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Judgment
D.K. Sinha, J.—The Petitioner has invoked the inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure for the quashment of the entire criminal proceeding against him as well as the order dated 07.07.2008 by which cognizance of the offence was taken under Sections 379/323 of the Indian Penal Code in Chandankiyari (Bhojudih O.P.) P.S. Case No. 53 of 2003, corresponding to G.R. Case No. 520 of 2003.
Mr. S. Thakur, learned Counsel appearing for the Petitioner raised short question of law involved in this case that initially a case was instituted u/s 392 of the Indian Penal Code against the Petitioner on the written report of the informant O.P. No. 2- Thanda Devya alleging that the Petitioner after entering into her house at about 3 a.m. assaulted her by strangulating and took away Rs. 2,000/- (Rupees two thousand) from her possession forcibly and also assaulted on her different parts of body. The case was instituted on 23.06.2003 but the police after investigation submitted final form before the Court of C.J.M., Bokaro on 04.09.2003 u/s 173 Code of Criminal Procedure. Again on 04.09.2003 a prosecution report was filed under Sections 182/211 of the Indian Penal Code by the police concerned for institution of a case against the informant.
Learned Counsel Mr. Thakur pointed out that by the order dated 07.07.2008 the cognizance of the offence was taken under Sections 379/323 of the Indian Penal Code. Though fresh notice was issued upon the informant-O.P. No. 2 but she did not choose to appear, and to quote the order,
Perused the case diary, final report as well as case record and I find that a prima facie case under Sections 379/323 I.P.C. is made out against the accused persons Shambhu Thakur. From perusal it appears that case was registered on 24.06.2003 and final report submitted on 04.09.2003. In the interest of justice, the delay in taking the cognizance is hereby condoned.
Accordingly, cognizance of the offence under Sections 323/379 I.P.C. is taken against the accused person Shambhu Thakur in this case and this case is transferred to the Court of Shri A. Equal, Judicial Magistrate, Bokaro for disposal.
Mr. Thakur learned Counsel submitted that the Cognizance of the offence u/s 379 I.P.C. beyond three years is barred by limitation under Sections 468(2)(C) of the Code of Criminal Procedure. Though it is stated in the impugned order that the learned C.J.M. condoned the delay in the interest of justice and took the cognizance after five years.
Section 473 deals with explanation of period of limitation in certain cases which speaks:
Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
In the facts and circumstances, the order impugned dated 07.07.2008 cannot be sustained under law, the learned Counsel Mr. Thakur added.
On the other hand, Mr. Binod Singh, learned A.P.P. appearing on behalf of the State-Opposite Party concedes that the delay of about five years has not been explained by the court concerned.
Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the learned C.J.M. failed to meet out the requirement of Section 473 Code of Criminal Procedure as afoesaid while condoning the delay of about five years in taking cognizance of the offence though the final form was submitted by the Investigating Officer u/s 173 Code of Criminal Procedure much earlier on 04.09.2003 but cognizance was taken on 07.07.2008.
In the facts and circumstances, cognizance of the offence as against the Petitioner cannot be sustained under law. Accordingly, the order by which cognizance of the offence was taken u/s 379/323 I.P.C. as against the Petitioner is set aside including his entire criminal proceeding in Chandankiyari P.S. Case No. 53 of 2003, pending before Shri A. Eqbal Judicial Magistrate, Bokaro or his successor.