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1998 Supreme(HP) 75
High Court Of Himachal Pradesh
R.L.KHURANA
MOHINDER SINGH - Appellant
Versus
STATE OF H.P. - Respondent
Cr. MMO No. 960 of 1997
Decided On : 05/25/1998
Mr. H.S. Sangha, Sr Advocate with Mr. Rahul Mahajan, Advocate, for the petitioner(s). Mr. Ashok Sharma, Asstt. Advocate:General, for the respondent No. 1. Mr. N.K. Thakur, Advocate, for the respondent No. 2.
The inherent jurisdiction of a Magistrate to take cognizance of civil offences under the CrPC is not taken away by the provisions of the Army Act, 1950 or the ITBP Act, 1992. These provisions envisage concurrent jurisdiction in the criminal courts and the Force Court and an arrangement for the proper exercise of such jurisdiction, including, when necessary, a way of resolving a conflict of jurisdiction.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 468 - LIMITATION - SECTION 475 - JURISDICTION - INDO-TIBETAN BORDER POLICE FORCE ACT, 1992 - SECTION 92 - SECTION 93 - SECTION 88 - LIMITATION FOR TRIAL BY FORCE COURT - JURISDICTION OF ORDINARY CRIMINAL COURT - CONCURRENT JURISDICTION - PERIOD OF LIMITATION.
Fact of the Case:
The petitioner, a member of the Indo-Tibetan Border Police Force (ITBP), was accused of assaulting a teacher. The FIR was registered on 9.4.1994, and the final report under Section 173, CrPC, was submitted to the Magistrate on 5.8.1996. The Magistrate took cognizance of the offence and summoned the petitioner and his co-accused. The petitioner filed a petition under Section 482, CrPC, seeking the quashing of the FIR on the grounds of limitation and lack of jurisdiction of the ordinary criminal court.
Finding of the Court:
1. The period of limitation for taking cognizance of the offence by the court is three years under Section 468, CrPC, as the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The offence was committed on 26.5.1994, and the Magistrate took cognizance of the offence on 5.8.1996, which is within the prescribed period of limitation. 2. The petitioner is a member of the ITBP and is governed by the ITBP Act, 1992. Section 92 of the Act provides that when a criminal court and a Force Court have jurisdiction over an offence, the Director General, Additional Director General, or Inspector General or Deputy Inspector General or Additional Deputy Inspector General within whose command the accused person is serving shall decide before which court the proceedings shall be instituted. 3. Section 93 of the Act empowers the criminal court to require the officer referred to in Section 92 to deliver over the offender to the nearest Magistrate or to postpone proceedings pending a reference to the Central Government. 4. The Supreme Court has held that the inherent jurisdiction of a Magistrate to take cognizance of civil offences under the CrPC is not taken away by the provisions of the Army Act, 1950 or the ITBP Act, 1992. These provisions envisage concurrent jurisdiction in the criminal courts and the Force Court and an arrangement for the proper exercise of such jurisdiction, including, when necessary, a way of resolving a conflict of jurisdiction. 5. Section 475(1), CrPC, empowers the Central Government to make rules for cases in which persons subject to military, naval, or air force law shall be tried by a court to which the Code applies or by a Court-martial. Rule 3 of the Criminal Courts and Court-Martial (Adjustment of Jurisdiction) Rules, 1978, provides that a Magistrate shall not proceed to try a person subject to military law unless he is moved thereto by a competent military authority or is of the opinion that he should so proceed without being moved thereto by such authority. 6. Rule 4 of the Rules provides that before proceeding under Rule 3(b), the Magistrate shall give a written notice to the commanding officer or the competent military authority of the accused and shall not take certain actions until the expiry of a period of fifteen days from the date of service of the notice. 7. The provisions of Section 475, CrPC, and the Rules framed thereunder come into play only when the accused has been brought before the Magistrate and charged with an offence. In the present case, the petitioner has not yet appeared before the Magistrate, and the case has not proceeded beyond the stage of issuing process against the petitioner. 8. The period of limitation for the trial of a person subject to the ITBP Act by a Force Court is three years under Section 88 of the Act. However, this period of limitation does not apply to the trial of the person for an offence by the ordinary Criminal Court. The period of limitation for trial by an ordinary Criminal Court would be governed by the provisions contained in Section 468, CrPC. 9. In cases where both the ordinary Criminal Court and the Force Court have concurrent jurisdiction, the period of limitation for the trial by a Force Court would be three years under Section 88 of the ITBP Act, while the period of limitation for the trial by an ordinary Criminal Court would be as prescribed under Section 468, CrPC.
Issues: 1. Whether the criminal proceedings against the petitioner are barred by limitation under Section 468, CrPC? 2. Whether the ordinary criminal court has jurisdiction to try the petitioner, who is a member of the ITBP?
Ratio Decidendi: 1. The period of limitation for taking cognizance of the offence by the court is three years under Section 468, CrPC, as the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The offence was committed on 26.5.1994, and the Magistrate took cognizance of the offence on 5.8.1996, which is within the prescribed period of limitation. 2. The inherent jurisdiction of a Magistrate to take cognizance of civil offences under the CrPC is not taken away by the provisions of the Army Act, 1950 or the ITBP Act, 1992. These provisions envisage concurrent jurisdiction in the criminal courts and the Force Court and an arrangement for the proper exercise of such jurisdiction, including, when necessary, a way of resolving a conflict of jurisdiction. 3. The provisions of Section 475, CrPC, and the Rules framed thereunder come into play only when the accused has been brought before the Magistrate and charged with an offence. In the present case, the petitioner has not yet appeared before the Magistrate, and the case has not proceeded beyond the stage of issuing process against the petitioner. 4. The period of limitation for the trial of a person subject to the ITBP Act by a Force Court is three years under Section 88 of the Act. However, this period of limitation does not apply to the trial of the person for an offence by the ordinary Criminal Court. The period of limitation for trial by an ordinary Criminal Court would be governed by the provisions contained in Section 468, CrPC.
Final Decision: The petition is dismissed. The petitioner is directed to appear before the Magistrate on 22.6.1998, and the Magistrate shall proceed to dispose of the case in accordance with law.
R.L. KHURANA, J.—In the present petition preferred under Section 482, Code of Criminal Procedure, while seeking the quashing of F.I.R. No. 213 dated 9.4.1994 of Police Station, Una, the following the questions have been raised, namely:— (i) that the criminal proceedings pending before the learned Judicial Magistrate 1st Class (II), Una on the basis of F.I.R. No. 213, of 1994 vide Criminal Case No. 45-1/96 State v. Mohinder Singh and others, are time-barred under Section 468, Code of Criminal Procedure, 1973; and (ii) The petitioner being in active service of Indo-Tibetan Border Police Force is not amenable to the jurisdiction of ordinary criminal courts. Briefly stated, the facts of the case giving rise to the present petition are these. One Smt. Gurmej Kaur, a teacheress; in the Government Primary School, Chhitra, on 26.5.1994 at about 130 p.m. was returning home from her school on her bicycle. On the way, she was attacked by two persons who were on a scooter with a knife. As a result, she sustained simple injuries on right side of her chest, right arm and left leg.
2. The report about the occurrence was made to the police by Shri Prem Bhatia, Headmaster of the school, on the basis of which a case under Section 324 read with Section 34, Indian Penal Code, came to be registered at Police Station, Sadar-Una vide F.I.R. No. 213 of 1994. During the course of investigation, it was revealed that the said Smt. Gurmej Kaur was married to the petitioner in the year 1966. Since the relations between them became strained, their marriage was dissolved by a divorce in the year 1989. However, the petitioner was nursing a grudge against Smt. Gurmej Kaur. The investigation further revealed that the petitioner in connivance and conspiracy with one Nirmal Singh alias Nimma arranged the attack/assault on Smt. Gurmej Kaur by S/Shri Narender Singh and Bhupender Singh alias Bhinda. Thus, on a case having been found against the petitioner and his three abovenamed accomplice, the police submitted the final report under Section 173, Code of Criminal Procedure, before the learned Judicial Magistrate 1st Class (II), Una, for the prosecution of the petitioner and his co-accused for the offences under Sections 323, 324 read with Section 34 and under Section 120-B, Indian Penal Code. The learned Magistrate took cognizance of the offence on 5.8.1996 and he directed the summoning of the petitioner and his co-accused for 24.12.1996. The case was thereafter being adjourned from time to time for the summoning of the petitioner and his co-accused. The last date for the presence of the petitioner and his co-accused before the learned Magistrate was 26.12.1997, on which date the learned Magistrate was on tour and the case came to be adjourned to 10.6.1998 for proper orders.
3. The present petition came to be filed on 19.9.1997 seeking the quashing of F.I.R. No. 213 of 1994, raising the two questions, detailed above. Be it stated that till date neither the petitioner nor any of his three co-accused has put in appearance before the learned trial Court. I have heard the learned Counsel for the parties and have gone through the record of the case. Question No. 1
4. The petitioner and his three co-accused are sought to be prosecuted for the offences under Sections 323 and 324 read with Section 34, Indian Penal Code. The offences under Sections 323 and 324, Indian Penal Code, are punishable as under:— Sr No. 1. Offence 323 I.P.C. Punishment prescribed. Imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both 2. 324 I.P.C. Imprisonment of either description for a term which may extend to three years, with fine, or with both. Section 468, Code of Criminal Procedure, which provides for period of limitation for taking cognizance of the offence by the Court, reads:— "468. Bar to taking cognizance after lapse of the period of limitation.— (1) Except as otherwise provided elsewhere in
