Himanshu Pokhriyal vs State of Uttarakhand and Others

B.S. Verma, J.

Urgency Application No. 204 of 2013 is allowed.

By means of this present C-482 application, the applicant has prayed for quashing of entire proceeding of Criminal Case No. 3338 of 2012, State vs. Himanshu, pending in the Court of Additional Chief Judicial Magistrate (Ist), Dehradun, relating to offences punishable u/s. 384, 385 and 120B of I.P.C. According to the learned Counsel for the applicant, the first information report for the alleged cause of action, which took place on 27.6.2006, was lodged on 24.4.2007. On 19.9.2012, the charge sheet in respect of offences punishable u/s. 384, 385 and 120B I.P.C. was submitted before the Court and on the same day, the Court took cognizance against the applicant.

Learned Counsel for the applicant has contended the maximum punishment u/s. 384, 385 and 120B I.P.C. is three years and therefore the learned court, without condoning the delay, cannot take cognizance in respect of offences punishable u/s. 384, 385 and 120B I.P.C. as the same is barred by sub-clause (c) of sub-section (2) of Section 468 of Cr.P.C. in which period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

In the case at hand, since the offence, u/s 384, 385 and 120B I.P.C., is punishable by imprisonment for a term of three years, the period of limitation for the purpose of taking of cognizance would be, in terms of Section 468(2)(c) Cr.P.C. three years, and prima facie it appears that before taking cognizance, the court below did not condone the delay in the matter by invoking section 473 of Cr.P.C. and no order for condonation of delay has been passed in taking cognizance.

By a perusal of the order, whereby cognizance has been taken by the Magistrate concerned, appears to be taken beyond three year, therefore, the matter requires scrutiny.

Learned Addl. GA for the State/respondent nos. 1 to 3 is allowed four weeks'' time to file counter affidavit.

Issue notices to respondent nos. 4 and 5.

List thereafter. As an interim measure, until further orders, further proceedings of Criminal Case No. 3338 of 2012, State vs. Himanshu, pending in the court of Addl. Chief Judicial Magistrate (Ist), Dehradun, relating to offences punishable u/s. 384, 385, 120B I.P.C., shall remain stayed.