SHEO NANDAN SINGH Vs. SURAJDEO SINGH

JUDGEMENT

(1.) The petitioners have filed an application under section 481 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the new Code) for quashing an order dated 30.6.1975 passed by the learned Chief Judicial Magistrate, Biharsharif summoning the petitioners to stand trial under section 188 of the Penal Gode, on a petition of complaint filed by the Sub-divisional Officer, Biharsharif. According to the petitioners, learned Chief Judicial Magistrate could not have taken cognizance of the offence aforesaid on the relevant date in view of the bar of limitation placed by clause (b) of subsection (2) of section 458 of the new Code, which provides one year as the period of limitation for taking cognizance of offence which is punishable with imprisonment for a term not exceeding one year.

(2.) In order to appreciate the contention raised on behalf of the petitioners certain facts have to be stated. On 13.11.1973 the police submitted a report for action under section 144 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as the old Code) because there was an apprehension of breach between the petitioners and opposite party no. 1. On the basis of that police report, a proceeding under section 144 of the old Code was initiated on 19.11.1973. Notice of that proceeding was served on .the petitioner on 21.11.1973. On 23.11,1973, opposite party no. 1 filed a petition before the learned Magistrate concerned saying that after the service of the notice on 21.11.1973, these petitioners had violated the prohibitory order on 22.11.1973 by harvesting the paddy and amalgamating a portion of the land in dispute with their land. Learned Magistrate on that very date, i.e., on 23.11.1973, called for a report from the police. The police officer, who was entrusted with the enquiry visited the place of occurrence on 24.11.1973 and submitted his report dated 26.11.1973 saying that after local enquiry he had learnt that on 22.11.1973 the petitioners, after service of the notice of the proceeding under section 144, had harvested the crops of the plots in question and had also amalgamated the same to their own plots, and, as such, action under section 188 of the Penal Code should be taken against them. A copy of this report is Annexure 3 to this application. On 3.12.1973, learned Magistrate perused the aforesaid police report and heard the parties. On behalf of the petitioners a petition was filed that a local enquiry should be held through some other officers. On that petition, learned Magistrate directed the Anchal Adhikari, Rajgir to hold a local enquiry and then to submit a report. The Anchal Adhikari, after holding an enquiry, submitted his report dated 17.12.1973 saying that the allegation about the harvesting and violation of the prohibitory order was correct. That report was put up before the learned Magistrate on 18.12 1973. After perusing the same, he directed these petitioners to file their show cause. That show-cause was filed on 26.8.1974. The case was adjourned from time to time and ultimately, after hearing the parties, learned Magistrate passed an order dated 21.2.1975 saying that the Officer-in-charge, Silao P.S. as well as the Circle Officer, Rajgir have recommended for action under section 188 of the Penal Code against these petitioners, and, as such, he was directing filing of a complaint against them for prosecution under section 188 of the Penal Code. The complaint was actually filed before the learned Chief Judicial Magistrate on 5.4.1975, on the basis of which cognizance was taken on 30.6.1975, as already stated above.

(3.) According to learned counsel appearing for the petitioners, the new Code came in 1.4.1974 and its section 468 became applicable. In view of that section cognizance should have been taken within one year of the offence, which in the instant case was committed on 22.11.1973. As no cognizance was taken within the period precsribed, learned Magistrate could not have taken cognizance thereof. This case was heard by a learned Judge of this Court who has referred it to Division Bench primarily for consideration as to whether this period of one year is to be calculated from the date when the offence is alleged to have b;en committed or from the date when the authority concerned, after enquiry, was satisfied about the commission of such an offence. In other words, if this period of one year is to be calculated from the date the offence was committed, admittedly, the period prescribed by clause (b) of sub-section (2) of section 468 of the new Code had expired and no cognizance could have been taken, on the other hand, if it is to be calculated from the date the learned Magistrate after enquiry passed an order for filing of the complaint, then it shall be within time, because in the instant case ho passed an order for filing of the complaint on 21.2.1975 and cognizance was taken on 30A1975.