Lokesh Tokas And Anr. vs State
2002 Latest Caselaw 622 Del

JUDGMENT

K.S. Gupta, J.

1. In this petition under Section 482 Cr.P.C., petitioners/accused seek setting aside of the charges framed against them under Sections 323/341/34 IPC on 14th February, 2002 by an Addl. Sessions Judge, New Delhi.

2. Facts giving rise to this petition, in brief, are these. Bhagwan Dev Tokas made a complaint to the police alleging that on 28th April, 1999 at about 9.45 AM, when he reached the house after performing night duty, his wife told that Lokesh Kumar (petitioner No. 1) and his two brother-in-law were demolishing their other house No. 352-R, Munirka. Complaint went to that house where he found Lokesh Kumar and his two brothers-in-law present and roof of house damaged. On enquiry, why had they damaged the roof of house, said persons started abusing and beating the complainant. When the complainant rushed to the lane in order to save himself, Lokesh Kumar stopped him on the way and he Along with his two brothers-in-law gave him leg and fist blows due to which he received injuries. On this complaint FIR No. 142/99 under Sections 323/341/34 IPC was registered and after completion of investigation, charge sheet was filed.

3. Short submission advanced by Sh. Panna Lal Syngal for petitioners was that offence under Section 323 IPC is punishable with maximum imprisonment for 1 year while offence under Section 341 with imprisonment for 1 month. Alleged occurrence had taken place on 28th April, 1999 and on the basis of charge sheet filed beyond the period of 1 year on 12th August 2000, the trial court could not have taken cognizance of the offences nor charges framed under Sections 323/341/34 IPC against the petitioners on 14th February, 2002. In support of submission, reliance was placed on the decisions in Surinder Mohan Vikal v. Ascharaj Lal Chopra, and State of Punjab v. Sarwan Singh, . On the other hand contention advanced by Sh. Sunil K. Kapoor for State was that the petitioners had been avoiding their arrest and petitioner No. 1 could be arrested on 9th September, 1999 while petitioner No. 2 on 30th July, 2000. Under Section 470(4) Cr.P.C., the time during which the petitioners avoided their arrest, shall have to be excluded for the purpose of computing period of limitation prescribed in Clause (b) of Sub-section (2) of Section 468 Cr.P.C. and taking the date of 9th September, 1999 on which date petitioner No. 1 was arrested, charge sheet filed on 12th August, 2000 was within limitation. Reliance was placed on the decision in Arun Vyas and Anr. v. Anita Vyas, JT 1999 (4) 421. Section 468 Cr.P.C. which is material, runs as under:-

"(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be--

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with more severe punishment or, as the case may be, the most severe punishment."

4. This Section not only raises the bar of limitation but also prescribes the period thereof. It was not in controversy before me that period of limitation in present case would be 1 year, offence under Section 323 IPC being punishable with imprisonment for 1 year. Under Clause (a) of Sub-section (1) of Section 469 Cr.P.C., the period of limitation in this case shall commence from the date of offence, i.e. 28th April, 1999. Sub-section (4) of Section 470 Cr.P.C. reads as follows:-

(4) In computing the period of limitation, the time during which the offender--

(a) has been absent from the India or from any territory outside India which is under the administration of the Central Government, or

(b) has avoided arrest by absconding or concealing himself,

shall be excluded.

5. It is not the case of State in the charge sheet that the period up to 9th September, 1999 on which date petitioner No. 1 was arrested, is to be excluded for computing the period of limitation of 1 year under said Sub-section (4) of Section 470 Cr.P.C. State has also not sought the benefit of Section 473 Cr.P.C. which permits the extension of period of limitation in certain cases. In such a situation, the petitioners are entitled to the benefit of said Sub-section (1) of Section 468 Cr.P.C. which prohibits a Court from taking cognizance of offence(s) as specified in Sub-section (2) after the expiry of period of limitation. Also considering the ratio in Surinder Mohan Vikal and Sarwan Singh's cases (supra), neither the cognizance could have been taken on 12th August, 2000 nor charges under aforementioned Sections framed on 14th February 2002 by the trail court. Reliance on behalf of State on Arun Vyas' case (supra) is misplaced as question of extension of period of limitation under the second limb in second part of Section 473 Cr.P.C. was not considered in respect of one of offences under Section 498A IPC which is continuing one, therein.

6. Consequently, while allowing petition, charge under Sections 323/341/34 IPC framed on 14th February, 2002 is set aside and petitioners are discharged.