Criminal Writ Petition No.100 of 2001

30th November, 2001

Petitioner Counsel: Shri. A. H. KAPADIA, Shri. V. D. PATNOORKAR
Respondent Counsel: Smt. J. P. AKOLKAR, Shri. SADANAND S. DEVE

Cases Cited:
Rizwan Ahmed Vs. Jammal Patel, 2001 ALL MR (Cri) 1512 (S.C.)=2001 AIR SCW 2125 [Para 8]
State Vs. Gorakh Fulaji Mahale, AIR 1965 Bom. 124 [Para 10]
State of Maharashtra Vs. Narharrao, AIR 1966 SC 1783 [Para 11]
Shambhoo Nath Mishra Vs. State of U.P., 1997 ALL MR (Cri) 987 (S.C.)=(1997) 5 SCC 326 [Para 13]
G. P. Pedke Vs. Syed Javed Ali, 1991 Cri.L.J. 1481 [Para 14]
D. K. Basu Vs. State of West Bengal, AIR 1997 SC 610 [Para 15]
Gauri Shankar Prasad Vs. State of Bihar, 2000 ALL MR (Cri) 1691 (S.C.)=2000 Cri.L.J. 4031 [Para 16]
Kallappa Appanna Bebade Vs. Dattatraya Ramchandra Shejal, 1997 ALL MR (Cri) 324=1997(1) Bom.C.R. (Cri.) 619 [Para 18]
Maruti Ramchandra Dawane Vs. State of Maharashtra, 1998 ALL MR (Cri) 1004=1998(2) Bom.C.R. 460 [Para 19]
State of Kerala Vs. Padmanabhan Nair, (1999) 5 SCC 690 [Para 20]

JUDGMENT

JUDGMENT :- Heard parties.

Rule. Rule returnable forthwith with the consent of the parties.

2. This criminal writ petition is preferred against the judgment and order passed by the learned II Additional Sessions Judge, Latur in Criminal Revision No.4 of 1994, dated 11.6.1998, arising out of the order of issuance of process dated 22.11.1993 passed by the learned Chief Judicial Magistrate, Latur in R.C.C. No.719 of 1993.

3. Brief facts of the case are as under.

The respondent no.2 filed private complaint before the learned Chief Judicial Magistrate, Latur, under Section 330 r/w 34 of the Indian Penal Code contending that in an investigation of crime no.111/1993 of Renapur police station for an offence punishable under Section 302 of the Indian Penal Code, the respondent no.2 - Mohan - (the accused) was arrested and was in custody of police. The petitioner no.1 was incharge of investigation, wherein for confessing the guilt, the petitioner no.1 with the help of police constables Gautam and Vishwas (petitioners 2 and 3) mercilessly beat him and subjected him to third degree methods.

4. The petitioners submit that the respondent no.2 in crime no.111/1993 orally made complaint of illtreatment at the hands of police during custody. Therefore, the learned Magistrate recorded the statement in respect of the illtreatment and sent him for medical examination and thereafter inquiry papers and record were sent to the District and Sessions Judge, Latur. Considering the said report and the record, the learned Sessions Judge, Latur passed the order and sent the matter to the Collector and Deputy Inspector General of Police, Nanded for further enquiry. The matter was dealt and by way of punishment only minor punishment was awarded against the petitioners by the concerned authorities directing the petitioners not to repeat such acts in future and the inquiry was closed. The petitioners further submit that after completion of the above said proceedings, the respondent no.2 after passage of seven months lodged private complaint before the learned Chief Judicial Magistrate, Latur for an offence under Section 330 r/w 34 of the Indian Penal Code regarding the above incident. The learned Chief Judicial Magistrate, Latur passed order of issuance of process under Section 330 r/w 34 of the Indian Penal Code on 22.11.1993.

5. Feeling aggrieved and dissatisfied by the abovesaid order, the petitioner no.1 preferred Criminal Revision before the Session Court in Criminal Revision No.4 of 1994, which was dismissed by the learned II Additional Session Judge, Latur on 11.6.1998. Being aggrieved and dissatisfied by the said judgment and order, the petitioners have preferred this criminal writ petition before this court.

6. Shri. Kapadia, learned counsel for the petitioners submitted three fold arguments.

(i) The matter is barred by virtue of Section 161 of Bombay Police Act since it is not filed within six months from date of incident and it is filed beyond six months without sanction as required by proviso to said section.

(ii) Sanction under section 197 of Criminal Procedure Code was necessary in view of the fact that petitioners are public servants in their capacity as Police Officers.

(iii) In view of the fact that the learned Magistrate, before whom present respondent no.2 had complained of illtreatment, did not take cognizance, whether now a criminal court can take cognizance on the basis of complaint by respondent no.2.

7. Shri. Kapadia, learned counsel for the petitioners has produced the notification issued by the Home Department, Mantralaya, Bombay, dated 2.6.1979 and submitted that by this notification the State Government has notified that all the police officers are removable only with previous sanction of the State Government. The relevant notification is an under :

"NOTIFICATION

Home depatment,

Mantralaya,

Bombay, dt.2.7.1979.

No. CRP/0178/9845 - Pol - 3.

In exercise of the powers conferred by the Sub-Section (3) of Section 197 of Criminal Procedure Code (II of 1974) the Govt. of Maharashtra hereby directs that provisions of Sub-section (2) of Section Shall apply to the following categories of the members of the forch in the State charged with the maintenance of orders wherever they may be serving namely :

1.     All Police Officers as defined in the Bombay Police Act 1951 (Bom.XXVI of 1951) other than the special or additional police officers appointed under Section 21 or 22 of that Act.

2.     All Reserve Police Officers as defined in Bombay State Reserve Police Force Act 1951 (Bom.XXXVIII of 1951)

By order and in the name of the Governor of Maharashtra, Home Departmernt."

Relying on the said notification, Shri. Kapadia, the learned counsel for petitioners submitted that petitioners are governed by this notification. He further submitted that in view of this notification petitioners are entitled to seek protection from being prosecuted in view of the bar of limitation of six months for initiation of criminal proceedings against them incorporated in Section 161(1) of Bombay Police Act as petitioners being members of the force in the State charged with the maintenance of orders where ever they may be serving. He further contended that in view of this provision the petitioners are also entitled to protection under Section 197(2) of Criminal Procedure Code.

8. In this regard, Shri. Kapadia, learned counsel for the petitioners has relied on the decision of Apex Court reported in 2001 AIR SCW 2125 : (2001 ALL MR (Cri) 1512 (S.C.)) in the case of Rizwan Ahmed v. Jammal Patel. In this case relevant notification dated 2.6.1979 has been considered and it is observed by the Supreme Court that :

"12. The phrase "maintenance of public order" in the context before us need not be assigned a narrow meaning as is assigned to in preventive detention matters. The police officers do discharge duties relating to maintenance of public order in its wider sense.

13. The notification, therefore, applies to members of Bombay Police force. Once it is held that the members of the Bombay police force are the persons to whom the notification issued under Section 197(3) of the Code applies and if the act which is alleged to be an offence was done in discharge or purported discharge of the duty of the accused persons, they will be entitled to the protection extended by sub-section (2) of Section 197 of the Code.

The protection was extended to a member of police force charged with maintenance of public order though the act in question which was alleged to be an offence committed by accused persons was not referable to maintenance of public order. The accused respondents are indisputably the members of police force governed by Bombay Police Act, 1951."

9. Taking into consideration the scope of the said notification as interpreted above by the Apex Court there cannot be any doubt that the petitioners are governed by the said notification. However, it is to be ascertained whether the petitioners are entitled to the protection of Section 161(1) of Bombay Police Act and of Section 197(2) of Criminal Procedure Code. It is pertinent to note that for seeking the protection extended by Section 161(1) of Bombay Police Act as well as by Section 197(2) of Criminal Procedure Code, the essential factor is that the act which is alleged to be an offence was done in discharge or purported discharge of the duty or in excess of duty imposed or conferred on officer concerned by any provisions of the Act or by any other law or rule.

10. Shri. Sadanand Deve, the learned counsel for the respondent no.2 has contended that no question of bar of limitation of six months from date of offence as contemplated under Section 161 as well as the requirement of sanction for prosecution after expiry of said period in accordance with the proviso to Section 161(1) of Bombay Police Act or sanction for taking cognizance of offence as required under Section 197 arises in this case, as the act of beating respondent no.2 mercilessly in police custody is an act which is entirely extraneous to the nature of duties which the offence imposes on the incumbents. In this regard, Shri. Deve, learned counsel has placed reliance on a decision reported in AIR 1965 BOMBAY 124 in the case of State v. Gorakh Fulaji Mahale. The Apex Court explained the scope of Section 161(1) of Bombay Police Act at para 4 as under :

"4. Section 161(1) of the Bombay Police Act (hereinafter called "the Act") contains a provision which is intended for the protection of certain officers from stale claims and accusations of a particular variety. In so far as criminal proceedings are concerned, it contains a special rule of limitation, generally unknown to criminal law, that prosecutions must in certain circumstances be instituted within the stated period. Sub-section (1) of section 161 of the Act reads thus :-

"In any case of alleged offence by the Revenue Commissioner, the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by such Revenue Commissioner, Commissioner, Magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein, it shall appear to the Court that the offence or wrong, if committed or done, was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed if instituted, more than six months after the date of the act complained of."

In order that this sub-section may apply, it is necessary, in so far as it is material for this case, that the alleged offence must have been committed by doing an act "under colour or in excess of any such duty or authority as aforesaid" are evidently referable to the description of duty or authority contained in section 159 of the Act, which provides that a police officer, amongst others, shall not be liable to any penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of "any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any rule, order or direction made or given therein". It is clear from this provision that the rule of limitation contained in section 161(1) of the Act can apply only if the act complained of was done under colour of duty or in excess of duty imposed or authority conferred on the officer concerned by any provision of the Act or any other law or by any rule, order or direction made or given under the Act or under any other law."

In this case, the Apex Court had laid down that one of the tests for determining whether the act has been done in the purported discharge of official duties is whether the public servant can defend his act by reference to the nature of the duties of his office if he is challenged while doing the act. In this regard, instances are given at para 7 as under :

"7. Acceptance of bribe cannot, in our opinion, be described as an act done under colour of office or under colour of duty because it is wholly unconnected with the rights and duties attaching to the office. It is an act which is entirely extraneous to the nature of duties which the office imposes on the incumbents. The only connection if at all, between the office and the acceptance of bribe by the officer, is that the office affords an opportunity to the officer to demand and accept the bribe. That, however, is not a relevant consideration because what law requires is not that the act must be done by virtue of office, but that it must be done under colour of office, as stated in Wharton's Law Lexicon, 14th Edition."

11. Same view is taken by the Apex Court in AIR 1966 S.C. 1783 in the case of State of Maharashtra v Narharrao with reference to the scope of Section 161(1) of Bombay Police Act and the said concept was highlighted and stated as under :

"It was, however, held by this Court that the prosecution was not barred under S.53 of the Madras District Police Act (Act of 24 of 1859), the language of which is similar to Section 161(1) of Bombay Police Act, for it cannot be said that the acts of beating a person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they were engaged in investigation are acts done or intended to be done under the provisions of the Madras District Police Act or Criminal Procedure Code or any other law conferring powers on the police."

Adopting this view of the order of acquittal of respondent passed by applying bar of Section 53 of Madras District Act, 1859, which is similar to Section 161(1) of Bombay Police Act, was set aside by the Supreme Court in the above referred case.

12. Thus applying the above principles laid down by the Apex Court to the facts of the present case, it is abundantly clear that beating mercilessly the respondent no.2 during police custody cannot be said to be act done by the accused under colour of their office or in excess of any such duties. Therefore, special rule of limitation of six months incorporated in Section 161 of the Bombay Police Act is not applicable to the present case.

13. As regards the contention as to whether under Section 197 of Criminal Procedure Code sanction was necessary, in view of the fact that petitioners are public servants, it is to be noted that law in this regard is well settled and the learned counsel for the respondent no.2 has rightly relied upon a decision reported in (1997) 5 S.C.C. 326 : (1997 ALL MR (Cri) 987 (S.C.)) in the case of Shambhoo Nath Mishra v. State of U.P. In this case it is held that :

"The essential requirement postulated for the sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to the performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.P.C. Without the previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with in the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected."

As regards offence of fabrication of record or misappropriation, the Apex Court held that:

"When the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. it cannot be said that he acted in discharge of his official duties because it is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crimes committed in the course of the same transaction."

14. While dealing with the act of abusing in filthy language by public servant while performing his duties, this court in 1991 Cri.L.J. 1481 (G.P. Pedke v. Syed Javed Ali) at para 5 of the judgment observed as under :

"5. In both the aforesaid decisions of the Supreme Court it has been made clear that there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended on fanciful claim, that he did it in the course of the performance of his duty. Applying this test to the facts of our case, it is impossible to come to the conclusion that the act complained of has any connection with the discharge of the official duty of the applicant. The filthy abuses alleged to have been given by the applicant, if proved, would amount to an offence, which can never be an official duty. Having regard to these facts, the trial court was perfectly right in issuing process against the applicant. The application is devoid of substance and is accordingly dismissed."

15. In this regard the observations of the Supreme Court in the case of D. K. Basu v. State of West Bengal, reported in AIR 1997 SC 610 are also relevant. The Supreme Court at para 29 of the judgment observed as under :

"29. Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it."

16. However, relying upon a decision of the Apex Court reported in 2000 CRI.L.J. 4031 : (2000 ALL MR (Cri) 1691 (S.C.)) in the case of Gauri Shankar Prasad v State of Bihar, Shri. Kapadia, learned counsel for the petitioners has drawn attention of this court to the facts of that case contending that in that case the Sub-Divisional Officer in the course of drive undertaken for removal of encroachment of road side land while removing the encroachment entered into clinic of the complainant and dragged the complainant from the clinic and in the said case, the Apex Court quashed and set aside the order taking cognizance by the learned Judicial Magistrate, First Class, for want of sanction under Section 197 of Criminal Procedure Code.

17. In this regard, it is to be noted that the encroachment was to be removed in pursuance of the order of Patna High Court in public interest litigation. While narrating the facts of the case at para 3 of the judgment it is observed that when encroachment was being tried to be removed the complainant objected or protested against such action. Therefore, under such circumstances, especially the objection and protest of the complainant, whether the act done by the said officers of dragging the complainant is reasonable and proper or not and whether it forms the part of official duty was the question before the said court and as the dragging has nexus with the objection to remove the encroachment, the said act can be said to be the act done in discharge or purported discharge of official duty in excess of duty conferred on officer. Here giving third degree treatment to respondent no.2 for extracting information of crime from him cannot be said to be act of discharging official duty in excess of duty as the said act of giving third degree treatment cannot be said to be the act integrally connected with the duty imposed by law on the police officers. The said act amounts to offence and an act constituting offence cannot be said to be act in discharge of their official duties. As such the case relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case and it is of no avail to him.

18. Shri. Kapadia, the learned counsel for the petitioners in support of his contention has further relied on a decision reported in 1997 (1) Bombay Criminal Cases 619 : (1997 ALL MR (Cri) 324) in the case of Kallappa Appanna Bebade v. Dattatraya Ramchandra Shejal, contending that in the said case under identical facts, this court had taken a view that sanction to prosecute the police officer is necessary to initiate criminal action against the police officers for an offence under section 323 of Indian Penal Code and for want of sanction acquittal passed by the learned Judicial Magistrate, First Class was upheld in appeal by this court.

In this regard, it is to be noted that the offence alleged against the police officer was a minor offence under section 323 r/w 34 of the Indian Penal Code that had taken place 14 years ago. The observations in this regard made in paras 11 to 13 are relevant, which are as under :

"11. Bearing in mind the over all facts and considerations like the impugned order was recorded nearly 14 years ago; that the offence is a petty one namely one under S.323 r/w 34, IPC; and that respondents nos.1 and 2 committed this offence in the discharge of their official duty and the embargo imposed by S.197 Cr.P.C. precludes the Magistrate from even taking cognizance of the offence without prior sanction the ends of justice in our judgment do not warrant our interference in spite of the aforesaid infirmity in the impugned order.

12. There are cases wherein it is proper and expedient in the interest of justice to give precedence to larger considerations, some of which we have detailed in the preceding paragraph, instead of taking a hyper-technical view. The instant, in our view, is one of such case.

13. But, our observations contained in para 12 should not be construed to mean that (a) our non-interfering with the impugned order means that the same is in accordance with law, and (b) as a general rule, we would be interfering with orders of the type of impugned order. The truth is the very converse of it.

13-A. It is only where equity, justice nature of the offence and the enormous-time-lag between the commission of offence-passing of the impugned order per se warrants our interference would be interfered."

Thus, the observations made by the court are self-speaking. Moreover, it is to be noted that said case is not applicable to the facts of the present case as in the said case there was no dispute that police officers who were prosecuted, acted as public servants in discharge of their official duties, but in the present case whether the accused were acting as public servants in discharge of their duties in a capacity of public servants at the time of commission of offence is disputed and, therefore, on this ground also the above decision is not squarely applicable to the present case.

19. Shri. Kapadia, the learned counsel for the petitioners has further cited a decision reported in 1998 (2) Bombay Cases Reporter 460 : (1998 ALL MR (Cri) 1004) in the case of Maruti Ramchandra Dawane v. State of Maharashtra, in which the Single Judge of this court while dealing with the point of sanction under Section 197 of Criminal Procedure Code in a case of prosecution of a public servant for offence under Section 409 of Indian Penal Code for temporary embezzlement of Rs.3049/- which was recovered towards revenue, tagai loans and bunding charges by the talathi from the cultivators, held that unless sanction for prosecution is taken the court is precluded from taking cognizance of offence.

It is to be noted that the facts of the case are different and as such this case in not applicable to the present case.

20. Moreover, in connection with such offences also the Supreme Court in the case of State of Kerala v. Padmanabhan Nair reported in (1999) 5 S.C.C. 690, at para 7 observed that :

"7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and also Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows :

"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

21. Thus in view of the well settled principles enunciated by the Supreme Court in this regard, the contention, with reference to the requirement of sanction for taking cognizance in this crime for launching prosecution against the petitioners, raised by the learned counsel for the petitioners cannot be accepted, as the act of beating the respondent no.2 cannot be said to be the act done by the said officers forming part of their official duty or exceeding in discharge of their official duty and as such there appears no need of sanction under Section 197 of Criminal Procedure Code for launching prosecution.

22. Lastly Shri. Kapadia, learned counsel for the petitioners has contended that the learned Magistrate to whom the respondent no.2 had complained did not take cognizance, and, therefore, now the criminal court cannot take cognizance on the basis of the complaint of the respondent no.2.

23. In this regard, it is to be noted the grievance was made by the respondent no.2 when he was produced before the Magistrate for the purpose of seeking remand for further custody and on making the grievance of the illtreatment he was referred to medical officer and enquiry was made by the Magistrate and report was submitted to the District Judge. This is the administrative enquiry and directions. At that time, also cognizance of offence could have been taken, however, no cognizance was taken at that time. Since no cognizance of the offence was taken at that time, it cannot operate as a bar for taking cognizance under Section 190 of Criminal Procedure Code thereafter, as there is no judicial finding that no offence is committed by the present petitioners.

24. As regards the said contention raised by the learned counsel for the petitioners, it would be just and proper to refer to prohibition of clause (2) of Article 20 of the Constitution of India, which provides that, no person shall be prosecuted and punished for the same offence more than once. What is prohibited under clause (2) is only conviction or sentence. Penalty means punishment for the offence and would not include any other remedial measure provided for removing the mischief. The clause guarantees that no person be prosecuted and punished for same offence more than once. Punishment in this clause means judicial penalty awarded by criminal court and would not include other penalties, as such disciplinary action in a case of public servant. Action taken by the concerned department against the petitioners is departmental action and not judicial penalty contemplated under clause (2) of Article 20 of the Constitution of India.

25. It is to be noted that the respondent no.2 filed complaint against the petitioners for offence punishable under Section 330 of the Indian Penal Code which is punishable with imprisonment for seven years and fine. Section 468 of Criminal Procedure Code deals with the bar of taking cognizance after lapse of period of limitation in respect of offence of the category specified in sub-section (2). No such limitation is prescribed for offence punishable with imprisonment for a term exceeding three years and as such the prosecution launched against the petitioners cannot be said to be barred by limitation. The Magistrate can very well take cognizance of the offence as previously no cognizance has been taken for the aforesaid offence. Therefore, I do not find any substance in the above contention raised by Shri. Kapadia, learned counsel for the petitioners.

26. Thus after considering the three fold arguments submitted by Shri. Kapadia, learned counsel for the petitioners as above in the light of the facts of the case, relevant provisions of law and various decisions relied upon by both parties, it is found that though the petitioners being police officers are governed by notification dated 2.6.1979, however, as the petitioners' act of giving alleged third degree treatment to respondent no.2 for extracting information from him, cannot and does not amount to an act done in discharge or purported discharge of duty or in excess of duty imposed or conferred on petitioners by any provisions of the Act or by any other law or rule, order or direction made or given under the Act or under any other law. The bar of the provisions of Section 161 of Bombay Police Act or Section 197(2) of Criminal Procedure Code is not applicable and as such no sanction as contemplated under the above referred provisions for launching prosecution against the petitioners is required. Alleged act of third degree treatment constitutes offence under Section 330 of the Indian Penal Code punishable with 7 years imprisonment cannot be said to be an act in discharge of duty imposed or conferred by law or under colour or excess of such duty as the said act cannot be said to be integrally connected or inseparably interlinked with the official duty imposed by law. Since no cognizance of such offence was taken by the then Judicial Magistrate and the said offence being within limitation as contemplated under Section 468 of Criminal Procedure Code, criminal court can take cognizance of the offence.

27. In the result, I do not find any substance in the petition and as such it deserves to be dismissed and it is dismissed accordingly. Rule is discharged. Interim order stands vacated.

Petition dismissed.