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Aditya Kumar Sinha vs The State Of Bihar & Anr on 11 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12455 of 2012
Arising Out of PS.Case No. -0 Year- null Thana -null District- KISANGANJ

Aditya Kumar Sinha, Advocate, Son of Late Chandra Kishore Sinha, Resident of
Pran Pokhar, Gali No. 2, Amgola, P.S.- Kazi, Mohammadpur, District-
Muzaffarpur.

…. …. Petitioner/s
Versus
The State of Bihar Anr.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Saurabh Kumar, Advocate
For the Opposite Party/s : Mr. Abhay Kumar Roy, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
CAV JUDGMENT
Date: 11-04-2018

Heard learned counsel for the parties.

This application under Section 482 of the Code of

Criminal Procedure has been filed by the petitioner for quashing of

order dated 06.04.2005 passed by the learned Judicial Magistrate, Ist

Class, Kishanganj in Complaint Case No. C-245 of 2005 whereby the

learned court below took cognizance against the petitioner under

Sections 498A, 323, 379, 384 and 120B of the Indian Penal.

The brief facts of this case is that the complainant was

married with the petitioner on 17.06.1998 according to Hindu rites

and several articles have been gifted to the petitioner along with cash

of Rs. 3,41,000/- by the family members of the complainant. After

some time, according to the complainant, the family members of the

petitioner started demanding Rs. 50,000/- and non fulfillment of the

same, she was subjected to assault and torture. Further, when the
Patna High Court Cr.M isc. No.12455 of 2012 dt.11-04-2018

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brother of the complainant tried to pacify the matter, the family

members of the petitioner abused the complainant and snatched the

ornaments in presence of brother of the complainant. Thereafter,

brother of the complainant taken her back to her Maike. Again on

10.07.2001 the husband of the complainant taken her back to her

matrimonial home and again started torturing her for fulfillment of

demand of a motorcycle. Thereafter, on 31.08.2001, the complainant

returned back to her Naihar and since then no one has come to look

after her at her Naihar but the when the brother of the petitioner again

went to settle the dispute, the petitioner along with others have abused

him and ousted from the matrimonial home of the complainant.

Hence, the complainant left with no option lodged the complaint case.

Learned counsel for the petitioner has submitted that

there is general and omnibus allegation against the petitioner and no

specific overt act is attributed to him. As a matter of fact, the incident

is said to have been taken place during the year 1998- 2001 whereas

the complaint has been filed in the year 2005 after lapse of more than

four years without explaining the plausible delay and the learned

Magistrate, Kishanganj took cognizance against the petitioner and

others under Section 498A, 323, 379, 384 and 120B of the Indian

Penal Code without considering the law of limitation specified under

Sections 468, 469 and 473 of the Cr.P.C. It has further been submitted

that the complainant happened to be mentally retarded lady, who was
Patna High Court Cr.M isc. No.12455 of 2012 dt.11-04-2018

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not capable of adjusting with the petitioner-husband and their parents-

in-law even for a week. Neither the petitioner has demanded any

dowry nor assaulted the complainant-wife in any manner. Moreover,

it has brought to the notice of the Court that the alleged occurrence

never took place within the territorial jurisdiction of Kishanganj

Court, which is evident from the plain reading of the complainant and

as such the learned Magistrate, Kishanganj is not empowered to take

cognizance of the alleged offence in view of Chapter XIII (under

Sections 177 to 189 Cr.P.C.), therefore, the prosecution of the

petitioner in the court of Kishanganj amounts to an abuse of the

process of the Court. Moreover, it is pertinent to bring notice of this

Court that order taking cognizance dated 06.04.2005 has already been

quashed with respect to other named accused in the complaint on the

point of jurisdiction by a co-ordinate Bench of this Court vide order

dated 09.08.2007 passed in Cr. Misc. No. 18581 of 2006, which is

evident from Annexure-2. On the above ground, it is submitted that

the cognizance order dated 06.04.2005 passed by the learned Judicial

Magistrate, Kishanganj, is bad in law and is fit to be quashed.

Learned counsel appearing for the State opposes the

application by contending that there are allegations against the

petitioner and the court below after going through the materials

available on record has found a prima facie case against the

petitioner and rightly taken cognizance for the offences under
Patna High Court Cr.M isc. No.12455 of 2012 dt.11-04-2018

4

Sections 498A, 323, 379, 384 and 120B of the Indian Penal Code.

Therefore, the order taking cognizance does not require any

interference.

From perusal of the material on record and looking into

the facts of the case, at this stage, it appears that admittedly the

learned Judicial Magistrate, Kishanganj after going through the

complaint and S.A. of the complainant found prima facie case

against the petitioner and took cognizance under Sections 498A, 323,

379, 384 and 120B of the Indian Penal Code after lapse of more than

four years from the date of occurrence as alleged in the complaint.

The delay aforesaid comes under the purview of law of limitation.

Therefore, this Court feels it proper to refer Sections 468, 469 and

473 Cr.P.C., which is quoted hereinuder;

“468. Bar to taking cognizance after lapse of the period of
limitation- (1) Except as otherwise provided elsewhere in this
Code, no Court, shall take cognizance of an offence of the
category specified in sub-section (2), after the expiry of the period
of limitation.

(2) The period of limitation shall be–

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment
for a term not exceeding one year;

(c) three years, if the offence is punishable with
imprisonment for a term exceeding one year but not exceeding
three years.

(3) For the purposes of this section, the period of limitation, in
relation to offences which may be tried together, shall be
determined with reference to the offence which is punishable with
the more severe punishment or, as the case may be, the most
severe punishment.

469. Commencement of the period of limitation.- (1) The period
of limitation, in relation to an offence, shall commence,-

(a) on the date of the offence; or

(b) where the commission of the offence was not known to
the person aggrieved by the offence or to any police officer, the
first day on which such offence comes to the knowledge of such
person or to any police officer, whichever is earlier; or
Patna High Court Cr.M isc. No.12455 of 2012 dt.11-04-2018

5

(c) where it is not known by whom the offence was
committed, the first day on which the identity of the offender is
known to the person aggrieved by the offence or to the police
officer making investigation into the offence, whichever is earlier.
(2) In computing the said period, the day from which such period
is to be computed shall be excluded.

473. Extension of period of limitation in certain cases.-
Notwithstanding anything contained in the foregoing provisions of
this Chapter, any Court may take cognizance of an offence after
the expiry of the period of limitation, if it is satisfied on the facts
and in the circumstances of the case that the delay has been
properly explained or that it is necessary so to do in the interests
of justice.”

From bare perusal of the aforesaid discussed provisions

of the Cr.P.C., it is quite apparent that if the offence is punishable

with imprisonment of one year and not more than three years,

cognizance, thereof, should be taken within a period of three years

from the date of the alleged occurrence. Here, in this case, the

occurrence took place during the year 1998 to 2001 whereas the

complaint lodged in the year 2005 and the cognizance under Section

498A for which maximum punishment is three years, Section 323 for

which maximum punishment is one year, Section 379 for which

maximum punishment is three years, Section 384 for which

maximum punishment is three years and Section 120B for which

same punishment of three years, of the Indian Penal has been taken

by the Magistrate in the year 2005 after more than four years from the

alleged occurrence. Therefore, the order taking cognizance dated

06.04.2005 is squarely covered under the provisions of Section 468

(2)(b)(c) and 469(a) Cr.P.C. and the same cannot be overlooked.

Further, although the cognizance has been taken after expiry of the
Patna High Court Cr.M isc. No.12455 of 2012 dt.11-04-2018

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period of limitation but the learned Magistrate has not expressed any

finding that the delay has been properly explained while taking

cognizance in the matter.

In view of the aforesaid provisions, the order taking

cognizance, being barred by law of limitation, dated 06.04.2005 is,

hereby, quashed.

This application is , accordingly, allowed.

(Arvind Srivastava, J)
Brajesh/-

AFR/NAFR NAFR
CAV DATE 14.11.2017
Uploading Date 16.04.2018
Transmission 16.04.2018
Date

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