- (1.) This revisional application filed by the petitioners is aimed at quashing of proceeding in complaint case No. C-23/03 pending before the learned Judicial Magistrate, 4th Court, Asansol and orders passed therein including orders dated 17.1.03 and 21.1.03.
(2.) Mr. Sekhar Basu, learned Senior Advocate for the petitioner submitted that the opposite party No. 2 filed the complaint case against the petitioner and others alleging commission of offence under Section 406 of Indian Penal Code (IPC). The complaint was filed on 17.1.03 in the Court of the learned Additional Chief Judicial Magistrate (in short ACJM), Asansol and the learned ACJM transferred the case to the learned Judicial Magistrate, 4th Court Asansol for disposal. The learned Judicial Magistrate by order dated 21.1.03 issued process against this petitioner under Section 406 of I.P.C. and refused to issue process against others who were arrayed as accused in the said complaint. The complainant also prayed for issue of search warrant for recovery of cash and other articles mentioned in the list separately. The learned Magistrate in the second part of his order dated 21.1.03 rejected the prayer for issuing search warrant observing that the goods as alleged were entrusted in 1987 and complainant was driven away as alleged from house of accused in 1990 and after 13 years there was no ground for issuing search warrant. If the learned Magistrate found that the complaint was lodged 13 years after taking of cognizance of offence under Section 406 of I.P.C. was bad in law. The learned Magistrate did not consider that the complaint was barred by limitation and the learned Magistrate was not empowered to take cognizance of offence. Section 406 of I.P.C. is not a continuing offence and complaint was barred under Section 468 of Cr. P.C. In support of his contention Mr. Basu referred to the decisions Dinabandhu Banerjee v. Nandini Mukherjee reported in 1993 (II) CHN 292, Abhijit Sen v. State of West Bengal reported in 2003 C. Cr. LR (Cal) 639 and Arun Vyas v. Anita Vyas reported in 1999 SCC (Cri) 629.
(3.) Mr. S. S. Roy, learned Advocate appearing for the State submitted that elements of offence under Section 406 of I.P.C. was made out against the husband-petitioner. Only question is limitation and, whether the learned Magistrate was right in taking cognizance. Under Section 473 of Cr. P.C. the learned Magistrate can consider whether delay has been properly explained and extend period of limitation.;