By this petition under section 482 read with section 401 of the Criminal & Procedure Code with Article 227 of the Constitution of India, the revisionist prayed for quashing of Complaint Case No. 812c/88 pending in the Court of Judicial Magistrate, Karnrup, Guwahati on the ground inter alia that the learned trying Magistrate has taken cognizance after the mandatory period imposed by section 468 of the Cr PC inasmuch as punishment prescribed under section 403 of the IPC is punishable with imprisonment for two years.

2.1 have heard Mr. SP Roy, learned counsel for the revisionists as well as Mr. AB Choudhury, learned counsel for the respondent.

3. The Complaint Case No. 812/88 has been registered before the learned Judicial Magistrate, Kamrup, Guwahati preceded by a complaint petition dated 13.6.88 filed by the complainant/respondent. The complaint petition has been registered under section 403 of the IPC. On receipt of the complaint, the learned trying Magistrate passed the following orders: "13.6.99 : Complaint received on transfer.

Complainant is present and examined. It reveals that the complainant lodged an ejahar with the PS in relation to the same occurrence. Hence subject to the provision of section 210 of Cr PC call for the police report. Fix 30.7.88 for report" Thereafter the trying Magistrate passed order dated 21.5.91 which is impugned herein reads:

"Complainant is absent with step. Police report not received for last 2 years, for which, process could not be issued. Perused the statement of the complainant. Heard the learned Advocate, appearing for the complainant. I find materials to issue process against the accused under section 403 IPC. Summon to accused under section 403 IPC accordingly. Fix 2.7.91 for appearance, complainant to take steps."

4. Being aggrieved, this revision petition has been preferred.

5. Mr. SP Roy, counsel for the revisionists strenuously around that learned trying Magistrate for the first time taking cognizance of offence under section 403 IPC on 21.5.91 on basis of complaint dated 13.6.88 and such cognizance is d bar under section 468 of the Cr PC inasmuch as punishment prescribed under section 403 IPC is punishable for two years or fine or both. On the other hand, Mr. AB Choudhury, learned counsel appearing for the respondent/complainant submits that the trying Magistrate has already taken cognizance on 13.6.88 and there was no occasion of having taken cognizance again on 21.5.91.

6. Section 468 of the Cr PC provides amongst others bar to taking cognizance after lapse of period of limitation. For the present purpose sub-section 2 (c) of section 468 Cr PC is relevant. It reads :

"three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years."

7. No doubt, that offence punishable under section 403 of the IPC is for two years and therefore it falls within the mischief of sub-section 2 (c) of section 468 Cr PC if other conditions are fulfilled.

8. Now the question to be determined as to whether the trying Magistrate has taken cognizance on 13.6.88 the date on which the complaint petition was presented before the trying Magistrate on which date the learned trying Magistrate passed the order as referred above or on 2L5.91 where the learned Magistrate found sufficient materials to issue process against the accused under section 403 IPC?

9. Mr. AB Choudhury, learned counsel for the respondent has drawn my attention to the provision of section 200 Cr PC which deals with the complaint particularly with the opening sentence. "A Magistrate taking cognizance of offence on complaint" and submits that the moment a complaint petition is submitted before Magistrate and the complainant is examined on oath the Magistrate has taken cognizance. According to Mr. AB Choudhury the cognizance in the present case has already been taken by the Magistrate on 13.6.88 when he received the complaint petition on transfer and examined the a complainant. To answer this question,

Click Here to Read the rest of this document