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Judgment
Kuldip Singh, Judge
This petition has been directed for setting aside order dated 24.08.2011 passed by learned Judicial Magistrate Ist Class, Court No. 5, Shimla, in case No. 36-2 of 2011 pending in the Court of learned Judicial Magistrate Ist Class, Court No. 5, Shimla. The further facts as alleged are that petitioners No. 1 and 2 are brothers and petitioner No. 3 is their father. The learned Judicial Magistrate has taken cognizance against the petitioners for commission of offence u/s 447 read with Section 34 IPC on the report submitted by police u/s 173 Cr.P.C. The cognizance was taken by learned Magistrate on 24.08.2011. It has been stated that Lekh Raj Dhiman submitted a complaint to police, thereupon police registered an FIR dated 02.12.2010 u/s 447 read with Section 34 IPC.
It has been alleged that complaint of Lekh Raj Dhiman refers to complaints dated 25.08.2009 and 14.07.2010. It emerges from the complaints of complainant that alleged incident of trespass pertains to the period between 18.01.2009 to 24.01.2009. It has been stated that petitioners have been summoned to face the trial for an offence the cognizance of which could not have been taken by the Court in view of specific bar laid down u/s 468 of the Code. The learned Magistrate has acceded the jurisdiction in taking cognizance for offence u/s 447 read with Section 34 IPC when such cognizance had become time barred u/s 468 of the Code.
Heard. The learned counsel for the petitioners has submitted that in the last complaint, the complainant has referred complaints dated 25.08.2009 and 14.07.2010. In FIR No. 248 dated 02.12.2010 reference of complaints dated 25.08.2009 and 14.07.2010 has been made. A copy of complaint dated 25.08.2009 has been placed on record in which it has been stated that petitioner No. 3 had constructed a wall on the retaining wall of the complainant on 23.01.2009. It has been submitted that assuming but not admitting that the wall was constructed on 23.01.2009 as alleged, then trespass was committed on 23.01.2009. The cognizance was taken by learned Magistrate on 24.08.2011 after more than 2 1/2 years. It has been submitted that for criminal trespass the punishment provided u/s 447 IPC is three months with fine or which may extend to Rs. 500/- , or with both. The Clause (b), sub-section (2) of Section 468 Cr.P.C. provides limitation of one year for the Court to take cognizance if the offence is punishable with imprisonment for a term not exceeding one year. It has been submitted that the learned Judicial Magistrate had no jurisdiction to take cognizance of the offence u/s 447 IPC on 24.08.2011 in view of Section 468 Cr.P.C.
The learned counsel for the petitioner has relied Ram Narain Vs. The State, Shyam Sunder Sarma Vs. State of Assam and Others, . The submission has been made for setting aside order dated 24.08.2011 and quashing of case No. 36-2 of 2011. The learned Additional Advocate General has submitted that it is a case of continuing offence. In support of this submission, she has relied Gokak Patel Volkart Ltd. Vs. Dundayya Gurushiddaiah Hiremath and Others, and Beguram Vs. Jaipur Udhyog Ltd.,
The maximum sentence provided u/s 447 IPC is three months with fine. The Clause (b), sub-section (2) of Section 468 Cr.P.C. provides one year for taking cognizance if the offence is punishable with imprisonment for a term not exceeding one year. The Section 472 Cr.P.C. provides that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. The Section 473 Cr.P.C. provides that Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts that in the circumstances of the case the delay has been properly explained or it is necessary so to do in the interest of justice. It is thus clear that u/s 472 Cr.P.C., fresh period of limitation starts every moment during which the offence continues.
In Ram Narain (supra) on 19.04.1975 a report was lodged by complainant that petitioner had broken open the locks of the main gate as well as store-cum- office where the complainant was running business. The learned Magistrate put notice of accusation to the petitioner on 05.10.1977 for offence punishable u/s 448 IPC. This was challenged in the High Court. The High Court held that it cannot be gains said that the petitioner is perpetuating his illegal possession to great chagrin and helplessness of the complainant. The fact that civil remedy is available to him is hardly a ground to throw away the prosecution of the petitioner for the criminal offence u/s 448 IPC. The discretion exercised by the trial Court cannot be considered to be arbitrary or injudicious.
In Shyam Sunder Sarma (supra), it was found that there is nothing in the FIR to show that trespass continued even after the alleged incident. In the present case, there is no material on record to record a finding that alleged wall constructed on 23.01.2009 was removed by petitioners at any time thereafter. Shyam Sunder Sarma is not applicable in the facts of the present case.
Gokak Patel Volkart Ltd. (supra) is a case where Magistrate held that appellants'' complaints against the respondents alleging offence u/s 630(1) (b) of the Companies Act by not vacating the company''s quarters as required by it even more than six months after retirement of the respondents, were barred by limitation and the same could not be taken into consideration. The Supreme Court noticed Section 468 and Section 472 Cr.P.C and held that the concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. The Courts when confronted with the provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an over-riding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure, any Court may take cognizance of an offence after the expiration of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The Supreme Court allowed the appeals and set aside the impugned orders.
Beguram (supra) is also a case u/s 630 of the Companies Act. Beguram was an employee of M/s Jaipur Udhyog Sawai Madhopur, he retired on 07.08.1978, but did not vacate free quarter of the Company allotted to him while he was in service. The criminal complaint against the petitioner was filed for offence u/s 630(1)(b) of the Companies Act. The Chief Judicial Magistrate, Sawai Madhopur, on 11.09.1986 held the petitioner guilty for the said offence and punished him with a fine of Rs. 200/- with further direction to deliver up the quarter to M/s Jaipur Udhyog Ltd. within three months, in default the petitioner was to undergo simple imprisonment for term up to two months. The High Court held that on 01.09.1978 the occupation of the petitioner of the quarter was in the capacity of the trespasser. Trespass is a continuing offence and the matter is covered by Section 472 Cr.P.C.
The petitioners in the petition have not projected the case that they had removed alleged wall any time after 23.01.2009. Thus, it is a continuing offence u/s 472 Cr.P.C. In these circumstances, no fault can be found in the order dated 24.08.2011 whereby the learned Magistrate took cognizance of the offence. There is no merit the petition. In view of above, petition fails and is accordingly dismissed. Cr.M.P. No. 842 of 2011 has become infructuous in view of disposal of the main petition. The parties through their counsel are directed to appear before the trial Court on 05.04.2012. The record be sent back immediately so as to reach before the date fixed in the trial Court.