Point of law : "cognizance" is an act of the Court. The term "cognizance" has not been defined in Cr.P.C, That means taking of cognizance is application of mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed.

ORDER :

1. This petition is filed under Section 482 of Cr.P.C, praying this Court to set aside the order dated 03.07.2018 passed by the XI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.53027/2020 taking cognizance, registering case and ordering process to the petitioners for the offences punishable under Sections 427, 448, 143, 147 read with Section 34 of IPC and to quash the entire proceedings.

2. The factual matrix of the case is that respondent No.2 filed a complaint against the petitioners making the allegation that on 03.01.2017 these accused persons trespassed the house, caused damage to the house, threatened her and thrown out the vessels outside the house and hence she gave the complaint on the very same day. The police after receiving the complaint, acknowledged the complaint and again complaint was given on 22.02.2017 and the police have registered the case for the above offences and thereafter investigated the matter and filed the charge-sheet against the petitioners herein. The learned Magistrate after receiving the complaint, took the cognizance vide order dated 03.07.2020 and hence the petitioners are before this Court.

3. The main contention of the petitioners before this Court is that the maximum punishment for the offences which have been invoked against the petitioners herein is two years and hence the learned Magistrate ought not to have taken the cognizance after three years and hence committed an error in taking the cognizance. The learned counsel for the petitioners brought to the notice of this Court the relevant offences and also Section 468 of Cr.P.C. The learned counsel would contend that the incident was taken on 03.01.2017 and case was registered on 22.02.2017 and final report was filed on 30.06.2020 and cognizance was taken after lapse of three years. Hence, it requires interference of this Court.

4. The second contention of the learned counsel for the petitioners is that even on merits also no case has been made out against the petitioners to subject them for trial. The learned counsel would contend that the building was in dilapidated condition and any moment it would have fallen due to rain and cause danger to respondent No.2. Hence, the same was narrated to respondent No.2 and respondent No.2 agreed to vacate the house in the first week of January 2017 and accordingly she removed all the materials from the house and voluntarily herself and her son removed the household articles and after vacating the house, the same was demolished. The learned counsel would contend that when the complaint was given on 03.01.2017, petitioner No.1 was secured to the police station and he gave the reply on 04.01.2017 and the police have registered NCR and again registered the case against the petitioners herein on subsequent complaint and hence there cannot be any criminal prosecution against the petitioners herein.

5. The learned counsel for the petitioners in support of his arguments relied upon the judgment of the Apex Court in the case of STATE OF PUNJAB v. SARWAN SINGH reported in AIR 1981 SC 1054, wherein the Apex Court comes to the conclusion that if the offence is punishable for two years, the Trial Court ought not to have taken the cognizance after three years. The Apex Court discussed Sections 468(2) and 469 of Cr.P.C. and comes to the conclusion that the object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India and hence the same is barred by limitation.

6. The learned counsel also relied upon the judgment of this Court in the case of SRI DEENA v. STATE OF KARNATAKA reported in 1987(1) II Crimes 518, wherein this Court relying upon the judgment in the case of Sarwan Singh (supra) came to the conclusion that taking of cognizance is barred by limitation and no application for condonation of delay is filed by the prosecution. Any prosecution, whether by the State or the private complaint m