regarding which a case is already pending in the civil court. It was stated that on 6.11.2008 at about 10 a.m. in the morning sons of opposite party no. 2 and others armed with lathi, barcha and bhala attacked his son Santosh Rai, who was cultivating his rice field. When her husband and sons namely Ashok and Prabhakar and others reached the place of ocurrence they were also assaulted. On the intervention of neighbours, assailants fled away from the spot. Pursuant to the investigation, the police submitted the charge sheet against the opposite party no.2 and his sons.

3. It is alleged that opposite party no. 2 moved an application under Section 156(3) Cr.P.C. whereupon a cross FIR vide Case Crime No. 1064 A of 2008, under Sections 147,148,323,308 IPC was registered at Police Station Ranipur, District Mau. Subsequent to the investigation, the police submitted the final report on 23.5.2009. Thereafter, opposite party no. 2 filed a protest petition against the said final report which was allowed by the court below and the Investigating Officer of the case was directed to conduct further investigation. Investigating Officer again submitted the final report in the case, which was rejected by the Court below vide order dated 11.11.2010 and the revisionists were summoned to face the trial for the offence under Section 323 IPC. Hence this revision.

4. Heard learned counsel for the parties and perused the material on record.

5. Learned counsel for the revisionists has challenged the impugned summoning order on the ground that the incident took place on 6.11.2008 while the summoning order was passed on 11.11.2010 and therefore the cognizance taken by the learned Magistrate is clearly barred by the limitation prescribed under Section 468 Cr.P.C.

6. To the contrary, learned AGA submitted that the impugned order is just and there is no illegality, irregularity or perversity in the impugned order passed by the learned Magistrate. The impugned summoning order was passed after perusal of the statements of the injured recorded during investigation and the injury reports of the opposite party no. 2 and his son.

7. It is relevant to note that the offence under Section 323 IPC is punishable with imprisonment which may extend to one year and the limitation for taking cognizance of such offence under Section 468 Cr.P.C. is one year. Further, Section 469 Cr.P.C. provides that the period of limitation in relation to an offender shall commence from the date of offence or from the first day on which offence comes into the knowledge of such persons or to any police officer, whichever is earlier. 8. From the perusal of record, it is evident that pursuant to application u/s 156(3) Cr.P.C. filed by the opposite party no. 2 an FIR was registered on 12.5.2009 in respect of the incident occurred on 6.11.2008. Subsequent to investigation final report u/s 173 Cr.P.C. was submitted by the police. On the protest petition of the opposite party no. 2 Investigation Officer of the case was directed to conduct further investigation. The proceedings prior to summoning order dated 11.11.2010 cannot be included within the limitation period in view of the judgement in Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR, 2007 SC 2762, wherein the Apex Court has held as under:

"...To us, two things, namely; (1) filing of complaint or initiation of criminal proceedings; and (2) taking cognizance or issuing process are totally different, distinct and independent. So far as complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the Court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalized for such delay on the part of the Court nor he can be non suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the Court well within the time prescribed by law. In such cases, the doctrine "actus curiae neminem gravabit" (an act of Court shall prejudice none) would indeed apply. [Vide Alexander Rodger v. Comptoir D'Escompte, (1871) 3 LR PC 465]. One of the first and highest duties of all Courts is to take care that an act of Court does no harm to suitors. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the Court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.

52.The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of 'litera legis'. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

53.In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings".

In view of legal position settled by Apex Court in Japani Sahoo (supra), this revision is not sustainable and is accordingly dismissed.

Office is directed to send this order to the court below within a fortnight.

Order Date :- 26.09.2013

RavindraKSingh