Allahabad High Court
Rajitram Shukla And 2 Others vs State Of U.P. And Another on 29 September, 2021
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 8723 of 2021 Applicant :- Rajitram Shukla And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Pradeep Mishra, learned counsel for the applicants and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party.
2. The present application under Section 482 of the Code of Criminal Procedure1 has been filed seeking to quash the charge sheet dated 31.12.2015 as well as summoning order dated 18.11.2020 passed by Special Judge S.C./S.T. Act, Jaunpur as well as entire proceedings of S.S.T. No. 284/2020, arising out of Case Crime No. 249/2015, under Section 323, 504, 506 I.P.C. and 3 (1) 10 S.C./S.T. Act, Police Station Barsathi District Jaunpur.
3. A challenge is sought to be raised to the proceedings of S.S.T. No. 284/2020, arising out of Case Crime No. 249/2015, and also to the charge-sheet dated 31.12.2015 as well as summoning order dated 18.11.2020, by raising a preliminary point and contending that the proceedings would be barred by limitation in view of the provisions contained under Section 468 CrPC.
4. Learned counsel for the applicants has submitted that in the instant case, the incident in question is stated to have occurred on 13.05.2015 regarding which an FIR was lodged on the same day i.e. 13.05.2015, and after investigation the police report was submitted on 31.12.2015 whereupon cognizance was taken. However, since the order passed by the Magistrate summoning the applicant-accused is dated 18.11.2020, the bar under Section 468 would become operative and the proceedings would be barred by limitation.
5. In response to the aforesaid contention, learned Additional Government Advocate-I points out that the question as to what would be the relevant date for the purposes of computing the period of limitation under Section 468 CrPC is no longer res integra. He has placed reliance upon the Constitution Bench judgment in the case of Sarah Mathew Vs. The Institute of Cardio Vascular Diseases and Ors.2, wherein noticing a conflict between a two Judge Bench decision of the Supreme Court in the case of Bharat Damodar Kale Vs. State of A.P.3, which had been followed in another two Judge Bench decision in Japani Sahoo Vs. Chandra Sekhar Mohanty4, and a three Judge Bench decision in Krishna Pillai Vs. T.A.Rajendran5, the case was placed before a three Judge Bench for an authoritative pronouncement and thereafter it was referred to a five Judge Constitution Bench to examine the issue.
6. The questions which were considered by the Constitution Bench in the case of Sarah Mathew (supra) are as follows :-
"3.1.(i) Whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence?
3.2.(ii) Which of the two cases i.e. Krishna Pillai or Bharat Kale (which is followed in Japani Sahoo) lays down the correct law?"
7. Referring to the legislative history of Chapter XXXVI of the Code, it was observed as follows :-
"19. To address the questions which arise in this reference, it is necessary to have a look at the legislative history of Chapter XXXVI CrPC. The Criminal Procedure Code, 1898 contained no general provision for limitation. Though under certain special laws like the Negotiable Instruments Act, 1881, the Trade and Merchandise Marks Act, 1958, the Police Act, 1861, The Factories Act, 1948 and the Army Act, 1950, there are provisions prescribing period of limitation for prosecution of offences, there was no general law of limitation for prosecution of other offences. The approach of this Court while dealing with the argument that there was delay in launching prosecution, when in the Criminal Procedure Code (1898), there was no general provision prescribing limitation, could be ascertained from its judgment in Collector of Customs v. L.R. Melwani. It was urged before the High Court in that case that there was delay in launching prosecution. The High Court held that the delay was satisfactorily explained. While dealing with this question, this Court held that in any case prosecution could not have been quashed on the ground of delay because it was not the case of the accused that any period of limitation was prescribed for filing the complaint. Hence the complaint could not have been thrown out on the sole ground that there was delay in filing the same. This Court further observed that the question of delay in filing complaint may be a circumstance to be taken into consideration in arriving at the final verdict and by itself it affords no ground for dismissing the complaint. This position underwent a change to some extent when Chapter XXXVI was introduced in the Criminal Procedure Code as we shall soon see.
20. It is pertinent to note that the Limitation Act, 1963 does not apply to criminal proceedings except for appeals or revisions for which express provision is made in Articles 114, 115, 131 and 132 thereof. After conducting extensive study of criminal laws of various countries, the Law Commission of India appears to have realized that providing provision of limitation for prosecution of criminal offences of certain type in general law would, in fact, be good for the criminal justice system. The Law Commission noted that the reasons to justify introduction of provisions prescribing limitation in general law for criminal cases are similar to those which justify such provisions in civil law such as likelihood of evidence being curtailed, failing memories of witnesses and disappearance of witnesses. Such a provision, in the opinion of the Law Commission, will quicken diligence, prevent oppression and in the general public interest would bring an end to litigation. The Law Commission also felt that the court would be relieved of the burden of adjudicating inconsequential claims."
8. The recommendations made by Forty-second Law Commission Report, and in particular those in respect of extending the provision relating to limitation to original prosecutions, and also the report of the Joint Parliamentary Committee accepting the recommendations of the Law Commission, were taken note of, and it was stated as follows :-
"21. Paragraph 24.3 of the Forty-second Law Commission Report is material. It reads thus:
"24.3. Reasons for time-limits in civil cases- In civil cases, the law of limitation in almost all countries where the rule of law prevails, jurists have given several convincing reasons to justify the provision of such a law; some of those which are equally applicable to criminal prosecutions may be referred to here:
(1) The defendant ought not to be called on to resist a claim when 'evidence has been lost, memories have faded, and witnesses have disappeared.' (2) The law of limitation is also a means of suppressing fraud, and perjury, and quickening diligence and preventing oppression.
(3) It is in the general public interest that there should be an end to litigation. The statute of limitation is a statute of repose.
(4) A party who is insensible to the value of civil remedies and who does not assert his own claim with promptitude has little or no right to require the aid of the State in enforcing it.
(5) The court should be relieved of the burden of adjudicating inconsequential or tenuous claims."
The Law Commission stated its case for extending limitation to original prosecutions as under:
"24.11- Case for extending limitation to original prosecutions.- It seems to us that there is a strong case for having a period of limitation for offences which are not very serious. For such offences, considerations of fairness to the accused and the need for ensuring freedom from prosecution after a lapse of time should outweigh other considerations. Moreover, after the expiry of a certain period the sense of social retribution loses its edge and the punishment does not serve the purpose of social retribution. The deterrent effect of punishment which is one of the most important objectives of penal law is very much impaired if the punishment is not inflicted promptly and if it is inflicted at a time when it has been wiped off the memory of the offender and of other persons who had knowledge of the crime."
22. Paragraphs 24.13, 24.14, 24.20, 24.22, 24.23, 24.24, 24.25 and 24.26 of the Forty-second Law Commission Report could also be advantageously quoted:
"24.13.- Delay by itself no ground for dismissing complaint- At present no court can throw out a complaint solely on the ground of delay, because, as pointed out by the Supreme Court, '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 grounds for dismissing the complaint.' It is true that unconscionable delay is a good ground for entertaining grave doubts about the truth of the complainant's story unless he can explain it to the satisfaction of the court. But it would be illegal for a court to dismiss a complaint merely because there was inordinate delay.
24.14.- Recommendation to introduce principle of limitation.- We, therefore, recommend that the principle of limitation should be introduced for less serious offences under the Code. We suggest that, for the present, offences punishable with fine only or with imprisonment upto three years should be made subject to the law of limitation. The question of extending the law to graver offences may be taken up later on in the light of the experience actually gained.
xxx 24.20.- Prosecution commences when court takes cognizance.-The question whether prosecution commences on the date on which the court takes cognizance of the offence or only on the date on which process is issued against the accused, has been settled by the Supreme Court with reference to Section 15 of the Merchandise Marks Act, 1889. Where the complaint was filed within one year of the discovery of offence, it cannot be thrown out merely because process was not issued within one year of such discovery. The complainant is required by Section 15 of the Act to 'commence prosecution' within this period, which means that if the complaint is presented within one year of such discovery, the requirements of Section 15 are satisfied. The period of limitation is intended to operate against complainant and to ensure diligence on his part in prosecuting his rights, and not against the court. It will defeat the object of the enactment, deprive traders of the protection which the law intended to give them, to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out.
xxx 24.22- Infructuous proceedings.- Secondly, as in civil cases, in computing the period of limitation for taking cognizance of offence, the time during which any person has been prosecuting with due diligence another prosecution whether in a court of first instance or in a court of appeal or revision, against the offender, should be excluded, where the prosecution relates to the same facts and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
24.23- Continuing offences.- Thirdly, in the case of a continuing offence, a fresh period of limitation should begin to run at every moment of the time during which the offence continues; and we recommend the insertion of a provision to that effect.
24.24- Impediments to prosecution.- Impediments to the institution of a prosecution have also to be provided for. Such impediments could be (a) legal, or (b) due to conduct of the accused, or (c) due to the court being closed on the last day.
As regards legal impediments, two aspects may be considered, first, the time for which institution of prosecution is stayed under a legal provision, and secondly, prosecutions for which previous sanction is required, or notice has to be given, under legal provision. Both are appropriate cases for a special provision for extending the period of limitation. We recommend that, where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation for taking cognizance of that offence, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
24.25- Notice of prosecution.- We also recommend that where notice of prosecution for an offence has been given, or where for prosecution for an offence the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, then in computing the period of limitation for taking cognizance of the offence, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction, shall be excluded.
24.26- Absence of accused and absconding- As illustrations of impediments caused by the conduct of the accused, we may refer to his being out of India, and his absconding or concealing himself. Running of the period of limitation should be excluded in both cases."
23. The Joint Parliamentary Committee ("the JPC") accepted the recommendations of the Law Commission for prescribing period of limitation for certain offences. The relevant paragraphs of its report dated 30-11-1972 read as under:
"Clauses 467 to 473 (new clauses).- These 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 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 the Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the Law Commission.
Among the grounds in favour of prescribing the limitation may be mentioned as the following:
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 be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some time or the 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 the persons concerned.
4. The sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of a 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.
The actual periods of limitation provided for in the new clauses would, in the Committee's opinion be appropriate having regard to the gravity of the offences and other relevant factors.
As regards the date from which the period is to be counted the Committee considered (sic the same and) has fixed the date as the date of the offence. As, however this may create practical difficulties and may also facilitate an accused person to escape punishment by simply absconding himself for the prescribed period, the Committee has also provided that when the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the period of limitation would commence from the day on which the participation of the offender in the offence first comes to the knowledge of a person aggrieved by the offence or of any police officer, whichever is earlier. Further, when 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.
The Committee has considered it necessary to make a specific provision for extension of time whenever the court is satisfied on the materials that the delay has been properly explained or that the accused had absconded. This provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country."
24. Read in the background of the Law Commission's Report and the Report of the JPC, it is clear that the object of Chapter XXXVI inserted in the Criminal Procedure Code was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences. In Sarwan Singh, this Court stated the object of the Criminal Procedure Code in putting a bar of limitation as follows: (SCC p.36,para 3) "3...The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which 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 statutes seek to sub-serve 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."
25. It is equally clear however that the law-makers did not want cause of justice to suffer in genuine cases. The Law Commission recommended provisions for exclusion of time and those provisions were made part of Chapter XXXVI. We, therefore, find in Chapter XXXVI provisions for exclusion of time in certain cases (Section 470), for exclusion of date on which the court is closed (Section 471), for continuing offences (Section 472) and for extension of period of limitation in certain cases (Section 473). Section 473 is crucial. It empowers the court to 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 to do so in the interest of justice. Therefore, Chapter XXXVI is not loaded against the complainant. It is true that the accused has a right to have a speedy trial and this right is a facet of Article 21 of the Constitution. Chapter XXXVI CrPC does not undermine this right of the accused. While it encourages diligence by providing for limitation it does not want all prosecutions to be thrown overboard on the ground of delay. It strikes a balance between the interest of the complainant and the interest of the accused. It must be mentioned here that where the legislature wanted to treat certain offences differently, it provided for limitation in the section itself, for instance, Section 198(6) and 199(5) CrPC. However, it chose to make general provisions for limitation for certain types of offences for the first time and incorporated them in Chapter XXXVI CrPC."
9. The scheme under Chapter XXXVI of the Code was adverted to by referring to Sections 467, 468, 469, 470, 471 and 473 and it was observed as follows :-
"30.1 Section 467 defines the phrase "period of limitation" to mean the period specified in Section 468 for taking cognizance of certain offences.
30.2 Section 468 stipulates the bar of limitation. Sub-section (1) of Section 468 makes it clear that a fetter is put on the court's power to take cognizance of an offence of the category mentioned in sub-section (2) after the expiry of period of limitation. Sub-section (2) lays down the period of limitation for certain offences.
30.3 Section 469 states when the period of limitation commences. It is dexterously drafted so as to prevent advantage of bar of limitation being taken by the accused. It states that period of limitation in relation to an offence shall commence either from the date of offence or from the date when the offence is detected.
30.4 Section 470 provides for exclusion of time in certain cases. It inter alia states that while computing the period of limitation in relation to an offence, 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 Explanation to this section states that in computing limitation, the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly time during which the accused is absconding or is absent from India shall also be excluded.
30.5 Section 471 provides for exclusion of date on which court is closed and Section 472 provides for continuing offence.
30.6 Section 473 is an overriding provision which enables courts to condone delay where such delay has been properly explained or where the interest of justice demands extension of period of limitation.
30.7 An analysis of these provisions indicates that Chapter XXXVI is a Code by itself so far as limitation is concerned. All the provisions of this Chapter will have to be read cumulatively. Sections 468 and 469 will have to be read with Section 473."
10. The term 'cognizance' in the context of the provisions of the Code and the earlier decisions in the case of Jamuna Singh Vs. Bhadai Shah6, R.R.Chari Vs. State of U.P.7, Gopal Das Sindhi Vs. State of Assam8, and Chief Enforcement Officer Vs. Videocon International Ltd.9, was discussed and it was observed that 'taking cognizance' is entirely an act of the Magistrate and that the same may be delayed because of several reasons including systematic reasons. The conflicting view points as to whether the date of taking cognizance or the date of filing complaint is material for computing limitation was considered and it was observed as follows:-
"34. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term "cognizance" and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons.
35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre. It is urged on the basis of this judgment that by condoning the delay, the court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 CrPC is presented before the court. Keeping this argument in mind, let us examine both the view points i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time-barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 CrPC. The court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the court takes cognizance within the period of limitation, there is no question of the complaint being time barred. If the Court takes cognizance after the period of limitation then, the question is how will Section 473 CrPC work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law...
xxx
37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 CrPC would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra)."
(emphasis supplied)
11. Referring to the legal maxim 'nullum tempus aut locus occurrit regi', 'vigilantibus et non dormientibus, jura subveniunt' and actus curiae neminem gravabit', it was observed as follows :-
"39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari. The object of the criminal law is to punish perpetrators of crime. This is in tune with the well- known legal maxim 'nullum tempus aut locus occurrit regi', which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim 'vigilantibus et non dormientibus, jura subveniunt'. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay.Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim 'actus curiae neminem gravabit' which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles."
(emphasis supplied)
12. The question as to what would be the relevant date for the purpose of computing the period of limitation under Section 468 was answered by the Constitution Bench judgment in the case of Sarah Mathew, as follows :-
"51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC 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 CrPC."
(emphasis supplied)
13. It would also be apposite to refer to the decisions in the case of Bharat Damodar Kale Vs. State of A.P.3, and also in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty4, which were held to have laid down the correct law in the aforementioned decision of the Constitution Bench in the case of Sarah Mathew.
14. The observations made in the case of Bharat Damodar Kale, (supra) that the limitation prescribed under Chapter XXXVI of the Code is only for filing of the complaint or initiation of prosecution and not for taking cognizance, are as follows :-
"10. 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 the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned counsel for the appellants, the limitation prescribed under the above Chapter applies to taking of cognizance by the court concerned, 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 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 470 indicates that 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)
15. The aforementioned view in the case of Bharat Kale was affirmed and followed in the case of Japani Sahoo and it was held that the date relevant for computation of period of limitation under Section 468 is the date when the complaint is filed or criminal proceedings are initiated and not the date when the Court/Magistrate takes cognizance or issues process. Applying the doctrine of "actus curiae neminem gravabit", it was held that taking a contrary view would lead to injustice and defeat the primary object of procedural law. The observations made in the judgment in this regard are as follows :-
"47. 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.
48. 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.
49. 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 can he 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 none) would indeed apply. (Vide Alexander Rodger v. Comptoir D'Escompte.) One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors.
50. 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.
51. 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.
52. 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."
(emphasis supplied)
16. Learned counsel for the applicant though not disputing the law laid down in the aforesaid authoritative pronouncements on the question of limitation has tried to carve out a distinction by pointing out that in the case at hand the proceedings have been initiated with the lodging of an FIR and not by way of a criminal complaint. The aforesaid contention cannot be accepted for the reason that the view taken in the Constitution Bench decision is that for the purpose of computing the period of limitation under Section 468 Cr.PC. the relevant date is the date of filing of the complaint or the date of institution of prosecution. The expression 'institution of prosecution' would be wide enough to include within its ambit institution of prosecution - either by filing of a complaint or by lodging of an FIR.
17. The 'institution of prosecution' under the Code can be by giving of information relating to commission of a cognizable offence under Section 154, or by lodging a written complaint before the Magistrate. In this regard reference may be had to the decision in the case of Darshan Singh Saini Vs. Sohan Singh and another10, wherein following the law laid down in the case of Sarah Mathew, and noticing the fact that the complainant after repeatedly visiting the police station to lodge his complaint, when the police did not interfere, lodged a written complaint before the Magistrate, within the period of limitation under Section 468, it was held that the bar under the said section would not apply on the basis of cognizance having been taken on a date beyond the prescribed period. The observations made in the judgment, in this regard are as follows :-
"4. It is also apparent from the pleadings of this case, that according to the respondent, the police did not interfere, when the respondent repeatedly visited the police station, to lodge his complaint. It is therefore, that the respondent-Sohan Singh lodged a written complaint on 24-01-2008, before the Learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, Himachal Pradesh.
5. The appellant-Darshan Singh Saini, approached the High Court under Section 482 of the Criminal Procedure Code, when he was summoned by the Judicial Magistrate, First Class, Nalagarh, District Solan, Himachal Pradesh through an order dated 06-02-2009. A perusal of the order dated 06-02-2009 reveals, that the appellant was summoned under Sections 341 and 506, read with Section 34 of the Penal Code, 1860.
6. The High Court, by the impugned order dated 08-04-2010, while partly accepting the prayer of the appellant, quashed the proceedings initiated against the appellant under Sections 341 and 506 of the Penal Code, but arrived at the conclusion, that there was reasonable ground to proceed against the appellant under Section 323 of the Penal Code.
7. It was the vehement contention of the learned counsel for the appellant, that the impugned order passed by the High Court is not acceptable in law, on account of the fact, that cognizance in the matter could not have been taken against the appellant, on account of the period of limitation depicted under Section 468 of the Code of Criminal Procedure. In this behalf, it was the pointed contention of the learned counsel for the appellant, that whilst the instant incident was of 15-01-2008, cognizance thereof was taken on 06.02.2009. This contention of the learned counsel for the appellant was premised on the fact, that though the complaint had been made on 24-01-2008, cognizance thereof was taken beyond a period of limitation of one year(on 06-02-2009).
8. We have considered the aforesaid contention advanced at the hands of the learned counsel for the appellant. It is apparent from the submissions advanced by the learned counsel for the appellant, that he is calculating limitation by extending the same to the order passed by the Judicial Magistrate, First Class, Nalagarh, on 06.02.2009. The instant contention is wholly misconceived on account of the legal position declared by a Constitution Bench of this Court in Sarah Mathew vs. Institute of Cardio Vascular Diseases, wherein in para 51, this Court has held as under : (SCC p.102) "51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC 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 CrPC."
9. In the above view of the matter, we are satisfied, that keeping in mind the allegations levelled against the appellant by the respondent, the date of limitation had to be determined with reference to the date of incident and the date when the complaint was filed by the respondent. Since the complaint was filed by the respondent on 24-01-2008, with reference to an incident of 15.01.2008, we are of the view, that Section 468 of the Criminal Procedure Code would not stand in the way of the respondent, in prosecuting the complaint filed by him."
18. Reference may also be had to the case of Johnson Alexander Vs. State by C.B.I.11 where the proceedings were held to be vitiated, in view of the bar under Section 468 for the reason that there was no application by the prosecution explaining the delay from the date of the alleged occurrence till the date of filing the complaint and registering the FIR.
19. The aforementioned authorities in the case of Darshan Singh Saini and Johnson Alexander, would go to show that 'institution of prosecution' would refer to the date of filing of the complaint or registering of the FIR, and in a case where the same is within the period of limitation, proceedings cannot be held to be barred by Section 468 merely for the reason that the order of cognizance or issuance of process is made on a subsequent date.
20. The view taken in the judgments in the case of Bharat Damodar Kale, Japani Sahoo and Sarah Mathew that for the purpose of computing the period of limitation under Section 468 of the Code the relevant date is the date of 'institution of prosecution' and not the date on which the Magistrate takes cognizance, is primarily for the reason that so far as the complainant/informant is concerned, as soon as he files a complaint, he has done everything which is required to be done by him and thereafter he has no control over the proceedings or the delay in taking cognizance which may be for reasons which are systemic or otherwise cannot be a ground to non-suit a diligent complainant. The aforesaid reason, would also be applicable where the case is instituted with the lodging of an FIR by the informant/complainant diligently and within the period of limitation. In this situation also the complainant/informant cannot be non-suited for any subsequent delay in taking cognizance, issuing process or any other action contemplated under law, for which the informant/complainant has no control.
21. The challenge therefore sought to be raised to the criminal proceedings, including the challenge to the charge-sheet and summoning order, on the point of limitation, by seeking to urge that the proceedings would be barred by limitation under Section 468 Cr.P.C. thus cannot be accepted and is therefore rejected.
22. At this stage, learned counsel for the applicant states that he may be permitted to address on other points in support of the application, and to sustain the challenge to the criminal proceedings.
23. As prayed, let the matter appear in the additional cause list on 4th October, 2021.
Order Date :- 29.9.2021 Pratima (Dr.Y.K.Srivastava,J.)