Nirmal Singh vs Balwant Singh

G.S. Chahal, J.

Nirmal Singh, petitioner by means of this criminal miscellaneous under section 482, Cr.P.C. seeks the quashing of the order of the learned Additional Sessions Judge, Ferozepur dated 20.4.91, Annexure P4 whereby he allowed the revision against the order of the Chief Judicial Magistrate dated 21.12.1990, calling the petitioners as accused, mentioned in column No. 2 of the report under section 173, Cr.PC as time barred.

A report under section 173, Cr.P.C. was filed in the Court of the leaned Magistrate, wherein Balwant Singh, Atma Singh, Mukhtiar Singh, Swaran Kaur. Paramjit Kaur alias Pammi and Mini, respondents herein were shown as innocent and entered in column No. 2. Charges under sections 324, 323, 148 and 149, IPC were framed against Avtar Singh and 5 others against whom the report had been filed. While the case was at the stage of evidence, an application was moved by the prosecution for summoning of the persons named in column No. 2 and the same was allowed by the learned Magistrate vide order dated 2.11.1988. Revision preferred against that order was allowed by the learned Additional Sessions Judge, vide order dated 9.1.1989 for the reasons that the statements of the witnesses on which reliance had been placed had yet to be crossexamined. After the evidence of Nirmal Singh petitioner and Smt. Jagir Kaur was completed, another application was filed for summoning of the persons mentioned in column No. 2. The learned Chief Judicial Magistrate on 1.12.1990 ordered the summoning of 3 persons, namely Atma Singh, Mini and Paramjit Kaur alias Pammi, petitioners2, 6 and 5. These three petitioners went in revision against the summoning order which was heard by Shri Gurdev Singh, Additional Sessions Judge, who vide the impugned order, set aside the summoning order of the learned Magistrate, on the basis that their trial was barred under section 468 (2) (c) Cr.P.C., as qua them cognizance was be taken after the expirty of the period of limitation.

A preliminary objection has been raised by the learned counsel for the respondents that Nirmal Singh, petitioner was not competent to bring the petition. I find no force in this objection. Nirmal Singh, petitioner was the person on whose statement, the case was registered against the respondents. He has every right to invoke the jurisdiction of this Court Under Section 482 Cr.P.C. To appreciate the argument, two provisions of the Code may be noted :

"Section 319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be stained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Subsection (1) then

(a) the proceedings in respect of such person shall be commenced afresh, and the witness reheard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

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Section 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 subsection (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."

Section 319, subsection (1), thus, clearly lays down that the case shall proceed against those persons summoned under the sections as if these persons are accused persons when the Court took cognizance of the offence. Section 468 speaks of a bar of taking cognizance of an offence and not cognizance of the offender. The legal position is, thus, clear that if in the course of at trial, in which the Court has already taken cognizance of an offence within the period of limitation, some other persons are summoned to stand trial as the accused persons no bar of limitation shall arise. The same view was adopted by PS Sahay, J., in Sidheshwar Prasad and others v. The State of Bihar and another, 1979 CRI. LJ 676. The learned Additional Sessions Judge was, therefore, in legal error to set aside the order of the learned Chief Judicial Magistrate.

Thus, the criminal miscellaneous is accepted, the impugned order of the Additional Sessions Judge is set aside and the order of the learned Chief Judicial Magistrate dated 21.12.1990, vide which, Atma Singh, Paramjit Kaur alias Pammi and Mini, respondents 2, 5 and 6 respectively were summoned, is hereby restored.

JUDGMENT accordingly.