JUDGMENT
V.S. Dave, J.
1. This petition Under Section 482 Cr. PC has been filed for quashing the proceeding pending before the learned Munsif and Judicial Magistrate, Uniyara in criminal case No. 317/88, State v. Rajeshwar Singh and Ors..
2. Brief facts leading to this petition are that Assistant Land Record Officer, Circle Uniyara (Tonk) Shri Radha Mohan Bhatnagar has filed a report before the Superintendent of Police, Tonk on 13 9-1981 which was sent in turn to Circle Officer, Deoli for registration of a case accordingly who on 14-9-3981 sent it to the SHO., Nagar for registration of a case and investigating into the matter. On 21-9-1981 the SHO., Nagar recorded the FIR No. 33/81 against the accused petitioners for offence Under Sections 353 and 332 IPC After investigating into the case the SHO., P.S. Nagar prepared a charge-sheet No. 7/82 on 7-7-1982 against six persons including the five petitioners. Before the charge-sheet could be forwarded to the court the SHO received instructions for sending the file to CID. Crime Branch for further investigation The CID., CB investigated into the matter and prepared final report No. 68/83 and sent it to the court of Munsif and Judicial Magistrate, Uniyara on 7-3-1983. This was placed before the learned Magistrate on 21-12-83 on which date he directed the notice to be issued to the complainant. The final report was placed before the learned Magistrate on 23-6-1984. The learned Magistrate passed a detailed order wherein he mentioned that since a charge sheet had already been prepared by SHO, P.S. Nagar and subsequently a final report has been prepared which does not disclose as to why the earlier charge sheet was erroneous and because it has been mentioned in the final report that since the complainant has retired his influence on the departmental witnesses is no more. He deems it proper to send the case to the SHO. P.S., Nagar Ford for detailed investigation after notice to the complainant. This order passed by the learned Magistrate was placed by the LAO, before the S.P. Tonk who sent an order in writing to the SHO, P.S., Nagar that F.R. was sent to the court for perusal and in his opinion the matter has been got investigated and there is no necessity of further investigation. If the learned Magistrate considers that F.R. should not have been given be can take cognizance into the matter. The SHO, P.S. Nagar filed an application before the learned Munsif and Judicial Magistrate on 10-2-1985 on which the learned Magistrate passed on order on 29-3-85. He gave a notice of contempt to the to SHO for not complying with his order, dated 23-6-1985 which date, it appears has been erroneously written for 23-6-1984. Thereafter it appears that the file remained lying in the court of learned Magistrate who persued the same F.R. on 8-11-1988 and took cognizance of the offence against the petitioners filed a revision petition before the learned Sessions Judge, Tonk who dismissed the revision petition and upheld the order dated 8-11-1988. The learned Sessions Judge, Tonk took the aid of explanation to S. 470 Cr. PC in excluding the period during which the file remained pending with the learned Magistrate. It is against that order that the present petition has been filed.
3. I have heard learned Counsel for the parties and perused the relevant law.
4. S. 332 IPC is punishable with an imprisonment for a period of 3 years, while S, 353 IPC is punishable upto two years, as such the there is no dispute that under the provisions of S. 468 Cr.PC the cognizance should have been taken within a period of 3 years and not beyond that unless otherwise the time could be excluded Under Sections 470 to 473 Cr PC if they were applicable. In the present case the courts below have pressed into service the explanation to Sub-Section (3) of Section 470 Cr PC which reads as under:
In computing the time required for obtaining the comment or sanction of the Government or any other authority, the date on which the application was made for obtaiaing the consent or sanction and the date of receipt of order of the Government or other authority shall be excluded
5. In my opinion the approach of the learned Sessions Judge is not correct. The explanation is regarding the case where consent for launching the prosecution or sanction to prosecute is a condition precedent and not in case where the matter remains lying with the Magistrate for taking the cognizance. In the instant case the matter has remained pending with the learned Magistrate for a prettey long period when the FIR has been filed before him as early as March 17, 1983, it is regrettable he kept it pending till April, 1988. The learned Magistrate before passing an order and issuing a notice of contempt ought to have perused the provisions of law and should have satisfied and should have ascertained as to what are his powers Once the Magistrate has shown to issue notice to the complainant on a final report or should have asked the complainant to lead further evidence before him if he wanted to do so He could have also sent the case for further investigation as he has done, but once he was informed that no further investigation is to be done on the part of the police he ought to have obtained option available to him rather than issuing the notice of contempt which was wholly misconceived and much less to the SHO who was only following the instructions of the Superintendent of Police whose letter he had filed along with the application and froms the part of the record It has been laid down by their Lordships of the Supreme Court in Abhinandan Jha v. State of Bihar, ; that a Magistrate has no jurisdiction express or implied to direct the police to file a charge-sheet in any case. The Magistrate therefore, could not have proceed in the manner he has in the instant case on 29 3-1985. If the learned Magistrate does not follow the provisions of law and neither the complainant nor the P.P. brings relevant law to his notice right of the accused cannot be zeopardised for that which he is aggrieved. Under the provisions of Section 468 Cr PC neither the consent nor the sanction of the court was a condition precedent for taking cognizance of the offence and not having taken cognizance for a period of more than 4 year after filing the final report, in my opinion, it was not open to the Magistrate to have taken cognizance after 7 years for prosecuting the accused-petitioners. The prosecution has failed to give reasonable explanation for the period consumed by the learned Magistrate, In this view of the matter I am of the opinion that the order taking cognizance, dated 8-11-1988 is barred by period of limitation The finding of the learned Sessions Judge that order, dated 8-11-1988 is a final order in continuation of the order dated 21-12-1983 and 23-12-1984, is absolutely an erroneous finding. It was expected of the learned Sessions Judge to have perused these orders carefully before coming to that conclusion.
6. The result is that petition is allowed and the proceedings pending before the learned Munsif and Judicial Magistrate, Uniyara in criminal case N o. 317/88 are quashed.