KAPUR, J. - (1.) THE two petitioners have come in this petition against the order of the learned Addl. Sessions Judge, Dholpur dated July 29th, 1989 by which he rejected the revision filed by the petitioners against the order dated May 23rd, 1987 passed by Munsif and Judicial Magistrate Dholpur.
(2.) THE facts in brief are that one Hari Om was tried for the offence under Section 384 Cr. PC. THE allegations against him made by Pooran Chand were that Hariom at the point of knife forced Rakesh, son of Pooran Chand to remove ornaments from his safe at a time when Pooran Chand and his family were out of station. THEse ornaments were taken away by Hariom. Rakesh further deposed that Hariom took these ornaments to the present petitioners Shankerlal and Damodar and sold them for a sum of Rs. 1800/ -. At the time of convicting Hariom, the learned Magistrate observed that Shanker lal and Damodar ought to have been made accused for the offence under Section 411 IPC. THE matter was looked into in detail and it was observed that the investigating officer wanted to make inquiries against these two persons but then they had obtained anticipatory bail from the High Court hence, the matter against them was not investigated. THE learned Magistrate observed that these are not reasons for not investigating the case against these persons. After convicting Hariom, the learned Magistrate proceeded to hear the matter on the question of sentence and at that time, he ordered that a case be registered against Shankerlal and Damodar for having received the stolen property. He also observed that the question of limitation is condoned under Section 473 Cr. P. C. because there is a prima facie case. It was further ordered that the accused shall be heard on this point when they appear. The learned additional Sessions Judge heard only the Public Prosecutor and arrived at a conclusion that the order of the Magistrate taking cognizance against the petitioner was not illegal or irregular. These orders have been challenged by the petitioners in this petition under Section 482 Cr. P. C. First of all it has been contended that under Section 468 Cr. P. C. the time for taking cognizance had expired and the question of condoning the limitation could not be decided without notice to the petitioners. The offence under Section 411 IPC is punishable with three years imprisonment and as such, the order taking cognizance ought to have been passed within this period. The matter was before the Magistrate and when the statement of Rakesh was recorded it was within the knowledge of the learned Magistrate also that the stolen goods are with the petitioners and the Magistrate could have ordered to take cognizance against them at this stage. A period of five years has passed at the time the Magistrate given his judgment. In Banwarilal vs. State (1), it was held that when the case was pending since 1975 and ripe in the year 1980 then again the charge Was amended then an order passed in 1982 impleading the firm as an accused is not a justified order. Taking cognizance after prescribed period of limitation is a patently illegal. In Panney Singh vs. State (2) this matter was considered and it was held that the true legal position appears to be that before taking cognizance of an offence after expiry of the period of limitation, the accused shall be given a notice and he shall be heard on the point of extension of the period of limitation under Section 473 Cr. P. C. On the ground of limitation as well as for the reason that the petitioners were considered to be accused and because they obtained an order of anticipatory bail and they were not investigated appears to be no reason for condoning the delay and allowing prosecution to be continued after all these years. May be the investigating agency did not act with due deligence for the investigation of the case but then the Magistrate could also have proceeded against these petitioners much before the time he decided to take cognizance. In the present circumstances, the prosecution of the petitioners would mean an abuse of the process of the court and the order of the courts below deserves to be set aside to secure the ends of justice.
(3.) IN the result, this petition is accepted and the orders dated May 23rd, 1987 passed by the learned Munsif and Judicial Magistrate, Dholpur and that of the Addl. Sessions Judge, Dholpur dated July 29th, 1989 are quashed - .;