TMI Blog2007 (7) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... zar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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 ought to have been taken within one year of the commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstance 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 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 compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unsusta ..... 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