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CASE NO.: Appeal (crl.)  1010 of 2003

PETITIONER: Ramesh Chandra Sinha  & Ors.                     

RESPONDENT: Vs. State of Bihar & Ors.                            

DATE OF JUDGMENT: 18/08/2003

BENCH: SHIVARAJ V. PATIL & BRIJESH KUMAR.

JUDGMENT: O R D E R

(Arising out of S.L.P. (Crl.) No. 3784 of 2001)

SHIVARAJ V. PATIL J.

       Leave granted.

                In this appeal, the appellants have questioned the  legality, validity and correctness of the impugned order.  The  appellants filed a petition before the High Court for quashing  the entire criminal proceedings including the order dated  4.2.2000 by which the Chief Judicial Magistrate, Patna, had taken  cognizance for the offences under Sections 341, 323, 504/34 and  120-B of the Indian Penal Code on a complaint filed by the  respondent no. 2.

       The appellant no. 1 was the Chairman of the Bihar State  Pollution Control Board, Patna.  Prior to joining the Board, he  served as Professor in the Department of Geology, Patna  University and he had teaching experience of 26 yeas.  The  respondent no. 2 was an employee of the Pollution Control Board.   On account of certain irregularities and misconduct, he was  dismissed from service after holding enquiry.  He challenged the  order of dismissal before the High Court in a writ petition.  He  lodged the F.I.R. at Harijan Police Station (Patna Sadar)  alleging that right from the day he filed the writ petition, he  was pressurized by the officials of the Pollution Control Board  to withdraw the said writ petition.  He complained that on  30.11.1992, the appellant no. 1 had abused and scolded him.   Subsequently on 28.10.1993, he was beaten by the other  appellants.

       The appellants earlier filed a Criminal Misc. No. 16672 of  1994 in the High Court for quashing the criminal proceedings.  On  11.11.1994, the High Court passed the following order:-

"Pending admission of the application further  proceedings in the court below shall remain  stayed and no coercive action shall be taken  against the petitioners."                         The said order was modified on 6.2.1995 as under:-

"Pending disposal of this application Police  Investigation shall continue but no coercive

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action shall be taken by the police against the  petitioners."                     The said Criminal Misc. case was finally disposed of on  5.10.1999.   

In the impugned order, it is stated thus:-

"While disposing Cr. Misc. Case No. 16672 of  1994 a Bench of this Court had observed that  although on the face of the record charge-  sheet has been submitted after more than three  years and no cognizance has been taken till the  date of final order passed in that Cr. Misc.  Case more than three years had elapsed and, as  such, it was barred by limitation.  But the  matter was sent back to the court below for  consideration whether cognizance is barred or  not."

       The learned Chief Judicial Magistrate (for short ’the CJM’)  by the order dated 4.2.2000 held that considering the date of  occurrence being 24.9.1994 and the charge-sheet having been  submitted in the year 1998 after a period of three years, bar of  limitation under Section 468 of the Criminal Procedure Code (for  short ‘the Code’) was attracted but on the petition filed by the  respondent no. 2 on 6.1.2000, the learned magistrate condoned the  delay exercising power under Section 473 of the Code stating that  from 11.11.1994 till 5.10.1999 further proceedings in the court  of the learned magistrate should be construed as stayed in view  of the orders passed in Criminal Misc. No. 16672 of 1994.  As  already noticed above, the said order dated 4.2.2000 passed by  the learned CJM was under challenge in the impugned order.   Before the High Court, the only point that was urged on behalf of  the appellants for quashing the entire criminal proceedings was  that the charge-sheet having been filed after a period of three  years, taking of cognizance was barred under Section 468(2) of  the Code.  Although, High Court in the impugned order found that  some error was committed by the learned CJM in passing the order  dated 4.2.2000, it was not much of consequence, expressing that  "On perusal of all the orders passed in Cr. Misc. No. 16672 of  1994, I do not find that the court below has committed much error  in computing the limitation period.  It is true that in the order  dated 11.11.1994 further proceedings in the lower court was  stayed pending admission of the application but then the petition  was admitted vide order dated 6.2.1995 proceedings in the lower  court had not been stayed but no specific order has been passed  to that effect in the order dated 6.2.1995 and if the court below  construes that stay order still remained in respect of the  proceedings in the court below then perhaps it can not be said  much error has been committed by the learned CJM while construing  that from 11.11.1994 till 5.10.1999 the date of final order in  Cr. Misc. No. 16672 of 1994 the CJM ought not to have taken  further steps in the proceedings itself."

       Having said so, the High Court dismissed the petition filed  by the appellants taking a view that the CJM had power to condone  the delay under Section 473 of the Code and as such there was no  need to exercise the jurisdiction under Section 482 of the Code.

       Learned counsel for the appellants urged that having regard  to bar contained under Section 468(2) of the Code, the CJM as  well as the High Court committed a serious error in refusing to  quash the criminal proceedings; it is clear from the records that  the cognizance was taken by the CJM almost after a period of four

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years; in the light of the order passed on 6.2.1995 by the High  Court in earlier proceeding, there was no scope to contend that  the proceedings before the Magistrate were stayed.

       Learned counsel for the respondents made submissions  supporting the impugned order.  She pointed out that in spite of  stay order passed by the High Court, at one stage the learned  Magistrate had taken cognizance but subsequently recalled the  order realizing the mistake; the delay was condoned by the   discretion of the Magistrate while taking cognizance and under  the circumstances, the impugned order need not be interfered  with.

       There is no dispute that cognizance was taken of the  offences by the learned Magistrate long after a period of three  years.  The Magistrate condoned the delay on the ground that the  proceedings were stayed by the High Court till 5.10.1999.  On  11.11.1994, further proceedings had been specifically stayed but  by the order dated 6.2.1995, the order dated 11.11.1994 was  modified in effect to vacating the earlier order staying further  proceedings.  This position is abundantly clear by a bare perusal  of the orders dated 11.11.1994 and 6.2.1995 extracted above.   When the order of 11.11.1994 was specifically modified, there was  no reason to understand the orders otherwise.  It was not correct  for the learned Magistrate to say that there was stay of further  proceedings till 5.10.1999 in the face of order dated 6.2.1995  read with the order dated 11.11.1994.  No other reason or ground  is given in the order of the Magistrate to condone the delay  under Section 473 of the Code.  If the discretion is exercised on  relevant considerations, possibly no fault could be found with  such discretion.  The High Court although noticed in the impugned  order as to the effect of order dated 6.2.1995 and found that  there was error committed by the Magistrate but took the view  that it was not a serious one.  Added to this, the proceedings  are of the year 1994.  Having regard to the facts and  circumstances of the case, the CJM as well as the High Court  committed serious error in upholding taking cognizance when it is  clearly barred by Section 468(2) of the Code.   

Under these circumstances, the impugned order affirming the  order of the CJM cannot be sustained.  Hence, the appeal is  allowed.  The impugned order is set aside and the criminal  proceedings in P.S. Case No. 16/94 in the court of CJM, Patna,  are quashed.