KRISHNAN Vs. YESODHA

JUDGEMENT

(1.) The question for consideration in this criminal miscellaneous case filed under S.482 of the Cr. P. C. is whether this court has to exercise its inherent power to quash the proceedings in a private complaint taken cognizance beyond the expiry of the period of limitation fixed under S.468 of the Code.

(2.) Petitioners are accused 1 to 4 in C. C. 643 of 1983, a private complaint filed by the first respondent before the Judicial Second Class Magistrate. Hosdurg, for an offence punishable under S.324 read with S.34 of the Indian Penal Code. The alleged incident was on 22-2-1978. There are two versions regarding the same incident Basing on the same incident the police registered a case against the first respondent and her husband for an offence under S.324 read with S.34 of the Indian Penal Code and it was being tried as C. C. 135 of 1980 by the Judicial First Class Magistrate, Hosdurg. Though the case at first ended in acquittal, the Sessions judge remanded the same in revision. That case also seems to have been disposed of. The first respondent at first filed a private complaint as C. C. 726 of 1978 which was renumbered as C. C. 336 of 1982. On 21-12-1982 the accused (petitioners) were discharged under S.249 of the Cr. P.C. for the non appearance of the first respondent (complainant). On the same facts first respondent again filed C. C. 643 of 1983 on 7-4-1983 and the Magistrate took cognizance for the offence under S.324 read with S.34 of the Indian Penal Code and issued process. It is to quash this complaint that this petition was filed.

(3.) It was not disputed before me that the discharge of the accused under S.249 of the Cr. P.C. in a warrant case instituted on complaint for offences which are either compoundable or non cognizable for the absence of the complainant will not amount to acquittal and a fresh complaint on the same facts is not barred. But the second complaint has to be filed within the period of limitation. In this case the offence is one under S.324 of the Indian Penal Code and the punishment is imprisonment upto three years. Under S.468(2) (c) of the Cr. P.C. the period of limitation is three years. Under S.469 the period of limitation shall commence from the date of the offence or date of knowledge as the case may be. In this case the question of date of knowledge does not arise and limitation will start from the date of the offence itself. Exclusion of time under S.470 or the subsequent provisions do not arise at all. Under S.470 what is excluded is the time during which another prosecution was conducted with due diligence. The proviso further clarifies the matter. Such exclusion will be available only if the prosecution relates to the same facts. That is satisfied here. But the prosecution must be in good faith in a court which could not entertain it on account of defect of jurisdiction or other causes of a like nature. That condition is not satisfied here and hence there is no question of exclusion of time under S.470 It cannot be said that the previous complaint was one which has been prosecuted with due diligence in good faith in a court which was unable to entertain it for defect of jurisdiction or other cause of a like nature. S.471 or 472 or the other provisions of S 470 are also not attracted here. If no exclusion of time is available, the second complaint which was filed more than five years after the date of offence was evidently barred by limitation and under S.468(1) the Magistrate was not competent to take cognizance because of the prohibition. Cognizance taken in violation of the prohibition contained in S.468(1) must evidently be an illegality.