SH JASBIR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS petition has been directed for setting aside order dated 24.08.2011 passed by learned Judicial Magistrate Ist Class, Court No.5, Shimla, in case No. 36-2 of 2011 pending in the Court of learned Judicial Magistrate Ist Class, Court No.5, Shimla. Whether the reporters of the local papers may be allowed to see the Judgment? Yes

(2.) THE further facts as alleged are that petitioners No. 1 and 2 are brothers and petitioner No.3 is their father. The learned Judicial Magistrate has taken cognizance against the petitioners for commission of offence under Section 447 read with Section 34 IPC on the report submitted by police under Section 173 Cr.P.C. The cognizance was taken by learned Magistrate on 24.08.2011. It has been stated that Lekh Raj Dhiman submitted a complaint to police, thereupon police registered an FIR dated 02.12.2010 under Section 447 read with Section 34 IPC.

(3.) HEARD. The learned counsel for the petitioners has submitted that in the last complaint, the complainant has referred complaints dated 25.08.2009 and 14.07.2010. In FIR No.248 dated 02.12.2010 reference of complaints dated 25.08.2009 and 14.07.2010 has been made. A copy of complaint dated 25.08.2009 has been placed on record in which it has been stated that petitioner No.3 had constructed a wall on the retaining wall of the complainant on 23.01.2009. It has been submitted that assuming but not admitting that the wall was constructed on 23.01.2009 as alleged, then trespass was committed on 23.01.2009. The cognizance was taken by learned Magistrate on 24.08.2011 after more than 2 1/2 years. It has been submitted that for criminal trespass the punishment provided under Section 447 IPC is three months with fine or which may extend to Rs.500/-, or with both. The Clause (b), sub-section (2) of Section 468 Cr.P.C. provides limitation of one year for the Court to take cognizance if the offence is punishable with imprisonment for a term not exceeding one year. It has been submitted that the learned Judicial Magistrate had no jurisdiction to take cognizance of the offence under Section 447 IPC on 24.08.2011 in view of Section 468 Cr.P.C.