ORDER
1. This Revision Petition filed under S. 397 read with S. 401, Cr.P.C. is directed against the order dt. 7-2-1989, passed by the J.M.F.C., Buadgi, in C.C. No. 5/88, taking cognizance of the offences under Sections 447 and 323, I.P.C., alleged against the petitioners in the private complaint lodged against them by the respondent-complainant on 2-4-1985, alleging that the petitioners at about 5 p.m. on 22-3-1985 committed house trespass by entering into the house of the respondent-complainant at Hedigonda village and assaulted the respondent and his father with their hands and voluntarily caused hurt to them and thereby committed offences under Ss. 447 and 323, I.P.C. The learned J.M.F.C. took cognizance of the said offences order dt. 1-1-1988 and ordered issue of process against the petitioners. Thereafter, the petitioners-accused entered appearance in the trial Court and after taking some adjournments filed an application on 15-12-1988 requesting the Court not to proceed against them as cognizance of the offences alleged against them in the complaint of the respondent was taken by the Court after the expiry of the period of limitation of one year fixed under S. 468(2), Cr.P.C. By order dated 7-2-1989, the learned J.M.F.C. Byadgi, dismissed the said application of the petitioners. Hence, this revision petition by the petitioners.
2. Sri F. V. Patil, learned Counsel for the petitioners, vehemently argued that the learned Magistrate has committed grave illegality in taking cognizance of the offences alleged against the petitioners after the expiry of one year from the date of commission of the offences alleged against them in the complaint and in condoning the delay even in the absence of any application by the respondent-complainant under S. 473, Cr.P.C. for condoning the delay. In support of the said submission, Sri. Patil placed strong reliance on a decision of this Court in State of Karnataka v. Vedavati, (1978) 1 Kant LJ 46 : (1978 Cri LJ 1375).
3. In my opinion, there is no substance in the abovementioned two submissions made by the learned Counsel for the petitioners and the decision cited by him is distinguishable on the facts of the case on hand.
4. The undisputed facts in the aforesaid decision were that the accused Vedavati had according to the complainant, unauthorisedly cut and removed certain number of trees in the forest land on 25-12-1974 and charge-sheet was filed in respect of that offence on 24-11-1976 without filing an application under S. 473, Cr.P.C. for condoning the delay in filing the charge-sheet. The point that arose for consideration in the said case was whether the Court was barred from taking cognizance of an offence committed on 25-12-1974 for which the charge-sheet was filed on 24-11-1976. In the light of the abovementioned facts, it is observed in the penultimate para of the decision at page 48 : (at p. 1376 of Cri LJ) as under :
“The offence committed by the accused if proved, is one falling under S. 468(2)(b) of the Cr.P.C. That being so, the charge-sheet should have been filed within one year from 25-12-1974. As regards the condonation of delay, it should not be condoned as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Cr.P.C. empowers the court to condone such delay, if sufficient cause is shown or if the interest of justice makes it necessary to do so. But the application of the section would always depend upon the facts and circumstances of each case on which the Court would be required to exercise its judicial discretion in the matter like an application under S. 5 of the Limitation Act. In the case on hand, a valuable right which had accrued to the accused could not have been interfered with by the learned Magistrate, there being no sufficient cause.”
But, in the instant case, the respondent has admittedly filed the complaint within ten days of the alleged commission of the offences by the petitioners on 22-3-1985. The said compliant was referred to the Police for investigation. After making necessary investigation, the Police filed a ‘B’ report on 25-6-1985. Thereafter, the respondent filed protest petition on 13-12-1985. Therefore, the case was posted for evidence of the complainant to substantiate the allegations made in the complaint and he was called upon to examine himself and to adduce other evidence, if any. On 20-6-1986, complainant examined himself and two witnesses. Arguments were heard on 10-7-1986. Thereafter, the Presiding Officer adjourned the case on some occasions on the ground that the order was not ready. Finally, on 1-1-1988, order was passed taking cognizance of the offences under Sections 447 and 323, I.P.C. alleged in the complaint of the respondent against the petitioners and processes were issued to them. Pursuant to the said order and issue of process against the petitioners, petitioners entered appearance and filed an application referred to above and it has been dismissed and it is that order that is challenged in this revision petition.
5. Sri. Patil submitted that the learned Magistrate himself has observed in the course of the order that the last date for taking cognizance of the offences alleged against the petitioners was 22-3-1986 and without there being any application by the respondent for condoning the delay, he has chosen to condone the delay by ignoring the provisions of S. 473, Cr.P.C. and, therefore, the impugned order is vitiated by illegality. He further submitted that the respondent was guilty of laches as he has examined himself on 20-6-1986 although the Court had called upon him much earlier to adduce evidence to substantiate the allegations made against the petitioners. There is no material on record to accept that contention. In the instant case, the respondent-complainant cannot be attributed with any laches as he has diligently filed the complaint within 10 days of the occurrence. In this connection, it would be appropriate to refer to a decision of Bombay High Court in Kamal H. Javeri v. Chandulal Gulabchand Kothari, 1985 Cri LJ 1215, in which it is held that the limitation prescribed under S. 468, Cr.P.C. has to be read with reference to filing of complaint and not with reference to date of cognizance or issue of process. It is so held by observing vide Head Note as under :
The proper construction of sub-section (1) of S. 468 namely that no Court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation, is that a bar is created in taking cognizance of an offence wherein the complaint is barred by limitation. Suppose a complaint is filed on the last day of limitation and on that date the Magistrate is on leave and/or otherwise unable to hear the party and/or apply his mind to the complaint on that date or suppose a complaint is filed quite in advance before the expiry of the period of limitation and the Magistrate in his discretion postpones the issue of process by directing an investigation under S. 202, Cr.P.C. and that investigation is not completed within the prescribed period of limitation. In such contingencies, can the complainant be blamed who has approached the Court quite within limitation but no cognizance could be taken for valid and good reasons on the part of the Magistrate and should the complainant suffer for no fault on his part. This could not be the object of the framers of the provisions of S. 468. Having regard to the scheme of Ch. XXXVI, Cr.P.C., and having regard to the provisions of S. 468 the only proper construction that could be placed on S. 468, in connection with the limitation is that if the complaint is filed beyond the prescribed period of limitation under sub-section (2) of S. 468, then no Court shall take cognizance of an offence under S. 468(1) subject however to the power vested in Court to extend the period of limitation under S. 473. The submission that no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation from the date of offence is without any substance. The true construction of S. 468 is that it lays down a bar on a Court from taking cognizance of an offence in which a complaint is lodged after the expiry of the period of limitation prescribed under sub-section (2) of S. 468, subject however to the extension of time as provided under S. 473. Thus the limitation prescribed under S. 468 is to be read with reference to the filing of the complaint and not with reference to the date of cognizance or issuance of process.”
6. Sri. Patil did not bring to my notice any other decision in which a contrary view is taken. Therefore, there is no ground for entertaining the revision petition filed by the petitioners against the impugned order.
7. In the result, therefore, the revision petition is dismissed.
8. Petition dismissed.