BYOMKESH BHATTACHARYA Vs. LAKSHMI NARAYAN DATTA

JUDGEMENT

(1.) IN this revisional application six accused persons pray for quashing of the proceeding of case No. C/348/75 (T. Rule 239/75) pending against them before a Judicial Magistrate, Sealdah Under Sections 426 and 430/34 of the Indian Penal Code.

(2.) ON May 20. 1975 Lakshmi Narayan Dutta, the complainant -opposite party filed a petition of complaint in the Court of the Senior Judicial Magistrate at Sealdah against the petitioners praying for process against them Under Sections 426/430/ 341/34 of the Indian Penal Code. In the petition of complaint it is alleged by the complainant that he is a leasehold tenant in respect of a first floor flat of the premises No. 28/A, Sarat Ghosh Street within the Police Station of Entally. The accused No. 1 Byomkesh Bhattacharjee is a monthly tenant in respect of the second floor of the premises in question, accused No. 2 Sm. Manisa Bhattacharjee is his wife, accused, No. 3 Sandip Bhattacharjee is his nephew and accused No. 4 Sujit Kumar Ghosh is his domestic servant; Of the other two accused, accused No. 5 Kanailal Sen is a tenant in respect of ground floor of the premises while Sm. Rekha Sen, accused No. 6, is his wife. There is long standing dispute and difference between the complainant and the accused and a case at the instance of the complainant is pending in the Court of another Judicial Magistrate at Sealdah. The accused persons stopped supply of filtered water, required for drinking and bathing purposes, to the complainant's flat since the morning of January 5, 1973 through operation of a wrench valve key. The complainant further alleged that since March 17. 1973 the accused Nos. 1 -4, by damaging and dismantling the overhead roof of the first floor, have been deliberately and purposely throwing refuses and foul water every now and then and thereby spoiling the cooked food of the complainant.

(3.) MR . Balai Chandra Roy, the learned Advocate appearing for the petitioner contended that so far as the offence Under Section 426 of the Indian Penal Code is concerned, the learned Magistrate erred in taking cognizance as the same was barred by limitation. Mr. Roy submitted that the maximum punishment for the offence Under Section 426 of the Indian Penal Code beting imprisonment for 3 months, the learned Magistrate could not have taken cognizance in respect of the said offence in view of the provisions of Section 468 of the Code of Criminal Procedure, 1973 (here in after referred to as the new Act) a? the period of limitation for such offence was one year only. Since the offence of mischief for which some of the petitioners are being proceeded with Under Section 426 of the Indian Penal Code was, according to the complainant committed on March 17, 1973, the learned Magistrate, according to Mr. Hoy, could not have taken cognizance of the offence on 20 -5 -75, the date on which the complaint was filed. Mr. Dilip Kumar Dutt, the learned Advocate appearing for the complainant opposite party did not contest the legal position in this respect, but contended that inasmuch as the offence of mischief Under Section 426 of the Indian penal Code alleged against some of the petitioners was a continuing offence, the limitation was to run every moment of time during which the offence continued and since it Is the positive case of the complainant that the mischief committed by the petitioners in continuing, a fresh period of limitation shall begin to run at every moment of stitih continuance of the offence. Mr. D. M. Ghosh, the learned Advocate appearing for the State, however, supported the contention of Mr. Roy and submitted that the learned Magistrate erred in taking cognizance of the offence Under Section 426 of the Indian Penal Code as it was barred by limitation.