RAMA KANT SHARMA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The present petition assails the order dated 17th January, 2001 whereby the respondent No. 2 was discharged in FIR No.855/1998 dated 27th October, 1998. The petitioner claims to be the co-owner with the respondent in respect of property bearing No. 60, North Avenue Road, Punjabi Bagh. In the FIR, it is stated that the property was partitioned by an award of an Arbitrator which became Rule of Court on 5th August, 1988 and parties obtained respective possessions, that the petitioner being an NRI used to come back to the country off and on, that when he came to India in 1996, his entry was resisted by the respondent, but subsequently, the matter was again settled whereon the petitioner again went back to Canada but that when he came to India in October, 1998, he was denied entry to his portion of the property and he found that the locks on his portion had been broken and his articles missing. A case under Sections 448/380, IPC was registered. The charge-sheet was then filed. The Trial Court record shows that the Metropolitan Magistrate received the charge-sheet on 1st November, 1999 when he passed the following order :

(2.) Thus, initially cognizance was taker, only under Section 448, IPC. There is no subsequent order of taking cognizance under Section 380, IPC. Nonetheless, the Metropolitan Magistrate after hearing arguments on charge passed an order on 1st September, 2001 directing framing of charge under Section 448, IPC and simultaneously discharging the respondent under Section 380, IPC. In a revision petition, the impugned order was passed. The Additional Sessions Judge while hearing the revision petition found that the proceedings under Section 448, IPC was barred by limitation. The Additional Sessions Judge also noticed that the petitioner came to know of the offence on 6.4.1998 while the cognizance of the offence was taken on 1.11.1999 which was beyond the period of limitation of one year for an offence punishable with imprisonment of only one year. For passing this order, the Additional Sessions Judge took notice of the following dates: The challan was filed in the Court on 1.11.1999 and an order was passed for serving notice under Section 251, Cr.P.C. on the accused under Section 448, IPC on 1.9.2001, the notice was actually served on the accused on 15.9.2001.

(3.) He expressed an opinion that the trial had not commenced within one year of the pendency of the case and, therefore, the order could not be sustained. For passing this order, the Additional Sessions Judge took note of the judgments of the Supreme Court in the case of Common Cause v. Union of India & Ors., II (1996) CCR 180 (SC)=1996 JCC 503 and Common Cause v. Union of India, 1996 JCC 720. The Additional Sessions Judge found that as per the two judgments if in a summons case trial had not begun within one year of the pendency of the case, the Magistrate was bound to discharge or acquit the accused.