Rajiv Kumar Agrawal @ Rajeev Kumar Agrawal, son of Kailash Prasad Agrawal v. The State Of Bihar

Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 dispute over boundary wall between the complainant and his neighbour, hot exchange of words ensued between complainant and the accused Pranay Kumar Agrawal, who left the scene after issuing threats to the complainant. On 23.12.2000 all the accused persons and three-four other unknown persons brought one big old wooden shop (Gumti) and placed it in front of the complainant’s house, upon which the complainant protested and asked to move the same, but the complainant was then chased inside his house. Thereafter, the complainant was assaulted by the accused persons and when the younger brother of the complainant came to his rescue, he too was assaulted. The complainant’s neck was then strangulated by fastening muffler around his neck. Thereafter, the complainant was brought to hospital for treatment by his younger brother. The complaint was filed on 23.12.2000, while the complainant was examined on solemn affirmation on 02.01.2001 by the learned Chief Judicial Magistrate, Samastipur, and the processes were suspended under Section 202 Cr.P.C., for further enquiry. On 16.01.2001, enquiry witness Birendra Kumar was examined by the learned Chief Judicial Magistrate and matter was adjourned to 06.02.2001 for further enquiry. Thereafter from

06.02.2001 to 28.07.2004, altogether on 41 occasions the matter 4 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 was adjourned for examination of enquiry witnesses. On

11.09.2004, the case was transferred to the court of Sri Janardan Tripathi, learned Judicial Magistrate, where enquiry witness Ajay Kumar was examined on 20.09.2004 and thereafter the matter was again adjourned on six occasions for examination of enquiry witnesses and thereafter the record was transferred to the court of Sri D. Tripathi, learned Judicial Magistrate by an administrative order passed by the learned District Judge, but again the matter was adjourned on 24 occasions from 22.08.2005 to 16.06.2008 for further enquiry and on 22.07.2008 the case was transferred to the court of Sri Shiv Kumar, the learned Judicial Magistrate, where on

27.03.2009, enquiry witness, Suresh, was examined and from

24.04.2009 to 11.03.2010, the case was adjourned at the behest of the complainant for bringing further enquiry witnesses. On

30.03.2010, another enquiry witness Mahesh Mahto was examined by the third transferee Court and the case was adjourned to

22.04.2010 for further statement of enquiry witness, when the complainant filed an application for adjournment and finally on

20.05.2010, the enquiry was closed and the matter was posted for orders on 26.05.2010. The third transferee court, Sri Shiv Kumar, the learned Judicial Magistrate-Ist Class, directed to issue process under Sections 447,323,342,352 and 504 IPC. The said order was 5 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 challenged before the learned Sessions Judge, Samastipur, in Cr. Revision No. 545 of 2010 which was dismissed as not maintainable. It is submitted by the learned counsel for the petitioners that the complaint was filed on 23.12.2000, whereas processes were issued on 26.05.2010, after more than nine years of the filing of the complaint and the offences for which the cognizance has been taken, the maximum punishment is for two years under Section 504 IPC. Hence, the cognizance is barred under Section 468 Cr.P.C., and the same is grossly hit by the law of limitation. Secondly, it has been argued that after filing of the complaint on

23.12.2000, the matter was adjourned to 02.01.2001 when the complainant was examined on solemn affirmation, thereafter the processes were suspended for further enquiry under Section 202 Cr.P.C., and one witness was examined on 16.01.2001, thereafter the matter was adjourned for years together for the examination of second and third enquiry witness and ultimately the processes were issued. Hence, once the process is suspended under Section 202 Cr.P.C., it is mandatory that the Magistrate either conducts an enquiry himself or get the investigation done but after suspension of process, the matter cannot be transferred to some other Magistrate or the enquiry cannot be done after suspension of 6 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 process by some other Magistrate, than the Magistrate who suspended the process. Reliance has been placed in the case of Smt. Pawan Kumari and Others Vs. State of Bihar, 1995(2), BLJ 566 and Bhupendra Yadav and Ors. Vs. Ramotar Mandal alias Ramotar Singh, 1997(1) Eastern India Criminal Cases. Learned counsel for the complainant submits that so far as the question of limitation is concerned, the learned Magistrate is not deprived of taking cognizance after the period of limitation as prescribed under Section 468 Cr.P.C., and the learned Magistrate has the power to transfer after suspension of the process under Section 202 Cr. P.C., Reliance has been placed on the case of Vishwa Mohan Sinha Vs. The State of Bihar and Another 1996(2)P.L.J.R. 570. On hearing the learned counsel for the parties, the first question for consideration of this Court is whether for the purpose of computing the period of limitation under Section 468 Cr.P.C., the relevant date is the date of filing of the complaint or the date of issuance of process or the date on which the Magistrate takes cognizance of the offence? The Apex Court in the case of Krishna Pillai Vs. T.A. Rajendran and Another, 1990 (Supp) Supreme Court Cases 121, held that no court shall take cognizance of any offence under the 7 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 Child Marriage Restraint Act, 1929, in view of the bar under Section 9 of the Act, after expiry of one year from the date on which the offence is alleged to have been committed. Contrary view was taken by the Apex Court in the case of Bharat Damodar Kale and Another Vs. State of A.P., (2003) 8 Supreme Court Cases 559, where it was held that for computing the period of limitation, the relevant date is from the date of occurrence or from the date of knowledge of occurrence till filing of prosecution case. Hence, the limitation prescribed under Section 468 is not for the purpose of taking cognizance technically. Paragraph 10 reads as follows: appellants, to decide “10. On facts of this case and based on the arguments advanced before us, we consider it the question appropriate whether the provisions of Chapter XXXVI of the Code apply to the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned counsel limitation prescribed under the above Chapter applies to taking of cognizance by the court concerned, therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be inspired by the chapter heading of Chapter XXXVI of the Code which reads thus: “Limitation certain offences”. It is primarily based on the cognizance of taking 8 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 indicates above language of the heading of the Chapter, the argument is addressed on the appellants behalf of limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter limitation clearly prescribed therein is only for the filing of the complaint or initiation of the taking prosecution cognizance. It of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the is detected. Section 470 offence indicates that while computing period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal the offender should be excluded. The said Section also provides in the Explanation that in computing obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally in revision against required 9 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 initiated beyond excludable. This in our opinion clearly indicates that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of court. The legal phrase “actus curiae neminem gravabit” which means an act of the court shall prejudice no man, or by a delay on the part of the court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is the earlier decision of this Court in the case of Rashmi Kumar.” in conformity with The ratio laid down in Bharat Damodar Kale (supra) was followed by the Apex Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty (2007) 7 Supreme Court Cases 394 where it has been held that for the purpose of computing the period of limitation, the relevant date must be considered, to be the date of filing of the complaint or initiation of criminal proceeding 10 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 and not the date of taking of cognizance by a Magistrate or issuance of process by a court. Paragraph 50 to 52 read as follows: interpretation of “50. The Code imposes an obligation on the aggrieved party recourse the period forum within appropriate provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of law, limitation. Such instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law. 51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or accordance with law, if that action of initiation of proceedings has been taken within complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the initiate proceedings the period of limitation, 11 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution. 52. In view of the above, we hold that for the purpose of computing the period of limitation, relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation Magistrate/court and not of filing of complaint criminal initiation proceedings.” cognizance taking Due to conflicting views between the ratio laid down in Bharat Damodar Kale (supra) which was followed in Japani Sahoo (supra) and Krishna Pillai (supra), the matter was referred to the Constitution Bench, in the case of Mrs. Sarath Mathew Vs. The Institute of Cardo Vascular Diseases by its Director Dr. K.M. Cherian and Ors., (unreported as on date) where it was held that in Krishna Pillai bar of limitation reflected under Section 468 Cr.P.C., as well as the provisions of Chapter XXXVI Cr.P.C., will have to be restricted to its own facts. More over, in Krishna Pillai (supra) the Court was concerned with Section 9 of Child Marriage Restraint Act, 1929, which stated that no Court shall take 12 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 cognizance of any offence under the Act, in view of the bar after expiry of one year from the date on which the offence is alleged to have been committed. Hence, the ratio laid down in Krishna Pillai (supra) will have to be restricted to its own fact and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation. Hence, the Constitution Bench upheld the ratio laid down in Bharat Damodar Kale which was followed in Japani Sahoo (supra). In view of the aforesaid ratio, it is apparent that for the occurrence of 23.12.2000, the complaint was filed on 23.12.2000 itself. Hence, it cannot be said that the issuance of process is hit by the law of limitation and accordingly, this issue is decided against the petitioners. So far as the question of transferring the case twice, after the process was suspended under Section 202 Cr.P.C. is concerned, the provision under Section 202 Cr.P.C., reads as follows: “202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of 13 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section(1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that triable the offence complained of exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” Section 202 Cr. P.C., has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous or merit-less complaint and the other is to find out whether there is material to support the allegation made in the complaint. The Magistrate is duty bound to elicit all facts having regard to the interests of an absent accused persons and also to bring to book a 14 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an enquiry or direct an investigation to be made by the police. More than five decades back, the Apex Court in the case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonkar and Another, AIR 1960 Supreme Court 1113, with reference to scope of enquiry under Section 202 Cr.P.C., 1898 (corresponding to Section 202 of the present Code), held that enquiry under Section 202 was for the purpose of ascertaining truth or falsehood of the complaint. For ascertaining whether there was evidence in support of the complainant so as to justify the issuance of process or continuance of the proceeding against the person concerned, it was held in the case of Chandradeo Singh Vs. Prakash Chandra Bose alias Chabi Bose and Another AIR 1963 Supreme Court 1430 that the object of the provision of Section 202 Cr.P.C., (corresponding to present Section 202 of the Code) was to enable the Magistrate to form an opinion as to whether process should be issued or not or to remove from his mind any hesitation that he may have felt upon mere perusal of the complaint and the complainant’s statement on oath. More over, an accused person does not come into picture at all, till the process is issued. Hence, the provision is absolutely clear that when the 15 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 Magistrate doubts the case prima facie, then it is mandatory for the Magistrate to get an enquiry done either himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The issue with regard to conduction of enquiry by the Magistrate who suspends the process was considered by this Court in the case of Smt. Pawan Kumari (supra). Paragraph nos. 5 and 6 read as follows: “5. I find merit in the contention raised by the counsel for the petitioners. In the scheme of Section 202 of the Code of Criminal Procedure, if the Magistrate before whom a complaint is filed does not feel persuaded to issue process and opts for holding an enquiry, he has two options open to him i.e., to hold enquiry himself or to direct investigation to be made by Police Officer or by such other person as he think fit.

6. Here in this case the order of the learned Chief Judicial Magistrate indicates that he had taken cognizance and had also embarked upon enquiry by recording the statement of the complainant. In this situation, it was incumbent upon him to conclude the enquiry himself and he could not have passed over the case for enquiry to another Magistrate. transferee The enquiry held by Magistrate, therefore, cannot be said to be valid and issuance of process on strength thereof is not sustainable on the eye of law.” The Apex Court had the occasion to consider the issue of 16 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 conducting enquiry by the Magistrate who suspends the process himself in the case of Adalat Prasad Vs. Rooplal Jindal and Others, (2004) 7 Supreme Court Cases 338. Paragraph 13 reads as follows: 202 Section “13. contemplates issue of process”. It “postponement of provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly for doing so as contemplated under Section 203 of the Code.” reasons Applying the aforesaid principle to the present case, this Court finds that the complaint was filed on 23.12.2000, when the complainant was examined on solemn affirmation on 02.01.2001. The first enquiry witness was examined on 16.01.2001 after processes were suspended under Section 202 Cr.P.C., and thereafter the matter was adjourned for four years and then the matter was transferred on 11.09.2004 to the court of Sri Janardan Tripathi, the learned Judicial Magistrate. Thereafter the matter 17 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 was transferred to the court of Sri D. Tripathi, learned Judicial Magistrate and ultimately to the court of Sri Shiv Kumar, the learned Judicial Magistrate on 22.07.2008, where, after examination of the third enquiry witness Suresh on 27.03.2009 the matter was adjourned to 30.03.2010, when the other enquiry witness Mahesh Mahto was examined and the case was adjourned to 22.04.2010, but no witness was examined and finally vide order dated 26.05.2010 the processes were directed to be issued after cognizance being taken. Hence, the order of issuance of process is contrary to the provision under Section 202 Cr.P.C., to the extent that the Magistrate, who suspended the process, did not conduct the enquiry himself and the enquiry was allowed to continue, while the matter was transferred thrice to three different Magistrates, after suspension of the process and ultimately the processes were issued after more than nine years of filing of the complaint. Since, the accusation has been levelled background of land dispute and the cognizance was taken for the offences punishable under Sections 447,323,342,352 and 504 IPC, no useful purpose will be served for directing re-enquiry by the learned Chief Judicial Magistrate after 13 years of initial lodging of the complaint. 18 Patna High Court Cr.Misc. No.10160 of 2011 (6) dt.20-12-2013 Hence, in view of the settled principle of law, the enquiry has to be conducted by the Magistrate who suspended the process whereas in the instant case the learned Chief judicial Magistrate, Samastipur, suspended the process and after examining one witness under Section 202 Cr.P.C., transferred the matter after three years of suspension of process. Hence, on this score, the impugned order dated 26.05.2010 can not be sustained. Accordingly, in view of the discussions made above the order dated 29.11.2010 passed in Cr. Rev. No. 545 of 2010 by learned Sessions Judge, Samastipur, as well as the order dated

26.05.2010 passed in Complaint Case No. 1144 of 2000 by learned Judicial Magistrate Ist Class, Samastipur, whereby the process was issued after cognizance being taken, are hereby quashed. This application stands allowed. U.K./Anil/- (Dinesh Kumar Singh, J)