The main legal point established in the judgment is that the court's discretion to condone the delay in taking cognizance of an offence under Section 473 of the Code should be exercised based on the facts and circumstances of the case and in the interest of justice.

ASHWANI KUMAR SINGH, J.

Heard Mr. Surendra Kishore Thakur, learned counsel for the petitioners, Mr. Jharkhandi Upadhyay, learned counsel for the State and Mr. Binod Kumar, learned counsel for the Opposite Party No. 2.

2. By the present application under Section 482 of the Code of Criminal Procedure (For short ‘the Code’), the petitioners seek quashing of the order dated 04.06.2014 passed by the learned Judicial Magistrate-1st Class, Patna in connection with Gardanibagh P.S. Case No. 171/2009 whereby cognizance has been taken for the offence punishable under Section 323 of the Indian Penal Code.

3. Mr. Surendra Kishore Thakur, learned counsel for the petitioners has submitted that the impugned order taking cognizance of the offence is bad in law as the court has taken cognizance of the offence after expiry of the period of limitation prescribed under Section 468(2)(b) of the Code. He has submitted that the alleged occurrence took place on 30th September, 2009 for which Gardanibagh P.S. Case No. 171 of 2009 was registered under Sections 147, 148, 149, 323, 307, 379 of the Indian Penal Code (For short ‘IPC’) and 27 of the Arms Act on the same day.

4. Mr. Thakur would submit that on completion of investigation, the police submitted its report under Section 173(2) of the Code on 10th April, 2010. The investigating officer had found the case true only under Section 323 IPC. After receipt of the police report under Section 173(2) of the Code, the learned Jurisdictional Magistrate took cognizance of the offence under Section 323 of the IPC vide impugned order dated 04.06.2014.

5. Mr. Thakur would submit that Section 323 of the IPC prescribes punishment with imprisonment which may extend to one year and fine upto Rs. 1,000/- or both. He would submit that in view of the mandatory provision of Section 468(2)(b) of the Code, the Court was debarred from taking cognizance of the offence after expiry of one year.

6. On the other hand, Mr. Binod Kumar, learned counsel for the Opposite Party No. 2 would submit that Section 473 of the Code provides that if any Court is satisfied on the facts and in the circumstances of the case that it is necessary to do so in the interest of justice, it may take cognizance of the offence even after the expiry of the period of limitation. He would submit that in view of the materials available in the case diary and the police report submitted under Section 173(2) of the Code, the learned Magistrate thought it prudent to condone the delay and took cognizance of the offence in the interest of justice.

7. Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor for the State would submit that the point of limitation raised by the petitioners can be taken only before the court of Magistrate and not before this Court in a proceeding under Section 482 of the Code.

8. I have heard respective counsel for the parties and perused the materials available on record.

9. Chapter XXXVI of the Code deals with limitation for taking cognizance of certain offences. Section 467 of the Code defines limitation for the purpose of that chapter, to mean the period specified in Section 468 of the Code for taking cognizance of offence. The object of Chapter XXXVI in the Code is to protect persons from prosecution either in FIR or the complaint which may turn out to be vexatious. The reasons for indicating rule of limitation is that due to lapse of time necessary evidence would be lost and the person prosecuted will be placed in defenceless position. Taking note of various aspects, the parliament classified offence into two categories, having regard to the gravity of the offences, on the basis of punishment prescribed for them. Grave offences for which punishment prescribed is imprisonment for a term exceeding three years are not brought within the ambit of Chapter XXXVI. The period of limitation is prescribed only for the offence for which punishment specified is imprisonment for a term not exceeding three years. In such cases also