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Judgment
Date : 13-08-2026 Heard learned senior counsel appearing on behalf of the petitioners and learned counsel for the State as well as learned counsel for the Opposite Party No.2.
The petitioners have filed this application for quashing of the order dated 10.02.2016, passed by the learned Additional Chief Judicial Magistrate, First Class, Patna, in Complaint Case No. 29312(c) of 2014, whereby cognizance has been taken against the petitioners for the offences punishable under Sections 323, 341, 427 and 448 of the Indian Penal Code.
As per the prosecution case, the complainant alleged that on 19.05.2011 at 05:30 PM, when he was at her house, the petitioner No.1 (Ratnesh Kumar) called her and when the complainant came out, the petitioner No.1 asked the complainant to remove the railing, but the complainant asserted that the railing has been constructed on his land and he will not remove the same. Thereafter, the petitioner put ladder and started removing the railing with the hammer. On protest, the petitioner hit the complainant on his head with hammer, due to which he sustained injury on his head which resulted into bleeding and he became unconscious.
Learned senior counsel for the petitioners has submitted that for an occurrence of 19.05.2011, the present complaint came to be filed on 16.10.2014. Learned senior counsel for the petitioners has further submitted that the complainant in his solemn affirmation has admitted that for the same occurrence, an FIR being Hawayi Adda P.S. Case No. 71 of 2011 to be registered for the offences punishable under Sections 488, 341, 323, 337, 388, 504 and 34 of the Indian Penal Code and the same has been annexed as Annexure-9 to the supplementary affidavit,. It has further been submitted that the police after thorough investigation submitted final form exonerating the petitioners stating that the case is completely false. It has further been submitted that a protest petition was filed by the complainant which came to be registered as complaint bearing Complaint Case No. 2978(C) of 2011, in which the complainant in his solemn affirmation has admitted upon the query of the Court that there is land dispute between the parties since 2003, while the present accused persons had also filed a civil case against them, while it has been admitted by the complainant, therein, that he has no document to show that he was treated for the injuries, which were inflicted by the accused persons, in that case cognizance came to be taken against the petitioners and others for the offences punishable under Sections 323 and 504 of the Indian Penal Code. It has been submitted that subsequently the said complaint case was dismissed for want of prosecution and only thereafter the present complaint case came to be filed against the petitioners. Learned senior counsel for the petitioners has submitted that the cognizance is bad in law as the cognizance of the offences came to be taken beyond the period of limitation, as provided under Section 468 Cr.P.C., as also in utter disregard of the provision as contained in Section 469A of the Cr.P.C. It has further been submitted that the maximum punishment for two years has been provided for commission of the offence punishable under Section 427, keeping in view the provision as contained in Section 469A, the occurrence having been committed on 19.05.2011, the complaint case ought to have been filed by on or before 19.05.2013 but the present case came to be filed on 23.08.2013 beyond the period of limitation. It has further been submitted that the period of limitation was not extended as provided under Section 473 of the Criminal Procedure Code. Learned senior counsel for the petitioners has referred to several judgments of the Hon’ble Supreme Court, firstly, in the case of Mrs. Sarah Mathew vs. The Institute of Cardion Vascular Diseases as reported in (2014) 1 SCC (Cri). Page 721 and has referred to paragraph 30 which is reproduced hereinbelow:-
“30.As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.). The object of the criminal law is to punish perpetrators of crime. This is in tune with the well known legal maxim ‘nullum tempus aut locus occurrit regi’, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim ‘vigilantibus et non dormientibus, jura subveniunt’. Chapter XXXVI of the Cr.P.C. which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 of the IPC, which have lesser punishment may have serious social consequences. Provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim ‘actus curiae neminem gravabit’ which means that the act of court shall prejudice no man. It bears repetition to state that the court’s inaction in taking cognizance i.e. court’s inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. Provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles.”
Learned senior counsel for the petitioners has further placed reliance on a judgment of Hon’ble Supreme Court in a case of M/s. Zandu Pharmaceutical Works Ltd & Ors. vs. Md. Sharaful Haque & Ors. reported in 2005 1 SCC 122 and reliance has been made to paragraph 12 and 14 of the said judgment, which reproduced hereinbelow:-
“12.The factual position as highlighted above clearly goes to show that the complainant had not come to court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the complainant on 5-12-2001. It failed to notice that the communication dated 5-12-2001 was in response to the letter of the complainant dated 24-11-2001.
14.The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for the said offence is imprisonment for three years. The period of limitation in terms of Section 468(2)(c) is 3 years. That being so, the court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. The High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5-12-2001 was in response to the letter of the complainant dated 24-11-2001. The factual position clearly shows that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] thereby rendering the judgment indefensible. The judgment of the High Court is set aside, the proceedings initiated by the complaint lodged are quashed. The appeal is allowed.”
Learned senior counsel for the petitioners has further placed reliance on a judgment of Hon’ble Supreme Court in a case of Syed Azim Akhtar @ Syed Anim Akhtar vs. The State of Bihar & Ors. as reported in 2019 2 PLJR 1015 and reference has been made to paragraph Nos. 7 and 10 of the said judgment which is reproduced hereinbelow:-
“7.Without adverting to the factual aspect of the matter, law is settled, that for offences when the punishment prescribed is three years, no Court shall take cognizance after three years of the date of the offence, specifically Section 468 of the Code which reads as under:
“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.]”
10.In the present case, from the complaint petition itself, it is admitted that the last payment made by the opposite party no. 2 was in the year 2001. Thus, the complaint case could not be filed, in any view of the matter, beyond the year 2004. Thus, the same having been filed on 29.09.2010, without doubt is impermissible, both in terms of the bar under Section 468 of the Code as well as the law laid down by the Hon’ble Supreme Court in Japani Sahoo (supra) and Sarah Mathew (supra).”
Learned senior counsel for the petitioners has thus referring to the aforesaid judgments has submitted that order taking cognizance is bad in law and since the limitation was not condoned, the cognizance order is itself not sustainable. Learned senior counsel for the petitioners has also submitted that there are case and counter-case lodged between the parties. The informant and others were charge-sheeted in the counter case and cognizance came to be taken against them. It has further been submitted that the present prosecution against the petitioners is attended with malice, personal vendetta and to spite personal score and the allegations are vexatious and malicious one.
Learned senior counsel for the petitioners has further placed reliance on a judgment of Hon’ble Supreme Court in a case of State of Haryana versus Bhajan lal, as reported in 1992 Supplementary (1) SCC Page 335 and category Nos. 1, 3 and 7 has been referred too. Learned senior counsel for the petitioners has also submitted that the offence under which cognizance has been taken is not made out in the facts and circumstances of the case, as regards the offence under Section 323, there is no evidence on record to suggest that there was any hurt caused to the complainant. Moreover, as regards for offence punishable under Section 427, no ingredients of Section 425 of the IPC is made out to constitute an offence as regarding the mischief. Moreover, as regards Section 341 of the IPC, it cannot be said that the complainant was illegally confined, while in the facts of the present case, it cannot be said that there was house trespass. Learned senior counsel for the petitioners has further submitted that since the allegation was found false against the petitioners after the conclusion of the investigation, the learned Magistrate would have applied his judicial mind and should not have taken cognizance against the petitioners in a mechanical manner. Learned senior counsel for the petitioners has also submitted that once the case was dismissed for want of prosecution upon the protest-cum-complaint, the present complaint ought not to have been proceeded on the same set of facts beyond the period of limitation, as provided under Sections 468 and 469 of the Cr.P.C.
Learned counsel for the State as well as learned counsel for the Opposite Party No.2 has vehemently opposed the prayer of the petitioners.
Learned counsel for the Opposite Party No.2 has submitted that the complainant and others were acquitted of the charges framed against them on the basis of FIR lodged by the petitioners’ side and hence the allegation put forth by the petitioners’ side was found to be false after full-fledged trial. It has further been submitted, referring to the judgment rendered in Cr. Misc. No. 40239 of 2011 dated 06.02.2018 referring to paragraph 8 and 10 has been submitted that the defense of the accused cannot be considered at the time of holding enquiry under Section 202 Cr.P.C. It has further been submitted by learned counsel for the Opposite Party No.2 that a prima-facie case is made out against the petitioners on the basis of complaint, solemn affirmation of the complainant and statement of the enquiry witness. Moreover, the order taking cognizance is good in law and the facts and the same be not interfered with. It has further been submitted that the case and counter-case are the matters of defense which can be adjudicated at the appropriate stage of trial. Learned counsel for the Opposite Party No.2 has also with great emphasis has referred to para-14 of the said judgment passed in Cr. Misc. No. 40239 of 2011 and has submitted that when a specific allegation against all the accused persons of committing the overt act has been mentioned in detail and the same having been supported during enquiry by the complainant in his solemn affirmation as well as by the witnesses during the enquiry, the learned Magistrate is required to see only prima-facie case at the time of holding. Thus, it has been submitted that the summoning order of the petitioners be not quashed and the petitioners be directed to face the trial.
Heard the learned counsel for the parties and perused the records.
Upon a careful consideration of the records and the submissions made by the parties, it emerges out from the perusal of the records and submissions of the parties that the present complaint case was filed beyond the period of limitation and there is no order condoning the delay, while taking cognizance. There has been case and counter-case between the parties. Moreover, initially the present complainant filed an FIR on the same set of facts on the day of alleged occurrence itself, which after thorough investigation was found to be false and the protest petition was filed which was treated as a complaint and after enquiry as provided under Section 202 of the Cr.P.C. cognizance of the offences were taken under Sections 323, 504, but subsequently that complaint case was dismissed for want of prosecution and thereafter this present case has been lodged as a complaint case. Moreover, in the solemn affirmation in the earlier protest-cum-complaint, the complainant has admitted land dispute between the parties since 2003 and civil litigations are also pending between them, the continuation of the present case would amount to an abuse of the process of the Court and the allegation appears to be vexatious and malicious in the facts and circumstances of the case, consequent thereupon order taking cognizance dated 10.02.2016 passed by the learned Additional Chief Judicial Magistrate, First Class, Patna, in Complaint Case No. 29312(c) of 2014 is hereby quashed.
The application is allowed.