S.S.Sidhu, J. - (1.) THIS petition has been filed under Section 682(sic) of the Code of Criminal Procedure, 1973 (hereinafter) referred to as the new Code), for quashing proceedings under Section 188, Indian Penal Code, pending against the Petitioners and their co -accused in the Court of the Judicial Magistrate, 1st Class, Chandigarh (Shri B R Gupta). The Petitioners alongwith their nineteen co -accused were arrested under Section 188 Indian Penal Code, on 22nd September, 1973, and the case F.I R. No 808 was registered on that very date against them at the Police Station Central, Chandigarh. The challan on the basis of the complaint dated 9th October, 1975, made by the District Magistrate, Union Territory, Chandigarh, was presented in the Court of the Judicial Magistrate 1st Class, Chandigarh on 22nd October, 1975. The learned Magistrate ordered the accused to be summoned in the case. Since out of nineteen co -accused of the Petitioners, eight are detained under the Maintenance of Internal Security Act and the remaining eleven have not been served as they are not available, the Petitioners are being asked to appear in the Court -
(2.) THE ground on which the above -mentioned proceedings are sought to be quashed is that the prosecution of the Petitioners and their co -accused is barred on account of the provisions of Section 468 of the new Code That section reads as under: - 468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub -section (2), after the expiry of the period of limitation. (2) The period of limitation shall be: - (a) Six months, if the offence is punishable with fine only: (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year ; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. According to the said provisions, no Court can take cognizance of the offence which falls under any of the categories specified in Sub -section (2) of Section 468, after the prescribed period of limitation has expired. The case against the Petitioners and their co -accused admittedly falls under Clause (b) of Sub -section (2) of Section 468 ibid, as the offence with which the Petitioners and their co -accused are charged is under Section 188, Indian Penal Code, which is punishable ordinarily with imprisonment for a term which may extend upto one month or with fine of Rs. 200/ -, or with both, and in certain circumstances, with a term of imprisonment for six months or with fine of Rs. 1000/ - or with both. Section 469 of the new Code reads as under: - 469. Commencement of the period of limitation. (1) The period of limitation, in relation to an offender, shall commence, - (a) on the date of the offence ; or (b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier ; or (c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into offence whichever is earlier. (2) In computing the said period, the day from which such period is to be computed shall be excluded. There is no dispute that the present proceedings against the Petitioners and their co -accused were initiated after the filing of the police report under Section 173 of the new Code on 22nd October, 1975, on the basis of the complaint dated 9th October, 1975, made by the District Magistrate, Union Territory, Chandigarh The date of the offence in this case, as is clear from the perusal of the First Information Report, was 22nd September, 1973. That date can safely be deemed to be a dead -line for purpose of counting the period of limitation within the meaning of Section 469 of the new Code. The Petitioners and their co -accused were arrested in this case on 22nd September, 1973. The challan in the case was presented, on the basis of the complaint dated 9th October, 1975, that is, more than two years and one month after the registration of the First Information Report. In the face of these facts, the prosecution of the Petitioners and their co -accused is clearly barred by limitation as provided for in Section 468(2)(b), read with Section 469(1) of the new Code. It has been argued by the Learned Counsel for the Respondent that Section 484 of the new Code saves appeal, application, trial, inquiry on investigation to the extent that if any of such proceedings, which was pending immediately before the coming into force of the new Code, is to be disposed of in accordance with the provisions of the Code of the Criminal Procedure, 1898 (hereinafter referred to as the old Code) and, therefore, in the present case, if the investigation of the present case started in accordance with the provisions of the old Code could be completed only after the coming into force of the new Code, the Police were within their right to present a report under Section 173 of the old Code in the Court even after the coming into the force of the new Code and as such Section 468 of the new Code will not debar the Court from taking cognizance of the offence against the accused alleged to have been committed by him as mentioned in that report.
(3.) I have heard the Learned Counsel for the Petitioners also in this behalf. I doubt if 1 can accept the above argument of the Learned Counsel for the Respondent. Section 484 of the new Code reads as under: - 484(1) The Code of Criminal Procedure, 1898, is hereby repealed. (2) Notwith anding such repeal, - (a) if, immediately before the date on which this Code comes into force, there is any appeal, application trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code bad not come into force. Provided that ever inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code, The Full Bench of the Gujarat High Court, while dealing with an interpretation of the provisions of Section 484(2)(a), in Hiralal Nansa Bhavsar and another v. State of Gujarat, : 1976 Cri. L.J. 84 held as under - The proceedings referred to in Sub -section (2)(a) are pending appeal, application trial, inquiry or investigation and the verbs used in respect thereof are shall be disposed of, continued, held or made and that being so, the Parliament could have never intended that on the police investigation being initiated further proceedings in respect of such investigation should be finally disposed of in accordance with the old Code. Now appeal, application, trial, inquiry or investigation are different steps in a criminal prosecution. There is no vested right at all these steps. A party to the prosecution has no vested right in procedural provisions. The intention of the Parliament is that out of the proceedings mentioned in the section those proceedings in which the party has no vested right are only to be continued or held or made according to the provisions of the old Code as if the new Code has not been in force. On completion of such proceedings in that manner further steps in the prosecution has to be taken according to the provisions of the new code. For example, when investigation is initiated in respect of an alleged offence before coming into force of the new Code, the investigation has to be made according to the provisions of the old Code. On completion of such investigation further steps, such as, filing a police report in the Court has to be taken in accordance with the provisions of the new Code. This is so because investigation is a procedural matter No accused person has any vested right therein. Accused acquires no vested right till the Court takes cognizance of the prosecution against him. There are other proceedings out of the proceedings included in Sub -section (2)(a), in which certain vested rights are created and such proceedings are required to be disposed of finally in accordance with the provisions of the old Code. To illustrate, when a Court has already taken cognizance of a prosecution and the order of conviction is recorded after coming into force of the new Code, further proceedings in respect of appeal against the said order of conviction would be governed by the provisions of the old Code because the right of appeal is a substantive right which accurse to the parties to the prosecution at the time when the Court takes its cognizance. As observed by the Privy Council on the institution of a proceeding the right of appeal can lie in accordance with the provisions then in force are both vested rights. I, most respectfully, agree with the aforesaid view of the Full Bench and hold that if a proceeding is initiated by presenting a challan subsequent to the commencement of the new Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provisions of the new Code, because when investigation is initiated in respect of an alleged offence before the coming into force of the new Code, the investigation has to be made according to the provisions of the old Code and on completion of such investigation, further steps, such as, filing of a police report in the Court, have to be taken in accordance with the provisions of the new Code. It is so because investigation is only a procedural matter in respect of which no vested right accrues to the accused. Vested right accurse to the accused only when the Court takes cognizance of the prosecution against him after the police has presented a challan against him. I, therefore, hold that in the present case, Section 484(2)(a) of the new Code is of no help for the prosecution and since the police report in this case was filed after the coming into force of the new Code, this case shall be governed by the provisions of the new Code. Accordingly, the provisions of Section 468 of the new Code, which were clearly attracted in this case, debarred the Court from taking cognizance of the offence under Section 188, Indian Penal Code, against the Petitioners and their co -accused, since the period of limitation prescribed by that section for taking cognizance of that offence had already expired when the report under Section 173 of the new Code was filed in the Court against them. That being so, the proceedings initiated in this case against the Petitioners and their co -accused on presentation of challan are liable to be quashed.;