# Bhoop Kishor Saini & Anr v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 1019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-15
- **Case number:** Application U/S 482 No. 10567 of 2020
- **Bench:** Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhoop-kishor-saini-anr-v-state-of-u-p-anr-45905
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860-
Sections 188/171 and 127 Representation
of the People Act- Code of Criminal
Procedure, 1973- Section 468 (2) (b)-
Complaint case filed after one year- Barred
by limitation- For the offence of Section
171H of IPC maximum punishment provided
is fine of Rs.500/- and for the offences u/s
188 IPC and Section 127 Representation of
the People Act, six months imprisonment is
provided for each offence, therefore, in view
of the provision of Section 468 (2) (b)
Cr.P.C. the complaint should have been filed
within a period of one year from the date of
incident but it has been filed beyond one
year from the date of incident.

In view of the period of limitation provided u/s
468 (2) (b) of the Cr.Pc, the complaint filed in a
case where the punishment provided is six
months, would be barred by limitation and the
same would not be maintainable.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 468 (2) (b)- It is
well settled that for the purpose of
computing the period of limitation u/s 468
Cr.P.C. the relevant date is the date of
filing of the complaint or the date of
institution of prosecution. Chapter XXXVI
provides limitation period for certain types
of offences for which lesser sentence is
provided which is based on the policy of
law to assist the vigilant and not the
sleepy as expressed in Latin maxim
vigilantibus et non dormientibus. The
complaint filed by the complainant and on
it cognizance taken by the Magistrate in
view of law laid down by Hon'ble Supreme
Court and Section 468 (2) (b) Cr.P.C. is
barred by time.

The period of limitation as provided under
Section 468 (2) (b) of the Cr.Pc is based on the
maxim of vigilantibus et non dormientibus and is
therefore to assist the vigilant. Therefore, a time
barred complaint cannot be entertained in view
of the law settled by the Hon'ble Supreme
Court.
Criminal Application allowed. (Para 9, 12,
13) (E-3)

Case law relied upon/ Discussed: -

## Text

9 All. Bhoop Kishore Saini & Anr. Vs. State of U.P. & Anr.
1019
brought before the Court but it was not
considered. In State of Orissa Vs. Debendra
Nath Padhi 2005 (1) SCC 568 it was observed
by Hon'ble the Apex Court that at the time of
framing of charges only the material produced
by the prosecution side can be looked into by
the Court but the material produced by the
defence cannot be looked into.

10. In case of Rukmini Narvekar Vs.
Vijay Sataredkar & others A.I.R. 2009 SC
1013 it has been observed by the Hon'ble
Apex Court that ordinarily defence material
cannot be looked into by the Court while
framing of the charges in view of D.N.
Padhi's case (supra), there may be some
very rare and exceptional cases where some
defence material when shown to the trial
Court would convincingly demonstrate that
the prosecution version is totally absurd or
preposterous, and in such very rare cases
the defence material can be looked into by
the Court at the time of framing of the
charges or taking cognizance.

11. In instant case the aforesaid claim
petition which is now not in existence and
has been dismissed on 23.05.2017 in non
appearance of the claimant, is not such an
exceptional defence material demonstrating
the
prosecution
version
absurd
or
preposterous. I have perused the copy of
the said claim petition No.783 of 2014
annexed as Annexure no.3 to the affidavit.
At the top of first page of the claim petition
parties names are mentioned with the
registration number of offensive vehicle as
UP74PE6327 (Car) but in para 23 of the
same petition the registration number of the
offensive vehicle is clearly mentioned as
UP78DE6327. Therefore, the aforesaid
claim petition was not a such type of
exceptional defence evidence which was
required to be looked into at the time of
framing charges.

12. In State of M.P. Vs. S.B. Johari
and others A.I.R. 2000 SC 665 it has been
observed by Hon'ble the Apex Court that it
is settled law that at the stage of framing
charge, the Court has to prima facie
consider whether there is sufficient ground
for proceeding against the accused. The
Court is not required to appreciate the
evidence and arrive at the conclusion that
the materials produced are sufficient or not
for convicting the accused. If the Court is
satisfied that a prima facie case is made out
for proceeding further then a charge has to
be framed.

13. In case at hand, from perusal of
the F.I.R., statement of injured Anil Kumar
and other evidence collected by the I.O.
there was sufficient material to proceed
against the applicant/accused. In view of
the above discussion there is no illegality in
the impugned order, the application is
liable to be dismissed.

14. Consequently prayer for quashing
the impugned order is refused.

15. This application under Section
482 Cr.P.C. is accordingly, dismissed.
----------
(2020)09ILR A1019
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.06.2020

BEFORE

THE HON'BLE ALI ZAMIN, J.

Application U/S 482 No. 10567 of 2020

Bhoop Kishor Saini & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Rajesh Kumar Mishra
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Sections 188/171 and 127 Representation
of the People Act- Code of Criminal
Procedure, 1973- Section 468 (2) (b)-
Complaint case filed after one year- Barred
by limitation- For the offence of Section
171H of IPC maximum punishment provided
is fine of Rs.500/- and for the offences u/s
188 IPC and Section 127 Representation of
the People Act, six months imprisonment is
provided for each offence, therefore, in view
of the provision of Section 468 (2) (b)
Cr.P.C. the complaint should have been filed
within a period of one year from the date of
incident but it has been filed beyond one
year from the date of incident.

In view of the period of limitation provided u/s
468 (2) (b) of the Cr.Pc, the complaint filed in a
case where the punishment provided is six
months, would be barred by limitation and the
same would not be maintainable.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 468 (2) (b)- It is
well settled that for the purpose of
computing the period of limitation u/s 468
Cr.P.C. the relevant date is the date of
filing of the complaint or the date of
institution of prosecution. Chapter XXXVI
provides limitation period for certain types
of offences for which lesser sentence is
provided which is based on the policy of
law to assist the vigilant and not the
sleepy as expressed in Latin maxim
vigilantibus et non dormientibus. The
complaint filed by the complainant and on
it cognizance taken by the Magistrate in
view of law laid down by Hon'ble Supreme
Court and Section 468 (2) (b) Cr.P.C. is
barred by time.

The period of limitation as provided under
Section 468 (2) (b) of the Cr.Pc is based on the
maxim of vigilantibus et non dormientibus and is
therefore to assist the vigilant. Therefore, a time
barred complaint cannot be entertained in view
of the law settled by the Hon'ble Supreme
Court.
Criminal Application allowed. (Para 9, 12,
13) (E-3)

Case law relied upon/ Discussed: -

1. St. of Punj. Vs Sarwan Singh (1981) 3 SCC 34

2. Japani Sahoo Vs Chandra Sekhar Mohanty
(2007) 7 SCC 394

3. Sarah Mathew Vs Institute of Cardio Vascular
Diseases by its Dir. Dr. K.M. Cherian & ors
(2014) 2 SCC 62:

4. (2014) 1 SCC (Crl.) 721: 2013 SCC OnLine SC
1043

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard learned counsel for the
applicants, learned AGA for the State and
perused the record.

2. This Application has been filed
under Section 482 Cr.P.C. for quashing the
entire proceeding of Complaint Case
No.6161 of 2018 (State vs. Bhoop Kishor
& another), under Sections 188, 171 IPC
and 127 Representation of the People Act,
P.S. Kotwali, District Rampur, pending in
the court of Chief Judicial Magistrate,
Moradabad.

3. As per complaint (Annexure-1 of
the application) in sequence of General
Vidhan Sabha Election-2017, orders for
Model Code of Conduct and Section 144
Cr.P.C. were promulgated and during the
effect of the above orders, on 12.2.2017 at
about 10:15 a.m., accused Bhoop Kishor
Saini (Shiv Sena Candidate) and Vishal
Sharma along with 40-50 motorcycles and
10-15 cars came to Imperial Trivium
(Tiraha) Crossing by holding a roadshow
where
Sub
Inspector-Pramod
Kumar
Sharma, on duty, and employees demanded
permission of roadshow, which they could
9 All. Bhoop Kishore Saini & Anr. Vs. State of U.P. & Anr.
1021
not show it, thus, they committed offence
u/s 188 IPC. The procession was dispersed
by the police and by registering Case Crime
No.97/17, u/s 188/171H of IPC and 127
Representation of the People Act, matter
was investigated and prima facie case was
found
against
the
accused-applicants.
Names and addresses of the other accused
persons could not be traced. According to
Section 195 (1) Cr.P.C., a complaint should
be filed by the competent officer in the
matter, therefore, a complaint was filed. As
per FIR, Annexure-2 of the application,
Case Crime No.0097/2017, under Sections
188/171-H IPC and 127 Representation of
the People Act, was registered against the
applicants to the same aspect.

4. Learned counsel for the applicants
submits that applicant no.1-Bhoop Kishor
Saini was permitted by the competent
authority for holding a roadshow of 100
cars and 200 motorcycles on 12.2.2017
since 11.00 A.M. to 4.00 P.M., vide its
order dated 12.2.2017, but according to
complaint only 40 to 50 motorcycles and
10 to 15 cars were used for the roadshow,
therefore, in view of the permission granted
by the competent authority, they have not
flouted any order, hence, no offence of
Section 171H of IPC has been committed
by them. He further submits that for the
offences u/s 171H & 188 IPC, 1860 and
127 Representation of the People Act,
1950, punishment provided is fine of
Rs.500/- and six months imprisonment
each, respectively. As per complaint
version, the offence has been committed on
12.2.2017 and maximum sentence provided
for the offences is six months, therefore,
complaint should have been filed within a
period of one year as provided in Section
468 Cr.P.C. but complaint has been filed
after a period of one year i.e. on 15.6.2018,
which is barred by time, but court below
has not considered this aspect while
passing the impugned order, therefore, it is
not sustainable and liable to be quashed.

5. Learned AGA opposed the prayer of
the applicants by contending that permission
was granted on 12.2.2017 for a fixed period i.e.
from 11:00 a.m. to 4:00 p.m. but applicants had
held a roadshow on 12.2.2017 at 10:15 a.m. and
on a demand by complainant, they could not
show the permission.

6. In the instant case the issue
involved for consideration is, whether,
complaint filed against the applicants is
time barred and in view of Section 468 (2)
(b) Cr.P.C. it is liable to be quashed.

7. As per impugned summoning order
dated 15.6.2018, a complaint, on the same
day, was presented by Sub Inspector-Pramod
Kumar Sharma against applicants-Bhoop
Kishor Saini and Vishal Sharma, under
Sections
188/171
IPC
and
127
Representation of the People Act, which was
registered as a Complaint Case No.6161 of
2018 and learned Magistrate considering that
complainant is a public servant, so there is no
necessity to record statement u/s 200 Cr.P.C.
and forming the opinion that from the
available evidence on record offences, under
Sections
188/171
IPC
and
127
Representation of the People Act, appear to
have been committed by applicants-Bhoop
Kishor Saini and Vishal Sharma, accordingly,
they were summoned for the date 26.7.2018.

8. For proper appreciation of the
matter and ready reference Sections 171H
and
188
IPC,
Section
127
the
Representation of the People Act, 1950 and
Section 468 Cr.P.C. are quoted below :-

"Section 171H IPC: Whoever
without the general or special authority in
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
writing of a candidate incurs or authorizes
expenses on account of the holding of any
public meeting, or upon any advertisement,
circular or publication, or in any other way
whatsoever for the purpose of promoting or
procuring the election of such candidate,
shall be punished with fine which may
extend to five hundred rupees;

Provided that if any person having
incurred any such expenses not exceeding the
amount of ten rupees without authority obtains
within ten days from the date on which such
expenses were incurred the approval in writing
of the candidate, he shall be deemed to have
incurred such expenses with the authority of the
candidate."

"Section 188 IPC: Disobedience to
order
duly
promulgated
by
public
servant.?Whoever, knowing that, by an order
promulgated by a public servant lawfully
empowered to promulgate such order, he is
directed to abstain from a certain act, or to
take certain order with certain property in his
possession or under his management, disobeys
such direction, shall, if such disobedience
causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction,
annoyance or injury, to any person lawfully
employed,
be
punished
with
simple
imprisonment for a term which may extend to
one month or with fine which may extend to
two hundred rupees, or with both; and if such
disobedience causes or trends to cause danger
to human life, health or safety, or causes or
tends to cause a riot or affray, shall be
punished
with
imprisonment
of
either
description for a term which may extend to six
months, or with fine which may extend to one
thousand rupees, or with both."

"Section 127 the Representation
of the People Act, 1950: Disturbances at
election meetings.?

(1) Any person who at a public
meeting to which this section applies acts, or
incites others to act, in a disorderly manner
for the purpose of preventing the transaction
of the business for which the meeting was
called together, 1[shall be punishable with
imprisonment for a term which may extend to
2[six months or with fine which may extend
to two thousand rupees], or with both]].
3[(1A) An offence punishable under subsection (1) shall be cognizable.]

(2)This section applies to any
public meeting of a political character held
in any constituency between the date of the
issue of a notification under this Act calling
upon the constituency to elect a member or
members and the date on which such
election is held.

(3)If any police officer reasonably
suspects any person of committing any offence
under sub-section (1), he may, if requested so to
do by the chairman of the meeting, require that
person to declare to him immediately his name
and address and, if that person refuses or fails
so to declare his name and address, or if the
police officer reasonably suspects him of giving
a false name or address, the police officer may
arrest him without warrant."

"Section 468 Cr.P.C: 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
9 All. Bhoop Kishore Saini & Anr. Vs. State of U.P. & Anr.
1023

1. Provisions of this Chapter
shall not apply to certain economic
offences, see the Economic Offences
(Inapplicability of Limitation) Act, 1974
(12 of 1974 ), s. 2 end Sch.

(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 term
exceeding one year but not exceeding three
years.

(3) For the purposes of this
section, the period of limitation in relation
to offences which may be tried together,
shall be determined with reference to the
offence which is punishable with the more
severe punishment or, as the case may be,
the most severe punishment."

9. From the above provisions, it is
crystal clear that for the offence of Section
171H
of
IPC
maximum
punishment
provided is fine of Rs.500/- and for the
offences u/s 188 IPC and Section 127
Representation of the People Act, six
months imprisonment is provided for each
offence, therefore, in view of the provision
of Section 468 (2) (b) Cr.P.C. the
complaint should have been filed within a
period of one year from the date of incident
i.e. 12.2.2017, but it has been filed on
15.6.2018, which is beyond one year from
the date of incident.

10. To decide the issue involved in
the instant case, it will be apt to refer the
following cases :-

In the case of State of Punjab v.
Sarwan Singh (1981) 3 SCC 34 (supra)
respondent accused was charged u/s 406
IPC for misappropriating the amounts
deposited with him as a cashier. The
challan was presented against him on
13.10.1976. The trial court acquitted him of
the charge u/s 408 IPC but convicted u/s
406 IPC and sentenced him to rigorous
imprisonment for one year and to pay a fine
of Rs.1000/-. The respondent then filed an
appeal to the High Court which was
allowed and respondent was acquitted,
mainly on the ground that prosecution
launched against the respondent was clearly
barred by limitation under Sections 468 and
469 Cr.P.C. According to High Court,
charge-sheet
clearly
shows
that
the
embezzlement is said to have been
committed on 22nd August, 1972 and audit
report, through which, the offence was
detected is dated 5th January, 1973. Taking
any of these dates, prosecution was barred
by limitation u/s 468(2) (b) Cr.P.C. Hon'ble
Apex Court has held that-

"The object which the statutes seek
to subserve is clearly in consonance with the
concept of fairness of trial as enshrined in
Article 21 of the Constitution of India. It is,
therefore, of the utmost importance that any
prosecution, whether by the State or a private
complainant must abide by the letter of law or
take the risk of the prosecution failing on the
ground of limitation. The prosecution against
the respondent being barred by limitation the
conviction as also the sentence of the
respondent as also the entire proceedings
culminating
in
the
conviction
of
the
respondent herein become non-est. For these
reasons, given above, the Court hold that the
point of law regarding the applicability of
Section 468 Cr.P.C. has been correctly
decided by the Punjab and Haryana High
Court."

11. In Japani Sahoo vs. Chandra
Sekhar Mohanty (2007) 7 SCC 394, in
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
para 52 of the judgment, Hon'ble Supreme
Court has held that for the purpose of
computing the period of limitation, the
relevant date must be considered as the date
of filing of complaint or initiating criminal
proceedings and not the date of taking
cognizance by a Magistrate or issuance of
process by a court and in Krishna Pillai vs.
T.A. Rajendran, 1990 SCC (Crl.) 646, it
was held that no court shall take
cognizance of any offence under Section 9
of the Child Marriage Restraint Act, 1929
after the expiry of one year from the date
on which offence is alleged to have been
committed. In view of contrary opinion,
matter was referred to constitution bench
for consideration whether for the purpose
of computing the period of limitation u/s
468 Cr.P.C. relevant date is date of filing of
the complaint or the date of institution of
the prosecution or whether the relevant date
is the date on which a Magistrate takes
cognizance of the offence. Constitution
Bench in Sarah Mathew vs. Institute of
Cardio Vascular Diseases by its Director
Dr. K.M. Cherian and others (2014) 2
SCC 62: (2014) 1 SCC (Crl.) 721: 2013
SCC OnLine SC 1043, in para 51 of the
judgment has held that for the purpose of
computing the period of limitation u/s 468
Cr.P.C. the relevant date is the date of
filing of the complaint or the date of
institution of prosecution and not the date
on which the Magistrate takes cognizance.

12. Thus, from the law laid down by
the Hon'ble Apex Court in the above cases,
it is well settled that for the purpose of
computing the period of limitation u/s 468
Cr.P.C. the relevant date is the date of
filing of the complaint or the date of
institution of prosecution.

13. In the criminal procedure code
Chapter XXXVI provides limitation period
for certain types of offences for which
lesser sentence is provided which is based
on the policy of law to assist the vigilant
and not the sleepy as expressed in Latin
maxim vigilantibus et non dormientibus. In
the instant case, for the offences of
Sections 171H & 188 IPC and 127
Representation of the People Act, the
incident alleged to have occurred on
12.2.2017 and complaint has been filed on
15.6.2018, which is beyond a period of
more than one year. For the offences
maximum punishment provided is six
months and as per Section 468 (2) (b)
Cr.P.C.
an
offence
punishable
with
imprisonment for a term not exceeding one
year, period of limitation shall be one year
thus the complaint filed by the complainant
and on it cognizance taken by the
Magistrate in view of law laid down by
Hon'ble Supreme Court in Sarah Mathew
vs. Institute of Cardio Vascular Diseases
by its Director Dr. K.M. Cherian and
others (supra) and Section 468 (2) (b)
Cr.P.C. is barred by time. The Magistrate
concerned while passing the impugned
order has not considered the law of
limitation for taking cognizance in the
matter, therefore, cognizance taken on
15.6.2018 by the Magistrate on complaint
regarding incident of 12.2.2017 for the
offences is against Section 468 (2) (b)
Cr.P.C. as well as law laid down by
Hon'ble Supreme Court in State of Punjab
v. Sarwan Singh (supra).

14. Having considered the facts and
circumstances of the case, submissions
advanced by learned counsel for the parties,
as discussed herein above, and legal
position on the point, the Court is of the
opinion that the impugned order dated
15.6.2018 contradicts Section 468 (2) (b)
Cr.P.C. as well as law laid down by
Hon'ble Supreme Court in State of Punjab
9 All. Parveen Kumar & Ors. Vs. State of U.P. & Anr.
1025
v. Sarwan Singh (supra), therefore, no
useful
purpose
will
be
served
by
prolonging the proceeding of the above
mentioned complaint case and to secure
ends of justice, it is a fit case to quash the
entire proceeding of complaint case by
invoking the power provided u/s 482
Cr.P.C. Accordingly, the proceedings in the
aforesaid case are, hereby, quashed and the
application is allowed.

15. A copy of this order be
transmitted
to
the
lower
court
for
compliance.
----------
(2020)09ILR A1025
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.06.2020

BEFORE

THE HON'BLE ALI ZAMIN, J.

Application U/S 482 No. 11344 of 2020

Parveen Kumar & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Avinash Pandey

Counsel for the Opposite Parties:
A.G.A., Sri Dinesh Kumar Yadav

Criminal Law - Code of Criminal Procedure,
1973- Section 482- Indian Penal Code-
Section
320-
Quashing
of
criminal
proceedings on basis of compromise - NonCompoundable
offences
-
Matrimonial
dispute - Offence under section 498A IPC is
non-compoundable - Hon'ble Supreme Court
has held that High Court in exercise of its
inherent
power
can
quash
criminal
proceedings or FIR or complaint and section
320 of the Code does not limit or affect the
powers under Section 482 of the Code but
while exercising such power the High Court
has to consider the facts and circumstances
of each case. FIR, complaint or the criminal
case
having
overwhelmingly
and
predominatingly civil flavour, arising out of
matrimony relating to dowry, etc.or the
family disputes where the wrong is basically
private or personal in nature and entire
dispute has been resolved between the
parties, possibility of conviction is remote
and bleak in such case the prosecution
becomes a lame prosecution and pursuing
such prosecution would be wastage of time
and energy as well as it will unsettle the
compromise and obstruct restoration of
peace, and continuation of criminal case
would put the accused to great oppression
and prejudice and extreme injustice would
be caused to him by not quashing the
criminal case and the High Court is
convinced that quashing of such proceeding
on account of compromise would bring
peace and would secure ends of justice it
should not hesitate to quash them.

It is settled law that in the exercise of its
inherent powers u/s 482 of the Cr.Pc, the High
Court can quash the criminal proceedings in the
event of the parties arriving at a compromise
even in non-compoundable offences, provided
the offences are not heinous or grave and are
either matrimonial or civil disputes in nature and
the possibility of the court securing the
conviction of the accused as a result of
compromise is remote or impossible.

In view of the compromise arrived at between
the parties, there is unpropitious chance of
conviction in the instant case. In such a
situation it will be ineffective prosecution and
continuing the criminal proceeding before the
court below will be nothing but a dawdle and an
otiose exercise only.

Criminal Application allowed. (Para 22, 23) (E-3)

Case law relied upon/ Discussed: -

1. B.S.Joshi Vs St. of Har., 2003 (4) SCC 675,

2. Nikhil Merchant Vs C. B.I & anr., (2008) 9 SCC 677

3. Gian Singh Vs St. of Punj. & anr, (2012) 10
SCC 303,