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Judgment
Heard learned counsel for the petitioner, learned
counsel for the opposite party no. 2 and learned Additional
Public Prosecutor for the State.
The petitioner is aggrieved by the revisional order
dated 31st October, 2013 passed by learned Ad hoc Additional
Sessions Judge-V, Bhojpur at Ara, by which he has rejected the
Revision Application preferred by this petitioner for setting
aside the order dated 23.02.2013 passed by learned Chief
Judicial Magistrate, Bhojpur at Ara in Case No. 01(O)/2013, in
which he has taken cognizance under Section 188 of the Indian
Penal Code and issued summon to the petitioner.
Learned counsel for the petitioner submits that the
plea of limitation raised by this petitioner before the revisional
court has not been correctly appreciated and the revisional
court could not appreciate that the learned Chief Judicial
Magistrate, while taking cognizance after the period of
limitation of one year from the date of cause of action for an
offence under Section 188 of the I.P.C. has committed error.
There is no order of learned Chief Judicial Magistrate
condoning the delay in the interest of justice as has been held
by the learned revisional court.
Learned counsel submits that the revisional court on
its own held that the cognizance taken after the period of
limitation was in the interest of justice under Section 473
Cr.P.C., even though there is no such mention in the order-
sheet of the learned Chief Judicial Magistrate.
Learned counsel further submits that the
complaint in question was filed by the Executive Magistrate
who had no locus standi to file the said complaint in terms of
Section 195(1)(a) of the Code of Criminal procedure, the
complainant is neither the authority who had passed the
prohibitory order under Section 144 Cr.P.C. nor he is a superior
authority to the public officer who passed the prohibitory
order. According to him, the allegation was of cutting the crops
during the prohibition period from 05.12.2011 to 06.12.2011,
therefore, the cognizance taken on 23.02.2013 would be
barred by limitation in terms of Section 438(2)(b) Cr.P.C.
Learned counsel further submits that the another
ground on which the learned Ad hoc Additional Sessions Judge-
V, Bhojpur at Ara rejected the application is that the order
issuing summon is an interlocutory order and criminal revision
against such order of summoning is not maintainable.
Learned counsel submits that this aspect of the
matter is no longer res integra inasmuch as the test for
maintaining a Revision Application as held by Hon''ble Supreme
Court is that, if by allowing the Revision Application the very
proceeding comes to an end, the Revision Application would
be maintainable.
In the present case, if the order of summoning could
have been set aside, the complaint case would have come to
an end and, therefore, Revision Application was very much
maintainable. In the case of Rajendra Kumar Sitaram Pande
Vs. Uttam reported in (1999) 3 SCC 134; the test in this regard
has been laid down by Hon''ble Supreme Cou rt.
On the other hand, learned counsel for the opposite
party no. 2 submits that there is no illegality or infirmity in the
order impugned in the present application. He has drawn my
attention towards the statement made in paragraph 10 of the
complaint petition to show that the complaint in question was
filed on 31.12.2012 in which cognizance was taken on
23.03.2013. Learned counsel is, however, unable to controvert
the submissions of learned counsel for the petitioner that it
was barred by limitation and the complainant had no locus
standi.
Having heard learned counsel for the parties and
upon perusal of the record, this court finds that the violation of
the order under Section 144 Cr.P.C. allegedly took place
between 05.12.2011 and 06.12.2011, whereas the complaint
case came to be filed on 31.12.2011, i.e., after more than a
year and thereupon cognizance has been taken on 23.03.2013.
Section 468(2)(b) prescribes a limitation period of
one year for taking cognizance if the offence is punishable with
imprisonment for a term not exceeding one year. Section 188
of the I.P.C. provides punishment for a maximum period up to
six months or with fine which may extend to Rs. 1,000/- or
with both. So far as Section 468 (2(b) is concerned, it will apply
only in a case where the punishment prescribed is not
exceeding one year.
In the present case, however, the punishment
prescribed is not only imprisonment for a term which may
extend to six months but is also punishable with fine and both
imprisonment and fine may be imposed. Therefore, in the
opinion of this Court Section 468(2)(b) cannot be invoked by
the petitioner for his rescue in the present case.
The another ground taken by the petitioner is about
the locus standi of the complainant, Section 195(1)(a) says that
no court shall take cognizance of any offence punishable under
Sections 172 to 188 (both inclusive) of the I.P.C . except on the
complaint in writing of the public servant concerned or some
other public servant to whom he is administratively
subordinate.
In the present case, the Sub-Divisional Officer has
passed the prohibitory order under Section 144 Cr.P.C. which
has been taken note of by the learned Ad hoc Additional
Sessions Judge-V, Bhojpur at Ara in the impugned order. If the
prohibitory order under Section 144 Cr.P.C. was passed by Sub-
Divisional Officer, it was either he or a public officer to whom
he was subordinate could have filed the complaint. The
complaint filed by the Executive Magistrate in the present case
who is neither the concerned officer nor to whom the Sub-
Divisional Officer is a Subordinate Officer would not be
maintainable.
The impugned order, therefore, suffers from illegality
and infirmity which the learned Ad hoc Additional Sessions
Judge-V, Bhojpur at Ara could not appreciate. In the opinion of
this Court, the conclusion reached by the learned revisional
court that the revisional application would not be maintainable
under Section 397 Cr.P.C. is equally wrong and the same is fit
to be set aside.
In the result, the order taking cognizance as well as
the revisional order are hereby set aside and the application is
allowed.