HEMA BHALLA Vs. STATE

JUDGEMENT

(1.) Petitioner is the landlady of the complainant. Garage portion was let out to the complainant who used it as godown for storing articles relevant for tent. On 24.8.1987 at 8.30 P.M. where he went to godown he found that door which was locked was removed and a wall had been put and entire goods lying inside were removed. He made inquiries from the petitioner alongwith one person who stated himself to be an Advocate namely Sh. S.S. Lingwal. They both started giving threats and abuses. He alleged that both these persons after breaking the lock and shutter have constructed a wall and have taken possession of his godown. Charge sheet was filed for the offences under Sections 448/380 read with Section 34 IPC. However, the learned MM framed the charges for the offence under Section 448 IPC and discharged the petitioner so far as offence under Section 380 IPC is concerned.

(2.) Learned counsel for the petitioner states that the learned MM did not consider his arguments that the cognizance for the offence under Section 448 IPC cannot be taken after 3 years which is the period of limitation nor did he refer to the authorities cited by him in this regard. The matter was taken to the learned ASJ by way of revision petition. However, the learned ASJ did not touch the order of the learned MM whereby the petitioner was discharged for the offence punishable under Section 380 IPC and banked upon the charge-sheet wherein offence under Section 380 IPC alongwith offence under Section 448 IPC figured.

(3.) Admittedly the State did not prefer any revision against the order of the learned Magistrate discharging the petitioner so far as offence under Section 380 IPC is concerned. That being so, the learned ASJ was only concerned with the proposition whether charge for the offence under Section 448 IPC could be framed or cognizance for the said offence can be taken beyond the period of three years as prescribed under Section 468(3) Cr.P.C. Admittedly charge sheet including both the offences under Sections 448 and 380 IPC was filed and, therefore, the plea that the cognizance beyond the period of three years could not be taken was not available to the petitioner as no limitation has been prescribed for taking cognizance for the offence under Section 380 IPC. Once the learned MM had come to the conclusion that the offence under Section 380 IPC was not made out against the petitioner, it was incumbent upon the Magistrate to see whether charge for the offence under Section 448 IPC can be framed or cognizance can be taken for the said offence after the period of limitation. It appears that both the courts below did not take this aspect of the matter into consideration and proceeded on the presumption that once charge-sheet has been filed for the offences for there is no limitation prescribed not only for the cognizance but the charge can also be framed beyond the period of three years. There was apparently erroneous presumption they proceeded on.