A Magistrate cannot take cognizance of an offence beyond the limitation period prescribed under Section 468(2)(c) of the Code of Criminal Procedure.

1. - This miscellaneous petition is directed against the order dated 19-7-91, passed by the Munsif and Judicial Magistrate, Abu Road, by which the learned Magistrate took cognizance against the accused-petitioners for the offence under Section 427 IPC.

2. It is contended by the learned counsel for the petitioners that no case for taking cognizance against the petitioners is made-out from the complaint and the evidence produced by the complainant. According to him, even the cognizance taken by the learned Magistrate was barred by time in view of the provisions of Section 468(2)(c) of the Code of Criminal Procedure. According to the learned counsel for the petitioners, the incident took place on 4-11-86 and the complaint of this incident was filed on 5-11-86. The offence under Section 427 IPC is punishable with an imprisonment for two years and a fine and, therefore, the cognizance as per the provisions of Section 468(2)(c) Cr.P.C. could have been taken on or before 3-11-88. The learned Public Prosecutor and the learned counsel for the complainant-respondent No.2, on the other hand, have supported the order passed by the learned Court below. It is contended by the learned counsel for the complainant that the complaint was filed on 5-11-86, which was sent for investigation to the Station House Officer, Police Station, Abu Road, under Section 156(3) of the Code of Criminal Procedure. The Station House Officer submitted a Final Report on 13-8-87, and the notice of the Final Report was sent to the complainant and the complainant filed a protest petition on 31-12-87. The statements of the witnesses were recorded on 7-9-88 and 19-9-88, and the cognizance was taken on 19-7-91. The contention of the learned counsel for the complainant is that since the Court below refused to accept the Final Report and treated the protest petition as a complaint and proceeded with recording the statements of the witnesses as such the order dated 3-12-87, passed by the learned Magistrate may be treated as an order taking the cognizance. In support of its contention, he has placed reliance over a judgment of this Court rendered in : Mahadeo Singh v. Gafe Singh, (S.B. Criminal Revision Petition No. 93 of 1985. D/d. 2.4.86) .

3. I have considered the submissions made by the learned counsel for the parties.

4. Sub-section 2(c) of Section 468 Cr.P.C. provides a period of three years as limitation for taking the cognizance for an offence which is punishable for an imprisonment of more than one but not exceeding three years. The offence under Section 427 I.P.C. is punishable with an imprisonment of two years and, therefore, as per Section 468(2)(c) Cr.P.C., the cognizance should have been taken within a period of three years from the date of the incident. The learned Magistrate has not applied its mind while passing the order dated 3-12-87 as to : whether he should take the cognizance in the matter or not and he merely ordered that the protest petition has been filed, and the case may be put-up for arguments on protest petition on 27-1-88. On 27-1-88, the case was again adjourned for arguments on the protest petition. No arguments could be heard on 23-3-88, 1-4-88, 6-5-88, 7-5-88, 3-6-88 and 16-6-88. On 15-7-88, the learned counsel for the complainant showed his desire to produce witnesses. The learned Magistrate granted time to the learned counsel for the complainant for production of his witnesses. Even on that day, no mind was applied by the learned Magistrate for taking the decision : whether to accept the Final Report or not and to take cognizance or not. For the first time, the learned Magistrate passed the order for taking the cognizance and not accepting the Final Report vide order dated 19-7-91. A perusal of the copies of the order-sheets, produced by the learned counsel for the complainant, thus, clearly shows that before passing the order dated 19-7-91, the learned Magistrate did not apply its mind, in the facts and circumstances of the case,