TAPAN KUMAR GHOSH Vs. STATE

JUDGEMENT

(1.) The instant application under Section 401 read with Section 482 of Cr.P.C. is for quashing the proceeding in G.R. Case No. 3913 of 1987 under Section 323/34, I.P.C. pending in the Fourth Court of Metropolitan Magistrate, Calcutta.

(2.) In December 1985, a complaint was filed before the Court of Additional Chief Metropolitan Magistrate, Calcutta against the petitioners on the allegations that they had committed offences under Section 325, of I.P.C. The ld. Magistrate directed the police to investigate into that complaint under Section 156(3), Cr.P.C. According to that direction, police registered a case being Section AC/No. 4331 dated 21-12-85 under Section 325, I.P.C. and started investigation. After investigation, police submitted a report before the ld. Additional Chief Metropolitan Magistrate on 19-2-87 with a prayer for discharge of the accused petitioners and also for permission under Section 155(2), Cr.P.C. for submission of challan under Section 323/34, I.P.C. Acting on that report, the ld. Magistrate discharged the accused petitioners and also accorded the permission sought for. On 24-2-87, police submitted the challan under Section 323/34, I.P.C. against the petitioners and the ld. Magistrate took cognizance on the basis of that challan and issued process against the petitioners. The case was thereafter transferred to the Fourth Court of Metropolitan Magistrate for disposal. The petitioner filed an application before the transferee Court on 21-8-89 praying for their discharge on the ground that the cognizance was barred by limits of time and was accordingly void ab initio. The said prayer for discharge was resisted by the de facto complainant as well as the State on the ground that the ld. Magistrate took cognizance after considering the question of limitation and as such, the transferee Court had no jurisdiction to go into that question again. The ld. Magistrate was of the view that the ld. Additional Chief Metropolitan Magistrate considered the question of limitation under Section 473, Cr.P.C. and thereafter took cognizance and as such, the cognizance was not bad in law. In such view of the matter, the ld. Magistrate rejected the objection of the accused petitioners. And hence the instant revision.

(3.) The fact remains that the offence of which the cognizance has been taken is punishable under Section 323, IPC with imprisonment for a term not exceeding one year, with the result that the period of limitation for taking of cognizance prescribed under clause (b) of sub-section (2) of S. 468 of Cr.P.C. would be one year. Evidently, the period of limitation, in this case, commenced on the date of the offence. The offence was committed on 21-12-85, while the cognizance was taken on 24-2-87, that is to say, after the expiry of the period of limitation. As such, the cognizance is apparently hit by the mischief of the bar under sub-section (1) of Section 468, Cr.P.C. Now, Section 473 lays down two exceptions to the bar imposed by Section 468 for taking cognizance of an offence. Section 473 permits a Court to take cognizance of an offence even after the expiry of the period of limitation if it is satisfied, on the facts and in the circumstances of the case, that the delay is properly explained or that it is necessary so to do, in the interest of justice.