GANGA SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for quashing of an order dated 18-12-79, passed by the Chief Judicial Magistrate, Vaishali at Hajipur in Trial No. 1524 of 1979. The certified copy of the order has been filed along with this application. From this order, it appears that the learned Chief Judicial Magistrate has taken cognizance of an offence under Section 188 of the Indian Penal Code against these two petitioners and has summoned them to take their trial.

(2.) The Opposite-party No. 2, Chandrama Roy filed an application in the court of the Sub-divisional Magistrate, Hajipur, alleging likelihood of the breach of the peace at the hands of these petitioners with respect to certain lands in dispute and the learned Magistrate on being satisfied drew up a proceeding under Section 144 of the Code of Criminal Procedure against both the parties. The learned Magistrate restrained both the parties from going over the disputed plots. On 22-11-1978, the Opposite-party No. 2 flied another application in the court of the Sub-divisional Magistrate, alleging therein that inspite of the prohibitory order passed by the learned Magistrate, these two petitioners went over the land and started demolishing bridge and laying bricks by digging ditch over it. The Sub-divisional Magistrate on being satisfied that these two petitioners violated the prohibitory order passed under Section 144 of the Code of Criminal Procedure, filed a petition of complaint in the court of the Chief Judicial Magistrate, Vaishali at Hajipur on 22-11-1979, as aforesaid. The petition of complaint was received in the court of the Chief Judicial Magistrate, Vaishali on 18-1-1979, and on a perusal whereof, the learned Chief Judicial Magistrate took cognizance of the offence and summoned these two petitioners to take their trial on the aforesaid charge for violation of the prohibitory order, which is an offence punishable under Section 188 of the Indian Penal Code. Now the learned counsel for the petitioners has challenged the validity of the impugned order dated 18-12-1979 on the ground that it is hit by Section 468 of the Code of Criminal Procedure. The contention of the learned counsel is that the offence under Section 188 of the Indian Penal Code provides two kinds of punishment. If such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, the offender shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such disobedience cause or tends to cause danger to human life, health or safety, or cause or tends to cause a riot or affray, the offender shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both. It has been submitted that in this case, the period of limitation as prescribed in sub-section (2) of Section 468 of the Code of Criminal Procedure shall be maximum to a term of one year. Section 468 of the Cede of Criminal Procedure puts limitation on taking cognizance of the offence by a Court in such belated matter. It has been submitted that the case of the petitioners is of the second category. According to Section 188 of the Indian Penal Code, the period of limitation shall be maximum to a term of one year from the date of commission of the offence. In the instant case, the offence committed, as alleged by the Opposite-party No. 2, is dated 22-11-1979. It has been stated that an application was filed in the court of the Sub- divisional Magistrate on 22-11-1978 alleging therein that these two petitioners violated the prohibitory order passed under Section 144 of the Code of Criminal Procedure. The learned Magistrate on being satisfied with respect to the allegation made against these two petitioners drew up the petition of complaint, which is dated 22-11-1979 (vide Annexure-2), which was received in the court of the learned Chief Judicial Magistrate on 18-12-79. It was on this petition of complaint, the learned Chief Judicial Magistrate took cognizance of the offence against these two petitioners. Computing the period from the date of commission of the offence, i.e., from 22-11-1978 it appears that the order taking cognizance of the offence, gets hit by sub-section (2) of Section 468 of the Code of Criminal Procedure.

(3.) Mr. Shyam Sunder Sinha Shyam appearing on behalf of the Opposite-party No. 2 on the other hand has contended that the Sub-divisional Magistrate on getting the complaint petition, issued a notice of show cause to the members of the opposite-party asking them why they should not be prosecuted and punished for violation of the prohibitory order passed by the court. This notice, as it appears from paragraph 6 of the petition, was issued on 3-3-1979 and as such the learned counsel has urged that the period of limitation should be computed from 3-3-1979. In ether words, it has been contended that this date will be deemed as the date, on which the Sub-divisional Magistrate got knowledge of the offence committed An attempt has been made to argue that in fact the Sub-divisional Magistrate could not feel satisfied on the earlier application filed before him and he, therefore, thought it proper to issue a notice of show cause and on being satisfied with respect to the allegation of contravention of the prohibitory order, the Sub-divisional Magistrate thought it proper to file a petition of complaint, which was sent to the court of the Chief Judicial Magistrate and received on 18-12-1979. On the aforesaid basis, it has been urged that the period of limitation should start running from the date, the Sub-divisional Magistrate felt satisfied with respect to the commission of the offence and not actually the date on which the offence was committed.