G N DASS Vs. STATE

JUDGEMENT

(1.) THE above petition is filed by the petitioners who figure as accused 1 to 3 in C. C. No. 399 of 1979 on the file of the Judicial Second Class Magistrate, Udumalpet, to quash the said proceedings pending before the said Magistrate.

(2.) IT appears that the complainant is an Advocate who appeared against the first petitioner in a divorce O.P. No. 54 of 1977 in the Sub-Court, Udumalpet. IT is the case of the prosecution that the petitioners on 23rd February, 1978 at 12.00 noon, entered into the house of the complainant, that the first petitioner took away a document from the table of the complainant, torn it and took away two other documents. IT further appears that the petitioners used abusive language against the complaint. Enranged by this the complainant lodged a complaint before the respondent who has registered the same under sections 448, 426 and 379, Indian Penal Code. On 2nd September, 1979, the petitioners were served with summons directing them to appear before the Judicial Second Class Magistrate, Udumalpet, on 6th November, 1979 in C.C. No. 399 of 1979. IT further appears from the arguments advanced by the petitioners- Counsel that the trial Court took cognizance of the case against the petitioners under sections 448 and 426, Indian Penal Code. On 6th November, 1979, an objection was taken by the petitioners before the trial Court in Crl.M.P. No. 1587 of 1979 contending that the case as against the petitioner under sections 448 and 426, Indian Penal Code, is barred under section 468, Criminal Procedure Code. The trial Court issued notice to the Public Prosecutor. The learned Public Prosecutor appears to have filed an application before the Court below to take cognizance of the case not only under sections 448 and 426, Indian Penal Code, but also under section 380, Indian Penal Code. IT isat this stage arguments were advanced before the trial Court by the respective Counsel and the trial Court has passed an order on 17th November, 1979, which is as follows:

(3.) THE argument advanced before me by Mr. Arunachalam, learned Counsel for the petitioners is that when once the trial Court has taken cognizance of the case on receipt of the police report along with the statements of the prosecution witnesses for the offences under sections 448 and 426, Indian Penal Code, it means that the Court has applied its mind to the records placed before it for proceeding further with the matter against the petitioners with reference to the offences alleged against them. According to the Counsel, the application of the mind by the trial Court is clear from the fact that the trial Court took cognizance only of those offences falling under sections 448 and 426, Indian Penal Code, after applying its mind which the Counsel contends cannot lie, for, the said charge under section 468, Criminal Procedure Code, is barred- by limitation. In other words, the Counsel contends that if there is absolutely a bar in taking cognizance of the offence against the petitioners under sections 448 and 426, Indian Penal Code, then there cannot be a second cognizance under section 380, Indian Penal Code, by the trial Court. In any event, the Counsel contends that in so far as the first accused is concerned, even assuming that there is likely a charge under section 380, Indian Penal Code, from the averments of the First Information Report, there cannot be a charge under section 380, Indian Penal Code, in so far as against accused 2 and 3 are concerned. Under the circumstances, the Counsel appearing for the petitioners contends that the accused 2 and 3 will be absolved not only under section 448 and 426, Indian Penal Code, but also under section 380, Indian Penal Code. THE other argument advanced by the learned Counsel for the petitioners is that the Magistrate having applied his mind and having taken cognizance of the case with reference to sections 448 and 426, Indian Penal Code, cannot take cognizance for a second time with respect to section 380, Indian Penal Code, against the petitioners. In order to support his argument reliance is placed by the learned Counsel for the petitioners on a decision reported in D. Lakshminarayana v. V. Narayana1. THE Supreme Court has held that: