GOUR HAN MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner, who was the accused in the Court of the learned S.D.J.M. Tamluk, made an application before that court for discharging him. The petitioner was the storing agent of the F.C.I. at Midnapore district. He reported to the F.C.I. about an incident of dacoit on 6.12.1973. Then the F.C.I. lodged a complaint to the Panskura P.S. on the basis of which an F.I.R. was drawn up and panskura P.S. case No. 15(12) 73 under section 406 of the Indian Penal Code was started. On 15.11.1979 charge-sheet under section 406 of the Indian Penal Code was filed in court. The petitioner appeared and was released on bail. On 18.2.1980 he made a prayer under section 245(2) of the Code of Criminal Procedure for discharging him. By the impugned order dated 15.1.1981, the learned Magistrate rejected that prayer. This revision case arises out of that.

(2.) Mr. Battacharjee, appearing for the petitioner, has formulated only one point. He has submitted that cognizance for an offence under section 406 Indian Penal Code could be taken within three years only and not beyond. As the learned Magistrate purported to take cognizance as late as 15.11.1979, according to Mr. Bhattacharjee, the cognizance is hopelessly barred. To elaborate that point, he has referred to sections 468 and 484 Criminal Procedure Code. He has also referred to a number of decisions. Mr. Chakraborty, appearing for the State, has contended that the stage for taking cognizance was not yet set in and so the question of limitation could not arise. Thus viewed, according to Mr. Chakraborty, the question of quashing the proceedings by the Learned Magistrate cannot arise.

(3.) Having heard Mr. Bhattacharjee and having considered the relevant provisions of law I find that his contention must be upheld. Charge-sheet was submitted under section 406 Indian Penal Code on 15.11.1979. The complaint was lodged by the F.C.I. and F.I.R. was drawn up on 12.12.1973. Under section 468 of the new Code of Criminal Procedure of 1973, which came into force of the 1st of April, 1974, cognizance for an offence under section 406 Indian Penal Code could not be taken beyond three years. In this case, cognizance was taken about six years after. So if the new Code applies, the cognizance taken was bad. Now section 484 Criminal Procedure Code makes certain savings so as to make the old Code of Criminal Procedure applicable in relation to certain pending matters. These matters specified in sub-section (2) of section 484 of the new Code are appeal, application, trial, inquiry of investigation pending. From the language itself, it follows that what is saved that is specifically stated and the saving cannot extend beyond the ambit of the section itself. There is no saving as regards cognizance. And sub-section (I) of section 484 repeals the old Code subject to savings made in sub-section (2), therefore, it follows that what is not specifically saved by sub-section (2) (a) of section 484 Criminal Procedure Code that is not saved. Cognizance is not saved by section 484. Therefore, the time for taking cognizance must be reckoned with reference to the provision of section 468 of the new Code. There is no escape from that position. The section is so clear and plain itself, that no decision need be cited. Still, reference can be made to certain decisions. In 1976 Cri. L.J. 84 it has been clearly laid down that whenever the Parliament wanted to apply the provisions of the new Code or that the provisions of the old Code are to be continued it has specifically so stated. It has further been observed that subsection (2)(b) of section 484 Is merely a transitory provision which does not confer any right but provides for continuance of notifications, orders, rules, appointments, sentences passed etc. What is to be noticed is that what are saved under sub-section (2)(a) ore only the pending proceedings. A similar view was taken in the case reported in 1979(2) C.H.N. 4982. It was observed that since the investigation was completed after the new Code came into force and no enquiry envisaged by the provisions of Chapter XVIII was then pending, the matter would be governed by the provisions of the new Code and not of the old code. It is clear that this matter is to be governed by the new Code. Therefore the learned Magistrate could not have taken cognizance beyond the period of three years.