# Ram Bux & Ors v. The State of U.P. & Anr

- **Citation:** (2024) 8 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Application U/s 482 No. 556 of 2014
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bux-ors-v-the-state-of-u-p-anr-52406
- **Pages:** 7

## Headnote

Law
-
Criminal
Procedure
Code,1973 -Section 473 - charge sheet filed
after more than three and a half (31⁄2) years
from the date of N.C.R.- the said charge sheet
ought to have been construed as a complaint
and the investigating officer to be a complainant
u/s
2(d)
of
Cr.P.C.,-therefore,
taking
a
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of offence after three and a half
(31⁄2) years by the learned Magistrate is barred
by limitation u/s 468 (2)(c) -cognizance of the
offence after three years from the date of
offence which are punishable with maximum
sentence
of
one
year
and
two
years
respectively- no occasion to condone the delay
u/s 473 Cr.P.C. before taking cognizance
impugned order is without jurisdiction.

Application allowed. (E-9)

List of Cases cited:

## Text

8 All. Ram Bux & Ors. Vs. The State of U.P. & Anr.
1111
Act, 1860. Power to refuse the registration
of the society cannot be enlarged to the
extent so as to confer a power upon the
Registrar to cancel the registration of the
society with the same name.

21. It is true that apart from certain
special statutes which entitle companies or
persons to the exclusive use of a name or a
mark, such as the Companies Act or the
Trade Marks Act, a man has no exclusive
proprietary rights in a fancy name or title,
and normally and principally, it is in
relation to the user of a name associated
with a certain businesses or trading concern
or some profession that the Court affords
protection
and
grants
an
injunction
restraining the adoption and use of such a
name by another when the Court is satisfied
that damage has been caused or there is
tangible risk or possibility of a damage
resulting from confusion caused in the
public mind or in other words by reason of
the public being deceived by the use of
such name."

22. It is, thus, clear that only
Courts of law have been conferred a power
to grant an injunction restraining the
adoption and use of the same name when
the Court is satisfied that damage has been
caused or there is tangible risk or,
possibility of a damage resulting from
confusion caused in public mind, or the
public being deceived by the use of the
identical name and style. This power to
grant injunction against the use of same
name and style as recognised by the Courts
of law is based upon a cause established by
the
plaintiff
of
likelihood
damage/confusion to be caused in the mind
of the public. Thus, it is established beyond
doubt that it is for the respondents to have
initiated
suitable
Civil
Injunction
Proceedings, if they had any apprehension
of misuse of the name of the respondent by
the subsequent society being registered.
The claim, if any, so pleaded would be
adjudged by the Civil Court, on the basis of
evidence led and the extent of damage/loss,
which may be caused. However, they
cannot be permitted to invoke the authority
of the Registrar himself to cancel the
registration.

23. In such circumstances, order
dated 28.08.2009 passed by the Deputy
Registrar, Firms Societies and Chits, U.P.
Faizabad as well as order dated 13.01.2010
passed by the Commissioner, Faizabad
Division, Faizabad, cannot be legally
sustained and are, hereby, quashed.

24.

The
writ
petition
is,
accordingly, allowed.
----------
(2024) 8 ILRA 1111
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.08.2024

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Application U/s 482 No. 556 of 2014

Ram Bux & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Vipin Kumar Mishra

Counsel for the Respondent:
G.A., Jitendra Bahadur Singh

Criminal
Law
-
Criminal
Procedure
Code,1973 -Section 473 - charge sheet filed
after more than three and a half (31⁄2) years
from the date of N.C.R.- the said charge sheet
ought to have been construed as a complaint
and the investigating officer to be a complainant
u/s
2(d)
of
Cr.P.C.,-therefore,
taking
a
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of offence after three and a half
(31⁄2) years by the learned Magistrate is barred
by limitation u/s 468 (2)(c) -cognizance of the
offence after three years from the date of
offence which are punishable with maximum
sentence
of
one
year
and
two
years
respectively- no occasion to condone the delay
u/s 473 Cr.P.C. before taking cognizance
impugned order is without jurisdiction.

Application allowed. (E-9)

List of Cases cited:

1. M/S. Pepsi Foods Ltd. & anr.Vs Special
Judicial Magistrate & ors., 1998 (5) SCC 749

2. Sarah Mathew Vs Inst., Cardio Vascular
Diseases & ors., 2014 (1) SCC 721

3. P.K. Choudhury Vs Commander, 48 Brtf
(Gref), 2008 SCC Online SC 510

4. Rakesh Kumar Sharma Vs St. of U.P. & anr.,
2007 ADJ 478

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Shri Vipin Kumar Mishra,
learned Counsel for the applicants and Shri
Arvind Kumar Tripathi, learned A.G.A.-I
for the State respondent.

2. The applicants by invoking the
inherent powers of this Court under Section
482 of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.') have
challenged the summoning order dated
07.12.2013 passed by Judicial MagistrateIII, Faizabad in Case No.1197/2012, State
Vs. Ram Ajore & others, arising out of
N.C.R. No. 85 of 2008, under Sections 323,
504, 506 I.P.C., Police Station Gosainganj,
District Faizabad as well as the impugned
charge sheet dated 10.04.2012, submitted in
N.C.R. No.85/2008, under Sections 323,
504, 506 I.P.C. along with the entire
proceedings of Case No.1197/2012.

3. Briefly stating, the story put
forth by the prosecution is that as the
complainant was on his way to his house
from the field he was abused by the
applicants and one Ram Ajore with fists
and kicks in front of the house of Hari
Ram. Further it has been alleged that the
complainant was threatened and even when
his wife came to save him, she was also
beaten by them which led to the lodging of
N.C.R. No. 85 of 2008 on 03.09.2008
under Sections 323, 504 and 506 I.P.C.

4. Although, learned Counsel for
the applicants has disputed the aforesaid
facts and claimed that the applicants as well
as
opposite
party
no.2/complainant
belonged to the same village, there was
partibandi and the story put forth is
concocted and false. However, the fulcrum
of the argument of the learned Counsel for
the applicants are two fold; firstly, he has
argued that Explanation appended to
Section 2(d) of Cr.P.C. provided that a
report made by the police officer in a case
which
discloses,
after
investigation,
commission of a non-cognizable offence
shall be deemed to be a complaint and the
Investigating Officer, who has made the
said report, shall be deemed to be a
complainant and as such the same ought to
have been proceeded as per procedure laid
down for treating the same as a complaint
and no cognizance could have been taken
on the said report treating the same as a
police report as has been sought to be done
in the impugned summoning order dated
07.12.2013. The second leg of argument
addressed by the learned Counsel for the
applicants is relating to limitation for
taking cognizance by the Magistrate in
view of Section 468 of Cr.P.C. According
to
learned
Counsel,
admittedly,
the
Investigating Officer has filed a report and
a cognizance of the same has been taken by
8 All. Ram Bux & Ors. Vs. The State of U.P. & Anr.
1113
the learned Magistrate after expiry of more
than three and a half (31⁄2) years for an
offence which prescribes the minimum
punishment of one year. Thus, according to
him, the said cognizance is clearly barred
by limitation under Section 468 Cr.P.C. and
the present impugned summoning order as
well as the entire proceedings is bad in law
specially when there is no compliance or
application of Section 473 Cr.P.C. relating
to explanation for condoning the delay.

5. It has been pointed out by
learned Counsel for the applicants that
while entertaining the present application,
the
entire
proceedings
in
Case
No.1197/2012 was stayed by a Co-ordinate
Bench of this Court vide order dated
14.02.2014.

6. Learned Additional Government
Advocate, on the other hand, opposed the
submissions made by the learned Counsel
for the applicants.

7. Having heard the learned
Counsel for the parties and gone through
the record available before this Court, this
Court finds that charge-sheet in N.C.R. No.
85 of 2008 has been filed by the
Investigating Officer under Sections 323,
504 and 506 I.P.C. So far as the offence
under Section 323 I.P.C. is concerned,
maximum punishment
that
could
be
awarded for the offence is one year and fine
up to Rs.1000/-, whereas for the offence
under Sections 504 and 506 I.P.C. is
concerned,
the
maximum
punishment
awarded is of two years respectively.

8. First & foremost, it has to be
understood that cognizance indicates the
point when a Court takes judicial notice of
an offence with a view to initiating process
in respect of the offence. Cognizance is
entirely
different
from
initiation
of
proceedings, rather it is the condition
precedent to the initiation of proceedings
by the Court. Cognizance is taken of the
case and not of a person. Under Section
190 of Cr.P.C., it is the application of mind
to the averments in the complaint that
constitute cognizance. The stage of process
is not relevant for the purpose of computing
limitation under Section 468 of Cr.P.C.

9. It is not disputed that the
offences under Sections 323, 504 and 506
I.P.C. are non-cognizable, hence in view of
the Explanation to Section 2 (d) of Cr.P.C. a
case could not proceed as a State case and
it has to proceed as a complaint case. That
Explanation of 2(d) of Cr.P.C. reads as
under :-

"Explanation.-A
report
made by a police officer in a case
which discloses, after investigation,
the commission of a non-cognizable
offence shall be deemed to be a
complaint, and the police officer by
whom such report is made shall be
deemed to be the complainant."

10. Thus, in view of the said
explanation, charge-sheet submitted by the
Investigating Officer, after investigation,
disclosing commission of non-cognizable
offence is to be deemed to be a complaint
and a police officer, who submitted the
report, has to be deemed to be a
complainant. In other words, the charge
sheet submitted by the police in a noncognizable offence shall be treated to be a
complaint and the procedure prescribed for
claiming a complaint case shall be
applicable to the case.

11. In the present case, the learned
Magistrate, instead of treated the charge
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet submitted by the Investigating Officer
as a complaint, took cognizance of it as a
State case by the impugned summoning
order dated 07.12.2013, which is not
permissible under law.

12. Further issuance of process of
summons is not an empty formality. The
Hon'ble Supreme Court in the case of M/S.
Pepsi Foods Ltd. & Anr vs Special
Judicial Magistrate & Ors. : 1998 (5)
SCC 749 has held that summoning of an
accused in a criminal case is a serious
matter. Criminal law cannot be set in
motion as a matter of course for alleged
offence. It would be apt to take note of para
28 of the aforesaid judgment, which reads
as thus :-

"28. Summoning of an
accused in a criminal case is a
serious
matter.
Criminal
law
cannot be set into motion as a
matter of course. it is not that the
complainant has to bring only two
witnesses to support his allegations
in the complaint to have the
criminal law set into motion. The
order of the magistrate summoning
the accused must reflect that he has
applied his mind to the facts of the
case
and
the
law
applicable
thereto. He has to examine the
nature of allegations made in the
complaint and the evidence both
oral and documentary in support
thereof and would that be sufficient
for the complainant to succeed in
bringing charge home to the
accused.
It
is
not
that
the
Magistrate is a silent spectator at
the time of recording of preliminary
evidence before summoning of the
accused.
Magistrate
has
to
carefully scrutinise the evidence
brought on record and may even
himself
put
questions
to
the
complainant and his witnesses to
elicit answers to find out the
truthfulness of the allegations or
otherwise and then examine if any
offence is prima facie committed by
all or any of the accused."

13. In the present case, this Court
finds that the learned Magistrate did not
even care to note that as to whether the
offences, for which the charge-sheet has
been filed by the police, is as to whether
cognizable or not, so to expect that there
had been any application of mind would be
a misnomer. Apparently, the summoning
order dated 07.12.2013 seems to have been
issued in a routine manner, which cannot
withstand the parameters of Sections
203/204 of Cr.P.C. and is liable to be set
aside.

14. Further, there is another aspect
of the matter. At this stage, it would be apt
to refer to the provisions of Sections 468,
469 and 473 Cr.P.C., which read thus:-

"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;
1.
Provisions
of
this
Chapter shall not apply to certain
economic
offences,
see
the
Economic Offences (Inapplicability
8 All. Ram Bux & Ors. Vs. The State of U.P. & Anr.
1115
of Limitation) Act, 1974 (12 of
1974), s. 2 and Sch. 191(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. [(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.]
469. Commencement of
the period of limitation.-(1) The
period of limitation, in relation to
an offender, shall commenc-
(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
the
offence, whichever is earlier.
(2) In computing the said
period, the day from which such
period is to be computed shall be
excluded;
473. Extension of period
of limitation in certain casesNotwithstanding
anything
contained
in
the
foregoing
provisions of this Chapter, any
Court may take cognizance of an
offence after the expiry of the
period of limitation, if it is satisfied
on
the
facts
and
in
the
circumstances of the case that the
delay has been properly explained
or that it is necessary so to do in
the interests of justice."

15. Section 468 Cr.P.C.
clearly mandates that no Court
shall take cognizance of an offence
after the period of limitation of
three years if the offence is
punishable with imprisonment for a
term exceeding one year, but not
exceeding three years. Further,
Section 469 Cr.P.C. also makes it
amply clear that the period of
limitation, in relation to an offender
shall commence on the date of the
offence.

16. In the present case, the
date of offence of reporting of
N.C.R. is of 03.09.2008 and the
impugned charge sheet has been
filed on 10.04.2012 and the learned
Magistrate has issued the summons
on 07.12.2013. Apparently, the
charge sheet itself has been filed
after more than three and a half
(31⁄2) years from the date of N.C.R.
and since the said charge sheet
ought to have been construed as a
complaint and the investigating
officer to be a complainant in view
of Explanation of Section 2(d) of
Cr.P.C.,
therefore,
taking
a
cognizance of offence after three
and a half (31⁄2) years by the learned
Magistrate is barred by limitation
as per Section 468 (2)(c) of Cr.P.C..
Further, it is neither case of the
parties that any application under
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 473 Cr.P.C. has been filed
or that the learned Magistrate has
passed any order under Section 473
Cr.P.C. justifying the issuance of
the impugned summoning order
dated 07.12.2013.

17. The Hon'ble Supreme
Court in the case of Sarah Mathew
Vs.
Inst.,
Cardio
Vascular
Diseases & Ors., 2014 (1) SCC
721 had an occasion to consider the
scope and ambit of Sections 468
and 473 Cr.P.C. The Hon'ble
Supreme Court observed as under
:-

"In view of the
above, we hold that for the
purpose of computing the
period of limitation under
Section 468 of the 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.
We
further
hold
that
Bharat
Kale
which is followed in Japani
Sahoo
lays
down
the
correct law. Krishna Pillai
will have to be restricted to
its own facts and it is not
the authority for deciding
the question as to what is
the relevant date for the
purpose of computing the
period of limitation under
Section 468 of the Cr.P.C."

18. A similar view has been take
by Hon'ble the Supreme Court in the case
of P.K. Choudhury Vs. Commander, 48
Brtf (Gref), 2008 SCC Online SC 510.
The relevant paragraph of the decision
reads as under :-

"As an option to get the
appellant tried in a ordinary
criminal court had been exercised
by the respondent, there cannot be
any doubt whatsoever that all the
pre-requisites therefor in regard to
the period of limitation as also the
necessity to obtain the order of
sanction were required to be
complied with.
A Court of law cannot take
cognizance of an offence, if it is
barred by limitation. Delay in filing
a complaint petition therefore has
to be condoned. If the delay is not
condoned, the court will have no
jurisdiction to take cognizance.
Similarly unless it is held that a
sanction was not required to be
obtained, the court's jurisdiction
will be barred."

19. Even in the case of Rakesh
Kumar Sharma Vs. State of U.P. and
another, 2007 ADJ 478 specifically para
nos.5 and 6, a Co-ordinate Bench of this
Court has considered the matter wherein
FIR was lodged under Section 307 I.P.C.,
but
subsequently
charge
sheet
was
submitted under Section 504 I.P.C. The
Court concluded that it should not be
proceeded as a police case which is barred
under the Explanation of Section 2(d) of
Cr.P.C. The relevant para nos. 5 and 6 are
reproduced hereinafter :-

"5. He submitted that in the
present case originally the F.I.R.
was lodged under Section 307
I.P.C., but after investigation the
Investigating Officer came to the
8 All. Naseem Khan Vs. State of U.P. & Anr.
1117
conclusion that no offence under
Section 307 I.P.C. was made out
and only a case under Section 504
I.P.C. was made out against the
applicant and so a charge-sheet
under Section 504 I.P.C. was
submitted against the applicant. He
contended that in view of the
aforesaid Explanation to Section
2(d) Cr.P.C. the case could not
proceed as a police case in respect
of an offence punishable under
Section 504 I.P.C. because the
offence under Section 504 I.P.C. is
non-cognizable and so the case
could proceed only as a complaint
case in view of the aforesaid
Explanation.
6. The above contention of
the
learned
Counsel
for
the
applicant is correct. I, therefore,
allow
this
application
under
Section 482 Cr.P.C. to this extent
that the cognizance taken by the
Magistrate in the case on the basis
of the report of the police for the
offence punishable under Section
504 I.P.C. and the orders passed by
him for issuing warrant against the
applicant are hereby quashed. The
Magistrate shall not proceed with
the case as a State case but he shall
proceed with it as a complaint case
as provided in the Explanation to
Section 2(d) Cr.P.C. and he shall
follow the procedure prescribed for
hearing of a complaint case."

20. In view of the settled law, the
learned Magistrate-III, Faizabad ought to had
not proceeded on the police report without
applying judicial mind inasmuch as all the
offences as mentioned in the N.C.R. as noncognizable and proper course of the action for
the Magistrate was to treat the matter as
complaint under the provisions as enshrined
under Explanation to Section 2(d) Cr.P.C.
Further the Magistrate could not have taken
cognizance of the offence after three years
from the date of offence as the offences
alleged under Sections 323, 504, 506 I.P.C.
are punishable with maximum sentence of
one year and two years respectively. Further
perusal of the impugned order shows that the
learned Judicial Magistrate-III had no
occasion to condone the delay in terms of
Section 473 Cr.P.C. before taking cognizance,
therefore, the impugned order is without
jurisdiction.

21. This being the position, this
Court is of the considered view that the
instant application deserves to be allowed.

22. Consequently, the summoning
order dated 07.12.2013, passed by Judicial
Magistrate-III,
Faizabad
in
Case
No.1197/2012, State Vs. Ram Ajore & others,
under Sections 323, 504, 506 I.P.C., Police
Station Gosainganj, District Faizabad and all
other consequential proceedings emanating
therefrom are quashed.

23. The application is allowed.
----------
(2024) 8 ILRA 1117
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/s 482 No. 4472 of 2020
With
Application U/s 482 No. 5674 of 2020

Naseem Khan ...Applicant
Versus
State of U.P. & Anr. ...Respondents