PIJUSH MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revision petition under section 401 read with section 482 of the Code of Criminal Procedure is directed against the order of the learned Sub-divisional Judicial Magistrate, Purulia in G.R. case No. 1060, of 1983. The defacto complainant filed a complaint before the learned Sube divisional Judicial Magistrate on 17th January, 1983 alleging that he took one truck being No. ASK 2943 from one Basudev Supakar of Sudamdih P.S. Sudandih District, Dhanbad under an agreement dated 10.10.79 for a period of fourteen months on condition of payment of Rs. 4,000/- per month, He made over the said truck to the accused persons in good faith for carrying goods from Purulia to Dubra and the truck was entrusted to them. Thereafter, the complainant became ill and after recovery from the illness following an operant at the hospital, he asked the accused about the whereabouts of the truck but the truck could not be traced out on his repeated demands the accused person did not return the truck. The accused persons refused to return the truck on his repeated demands and after search he could find a truck bearing No. WBW 1796 at the front door of the accused. It is alleged that the original truck bearing No. ASK. 2943 which was entrusted to them was Cringed with the new number as mentioned above. Accord injury, he lodged a diary in the Para Police Station. Thereafter, he filed a complaint case against the accused persons for committing criminal breach of trust in the court of the learned S.D.J.M. The steered S.D.J.M. on receiving the complaint disorder the Officer- in-Charge, Para Police Station to start a case under section 156(3) of the Code of Criminal Procedure after treating the complaint $ F.I.R. The Police, accordingly started a case being Para Police Station Case No. 4 on 2.5.1983 under section 406 of the Indian Penal Code against the accused persons.

(2.) A proceeding was taken out by Basudev Supakar, the owner of the truck for return of the same to him pending enquiry and trial. The learned Sub-divisional Judicial Magistrate allowed such application for return of the truck to him for keeping the same in his custody with a rider that he would execute a bond of Rs. 1 lakh and that he would produce the vehicle before the court as and when called for arid shall not change the nature, colour or any other component of the vehicle. Bikash Banerjee, one of the accused moved against such order in revision before this High Court. The High Court entertaining the revisional application passed an order of stay with regard to the proceeding as to the return of the truck. The learned court of the S.D.J.M. by his order dated 53.1985 stayed such proceeding pending hearing of the revisional application in this regard. This court, it appears, passed an order on 2 1.2.1986 in Criminal Revision No. 242 of 1985 rejecting the revisional application and directing the vehicle to be returned to Basudev Supakar. Accordingly, the learned S.D.J.M. on 25.3.1986 passed an order for return of the vehicle.

(3.) The return of the vehicle was presumably done under the provision of section 451 of the Code of Criminal Procedure which relates to passing an order for custody and disposal of the property pending trial or enquiry. The main proceeding, however, was pending and on several dates, orders were passed by the learned S.D.J.M. awaiting return of the record from the High Court and also directing Investigating Officer to file after investigation report as to the accused. These orders were passed on 28.3.1985, 9.7.1985, 15.11.985 and 27.2.1986. Ultimately, on 12.6.1986 the Investigating Officer submitted charge-sheet against the accused persons. The learned Magistrate by his order of that date took cognizance of the offence and directed issue of warrant against one of the accused. The case was fixed for report of execution of the warrant on 12.9.1986 and, thereafter, several dates elapsed. On 23rd December, 1988, one of the accused Pijush Mukherjee filed a petition before the learned S.D.J.M. alleging that the cognizance of the offence was bad as it was barred by limitation and the proceeding should be dropped. Ultimately, the said application was taken up for hearing on 13.9.1989. The then learned S.D.J.M. in his order recorded that the offence is a continuing one and as such it is not effected by the law of limitation as contained in section 468(2) of the Code of Criminal Procedure. He further held that the court has jurisdiction to take cognizance in terms of section 473 of the Code even after the expiry of the period of limitation. On being satisfied on the facts on the facts and circumstances of the case he held that the delay in taking cognizance had been explained and that it was necessary so to take cognizance in the interest of justice. He further held that the congnizance was delayed on account of the fact the matter was stayed by the High Court in connection with the revisional application for return of the truck and the original record was not available for which the learned S.D.J.M. could not get any opportunity for going into the merits of the case and he had to take cognizance of the case and also he could not explain the delay in taking cognizance, in the absence of the original record. Ultimately, he held that he could not interfere with the said order passed by the learned S.D.J.M. on 12.6. 1986 taking cognizance of the case against the accused.