ANIL KUMAR AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) A first information Report under section 147/323 I.P.C. was lodged against the petitioner Dr. Anil Kumar Agrawal and four others by Dr. Shashi Bhushan, respondent No. 3. After investigation, the police submitted a Charge-sheet against the petitioner alone under section 323 I.P.C. The learned Magistrate took cognizance and passed an order of summoning the petitioner on 18.12.1987. The petitioner moved an application before the learned Magistrate on 20.7. 1990 praying that he should be discharged as the cognizance had been taken after expiry of the period of limitation. Learned Magistrate by his order dated-14.2.1991 discharged the petitioner. The complainant respondent No. 3 filed revision against the said order which was allowed by the learned Sessions Judge by his order dated 24.7.1991 and the case was sent back to the learned Magistrate to consider it afresh in accordance with law. It is for quashing of this order that the present petition has been filed under section 482 Cr. P.C.

(2.) Since the revision filed by the respondent No. 3 has been allowed by the learned Sessions Judge, it was open to the petitioner to file a revision against the aforesaid order. However, in order to do justice between the parties, I have heard the present petition under section 482 Cr. P.C. as a criminal revision.

(3.) Learned counsel for the complainant has submitted that with regard to the incident which took place on 29.11.1986 a First information Report was lodged on the same day under section 147/323 I.P.C. against five accused including the petitioner. The Police investigated the case and submitted a chargesheet which bears the date 31.7.1987 and then by the Ahalmed of the Court on 30.11.1987. The Chargesheet was placed before the Presiding Officer of the court on 18.12.1987 who passed an order directing that the petitioner be summoned. The Complainant had also moved an application for condonation of delay under section 473, Cr. P.C. on 10.5.1990. It is thus submitted that there was sufficient material on record to show that the chargesheet had in fact been submitted in court within a period on one year and even if the learned Magistrate passed the order for summoning the petitioner after expiry of one year, the delay in taking cognizance should have been condoned. Learned counsel for the petitioner has, however, submitted that what is material is the date on which has learned Magistrate took cognizance and as the cognizance was taken on 18.12.1987. It was after expiry of the period of limitation and therefore, the repetitioner was rightly discharged. He has further submitted that the application moved by the complainant under section 473 Cr. P.C. on 10.5.1990 for condoning the delay could not be taken into consideration as the same should have been moved prior to the taking of cognizance by the learned Magistrate.