Sahoo Vs. Chandra Sekhar Mohanty  Insc 775 (27 July 2007)
C.K. THAKKER & TARUN CHATTERJEE
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
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
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 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
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
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 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 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
Section 468. Bar to taking cognizance after lapse of the period of
limitation.(1) Except as otherwise provided elsewhere in this Code, no Court
shall take cognizance of an offence of the category specified in sub-section
(2), after the expiry of the period of limitation.
(2) The period of limitation shall be (a) six months, if the offence is
punishable with fine only;
(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
"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 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
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
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 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
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
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 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."
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
31. In Bipin Kalra v. State, 2003 Crl LJ (NOC) 51 (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;
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 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
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 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
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 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."
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
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.
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
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
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.
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
It expressly provides and explicitly states that "No court shall take
cognizance of an offence" Bharat Damodar, thus, submitted the learned
counsel, is per incuriam and is not binding upon this Court. The counsel,
therefore, submitted that in that case the matter may be referred to a larger
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 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
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
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
55. Appeal is accordingly allowed.