Judgment :- 1. The question for consideration in this criminal miscellaneous case filed under S.482 of the Cr. P. C, is whether this court has to exercise its inherent power to quash the proceedings in a private complaint taken cognizance beyond the expiry of the period of limitation fixed under S.468 of the Code. 2. Petitioners are accused 1 to 4 in C. C. 643 of 1983, a private complaint filed by the first respondent before the Judicial Second Class Magistrate. Hosdurg, for an offence punishable under S.324 read with S.34 of the Indian Penal Code. The alleged incident was on 22-2-1978. There are two versions regarding the same incident Basing on the same incident the police registered a case against the first respondent and her husband for an offence under S.324 read with S.34 of the Indian Penal Code and it was being tried as C. C. 135 of 1980 by the Judicial First Class Magistrate, Hosdurg. Though the case at first ended in acquittal, the Sessions judge remanded the same in revision. That case also seems to have been disposed of. The first respondent at first filed a private complaint as C. C. 726 of 1978 which was renumbered as C. C. 336 of 1982. On 21-12-1982 the accused (petitioners) were discharged under S.249 of the Cr. P.C. for the non-appearance of the first respondent (complainant). On the same facts first respondent again filed C. C. 643 of 1983 on 7-4-1983 and the Magistrate took cognizance for the offence under S.324 read with S.34 of the Indian Penal Code and issued process. It is to quash this complaint that this petition was filed. 3. It was not disputed before me that the discharge of the accused under S.249 of the Cr. P.C. in a warrant case instituted on complaint for offences which are either compoundable or non-cognizable for the absence of the complainant will not amount to acquittal and a fresh complaint on the same facts is not barred. But the second complaint has to be filed within the period of limitation. In this case the offence is one under S.324 of the Indian Penal Code and the punishment is imprisonment upto three years. Under S, 468(2) (c) of the Cr. P.C. the period of limitation is three years. But the second complaint has to be filed within the period of limitation. In this case the offence is one under S.324 of the Indian Penal Code and the punishment is imprisonment upto three years. Under S, 468(2) (c) of the Cr. P.C. the period of limitation is three years. Under S.469 the period of limitation shall commence from the date of the offence or date of knowledge as the case may be. In this case the question of date of knowledge does not arise and limitation will start from the date of the offence itself. Exclusion of time under S.470 or the subsequent provisions do not arise at all. Under S.470 what is excluded is the time during which another prosecution was conducted with due diligence. The proviso further clarifies the matter. Such exclusion will be available only if the prosecution relates to the same facts. That is satisfied here. But the prosecution must be in good faith in a court which could not entertain it on account of defect of jurisdiction or other causes of a like nature. That condition is not satisfied here and hence there is no question of exclusion of time under S.470 It cannot be said that the previous complaint was one which has been prosecuted with due diligence in good faith in a court which was unable to entertain it for defect of jurisdiction or other cause of a like nature. S.471 or 472 or the other provisions of S 470 are also not attracted here. If no exclusion of time is available, the second complaint which was filed more than five years after the date of offence was evidently barred by limitation and under S.468(1) the Magistrate was not competent to take cognizance because of the prohibition. Cognizance taken in violation of the prohibition contained in S.468(1) must evidently be an illegality. 4. The injunction contained in S.468(1) prohibiting the courts from taking cognizance after the expiry of the period of limitation indicates that before taking cognizance it is the duty of courts to apply their judicial mind to the facts in order to decide whether the prosecution is in time or out of time. If it is out of time the courts have no right to take cognizance unless there is exclusion of time under S.470 or 471 or unless time is extended under the provisions of S.473 which reads: "473. If it is out of time the courts have no right to take cognizance unless there is exclusion of time under S.470 or 471 or unless time is extended under the provisions of S.473 which reads: "473. Extension of period of limitation in certain cases.- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may 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 so to do in the interests of justice." In order to apply the provisions of S.473 for taking cognizance after the expiry of the period of limitation the court must be satisfied on the facts and in the circumstances of the case either that the delay has been properly explained or that it is necessary to do so in the interest of justice. Such satisfaction and the consequent extension of time for taking cognizance beyond the period of limitation are justiciable and hence it must be supported by cogent reasons. It has to be remembered that such satisfaction and extension of time either on the explanation of the delay or in the interest of justice suo motu will normally be without notice to the accused and without hearing him, That is also the case with taking cognizance after satisfaction under S.468(1) that the prosecution is not barred. As held by the Supreme Court in State of Punjab v. Sarwan Singh 1981 (3) SCC. 34: "The object of the Criminal Procedure Code in putting a bar of limitation on prosecutions were 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 subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art.21 of the Constitution of India. The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art.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." That decision also held that if the prosecution is barred by limitation, the conviction and sentence and also the entire proceedings culminating in the conviction are non est. That indicates the magnitude and importance of the duty of court in applying its judicial mind to the question of limitation before taking cognizance. Question of limitation is one of jurisdiction. Taking cognizance beyond the period of limitation is illegal unless the court chose to extend time under S.473 for good cause which is shown on record. The wording of S.468 is mandatory and not directory. A statutory obligation is cast on the court not to take cognizance after the lapse of the period of limitation. 5. Whether it be under S.468 or under S.473 cognizance is without an opportunity to the accused to convince the court that the period of limitation has expired or that there is no good cause for extending time. Therefore the cognizance could only be subject to the right of the accused to plead before court in response to the process that the complaint or police report against him is either barred by limitation or that the extension of time was granted on insufficient or improper grounds. In K. Hanumantha Rao v. K. Narasimha Rao and others 1982 Crl. L. J. 734 it was held: "A statutory obligation is placed upon the Court under S.468, Cr. P. C. not to take cognizance of the offences specified in sub-section (2) thereof after lapse of the period of limitation. The Code does not provide an opportunity to the accused of being heard on the bar of limitation enacted under S.468 before taking cognizance of offences. The Code does not also envisage issue of any process against the accused before taking cognizance of the offence. The Code does not provide an opportunity to the accused of being heard on the bar of limitation enacted under S.468 before taking cognizance of offences. The Code does not also envisage issue of any process against the accused before taking cognizance of the offence. Any cognizance of the offence taken by the Court is subject to defeasance of the cognizance on the ground of limitation and it is open to the accused to plead before the Court in response to the process issued to him that the complaint or the challan filed against him and taken cognizance of by the Court is barred by limitation. Such a plea can be raised by the accused at any time during the trial. The discretion given to the Court under S.473. Cr. P. C. is very wide though it must be exercised judiciously on well recognised principles. No hard and fast rules can be laid down as to how the discretion can be exercised in a given case. Even when the Court takes cognizance of any of the offences specified in S.468(2) after applying its mind to the provisions of S.473. it is open to the offender to plead before the Court after conclusion of the trial that the provisions of S.473 are not attracted or complied with. Case law discussed." 6. It is true that the accused is entitled to appear and contend pursuant to the process that cognizance was taken beyond the period of limitation or that extension of time, if any, granted is improper. He may also be entitled to request the Court to consider this as a preliminary issue. At the conclusion of trial also he may be entitled to raise this question. Even before the appellate or revisional court he is free to raise this contention successfully. But these aspects need not deter this court from invoking its inherent jurisdiction to quash the proceedings. It is the duty of this court to rectify the abuse of process of court without asking the accused to stand the trial and raise his contentions before the trial court. Particularly in this case cognizance was taken mechanically after the expiry of more than five years without considering the question of limitation. The complainant has not offered any explanation for the inordinate delay. Particularly in this case cognizance was taken mechanically after the expiry of more than five years without considering the question of limitation. The complainant has not offered any explanation for the inordinate delay. So also there is nothing to show that the court was satisfied on the facts and in the circumstances of the case that it is necessary to take cognizance beyond the period of limitation in the interest of justice. On the other hand the facts and circumstances show that there was absolutely no justification in taking cognizance long after the expiry of limitation and after the accused were discharged in the previous complaint case. What was done is an illegality which amounts to an abuse of the process of court which evidently resulted in prejudice and harassment. The Cr. M. C. is allowed and the complaint in C. C. 643 of 1983 on the file of the Judicial Second Class Magistrate. Hosdurg is quashed.