Chandra Sinha & Ors Vs. State of Bihar & Ors  Insc 382 (18 August 2003)
V. Patil & Brijesh Kumar.
O R D
E R (Arising out of S.L.P. (Crl.) No. 3784 of 2001) SHIVARAJ V. PATIL J.
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.
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.
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.
on 28.10.1993, he was beaten by the other appellants.
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 action shall be taken by the police against the
petitioners." The said Criminal Misc. case was finally disposed of on
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.
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
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.
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 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.
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.
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
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.
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.