- (1.) S. R. Bhargava, J. This is a State revision against an order dated 10-6-1987 passed by Sessions Judge, Agra in Criminal Revision No. 48 of 1987, allowing the revision and quashing the order of the C. J. M. and the proceedings pending before him.
(2.) THE brief facts are that police submitted chargesheet against the respondent and others for offence under Section 3/4 of Gambling Act. On 5-1-87 the learned C. J. M, Agra passed an order "seen Register. " THE story given in the chargesheet was that after obtaining warrant under Section 5 Gambling Act of 5 S. P. Agra, S. S. I. Ram Shankar Singh of P. S. Hari Parvat, Agra raided a house on the night between 22/33- 9-86 and found the respondent and several other persons gambling in a common gaming-house owned by one Rajiv, a co-accused in the case. Against the order of the CJ. M. referred to above, the respondent pre ferred a revision before the Sessions Judge, Agra. The learned Sessions Judge, Agra held that no notification under Section 2 of the Public Gambling Act was produced and in absence of that notification, it could not be said that the Act was applicable to Agra. He further held that the S. I. , who investigated the case, did not take prior permission of the Magistrate for investigation and the chargesheet was submitted. Lastly, the learned Sessions Judge relied upon the affidavit of one Rajendra Singh, Rana, who was in possession of the house where the gambling was said to be going on and added that the denial of alleged gambling could be decided only after evidence and not in revision. With these findings, the learned Sessions Judge allowed the revision and quash ed the order of the C. J. M. and the proceedings pending before him. Being aggrieved the State has preferred this revision.
(3.) HAVING perused the revision and the order of the Sessions Judge, I am of the view that in this revision the points decided by the Sessions Judge need not be touched. For taking cognizance under Section 190 or issuing an order for summoning the accused under Section 204, Cr. P. C. , there must be application of mind. For both, for taking cognizance and issuing summons to the accused, the Magistrate must be satisfied that there is prima facie case against the accused. A ministerial order cannot be considered to be an order of taking cognizance or summoning the accused. The order "seen, Register" is a ministerial order directing the office to deal with the charge sheet in a particular manner. it is not a direction or order for taking cognizance or summoning the accused. It does not connote application of mind. It does not at all reflect that the Magistrate applied his mind and found a prima facie case against the accused. I am of the opinion that the order of the C. J. M. being only a ministerial order and not being a order under Section 190 or 204, Cr. P, C. was not at all a revisable order under Section 397, Cr. P. C. The revision was not maintainable and should have been dismissed on that ground. But then the question arises what is the position available today. It is evident that the Magistrate has not yet taken cognizance of the offence against the respondent or other accused of the case. Can the Magistrate be allowed to take cognizance now? Now cognizance can be taken only if limitation under Section 468, Cr. P. C. is available. 7, An offence under Section 3 of the Public Gambling Act is punishable in U. P, with a line not exceeding 200 or imprisonment of either discription for any term not exceeding three months. An offence under Section 13 of the Act is punishable in U. P. to a fine not exceeding 50 or to imprisonment of either description for any term not exceeding one calendar month. In any event the offence attributed to the respondent and other accused of this case would attract Section 468 (2) (b), Cr. P. C. The limitation prescribed for taking cognizance is only one year from the date of offence. In the instant case a period of more than four years has expired since the alleged offence. Hence the limitation prescribed in Section 468, Cr. P. C. has obviously expired, The learned A. G. A. contended that the prosecution prosecuted this revision with due diligence and so it is entitled to the benefit of 470 (1), Cr. P. C. This provision runs us nuder. "in computing the period of limitation the time during which any person has been prosecuting with due diligence another prosecu tion, 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 used 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. . The words "another prosecution" occurring in Section 470 (1) are significant and important. They apparently that the prosecution of the accus ed should be in some other case and not the case from which revision has arisen. The proviso to this Section makes the words "another prosecution" more clear. It is evident in this case that the revision his arisen from the charge sheet filed by the prosecution and it ii also evident that there was a other prosecution of the respondent. is these circumstances, the prosecution cannot rely on Section 470 (1) for exclusion of time devoted to this revision. The result remains that now the limitation for taking cognizance against that respondent and other accused of this case stands expired. Benefit of Section 473 Cr. P. C need not be considered in this case. It is obvious that the alleged offence took place more than four years ago punishment prescribed is too small as noted above. Forther, prosecution would riot serve any social purpose. It has to be said that interest of justice would not be served by prosecuting the accused now. It is obvious that the State did not raise the point that the order of the C. J. M. was not revisable before the Sessions Judge. After decision by the Sessions Judge in revision, I do not think that there can be any proper explanation for omission committed by the prosecution. 9. In the result the order of the Sessions Judge has to be disturbed but the proceedings against the respondent or other accused of this case need not enlivened. The order of the C. J. M. for registering the case being not revisable should not have been quashed. But the fact remains that there can be no further proceedings on the charge sheet. Hence the charge sheet itself has to be quashed. 10. The revision is disposed of with order that the order of the C. J. M. "seen Register" shall stand intact. The order of the Sessions Judge quashing the proceedings is set aside. But the charge sheet submitted by the police against the respondent and other accused is quashed for reasons noted above. Order accordingly. .;