PANWAR, J. - (1.) THE matter is called twice, no one appears for the petitioner.
(2.) HEARD learned Public Prosecutor and counsel appearing for the respondent No. 2. I have carefully gone through the memo of revision petition and the order impugned dated 3. 3. 2003 passed by Additional Chief Judicial Magistrate, Nohar (for short `the Trial Court' hereinafter) whereby the Trial Court took cognizance of the offences u/ss. 166, 167 & 204 IPC against the petitioner and issued the process. Aggrieved by the order taking cognizance and issuing process, the petitioner has filed the instant criminal revision petition u/s. 397/401 IPC. In the memo of revision, the first ground by which the order impugned has been assailed by the petitioner is that the alleged offence was committed in the year 1999 and the cognizance has been taken in the year 2003 and therefore, according to the petitioner the order taking cognizance is barred by period of limitation. From the perusal of the order impugned it appears that the complaint was filed by the non-petitioner before the Trial Court on 29. 4. 2000 and thereafter ultimately, the Trial Court took the cognizance on 3. 3. 2003. In Bharat Damodar Kale & Anr. vs. State of A. P. , 2003 (7) Supreme 736, Hon'ble Supreme Court held that a cumulative reading of various provisions of the Chapter XXXVI Cr. P. C. clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the Court from taking cognizance of an offence where the complaint is filed before the Court after the expiry of the period mentioned in the said Chapter. This is clear from Sec. 469 of the Code contained in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation, time taken during which the case was being diligently prosecuted in another Court or in appeal or in revision against the offender should be excluded. The said Section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the Court was closed will also have to be excluded. All these provisions indicate that the Court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This, in our opinion clearly indicates that the question of limitation arises not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution initiated beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the Court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of Court. The legal phrase "actus curiae neminem gravabit" which means an act of the Court shall prejudice no man, or by a delay on the part of the Court neither party should suffer, also supports the view that the legislature could not have intended to put a period of limitation on the act of the Court of taking cognizance of an offence so as to defeat the case of the complainant. In view of the decision of Hon'ble Supreme Court (supra), the ground raised by the petitioner challenging the cognizance as time barred, no more survives and serves to be rejected.
(3.) IN P. K. Pradhan vs. State of Sikkim, RLW 2002 (1) SC 27, it has been held by the Apex Court that for claiming protection u/s. 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection u/s. 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion for opportunity for the acts, then no sanction would be required. In Bharat Singh vs. Smt. Vimla, RLW 2002 (1) Raj. 358, it has been held by this Court that in case of absence of reasonable nexus between the act complained of and discharge of official duty, there is no necessity to obtain prior sanction of the Government. There must be a reasonable nexus 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 claim but not a pretended or fanciful claim that he did it in the course of performance of his duty. Keeping in view the settled position of law when the case in hand is examined, them prima facie irresistible conclusion is that the act complained of has absolutely no nexus with the discharge of official duty. The allegation against the petitioner that when the petitioner was conducting investigation in a case, to save the accused therein, entering into criminal conspiracy with the accused, he recorded the statement of the witnesses as per his own wishes and into as stated by them. He has not filed the statement of witness Rajendra Singh recorded by him u/s. 161 Cr. P. C. along with the challan and the same has been removed from the case diary and destroyed with an ill-intention by misusing the post held. ;