JUDGMENT
A.H. Saikia, J.
1. Heard Mr. JM Choudhury, learned Sr. counsel assisted by Mr. BM Choudhury, learned counsel for the petitioner. None appears for the respondents despite notice.
2. The facts in brief which relate to filing of the Criminal Revision are that an FIR was lodged on 4.2.93 by one Md. Tajamal Ali Baskar against the present petitioner and other two others namely, Azad Hussain Majumdar and Piyar Ali with Sonai Police Station alleging that accused persons trespassed to the complainant’s land and caused grievous hurt to him on the same date. On the basis of such Ejahar, police registered a case being Sonai Police Station Case No. 36/93 and accordingly the investigation ensued. During the investigation, the police found no case against the accused person under Section 447 IPC. However, a prima-facie case was found against al those three accused persons including the petitioner under Section 323 IPC. Since the offence under Section 323 IPC was not a cognizable offence, the police eventually submitted a final report on 5.7.93. The trial court by its order dated 11.12.93 accepted the final report so submitted by the police and consequently discharged the accused persons.
3. Being aggrieved by such discharge, the complainant lodged the complaint case being Complaint Case No. 801C/94 on 23.2.94 before the learned Judicial Magistrate and the learned Magistrate by his order dated 13.7.94 took cognizance against all the accused persons under Section 447/323 IPC. Feeling aggrieved by such action of taking cognizance by the learned Magistrate, the present petitioner moved an application for dismissal of the complaint on the ground of limitation under Section 469 Cr.P.C. The learned Magistrate, upon hearing learned counsel for the parties and also taking into account the materials available on record, by his order dated 24.4.95 dropped the criminal proceeding holding that since punishment under Section 447 and 323 IPC is for a period of three months and one year respectively, the instant complaint was time barred, being filed after the expiry of one year period of limitation which had started from the date of occurrence, i.e., 4.2.93, Against that order, the complainant moved a criminal revision petition, being Criminal Revision No. 29(3)/95 before the learned Sessions Judge who transferred the same to the Court of Addl. Sessions Judge, Cachar at Silchar and the learned Addl. Judge upon hearing the learned counsel for the parties and also on perusal of the order dated 24.4.95 by his judgment dated 1.3.96 allowed the revision petition by setting aside the order dated 24.4.95 holding that the learned trial Magistrate did not consider the provision of law laid down under Section 470(1) Cr.P.C. It was observed therein that the period from 4.2.93, on which date the ejahar was lodged with Sonai Police being Sonai PS Case No. 36/93 to 11.2.93 when the learned Magistrate discharged the accused person after accepting the final report submitted by police on 5.7.93, should be excluded as per the provision of Section 470(1) Cr.P.C.
4. Being highly aggrieved by the impugned judgment and order above mentioned, the petitioner alone has preferred this revision petition. Assailing the impugned judgment, Mr. Choudhury, Sr. counsel appearing for the petitioner has forcibly argued that the impugned judgment ex-facie suffers from illegality due to the fact that the learned Sessions Judge had totally misread the provision of Section 470(1) Cr.P.C. The learned Judge has committed a grave error of law by holding that the period from filing the FIR till the discharge of the accused on 11.12.93 shall be excluded for the period of limitation prescribed under Section 468 Cr.P.C. wherein the limitation for the offence alleged therein is only for one year. In order to appreciate the contentions of learned Sr. counsel, it would be apt and necessary to refer Section 470(1) Cr.P.C. which reads as under :
“470. Exclusion of time in certain cases. – (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded:
Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”
5. A bare perusal of the above provision goes to show that the period during which any person has been prosecuting another prosecution in a trial court or appellate court with due diligence shall only be excluded for purpose of determining the period of limitation. Therefore, it appears that the entire thrust of this Section is put on the word ‘prosecution’. Now let us see and understand the meaning of work ‘prosecution’. The Black’s Law Dictionary, Seventh Edition, defines ‘prosecution’ as under :-
“Prosecution.1. The commencement and carrying out of any action or scheme (the prosecution of a long, bloody war). 2. A criminal proceeding in which an accused person is tried (the conspiracy trial involved the prosecution of seven defendants). Also termed criminal prosecution.”
6. In Webster’s Dictionary, “to prosecute” means :
“(a) to seek to obtain, enforce, or the like, by legal process; as, to prosecute a right or a claim in a court of law. (b) to pursue (a person) by legal proceedings for redress or punishment; to proceed against judicially; esp., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a legal tribunal; as, to prosecute a man for trespass, or for a riot.”
7. The Apex Court in case of Maqbool Hussain v. State of Bombay reported in AIR 1953 SC 325 had the occasion to deal with the definition of prosecution. The prosecution has been defined in the said judgment in the last sentence of paragraph 12 as under :
“…. the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.”
8. The said view was against approved by the Supreme Court in another decision in a case of Thomas Dana v. State of Punjab reported in AIR 1959 SC 375. Having regard to the above definition, it can be safely said that prosecution starts with the institution of a criminal proceeding before the Court of law.
9. In the instant case, initially complaint was lodged by way of an FIR on 4.2.93 and on 11.12.93, final report submitted by the police on 5.7.93, was accepted and the petitioner was accordingly discharged. After such discharge, on 23.2.94 the complaint was filed by the complainant. Therefore, in view of Sections 468 as well as 469 Cr.P.C. which provide for the limitation period for one year from the date of commission of the offence till the date of taking cognizance of the offence, the one year period has already expried. More so, in view of the definition of ‘prosecution’ as noticed above, it can be unhesitatingly said that mere filing an FIR cannot be treated as initiation of prosecution. Chapter XII Cr.P.C. containing Section from 154 to 176 provides for information to the police and their power to investigate. The police upon receipt of any information by way of an FIR, has been empowered to proceed with the investigation and after completion of the entire investigation, the police is authorised to file charge sheet under Section 173 Cr.P.C. Obviously, the entire period of investigation, is not related to ‘prosecution’. Therefore, the period from the date of filing FIR till the acceptance of final report, not being a prosecution, cannot be excluded by attracting the provision of Section 470(1) Cr.P.C.
10. In view of the observation and discussion rendered herein above, this court is of the view that the learned Sessions Judge has wrongly applied the provision of 470(1) Cr.P.C. to exclude the period of limitation from the date of filing the FIR on 4.2.93 till the date of discharge of the accused on 11.12.93. Consequently, the impugned judgment and order dated 1.3.96 is hereby set aside and quashed.
11. In the result, revision succeeds and stands allowed.