BANWARILAL AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The only question, which arises in this revision petition is, whether the learned Magistrate could have taken cognizance against the accused-petitioners for an offence u/s 323 and 447, IPC, after the expiry of one year from the commission of the offence.

(2.) The occurrence is alleged to have taken place on 14.8.75, and the F.l.R. was lodged in P.S. Patan on 15 8.75. The F.l.R. 39/75 was registered in the police station, and a charge sheet was filed against the accused-petitioners in the Court of learned Magistrate for offence u/ss, 147, 447 and 323, IPC. on 8.7.77. The learned Magistrate thereafter took cognizance of the offence against the accused-petitioners. An application was filed on behalf of the accused-petitioners before the learned Magistrate that in view of S. 468, Crimial P.C. (1973), the learned Magistrate could not have taken cognizance against the accused-petitioners so far as the offence u/s 447 and 323, Penal Code is concerned. The learned Magistrate under the impugned order was of the opinion that cognizance could be taken and as such he dismissed the application filed on behalf of the accused-petitioners.

(3.) The submission of the learned Advocate for the accused-petitioners is that an offence u/s 447, Penal Code is only punishable with imprisonment of either description which may extend to three months, or with fine, which may extend to Rs. 1,000.00, or with both. An offence u/s 323. Penal Code is punishable with imprisonment of either description, which may extend to one year, or with fine which may extend to Rs. 1,000.00, or both. He, therefore, submits that so far as these offences are concerned, u/s 468, Cr P.C. cognizance can only be taken by the learned Magistrate within one year of the' offence He, therefore, submits that cognizance of these offences should have been taken by the learned Magistrate only upto 14.8.76 and not thereafter. Under S. 468, Crimial P.C., as it stood prior to the amendment by the Code of Criminal Procedure (Amendment Act 1978), which came into force with effect from 18. 12. 78, cognizance for an offence punishable with fine only could be taken within six month's and for an offence punishable for a term not exceeding one year the cognizance could be taken within one year. Therefore, it can be said that when the charge sheet was filed before the learned Magistrate, he could not have taken cognizance so far as the offences under SS 447 and 323. TPC are concerned. But, so far as S. 141 Penal Code is concerned, he was competent to take cognizance. By the (Amendment) Act, 1978, sub-section (3) was inserted after sub-section (2), and the same is to the following effects:-