Criminal Misc M- 7733 of 2010 v. Smt Munni Devi

Respondent – Smt Munni Devi filed a complaint alleging that her father – Ram Narain had no son and she being the only daughter, inherited his property. The accused namely Ishwar Singh and others in which Satpal – petitioner is accused-2 had been hatching a conspiracy to grab the property of her father during his lifetime. They had prepared a forged adoption deed and fraudulently obtained a civil Court decree. The father of the complainant assailed the said decree by way of a civil suit, which was decreed in his favour by the learned Senior Sub Judge, Narnaul on 1.5.1990. Before that, father of the complainant had died on 26.4.1990 and the accused had got a Will forged and fabricated from him while he was not in a sound state of mind. On the basis of the said forged Will, the Cr Misc M-7733 of 2010 2 accused had succeeded in getting the mutation sanctioned which was challenged by the complainant in the civil Court. It is alleged that on

10.4.2001 when the complainant was at her house in village Dohar Khurd, the accused persons entered her house armed with ‘lathis’ and other weapons and started abusing her. They warned the complainant of serious consequences if she did not leave the house. When the complainant refused to oblige them, the accused inflicted injuries to her. The husband of the complainant at that time was away at Narnaul to meet his lawyer. In the civil suit filed by the complainant, a local commissioner had been appointed, who had observed the entire situation, as it existed at the spot. The local commissioner came there after the assault and he found the complainant in a semi-conscious position. The said fact is mentioned in the report dated

18.4.2001 of the local commissioner. The husband of the complainant brought her to PP Gahli and informed the Police about the occurrence. The accused were already present at PP Gahli and they conspired with the Police. As such, without recording the FIR, the complainant was sent to Civil Hospital, Narnaul for medical examination. The occurrence was witnessed by others also. The doctor found 7 injuries on her person and the doctor advised x-ray of the injuries. Mahavir Constable instead of getting the x-ray conducted, got the complainant admitted in Civil Hospital, Narnual. The Police, it is alleged, conspired with the accused and did not take any action against them. In the preliminary evidence, Dr Sanjay Bishnoi (PW3) was examined and he deposed that on 10.4.2001 he had medico-legally examined respondent-2. Other witnesses were also examined. The learned trial Magistrate, after considering the evidence and material on record, summoned the accused – Satpal (petitioner) – Smt Kamlesh, Birbal, Cr Misc M-7733 of 2010 3 Chhajju, Smt Batheri and Smt Shakuntla vide order dated 5.8.2008 (P1). However, the complaint qua Ishwar Singh and Om Parkash was dismissed. Satpal – petitioner, aggrieved against the summoning order, filed a revision petition and the then learned Additional Sessions Judge vide order dated

23.10.2009 dismissed the same. The present revision petition has been filed assailing orders P1 (summoning order) and P2 (dismissing the revision petition). Learned counsel for the petitioner contends that the complainant has a civil dispute with Ishwar Singh regarding agricultural land and the petitioner has no dispute with regard to any property with the respondent. Ishwar Singh, it is submitted, is the beneficiary of the Will. To settle his score of the civil litigation, the respondent has filed a false and frivolous complaint alleging that Ishwar Singh, Satpal (petitioner), Om Parkash, Smt Kamlesh, Birbal, Chhajju, Smt Batheri and Smt Shakuntla entered into ‘gwara’ and dismantled the articles and severely beat her on

10.4.2001. It is submitted that the complaint had remained pending for more than 7 years and the learned Judicial Magistrate summoned the petitioner and other accused under Sections 323/427 IPC and exonerated the accused Ishwar Singh and Om Parkash vide impugned order dated

5.8.2008 (P1). The revision petition against the same has been wrongly dismissed vide order dated 23.10.2009 (P2). It is contended that the occurrence is of 10.4.2001 and the learned Magistrate took cognizance of the complaint on 5.8.2008 when the order (P1) was passed. Therefore, the same is barred by time in terms of Section 468 of the CrPC. It is submitted that the maximum punishment under Section 323 IPC is one year and cognizance could be taken only within one year. Therefore, the summoning Cr Misc M-7733 of 2010 4 order is liable to be quashed. Besides, no specific injury has been attributed to the petitioner. The complaint has been filed only to harass the petitioner. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner. The primary grievance of the petitioner is that the incident for which the petitioner had been summoned had occurred on 10.4.2001; however, cognizance of the same has been taken by the learned JMIC Narnaul vide order dated 5.8.2008 (P1) after a lapse of 7 years. According to the learned counsel, the bar under Section 468 CrPC would apply, which envisages that no Court shall take cognizance of the offence of the category specified in sub-Section 2 thereof after the expiry of the period of limitation. According to the learned counsel, the offence alleged is of Section 323 IPC for which punishment is one year and, therefore, cognizance could be taken within the period of limitation of one year only. It is submitted that the cognizance is when the Magistrate applies its mind for the purpose of proceeding further with the case and the application of mind is when the order dated 5.8.2008 (P1) was passed. It is not disputed that the Court takes cognizance of the offence when it applies its mind to the case for the purpose of proceeding further. However, for the purposes of Section 468 CrPC, it has been held by the Supreme Court in Japani Sahoo v. Chandra Sekhar Mohanty 2007(7) SCC 394 that for the purpose of computing the period of limitation, the relevant date must be considered as to the filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of a process by a Court. In the said case, the incident had occurred on 2.2.1996. The complaint in respect thereof was filed within 3 days of the incident, but the Magistrate took cognizance of the matter and issued summons against the Cr Misc M-7733 of 2010 5 respondent in respect of the offences under Sections 294 and 323 IPC after more than one year of the incident. On a petition filed by the accused under Section 468 CrPC, the High Court allowed the said petition holding it to be barred by limitation under Section 468 CrPC. It was held by the High Court that the date relevant and material for deciding the bar of limitation under Section 468 CrPC was the date of taking cognizance by the Court and not the date of filing. This, however, was reversed by the Supreme Court. It was held that the two things namely (i) filing of complaint or initiation of criminal proceedings; and (ii) taking cognizance or issuance of process are totally different, distinct and independent. So far as the complainant is concerned, as soon as he files a complaint in a competent Court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings. Because of several reasons, it may not be possible for the Court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalized for such delay on the part of the Court nor can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under CrPC. No criminal proceeding can be abruptly terminated when a complainant approaches the Court well within the time prescribed by law. In such cases, the doctrine actus curiae neminem gravabit (an act of court shall prejudice none) would indeed apply. One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors. In the present case, in respect of the incident that occurred on

10.4.2001, the complaint was filed on 17.5.2001, which is within the period Cr Misc M-7733 of 2010 6 of limitation. The complainant led preliminary evidence in support of the case and examined 9 witnesses including Dr Sanjay Bishnoi who has proved the medico-legal report (PW3/A). Therefore, the complaint having been presented within the period of limitation, the bar under Section 468 CrPC for taking cognizance would not apply. The other contention that the complaint has been filed to settle the score for the civil litigation and that the offence is of a summary nature and the complaint has been filed only to harass the petitioner, are not of much substance and these are to be considered if raised before the trial Court at the appropriate stage. This Court in exercise of its inherent jurisdiction under Section 482 CrPC is not to embark upon an inquiry in respect of the same. Consequently, there is no merit in this petition and the same is accordingly dismissed.

16.3.2010 ASR ( S.S.SARON ) Judge