Full Judgment Text
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CASE NO.:
Appeal (crl.) 942 of 2007
PETITIONER:
JAPANI SAHOO
RESPONDENT:
CHANDRA SEKHAR MOHANTY
DATE OF JUDGMENT: 27/07/2007
BENCH:
C.K. THAKKER & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 942 OF 2007
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL) NO. 4174 OF 2006
C.K. THAKKER, J.
1. Leave granted.
2. An important and interesting question of law has
been raised by the appellant in the present appeal which
is directed against the judgment and order passed by the
High Court of Orissa on June 20, 2006 in Crl. M. C. No.
5148 of 1998. By the said order, the High Court quashed
criminal proceedings initiated against the respondent-
accused for offences punishable under Sections 294 and
323 of the Indian Penal Code, 1860 (hereinafter referred
to as ’IPC’).
3. Brief facts of the case are that the appellant is a
complainant who is inhabitant of village Damana under
Chandrasekharpur Police Station. He had constructed
many shops on his land on the side of the main road of
Chandrasekharpur Bazar from which he was earning
substantial amount by way of rent. It is alleged by the
complainant that the accused was, at the relevant time,
Inspector of Police at Chandrasekharpur Police Station
and was aware that the complainant was receiving good
amount of income from shop rooms erected by him.
4. According to the complainant, on February 2, 1996,
a Constable of Chandrasekharpur Police Station came to
his house and informed him that he was wanted by
Officer-in-charge of the Police Station (Bada Babu) at 9
p.m. with monthly bounty. It was alleged by the
complainant that even prior to the above incident, he was
repeatedly asked by the accused to pay an amount of
Rs.5,000/- per month as illegal gratification, but he did
not oblige the accused. At about 9.30 p.m. on February
2, 1996, the complainant went to Chandrasekharpur
Police Station where the accused was waiting for him
anxiously to extract money. As soon as the complainant
entered the Police Station, the accused abused him by
using filthy language. The complainant was shocked.
The accused pushed him as a result of which he fell
down and sustained bodily pain. The accused also
threatened the complainant that if the latter would not
pay an amount of Rs.5,000/- by next morning, the
former would book him in serious cases like ’NDPS’ and
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dacoity. The complainant silently returned home. On the
next day, he went to his lawyer and narrated the
incident. His lawyer advised him to lodge a complaint
before a competent Court instead of lodging FIR against
the accused. Accordingly, on February 5, 1996, the
appellant filed a complaint being ICC Case No.45 of 1996
in the Court of Sub Divisional Judicial Magistrate
(SDJM), Bhubaneswar against the respondent-accused
for commission of offences punishable under Sections
161, 294, 323 and 506, IPC.
5. As stated by the appellant, the SDJM examined
witnesses produced by the appellant-complainant
between March 29, 1996 and July 24, 1996. The matter
was adjourned from time to time. Ultimately, on August
8, 1997, the learned Magistrate on the basis of statement
of witnesses, took cognizance of the complaint filed by
the complainant and issued summons fixing December
19, 1997 for appearance of accused observing inter alia
that on the basis of the statements recorded, prima facie
case had been made out for commission of offences
punishable under Sections 294 and 323, IPC.
6. According to the appellant, the summons was
served on the respondent-accused but he did not remain
present. After more than one year of issuance of
summons, non-bailable warrant was issued by the
learned Magistrate on September 23, 1998. The accused
thereafter surrendered on November 23, 1998. He,
however, filed a petition in the High Court of Orissa on
November 20, 1998 under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ’the
Code’) for quashing criminal proceedings contending,
inter alia, that no cognizance could have been taken by
the Court after the period of one year of limitation
prescribed for the offences under Sections 294 and 323,
IPC and the complaint was barred by limitation. A prayer
was, therefore, made by the accused to set aside order
dated August 8, 1997 as also order of issuance of non-
bailable warrant dated September 23, 1998 by quashing
criminal proceedings.
7. A counter was filed by the complainant
asserting that admittedly, the complaint was filed by him
in the Court of SDJM within three days of the incident
i.e. the incident took place on February 2, 1996 and the
complaint was filed on February 5, 1996. There was,
therefore, no question of the complaint being barred by
limitation. According to the complainant, the question of
limitation should be considered on the basis of an act of
filing complaint; and not an act of taking cognizance by
the Court. It was submitted that two acts, viz. (i) act of
filing complaint and (ii) act of taking cognizance are
separate, distinct and different. Whereas the former was
within the domain of the complainant, the latter was in
the exclusive control of the Court. The accused,
according to the complainant, was labouring under the
misconception that the ’countdown’ begins from the date
of taking cognizance by the Court and not from the date
of instituting a complaint by the complainant. It was,
therefore, submitted that the complaint was within time
and should be decided on merits.
8. The High Court, in the order impugned in the
present appeal, held that the date relevant and material
for deciding the bar of limitation under the Code was the
date of taking cognizance by the Court. Since the
offences under Sections 294 and 323 were punishable for
six months and one year respectively, cognizance thereof
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ought to have been taken within one year of the
commission of offences. Cognizance was admittedly taken
on August 8, 1997, i.e. after more than one year of the
commission of offences and as such, it was barred by
limitation under Section 468 of the Code. The learned
Magistrate had not condoned delay by exercising power
under Section 473 of the Code and hence, the complaint
was liable to be dismissed on the ground of limitation.
The proceedings were accordingly quashed. The
complainant has questioned the legality of the order
passed by the High Court.
9. We have heard the learned counsel for the
parties.
10. The learned counsel for the appellant
contended that the High Court committed an error of law
in holding that the complaint filed by the complainant
was barred by limitation. According to him, when the
complaint was filed within three days from the date of
incident complained of, the learned Magistrate was
wholly justified in proceeding with the said complaint
treating it within the period of limitation. It was stated
that the complainant produced his witnesses who were
examined between March 29, 1996 and July 24, 1996
and after taking into consideration the statements of
those witnesses and after application of mind, the
learned Magistrate took cognizance of offences and
issued summons under Sections 294 and 323, IPC. It
was also submitted that provisions of Section 468 must
be read reasonably by construing that the action must be
taken by the complainant of filing a complaint or taking
appropriate proceedings in a competent Court of Law.
Once the complainant takes such action, he cannot be
penalized or non-suited for some act/omission on the
part of the Court in not taking cognizance. It was
submitted that taking of cognizance was within the
domain of the Magistrate and not within the power,
authority or jurisdiction of the complainant and the act
of Court cannot adversely or prejudicially affect a party to
a litigation. It was also submitted that the respondent-
accused abused his position and misused his powers
and, by administering threat and intimidating the
complainant, wanted to extract money by resorting to
illegal means. The complainant, therefore, by proceeding
in a recognized legal mode, instituted a complaint and
there was no reason for the High Court to abruptly
terminate the proceedings half-way without entering into
merits of the matter. It was, therefore, submitted that the
appeal deserves to be allowed by setting aside the order
passed by the High Court and by directing the learned
Magistrate to decide the matter on merits.
11. The learned counsel for the respondent-
accused, on the other hand, supported the order passed
by the High Court. He submitted that the bar imposed by
the Code is against ’taking cognizance’ and not filing
complaint. The High Court properly interpreted Section
468, applied to the facts of the case and held that since
cognizance was taken by the Court after one year, the
provision of law had been violated and the complaint was
barred by limitation. No fault can be found against such
an order and the appeal deserves to be dismissed.
12. Before we proceed to deal with the question, it
would be appropriate if we consider the relevant
provisions of law. Chapter XXXVI (Sections 466-473) has
been inserted in the Code of Criminal Procedure, 1973
(new Code) which did not find place in the Code of
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Criminal Procedure, 1898 (old Code). This Chapter
prescribes period of limitation for taking cognizance of
certain offences. Section 467 is a ’dictionary’ provision
and defines the phrase ’period of limitation’ to mean the
period specified in Section 468 for taking cognizance of
an offence. Sub-section (1) of Section 468 bars a Court
from taking cognizance of certain offences of the category
specified in sub-section (2) after expiry of the period of
limitation. It is material and may be quoted in extenso.
Section 468. Bar to taking cognizance after
lapse of the period of limitation.\027(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\027
(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.
(3) For the purpose 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.
13. Section 469 declares as to when the period of
limitation would commence. Sections 470-471 provide for
exclusion of period of limitation in certain cases. Section
472 deals with ’continuing’ offences. Section 473 is an
overriding provision and enables Courts to condone delay
where such delay has been properly explained or where
the interest of justice demands extension of period of
limitation.
14. The general rule of criminal justice is that "a
crime never dies". The principle is reflected in the well-
known maxim nullum tempus aut locus occurrit regi (lapse
of time is no bar to Crown in proceeding against
offenders). The Limitation Act, 1963 does not apply to
criminal proceedings unless there are express and
specific provisions to that effect, for instance, Articles
114, 115, 131 and 132 of the Act. It is settled law that a
criminal offence is considered as a wrong against the
State and the Society even though it has been committed
against an individual. Normally, in serious offences,
prosecution is launched by the State and a Court of Law
has no power to throw away prosecution solely on the
ground of delay. Mere delay in approaching a Court of
Law would not by itself afford a ground for dismissing the
case though it may be a relevant circumstance in
reaching a final verdict.
15. In Assistant Collector of Customs, Bombay &
Anr. v. L.R. Melwani & Anr., (1969) 2 SCR 438 : AIR 1970
SC 962, this Court stated:
"This takes us to the contention whether
the prosecution must be quashed because of
the delay in instituting the same. It is urged on
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behalf of the accused that because of the delay
in launching the same, the present
prosecution amounts to an abuse of the
process of the Court. The High Court has
repelled that contention. It has come to the
conclusion that the delay in filing the
complaint is satisfactorily explained. That
apart, it is not the case of the accused that any
period of limitation is prescribed for filing the
complaint. Hence the court before which the
complaint was filed could not have thrown out
the same on the sole ground that there has
been delay in filing it. The question of delay
in filing a complaint may be a
circumstance to be taken into
consideration in arriving at the final
verdict. But by itself it affords no ground
for dismissing the complaint. Hence we see
no substance in the contention that the
prosecution should be quashed on the ground
that there was delay in instituting the
complaint". (emphasis supplied)
16. At the same time, however, ground reality also
cannot be ignored. Mere delay may not bar the right of
the ’Crown’ in prosecuting ’criminals’. But it also cannot
be overlooked that no person can be kept under
continuous apprehension that he can be prosecuted at
’any time’ for ’any crime’ irrespective of the nature or
seriousness of the offence. "People will have no peace of
mind if there is no period of limitation even for petty
offences".
17. The Law Commission considered the question
in the light of legal systems in other countries and
favoured to prescribe period of limitation for initiating
criminal proceedings of certain offences.
18. In the Statement of Objects and Reasons, it
had been observed;
"There are new clauses prescribing
periods of limitation on a graded scale for
launching a criminal prosecution in certain
cases. At present there is no period of
limitation for criminal prosecution and a Court
cannot throw out a complaint or a police
report solely on the ground of delay although
inordinate delay may be a good ground for
entertaining doubts about the truth of the
prosecution story. Periods of limitation have
been prescribed for criminal prosecution in the
laws of many countries and Committee feels
that it will be desirable to prescribe such
periods in the Code as recommended by the
Law Commission."
19. The Joint Committee of Parliament also
considered the following as sufficient grounds for
prescribing the period of limitation;
(1) As time passes the testimony of witnesses
becomes weaker and weaker because of lapse
of memory and evidence becomes more and
more uncertain with the result that the danger
of error becomes greater.
(2) For the purpose of peace and repose, it is
necessary that an offender should not be kept
under continuous apprehension that he may
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be prosecuted at any time particularly because
with multifarious laws creating new offences
many persons at sometime or other commit
some crime or the other. People will have no
peace of mind if there is no period of limitation
even for petty offences.
(3) The deterrent effect of punishment is impaired
if prosecution is not launched and punishment
is not inflicted before the offence has been
wiped off the memory of persons concerned.
(4) The sense of social retribution which is one of
the purposes of criminal law loses its edge
after the expiry of long period.
(5) The period of limitation would put pressure on
the organs of criminal prosecution to make
every effort to ensure the detection and
punishment of the crime quickly. (vide Report,
dated December 4, 1972; pp. xxx-xxxi)
20. It is thus clear that provisions as to limitation
have been inserted by Parliament in the larger interest of
administration of criminal justice keeping in view two
conflicting considerations;
(i) the interest of persons sought to be
prosecuted (prospective accused);
(ii) and organs of State (prosecuting agencies).
21. In State of Punjab v. Sarwan Singh, (1981) 3
SCR 349 : AIR 1981 SC 1054, this Court stated:
"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".
22. Bearing in mind the above fundamental
principles, let us examine the rival contentions and
conflicting decisions on the point.
23. Admittedly in the instant case, the offence was
alleged to have been committed by the accused on
February 2, 1996 and complaint was filed on February 5,
1996. It was punishable under Sections 294, 323, 161
read with 506, IPC. It is not in dispute that the learned
Magistrate took cognizance of an offence punishable
under Sections 294 and 323, IPC on August 8, 1997.
Concededly, the period of limitation for an offence
punishable under Sections 294 and 323 is six months
and hence, it was barred under Section 468 of the Code if
the material date is taken to be the date of congnizance
by the Magistrate.
24. The learned counsel for the parties drew our
attention to decisions of various High Courts as also of
this Court. From the decisions cited, it is clear that at
one time, there was cleavage of opinion on interpretation
of Section 468 of the Code. According to one view, the
relevant date is the date of filing of complaint by the
complainant. As per that view, everything which is
required to be done by the complainant can be said to
have been done as soon as he institutes a complaint.
Nothing more is to be done by him at that stage. It is,
therefore, the date of filing of complaint which is material
for the purpose of computing the period of limitation
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under Section 468 of the Code.
25. According to the other view, however, the law
places an embargo on Court in taking cognizance of an
offence after lapse of period of limitation and hence, the
material date is the date on which the Magistrate takes
cognizance of offence. If such cognizance is taken after
the period prescribed in sub-section (2) of Section 468 of
the Code, the complaint must be held to be barred by
limitation.
26. Let us consider some of the decisions on the
point.
27. In Jagannathan & Ors. v. State, 1983 Crl.LJ
1748 (Mad), an occurrence took place on March 2, 1981.
Investigation was completed by May 6, 1981 and the
Magistrate took cognizance for offences punishable under
Sections 448, 341 and 323, IPC on March 12, 1982 after
the expiry of period of limitation prescribed under clause
(b) of sub-section (2) of Section 468 of the Code.
28. Dismissing the complaint on the ground of
limitation, a single Judge of the High Court of Madras
observed;
"Therefore, when the punishments provided
for these offences are one year and less, the
cognizance of the offences ought to have been
taken within a period of one year from the date of
the offences. Indisputably the trial Court has
taken cognizance of the offences beyond the
statutory period of limitation of one year. On
that ground, the entire proceeding in C.C. 78 of
1982 on the file of the Court below is quashed\005."
29. In Court on its own motion v. Sh. Shankroo,
1983 Crl. LJ 63 (HP), the offence in question alleged to
have been committed by the accused was punishable
under Section 33 of the Forest Act, 1927 of illicit felling of
trees. The offence was punishable with imprisonment for
a term which may extend to six months or with fine
which may extend to five hundred rupees or with both. It
was said to have been committed by the accused on
March 26, 1979, but the challan was presented in the
Court on August 11, 1980, i.e. after a period of one year.
The Court held that the challan ought to have been filed
within one year and since it was not done, "the Court had
no jurisdiction to take cognizance of the offence". The
proceedings were, therefore, ordered to be dropped.
30. In Shyam Sunder Sarma v. State of Assam &
Ors, 1988 Crl. LJ 1560 (Gau), the Court held that
cognizance of offence ought to be taken within the period
of limitation. In Shyam Sunder, the offence in question
was punishable under Sections 448, 427, 336 and 323
read with 34, IPC. It was alleged to have been committed
on May 28, 1974. The matter was submitted before the
Magistrate on June 11, 1974. But after the investigation,
the police submitted the charge-sheet on December 8,
1978 and process was issued by the Magistrate on
January 2, 1979. It was held by the Court that the
cognizance could not be said to have been taken on June
11, 1974 when the matter was submitted to the
Magistrate, but only on January 2, 1979 when the
process was issued. It was clearly barred by limitation
and since the offence was not a "continuing offence"
within the meaning of Section 472 of the Code,
prosecution was barred by limitation.
31. In Bipin Kalra v. State, 2003 Crl LJ (NOC) 51
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(Del), the High Court held that valid cognizance in
respect of an offence punishable under Section 323, IPC
could be taken within one year ’from the date of
commission of offence’. Cognizance could not be taken
after lapse of that period.
32. In Dr. Harihar Nath Garg v. State of Madhya
Pradesh, (2003) 3 Crimes 412 (MP), the offence with
which the Court was concerned was punishable under
Section 491, IPC. The incident was of June 27, 1996 and
charge-sheet was filed on January 17, 1997, i.e. after a
period of six months. It was held to be barred by
limitation and the proceedings were quashed.
33. In Dandapani & Ors. v. State by Sub-Inspector
of Police, Tiruvannamalai Town, (2002) 1 Crimes 675
(Mad), offences punishable under Sections 147, 148, 325,
427, 323 and 324, IPC had been committed by the
accused on February 1, 1999. The case was registered
on the same day. Cognizance was taken by the
Magistrate on February 11, 2000 for an offence of affray
punishable under Section 160, IPC. It was held that
prosecution was barred by limitation and was liable to be
quashed. Referring to an earlier decision in ARU v. State,
1993 L.W. (Cri) 127, the Court observed that the
investigating agency and the prosecuting authority must
be aware of the Law of Limitation and its link to
cognizance contemplated under Section 468 of the Code
and they should perform their duties diligently.
34. There are, however, several decisions wherein
the courts have taken the view that the relevant date for
the purpose of deciding the period of limitation is the
date of filing of complaint or initiation of proceedings and
not of taking cognizance by a Magistrate or a Court.
35. The leading decision on the point is Kamal H.
Javeri & Anr. v. Chandulal Gulabchand Kothari & Anr. of
the High Court of Bombay reported in 1985 Crl. LJ 1215
(Bom). In that case, a complaint was filed for an offence
punishable under Section 500, IPC within the period of
limitation, but the process was issued by the
Metropolitan Magistrate after the prescribed period of
limitation. The Court was called upon to consider and
interpret Sections 468, 469 and 473 of the Code. The
Court examined the relevant provisions of the Code and
observed;
The Limitation Act prescribes the limitation
for taking action in the Court of law and if the
action is taken after the expiry of the period
prescribed under the Limitation Act, the remedy
is said to be barred. The same principle would
also apply while considering the question of
limitation provided under Section 468 of the Cr.
P.C. I may give an illustration to demonstrate
how the submission of Shri Vashi in connection
with the interpretation of Section 468, will lead to
illogical situation and disastrous result. It is also
well settled that a party can take action on the
last date of the limitation prescribed under the
Act. (1) Suppose a complaint is filed on the last
day of limitation prescribed under the Act and if
on that date the Magistrate is on leave and/or
otherwise unable to hear the party and/or apply
his mind to the complaint on that date then
naturally his complaint will have to be held
barred by limitation if arguments of Shri Vashi
are to be accepted.
(2) Suppose a complaint is filed quite in advance
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before the expiry of the period of limitation and if
the Magistrate in his discretion postpones the
issue of process by directing an investigation
under Section 202, Cr. P.C. and if that,
investigation is not completed within the
prescribed period of limitation, naturally the
Magistrate shall not be able to apply his mind
and take cognizance and/or issue the process
until report Under Section 202 of the Code is
received and in that event the complaint will have
to be dismissed on the ground that the Court
cannot take cognizance of an offence after the
expiry of the period of limitation from the date of
offence. There could be several such situations.
The complaint although filed within limitation
but the Magistrate due to some or other reasons
beyond his control could not apply his mind and
take cognizance of the complaint and/or could
not issue the process within the prescribed
period of limitation as provided under Section
468 of the Code, then the complaint will have to
be dismissed in limine. So also if the Magistrate
takes cognizance after the period prescribed
under Section 468 of the Code the said order of
taking cognizance would render illegal and
without jurisdiction. In such contingencies can
the complainant be blamed who has approached
the Court quite within limitation prescribed
under the Act but no cognizance could be taken
for the valid and good reasons on the part of the
Magistrate and should the complainant suffer for
no fault on his part. This could not be the object
of the framers of the provisions of Section 468,
Cr. P.C.
36. After referring to several decisions, the Court
held that the limitation prescribed under Section 468 of
the Code should be related to the filing of complaint and
not to the date of cognizance by the Magistrate or
issuance of process by the Court.
37. In Basavantappa Basappa Bannihalli & Anr. v.
Shankarappa Marigallappa Bannihalli, 1990 Crl LJ 360
(Kant), a complaint was filed within ten days of the
occurrence, but cognizance was taken by the Magistrate
after the period of limitation prescribed by the Code.
Following Kamal Javeri, the Court held that the relevant
date would be date of filing complaint and not of taking
cognizance by the Magistrate for deciding the bar of
limitation.
38. In Anand R. Nerkar v. Smt. Rahimbi Shaikh
Madar & Ors., 1991 Crl. LJ 557 (Bom), the High Court
held that the relevant date for deciding the period of
limitation is the date of prosecution of complaint by the
complainant in the Court and not the date on which
process is issued. It was observed that various sections
of the Code make it clear that before taking cognizance of
a complaint, the Magistrate has to consider certain
preliminary issues, such as, jurisdiction of court, inquiry
by police, securing appearance of accused, etc. It,
therefore, necessarily follows, observed the Court, that
the material date is not the date of issuance of process,
but the date of filing of complaint. Subsequent steps
after the filing of the complaint, such as, examination of
witnesses, consideration of case on merits, etc. are by the
court. Moreover, taking cognizance or issuance of
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process depends on the time available to the court over
which the complainant has no control. It would,
therefore, be wholly unreasonable to hold that a
complaint even if presented within the period of
limitation would be held barred by limitation merely
because the Court took time in taking cognizance or in
issuing process.
39. In Zain Sait v. Intex-Painter, etc., 1993 Crl. LJ
2213 (Ker), the Court held that the crucial date for
computing period of limitation would be date of filing of
complaint. Limitation under Section 468 of the Code has
to be reckoned with reference to date of complaint and
not with reference to date of taking cognizance. It was
also observed that there could be a case where a
complaint is filed on the last day of limitation and on
account of inconvenience or otherwise of the court, the
sworn statement of the complainant could be recorded on
a later date and the Magistrate takes cognizance after the
expiry of limitation. If the date of cognizance is taken as
the date for determining the period of limitation, it would
be penalizing the party for no fault of his. Such a
construction cannot be placed on Section 468 of the
Code. [See also Malabar Market Committee v. Nirmala,
(1988) 2 Ker LT 420]
40. In Labour Enforcement Officer (Central) Cochin,
v. Avarachan & Ors., 2004 Crl. LJ 2582 (Ker), the same
High Court held that starting point of limitation is the
date when the complaint is presented in the Court and
not the date on which cognizance is taken. If the initial
presentation of the complaint is within the period of
limitation prescribed by the Code, it cannot be dismissed
as barred by limitation and proceedings cannot be
dropped.
41. In Hari Jai Singh & Anr. v. Suresh Kumar
Gupta, 2004 Crl LJ 3768 (HP), it was held that the period
of limitation should be counted from the date of
presentation of complaint and not from the date of
issuance of process by the Magistrate. In that case,
defamatory news was published on May 31, 1995 and a
complaint was presented on May 14, 1998, well within
three years prescribed for the purpose. Process was,
however, issued by the trial Magistrate on November 12,
1998, i.e. after three years. It was held by the Court that
the complaint could not be dismissed on the ground of
limitation.
42. The Court said;
The words "A Magistrate taking cognizance of
an offence on complaint shall examine on oath the
complainant and the witnesses present" evidently
provides the manner in which the Magistrate taking
cognizance on the complaint is to proceed to take
preliminary evidence of the complainant on the
basis of which he is to determine whether process
against the accused is to be issued or not.
Therefore, with reference to the context it cannot be
held for the purpose of Section 468 of the Code that
the Magistrate invariably takes cognizance of
offences only when he decides to issues process
against the accused under Section 204 of the Code.
Therefore, for all intents and purposes of Section
468 of the Code, a Court must be deemed to have
taken cognizance on a criminal complaint at the
stage of presentation of the complaint to the Court
and its proceedings therewith as provided under
Section 200 of the Code. To hold contrary, will lead
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to injustice and defeat the provisions of the Code
intended to promote the administration of criminal
justice. It cannot be disputed that after the
presentation of the complaint the Magistrate has to
examine the complainant and his witnesses or
postpone the issue of process and inquire into the
case himself or direct an investigation to be made
by the police officer or by such other person as he
thinks fit for the purposes of deciding whether or
not there is sufficient ground for proceeding. These
processes in a given case are likely to take time and
are dependent on the time available with the
Magistrate or the person who has been directed to
investigate the allegations made in the complaint
and early conclusion of these processes is not
within the power and control of the complainant.
Therefore, it would be unreasonable to hold that a
complaint even if presented within the period of
limitation but the process against the accused is not
issued by the Magistrate within the period of
limitation, the Court shall be debarred from taking
cognizance of an offence. Therefore, it will be
rational and reasonable to hold that the period of
limitation is to be determined in view of the date of
presentation of the complaint and not with regard to
the date when the process is ordered to be issued by
the Magistrate against the accused under Section
204 of the Code.
43. We may now refer to some of the decisions of
this Court. The first in point of time was Surinder Mohan
Vikal v. Ascharaj Lal Chopra, (1978) 2 SCC 403. In that
case a complaint under Section 500, IPC was filed on
February 11, 1976. It was alleged that the accused had
committed an offence of defamation on March 15, 1972.
A petition was, therefore, filed by the accused in the High
Court under Section 482 of the Code for quashing
proceedings on the ground that the complaint was barred
by limitation. Upholding the contention and observing
that the complaint was time-barred, the Court observed;
"But, as has been stated, the complaint under
Section 500, IPC was filed on February 11, 1977,
much after the expiry of that period. It was
therefore not permissible for the Court of the
Magistrate to take cognizance of the offence
after the expiry of the period of limitation."
(emphasis supplied)
44. It is thus clear in that case the complaint itself
was filed after the expiry of period of limitation which was
held barred under Section 468 of the Code.
45. In Rashmi Kumar (Smt.) v. Mahesh Kumar
Bhada, (1997) 2 SCC 397 : JT 1996 (11) SC 175, a
complaint was filed by the wife against her husband on
September 10, 1990 for an offence punishable under
Section 406, IPC. It was alleged in the complaint that
she demanded from the respondent-husband return of
jewellery and household articles on December 5, 1987,
but the respondent refused to return stridhana to the
complainant-wife and she was forced to leave
matrimonial home. The complaint was admittedly within
the period of three years from the date of demand and
refusal of stridhana by the respondent-husband. The
complaint was held to be within time and the matter was
decided on merits.
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46. In State of H.P. v. Tara Dutt & Anr., (2000) 1
SCC 230 : JT 1999 (9) SC 215, this Court held that in
computing the period of limitation where the accused is
charged with major offences, but convicted only for minor
offences, the period of limitation would be determined
with reference to major offences.
47. Special reference may be made to Bharat
Damodar Kale & Anr. v. State of A.P., (2003) 8 SCC 559 :
JT 2003 Supp (2) SC 569. This Court there considered
the scheme of the Code and particularly Section 468
thereof and held that the crucial date for computing the
period of limitation is the date of filing of complaint and
not the date when the Magistrate takes cognizance of an
offence. In Bharat Damodar, a complaint was filed by
Drugs Inspector against the accused for offences
punishable under the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954. The complaint
was lodged in the Court on March 3, 2000 in respect of
offence detected on March 5, 1999. The period of
limitation was one year. The Magistrate took cognizance
of the offence on March 25, 2000. Now, if the date of
complaint was to be taken into consideration, it was
within time, but if the date of cognizance by the
Magistrate was the material date, admittedly it was
barred by time. The Court considered the relevant
provisions of the Code, referred to Rashmi Kumar and
held the complaint within time observing that the
material date for deciding the period of limitation was the
date of filing of complaint and not the date of taking
cognizance by the Magistrate.
48. The Court observed;
"On facts of this case and based on the
arguments advanced before us we consider it
appropriate to decide the question whether the
provisions of Chapter XXXVI of the Code apply
to delay in instituting the prosecution or to
delay in taking cognizance. As noted above
according to learned counsel for the appellants
the limitation prescribed under the above
Chapter applies to taking of cognizance by the
concerned court therefore even if a complaint
is filed within the period of limitation
mentioned in the said Chapter of the Code, if
the cognizance is not taken within the period
of limitation the same gets barred by
limitation. This argument seems to be inspired
by the Chapter-Heading of Chapter XXXVI of
the Code which reads thus : "Limitation for
taking cognizance of certain offences". It is
primarily based on the above language of the
Heading of the Chapter the argument is
addressed on behalf of the appellants that the
limitation prescribed by the said Chapter
applies to taking of cognizance and not filing of
complaint or initiation of the prosecution. We
cannot accept such argument because a
cumulative reading of various provisions of the
said Chapter 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
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clear from Section 469 of the Code found 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 limitation prescribed is 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 is 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.
(emphasis supplied)
49. The learned counsel for the appellant-accused,
no doubt, submitted relying on the italicized portion
quoted above, that the Court was not right in observing
that the argument of the accused was based on and
inspired by the ’Chapter Heading’ of Chapter XXXVI of
the Code which reads "Limitation for taking cognizance of
certain offences". The counsel submitted that the Court
proceeded to decide the point primarily on the basis of
the argument advanced by the accused that the
limitation prescribed by the ’Chapter Heading’ applied to
taking of cognizance and not filing of complaint, which
was not correct. He submitted that apart from title
(Chapter Heading), Section 468 itself places bar and puts
embargo on taking cognizance of an offence by a Court.
It expressly provides and explicitly states that "No court
shall take cognizance of an offence\005" Bharat Damodar,
thus, submitted the learned counsel, is per incuriam and
is not binding upon this Court. The counsel, therefore,
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submitted that in that case the matter may be referred to
a larger Bench.
50. We are unable to uphold the contention. We
are equally not impressed by the argument of the learned
counsel for the accused that the decision in Bharat
Damodar is per incuriam. We have gone through the said
decision. We have also extracted hereinabove paragraph
10 wherein the contention of the accused had been dealt
with by this Court and negatived. It is true that in that
case, the Court observed that taking clue from Chapter
Heading (Chapter XXXVI : Limitation for taking
cognizance of certain offences), an argument was
advanced that if cognizance is not taken by the Court
within the period prescribed by Section 468(2) of the
Code, the complaint must be held barred by limitation.
But, it is not true that this Court rejected the said
argument on that ground. The Court considered the
relevant provisions of the Code and negatived the
contention on ’cumulative reading of various provisions’.
The Court noted that so far as cognizance of an offence is
concerned, it is an act of Court over which neither the
prosecuting agency nor the complainant has control. The
Court also referred to the well-known maxim "actus
curiae neminem gravabit" (an act of Court shall prejudice
none). It is the cumulative effect of all considerations on
which the Court concluded that the relevant date for
deciding whether the complaint is barred by limitation is
the date of the filing of complaint and not issuance of
process or taking of cognizance by Court.
51. We are in agreement with the law laid down in
Bharat Damodar. In our judgment, the High Court of
Bombay was also right in taking into account certain
circumstances, such as, filing of complaint by the
complainant on the last date of limitation, non
availability of Magistrate, or he being busy with other
work, paucity of time on the part of the Magistrate/Court
in applying mind to the allegations levelled in the
complaint, postponement of issuance of process by
ordering investigation under sub-section (3) of Section
156 or Section 202 of the Code, no control of
complainant or prosecuting agency on taking cognizance
or issuing process, etc. To us, two things, namely; (1)
filing of complaint or initiation of criminal proceedings;
and (2) taking cognizance or issuing process are totally
different, distinct and independent. So far as
complainant is concerned, as soon as he files a complaint
in a competent court of law, he has done everything
which is required to be done by him at that stage.
Thereafter, it is for the Magistrate to consider the matter,
to apply his mind and to take an appropriate decision of
taking cognizance, issuing process or any other action
which the law contemplates. The complainant has no
control over those proceedings. Because of several
reasons (some of them have been referred to in the
aforesaid decisions, which are merely illustrative cases
and not exhaustive in nature), it may not be possible for
the Court or the Magistrate to issue process or take
cognizance. But a complainant cannot be penalized for
such delay on the part of the Court nor he can be non
suited because of failure or omission by the Magistrate in
taking appropriate action under the Code. No criminal
proceeding can be abruptly terminated when a
complainant approaches the Court well within the time
prescribed by law. In such cases, the doctrine "actus
curiae neminem gravabit" (an act of Court shall prejudice
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none) would indeed apply. [Vide Alexander Rodger v.
Comptoir D’Escompte, (1871) 3 LR PC 465]. One of the
first and highest duties of all Courts is to take care that
an act of Court does no harm to suitors. The Code
imposes an obligation on the aggrieved party to take
recourse to appropriate forum within the period provided
by law and once he takes such action, it would be wholly
unreasonable and inequitable if he is told that his
grievance would not be ventilated as the Court had not
taken an action within the period of limitation. Such
interpretation of law, instead of promoting justice would
lead to perpetuate injustice and defeat the primary object
of procedural law.
52. The matter can be looked at from different
angle also. Once it is accepted (and there is no dispute
about it) that it is not within the domain of the
complainant or prosecuting agency to take cognizance of
an offence or to issue process and the only thing the
former can do is to file a complaint or initiate proceedings
in accordance with law. If that action of initiation of
proceedings has been taken within the period of
limitation, the complainant is not responsible for any
delay on the part of the Court or Magistrate in issuing
process or taking cognizance of an offence. Now, if he is
sought to be penalized because of the omission, default
or inaction on the part of the Court or Magistrate, the
provision of law may have to be tested on the touchstone
of Article 14 of the Constitution. It can possibly be urged
that such a provision is totally arbitrary, irrational and
unreasonable. It is settled law that a Court of Law would
interpret a provision which would help sustaining the
validity of law by applying the doctrine of reasonable
construction rather than making it vulnerable and
unconstitutional by adopting rule of ’litera legis’.
Connecting the provision of limitation in Section 468 of
the Code with issuing of process or taking of cognizance
by the Court may make it unsustainable and ultra vires
Article 14 of the Constitution.
53. In view of the above, we hold 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. We, therefore, overrule all decisions
in which it has been held that the crucial date for
computing the period of limitation is taking of cognizance
by the Magistrate/Court and not of filing of complaint or
initiation of criminal proceedings.
54. In the instant case, the complaint was filed
within a period of three days from the date of alleged
offence. The complaint, therefore, must be held to be
filed within the period of limitation even though
cognizance was taken by the learned Magistrate after a
period of one year. Since the criminal proceedings have
been quashed by the High Court, the order deserves to be
set aside and is accordingly set aside by directing the
Magistrate to proceed with the case and pass an
appropriate order in accordance with law, as
expeditiously as possible.
55. Appeal is accordingly allowed.