Calcutta High Court
Hirak Chand Dawn vs Mohar Chand Dawn & Ors. on 14 August, 1997
Equivalent citations: (1998)1CALLT164(HC), 1997(2)CHN467
JUDGMENT D.B.Dutta, J.
1. The instant revisional application under section 401 /482 of the Code of Criminal Procedure is directed against an order dated 23rd March, 1994 passed by the learned Metropolitan Magistrate, Fifth Court, Calcutta in Case No.C/368 of 1993.
2. One Chapala Rani Dawn possessed gold ornaments weighing about 32 tolas and 3 annas and sliver articles and coins weighing 203 tolas at the time of her death on 16th July, 1967. The total value of the said ornaments and articles would be about Rs. 7,78,975/-. It was her desire that the said ornaments and articles would be distributed equally amongst her sons and daughters, but she suddenly expired before she could fulfil such desire. For about 5 years after her death, the said ornaments and articles remained in the drawer of her almirah on the first floor of the premises No. 75/A, Mahatma Gandhi Road, Calcutta. A year later, it was mutually agreed by and between the sons and daughters of the deceased mother that the gold ornaments and other articles would remain in the custody of the opposite party No.1, Mohar Ch. Dawn, who was the eldest amongst all the sons and daughters and would be retained in the said almirah of the said premises. The petitioner is one of the sons of the Chapala Rani Dawn. In pursuance of the agreement, all the articles were entrusted with the opposite party No. 1 and the key to the almirah and the drawer was handed over to him. On 8th September, 1990 as per custom of the family when the almirah and the drawer were unlocked to bring out the gold and silver ornaments and other articles for periodical examination and cleaning, it was detected that they were missing. It was believed by the petitioner and his other brothers and sisters that the opposite party No.1 in collusion with his wife, opposite party No.2 had converted the said gold and silver ornaments and other articles entrusted to him committing thereby a criminal breach of trust. Despite repeated demands for explanation, the opposite parties Nos. 1 and 2 failed to give any satisfactory explanation to account for the same. On that very date, that is 8.9.90, a FIR was lodged with the Amherst Street Police Station against the opposite parties Nos. 1 and 2 and it was diasied as section F case No. 324 dated 8.9.90 under sections 406 and 120B of the IPC. The petitioner complained of criminal breach of trust and criminal conspiracy by the opposite party No. 1 and his wife opposite party No.2 but the accused being an officer of the Calcutta Police posted at Lalbazar, the police registered a case under section 380 IPC in stead of a case under sections 406/120B IPC. It is reasonably believed by the petitioner that the opposite party No. 1 being a Police Officer attached to the Lalbazar Police Station, the investigating Officer deliberately and wilfully delayed the investigation resulting in stoppage of the investigation and discharge of the accused persons under section 167(5) of the Criminal Procedure Code as amended by the West Bengal Amendment Act 24 of 1988. The order of stoppage of investigation and discharge was passed by the learned Additional Chief Metropolitan Magistrate on 15th April, 1993 without giving any notice or any opportunity of being heard to the petitioners. On coming to know of the said order of discharge, the petitioners submitted a petition of complaint before the Additional Chief Metropolitan Magistrate on September 6, 1993. The learned Chief Metropolitan Magistrate was pleased to take cognizance upon the complaint and transferred it to the Metropolitan Magistrate. Fifth Court under section 192(1) of the Criminal Procedure Code on 24.9.93. The complainant petitioner and his witnesses were examined between 24.1.94 and 23.3.94 under section 200 Cr PC. On 23.3.94, the learned Metropolitan Magistrate, upon consideration of the materials on record, was pleased to dismiss the complaint under section 203 Cr PC on two grounds viz. first, that the cognizance was taken on 24.9.93 long after the expiry of three years from the date of occurrence and as such, was barred by limits of time and secondly, that there is no believeable evidence on record to prove the existence of such a huge quantify of ornaments and articles and also the alleged entrustment thereof to the accused and as such, there was sufficient ground for issuing processes under sections 406/120B.
3. Being aggrieved by the order of dismissal, the petitioner has come up in revision impleading the opposite parties Nos. 1 and 2 as well as the State. Despite service of notice, none of the opposite parties did enter appearance.
4. Mr. S.P.Talukdar, appearing for the petitioner, made the following points. It is urged that the limitation prescribed under section 468 Cr PC is to be reckoned with reference to the finding of complaint and not with reference to the date of cognizance. As the complaint was not time barred having been filed on 6.9.93, within the period of three years from the date of commission of the offence the bar under section 468 Cr PC would not operate here and no fault could be found with the cognizance that was taken in this case before it was transferred to the transferee court. Accordingly, the Magistrate was not justified in recording a finding that the cognizance was bad in law and in dismissing the complaint on the ground of cognizance being illegal. Several decision were cited by Mr. Talukdar on this point.
5. Next, it is urged by Mr. Talukdar that the complainant petitioner and one of his brothers and sisters were the witnesses examined under section 200 Cr PC and that the evidence was sufficient enough to make out at least a prima facie case under section 406 IPC against the opposite party No. 1 so as to put him on trial and that at the stage of issuing process under section 204 Cr PC the Magistrate is not supposed to evaluate the evidence for the purpose of ascertaining whether it is sufficient for conviction and as such, the learned Magistrate acted illegally in dismissing the complaint on the basis of the materials on record.
6. The first question that arises for my determination would be whether the cognizance that was taken in this case was really hit by mischief of section 468 of Cr PC. Sub-section (1) of section 468 provides that no court shall take cognizance of an offence of the categories specified in sub section (2) after the expiry of period of limitation, except as otherwise provided elsewhere in this Code. The offence involved is punishable under section 406 read with section 120B of IPC. Accordingly, the case falls under clause (c) of sub section (2) of section 468 Cr PC and the period of limitation is three years. Undisputedly, the period of limitation in the instant case would commence on the very date of the offence under clause (a) of sub section (1) of section 469 Cr PC. According to sub section (2) of section 469, in computing the period of limitation the day from which such period will be computed, shall have to be excluded. The commission of the offence, according to the petition of complaint, came to the knowledge of the complainant for the first time on 8.9.90. The prescribed period of limitation would, accordingly, in this case, expire on 8.9.93. From the certified copies of the order sheets, it will transpire that the petition of complain under consideration was presented before the learned Additional Chief Metropolitan Magistrate, Calcutta on 6.9.93, the date on which the prescribed period of limitation was yet to run out. In recording his finding to the effect that the cognizance was bad in law, the learned Magistrate in the impugned order assumed that the cognizance was taken on 24.9.93, on the date on which the prescribed time limit had already expired. From the certified copies of the order sheets annexed with the application for revision, we find that in the order dated 24.9.93, the learned Additional Chief Metropolitan Magistrate recorded the expressions "cog taken" before the transferred the case to the Fifth Court of the Metropolitan Magistrate under section 192(1) Cr PC. The question is whether the learned Additional Chief Metropolitan Magistrate can be deemed to have taken cognizance only on 24.9.93, on which he records the fact that he took cognizance, or earlier.
7. The expression "cognizance" has nowhere been defined in the Code and it is, indeed, impossible to define it. It is a mental and judicial Act.
8. Taking cognizance does not involve any formal action or, indeed, action of any kind, but occurs as soon as Magistrate, as such, applies his judicial mind to the suspected commission of the offence. On receiving complaint, Magistrate may apply his mind for proceeding under section 200 and succeeding sections of chapter 15. If instead of proceeding under chapter 15, he takes action of some other kind, such as issuing search warrant or ordering investigation under section 156(3) or according permission for investigation under section 155(3) Cr PC he can not be said to have taken cognizance of the offence. Only when he applies his mind for the first time for proceeding in a particular way under section 200 and subsequent sections under chapter 15 or section 204 under chapter 16 that it can be positively stated that the Magistrate has applied his mind and taken cogizance on a complaint.
9. The order sheet shows that on 6.9.93, the date on which the complaint was presented before the learned Magistrate, the Complaint was present before the Magistrate and upon hearing the learned lawyer of the complainant, the learned Magistrate directed the complaint to be put up with case No. F324 dated 8.9.90 fixing 15.9.93 as the next date for his orders.
10. Now, case No. F324 dated 6.9.90 was a case that was registered on the basis of an information lodged with the concerned Police Station by the complainant petitioner on 8.9.90, the very date on which the offence came to his knowledge. Due to delay in the investigation, of that case, the learned magistrate stopped the investigation by order dated 15.4.93 invoking the provisions of section 167(5) as amended by the West Bengal Amendment Act 24 of 1988 and discharged the opposite parties. The petitioner's case is that the said order was passed without giving any notice to the petitioner and on coming to know of that order, the petitioner filed the subsequent complaint before the learned Magistrate on 6.9.93.
11. The subsequent complaint contained a reference to the case No.F324 dated 8.9.90 and accordingly, the learned Magistrate directed the said case record to be put up along with the complaint on 15.9.93. On 15.9.93, the complainant was present and the relevant case record appears to have been put up before the learned Magistrate but the learned Magistrate directed the complaint to be posted for hearing on 24.9.93.
12. On 24.9.93, he recorded the factum of his having taken cognizance an transferred the case to another Magistrate for disposal, without, however, examining the complainant under section 200 Cr PC. It was the transferee Magistrate who proceeded with the examination of the complainant and the witnesses under section 200 Cr PC after he had received the record on transfer. He also called for the case No.F324 dated 8.9.90 and from the order dated 24.1.91. It appears that the said record was received by him. It is on the basis of all the materials on record consisting of the initial depositions of the complainant and his witnesses recorded under section 200 Cr PC as also the record of the case No. F324 dated 8.9.90, that the learned Magistrate by his impugned order, decided to issue process and dismissed the complaint on 23.3.94.
13. It is not the case of the petitioner that the cognizance was taken on the date of filing of the complaint or on any subsequent date prior to 24.9.93 and not on 24.9.93, on which the Magistrate specifically recorded the factum of having taken cognizance in the case and, in the facts and circumstances of this case as revealed from the materials on record, the learned Magistrate cannot be said to have taken cognizance on any date earlier than 24.9.93. That being so, the irresistible conclusion would be that the cognizance was taken in this case on a date on which the prescribed period of limitation had already expired.
14. The question is whether such a cognizance would be barred under section 468(1) Cr PC.
15. The object of prescribing a period of limitation in the new Cr PC is clearly to prevent the parties from filing cases after a time as a result of which the material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve by prescribing period of limitation for criminal prosecution is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution.
16. Now, cognizance is an act of the Magistrate over which the complainant cannot have any control. The complainant is to file the complaint and to remain present with his witnesses for examination under section 200 Cr PC. It may so happen that a complaint is filed, well in advance, before the expiry of the period of limitation but the Magistrate is on leave on that day and/or otherwise unable to hear the party or to apply his mind to the complaint on that very day. The Magistrate may take a considerable time before he can apply his mind to the complaint and it may so happen that he applies his mind on a date on which the period of limitation has already run out. In such a case, if the bar under section 468(1) is to apply, the complainant would be penalised for no fault of his.
17. The complainant is also within his right to file the complaint even on the last day on which the period of limitation would expire and if the taking of cognizance by the Magistrate is delayed for one reason or the other and the complainant is made to suffer for such delay, it would be travesty of justice in the real sense of the term. As such, if section 468(1) is to be construed as laying down a bar to taking cognizance after the lapse of the period of limitation, it would lead to an anomalous and absurd result which could not have been contemplated by the legislature. It would, accordingly, be just and proper to construe section 468(1) as laying down a bar which is to operate with reference to the date of filing of the complaint and not with reference to the date of taking cognizance by the Magistrate.
18. Incidentally, we may refer to the law of limitation as applicable in relation to civil proceedings. The period of limitation is always counted up to the date on which the plaint/application is filed before the civil court and not the date on which the notice or summons is ordered to be issued. The stage of scruitiny in a civil suit always follows the filing of the plaint or application and the length of time that this process might envisage is not necessarily within the control of the plaintiff. After all, the object behind prescribing a period of limitation for both civil and criminal proceedings is to ensure that legal remedies are pursued within a reason able time.
19. Thus, giving the matter my anxious consideration, I am inclined to hold that the bar of limitation prescribed by section 468(1) Cr PC has to be reckoned with reference to the date of filing of the complaint and not the date of taking of cognizance.
20. This view of mine finds support from the decisions of some other High Courts.
21. In the case of Kamal H Javeri v Chandulal Gulbehand Khothari reported in 1985 Cri. LJ 1215, the Bombay High Court held that the limitation prescribed under section 468 is to be read with reference to the filing of the complaint and not with reference to the date of cognizance.
22. This decision of Bombay High Court was subsequently relied on by the Karnataka High Court in the case of Basabantappa Basappa Bannithalli v. Shamkarappa Marigallappa Bannihalli reported in 1990 Cri LJ 360, wherein it has been categorically held that if a complaint is filled within the period of limitation, the cognizance taken by the Magistrate after the expiry of the period of limitation is not invalid under section 468 Cr PC.
23. In a subsequent decision of Bombay High Court in the case of Dr. Anand R Nerkar v. Rahimbi Shaikh Madar reported in 1991 Crl LJ 557, the Bombay High Court went a step ahead and took the view that the point of time when the court takes cognizance of a criminal complaint is the stage at which the complaint is presented to or filed in the court and that it follows by necessary implication that for the purposes of computing limitation, it is this date that is material and not the date on which the process is issued within the meaning of section 468 Cr PC. The Bombay High Court appears to have taken the view as if the Magistrate takes cognizance as and when a complaint is presented to or filed in his court and it is not very clear if it also took the date of taking cognizance to be the date of issuing process. Respectfully, I differ with this part of the view of the Bombay High Court. The date of filing or presentation of the complaint may not always correspond to the date of taking cognizance by the court. On the date on which the complaint is filed or presented before the court, it may so happen that the learned Magistrate, for some reasons or other, cannot actually apply his judicial mind to the petition of complaint on that very day. Until and unless he applies his mind for the first time, he cannot at all be said to have taken any cognizance upon the complaint. The mere fact that a complaint is filed or presented before a court cannot necessarily lead to the conclusion that the Magistrate has taken cognizance on the compliant on the date of filing even though the complaint was not actually placed before the Magistrate or there was no occasion for the Magistrate to apply his mind to the contents of the petition of complaint on that date. Then again, the date of issuance of process cannot also be always taken to be the date of taking cognizance because the stage of taking cognizance must invariably precede the stage of issuance of process. It is only after taking cognizance that the Magistrate proceeds to take action under section 200 and if necessary, under section 202 before he decides to issue or not to issue process under section 204 Cr PC.
24. The decisions in the case of Kamal H. Javeri (supra) and Basavantappa Basappa (supra) were relied on by the Kerala High Court in a decision reported in 1993 Cri LJ 2213, Zain Sait v. Intex-Painter. The Kerala High Court held that if the date of taking cognizance is taken to be the date to determine the period of limitation that would amount to penalising the party for no fault of his and that such a construction cannot be placed under section 468 of the Code. The bar, according to this decision, under section 468 of the Code operates from only when the complaint itself is barred by limitation.
25. In the case of Appu Ramani v. The State reported in 1993 Cri LJ 1974, the charge-sheet, in the first instance, was filed within the period of limitation. It was returned for rectifying certain defects on the very date of its filing. It was represented after removing the defects pointed out by the court within the time granted by the court on a date which fell beyond the period of limitation and ultimately, cognizane was taken on a later date. The Andhra Pradesh High Court held that the congnizance of the case was valid and did not suffer from any infirmity or error. It was also held that the limitation prescribed under section 468 was to be reckoned with reference to the date of filing of the charge-sheet and not with reference to the date of taking congnizance.
26. In making this decision, the Andhra Pradesh High Court relied on the Bombay High Court decision in Kamal H. Javeri v. Chandulal Kotheri (supra) and the Karnataka High Court's decision in Basauantappa Basappa Bannihali v. Shankarappa Marligallappa Bannihalli (supra).
27. Thus, with regard to the first question posed above namely whether or not congnizance taken in this case is bad in law, I have no hesitation to answer this question in the negative.
28. The next question that confronts us in this revisional application is whether any interference with the impugned order of dismissal is called for. Section 203 empowers the Magistrate to dismiss the complaint only if the Magistrate is of the opinion that there is no sufficient ground for proceeding, after considering the statements on oath of the complainant and also of the witnesses if any under section 200 and the result of the inquiry or investigation, if any, under section 202. Now, the expressions "no sufficient ground for proceeding" do not connote sufficient grounds for conviction. It means such evidence as would be sufficient to put the accused upon trial. It is true that the Magistrate is not debarred at this stage, from going into the merits of the evidence produced by the complaint but the object of such consideration of the merits of the case at this stage could only be to determine whether there are sufficient grounds for proceeding. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at this stage. '
29. The materials on record here consist of the unchallenged testimonies of the three witnesses namely the complainant and one of his brothers and a sister. The entrustment is alleged to have been made to one member of the family by the other members of the family. It is, indeed, a family affair and as such, the testimonies of the witnesses examined under section 200 Cr PC cannot be discarded outright only because of the fact that they are interested witnesses.
30. Having regard to the impugned order of dismissal, it appears that the Magistrate has sought to evaluate the evidence for the purpose of coming to the conclusion as to whether it was adequate for sustaining a conviction. Such an approach of the Magistrate is not a correct or proper approach to be adopted while dealing with a complaint at this stage when the Magistrate is only to consider whether he is to issue process or not.
31. In the facts and circumstances of this case, I am of the view that it is a fit case for setting aside the impugned order of dismissal and directing the Magistrate to hold further inquiry, as he may deem fit and proper. The learned Magistrate will be at liberty to take further evidence that may be adduced by the complainant under section 202 Cr PC. The evidence already recorded under section 200 Cr PC shall constitute the materials on the basis of which the Magistrate is to consider afresh in order to finally decide whether he is to dismiss the complaint under section 203 Cr PC or to issue process under section 204.
32. In the result, the application succeeds and is hereby allowed subject to the observations made above. The impugned order is hereby set aside and the Magistrate is directed to hold further inquiry into the complaint and dispose of the complaint in accordance with law in the light of the observations made above.
33. Let a copy of this order be communicated to the court below forthwith.
34. Application allowed