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2004 DIGILAW 547 (MAD)

George alias Mathew v. Poulose Varkey

2004-03-26

R.BASANT

body2004
ORDER: This petition under Sec.482, Crl.P.C. is preferred by the sole accused in a private complaint filed by the complainant alleging commission of offences punishable under Secs.447 and 323, I.P.C. 2. The fundamental facts are not in dispute. The alleged incident took place on 13.10.1990. An F.I. statement was promptly filed and a crime was registered. In that F.I.R. there was allegation only against the petitioner herein. Within six days of the commencement of investigation, the police filed a report before the Magistrate that their investigation has revealed that the petitioner herein, the original accused, is not involved in the crime. Instead, the police proceeded on the allegation that two other persons, allegedly workers of the petitioner herein, were the accused in that case. On getting information of the report filed by the police, the complainant on 13.12.1990 filed a private complaint against the petitioner herein, wherein he reiterated the allegations in the F.I. statement and contended that the police investigation was not proceeding along the correct lines. The learned Magistrate received the complaint, kept it on file and did not take any further action. Though a specific order of stay under Sec.210, Crl.P.C. was not passed, the learned Magistrate appears to have followed the procedure under Sec.210, Crl.P.C. He waited for the final report to be filed by the police in the crime. The learned Magistrate called for a report from the police. 3. Investigation into the crime dragged on. Long after on 31.12.1992 a final report was filed by the police. In the final report the police stuck to their stand that the petitioner herein was not concerned in the crime and two employees of his were really concerned in the crime. Charge sheet was thus filed only against those two employees and the final report confirmed the earlier report filed on 19.10.1990 that the petitioner herein was not involved in the crime. 4. On receipt of that final report the learned Magistrate took cognizance of the offences punishable under Secs.447 and 323 read with 34, I.P.C. against those two employees of the petitioner. By implication the negative report in so far as the petitioner is concerned was accepted. Summons was issued on 1.1.1993 to those two other accused persons. 5. All the while complaint filed by the complainant on 13.12.1990 remained on the file. By implication the negative report in so far as the petitioner is concerned was accepted. Summons was issued on 1.1.1993 to those two other accused persons. 5. All the while complaint filed by the complainant on 13.12.1990 remained on the file. Long after, on 3.2.1995 the learned Magistrate after following the procedure prescribed took cognizance of the offences alleged against the petitioner herein and issued summons to him. The police charge case bore the number C.C.No.352 of 1993 and the private complaint was pending as C.C.No.24 of 1995. 6. In both the cases the accused persons raised a contention that cognizance taken against them is barred by limitation. The petitioner further raised a contention that cognizance taken against him on the private complaint amounts to a review of the earlier decision taken on the final report by the police and was hence impermissible. The learned Magistrate considered the objections raised by the impugned order upheld the objections raised in the police charge case while turning down the objections raised by the petitioner in the private complaint. 7. The petitioner/accused and the respondent/ complainant have entered appearance. My learned-brother, while admitting this petition on 14.7.1998 had directed issued of notice to both the accused in C.C.No.352 of 1993, whose objections regarding limitation were upheld. Notice was issued to them. But they have not chosen to enter appearance. 8. I shall initially dispose of the suo motu notices issued to the two accused persons in C.C.No.352 of 1993. The complainant has no case that they are guilty of any offence. Either in the F.I. statement or in the complaint filed by him, he was not raised any allegations against those two accused persons. It was the police, who, in the final report filed by them, made allegations against those accused persons for the first time. The respondent/complainant is not aggrieved by the termination of proceedings against those two persons. I have considered the nature of allegations. I have considered the stand taken by the complainant. I have considered the long lapse of time. I am satisfied that it is not, at any rate, necessary in the interests of justice to invoke the extra ordinary jurisdiction available to this Court under Sec.482, Crl.P.C. or the revisional jurisdiction under Sec.401, Crl.P.C. to interfere with the termination of proceedings against those two accused persons now. 9. I have considered the long lapse of time. I am satisfied that it is not, at any rate, necessary in the interests of justice to invoke the extra ordinary jurisdiction available to this Court under Sec.482, Crl.P.C. or the revisional jurisdiction under Sec.401, Crl.P.C. to interfere with the termination of proceedings against those two accused persons now. 9. The petitioner first of all complains that cognizance taken against him is bad in law. It is barred by limitation. The alleged offence took place on 13.10.1990. The period of limitation prescribed is one year. Cognizance must have been taken on or before 13.10.1991. Cognizance in the instant case atleast the visible manifestation of the Court having taken cognizance took place only on 3.2.1995 when summons was issued to the petitioner. He contends that on 3.2.1995 the period of one year having already elapsed, cognizance should not have been taken and the cognizance taken is barred under Sec.468, Crl.P.C. 10. The learned counsel for the respondent/complainant, on the contrary, contends that there is no bar of limitation at all. He first of all contends that the incident having taken place on 13.10.1990 and the complaint having been filed on 13.12.1990 there is no bar of limitation notwithstanding the fact that the learned Magistrate had issued process under Sec.204, Crl.P.C. only on 3.2.1995. The counsel contends that for the purpose of considering limitation, it is the date of the filing of the complaint which has to be reckoned as the crucial date and not the date on which the Court later at its convenience issued process. 11. This is then is the crucial dispute in this case. Which is the date to be reckoned for the purpose of computing limitation under Sec.468, Crl.P.C, the date on which the complaint is filed or the later date on which the magisterial act of taking cognizance manifests itself under Sec.204, Crl.P.C? 12. The learned counsel for the complainant contends that taking of cognizance cannot be said to be one a one point act. It is a process. The process by which a Court applies its judicial mind to the materials placed before it to decide whether there are sufficient grounds to proceed against the accused or not is the legal process of taking cognizance. It is a process. The process by which a Court applies its judicial mind to the materials placed before it to decide whether there are sufficient grounds to proceed against the accused or not is the legal process of taking cognizance. It starts with the making of a complaint and essentially ends with an order issuing process under Sec.204, Crl.P.C. or dismissing the complaint under Sec.203, Crl.P.C. For the purpose of Sec.463, Crl.P.C. the entire period from filing the complaint to the order under Sec.203/204, Crl.P.C. must be reckoned as the process or the phase of taking cognizance. So construed the date of filing of the complaint must be reckoned as the date of taking cognizance, atleast for the purpose of Sec.468, Crl.P.C, contends the counsel. 13. The counsel for the respondent relies on the decision in Zain Sait v. Intex Painter, Interior Decorators, (1993)1 K.L.T. 532 , as also the latest decision of the Supreme Court on the point reported in Bharat Damodr Kale and another v. State of A.P., (2004)1 K.L.T. (S.C.) (S.N.) 98: A.I.R. 2003 S.C. 4560. The counsel for the respondent/complainant submits that there cannot be any further doubt on the proposition that it is the date of filing of the complaint which must be reckoned as the crucial date under Sec.468, Crl.P.C. Any controversy on that aspect is laid to rest finally in view of the specific declaration of law, which is binding on all Courts under Art.141 of the Constitution. I extract below for the sake of convenience paragraph 10 of the said judgment. 10. On the 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 of 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. 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 offices.” 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 Sec.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 office is detected. Sec.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 executed. 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 executed. 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 or the Court over which the prosecuting agency or the complainant has no control. 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 or 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 as this 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. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra). [Italics supplied] In view of the very clear declaration by the Supreme Court extracted above, I should have felt that the controversy is resolved once and for all. But the learned counsel for the petitioner submits that the dictum in B.D.Kale’s case, (2004) 1 K.L.T. (S.C) (S.N.) 98: A.I.R. 2003 S.C. 4560 cannot be held to be binding. It has not taken into account the earlier decision of the Supreme Court rendered by a larger Bench in an identical situation, reported in Krishna Pillai v. T.V.Rajendran and another, 1990 S.C.C. (Crl.) 646. The counsel submits that the scheme of Sec.468 makes it absolutely clear that it is not the date of the filing of the complaint, but it is the date of taking cognizance which is relevant. The said expression “taking cognizance” cannot be held to start from the date of the complaint in view of the unambiguous declaration by the three Judges Bench in Krishna Pillai’s case, which, in turn, follows the observations in a decision of the Constitution Bench reported in A.R.Antulay v. Ramadas Srinivas Nayak, (1984)2 S.C.C. 500 . The said expression “taking cognizance” cannot be held to start from the date of the complaint in view of the unambiguous declaration by the three Judges Bench in Krishna Pillai’s case, which, in turn, follows the observations in a decision of the Constitution Bench reported in A.R.Antulay v. Ramadas Srinivas Nayak, (1984)2 S.C.C. 500 . The counsel relies on the following passage from Antulay’s case, which is quoted and followed in Krishna Pillia‘s case: “When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Sec.200, Crl.P.C. After examining the complainant on oath and examining the witnesses present, if any,meaning thereby that the witnesses not present need not be examined, it would be open to the Court to judicial determine whether a case is made out for issuing process. When it is said that Court issued process, it means that Court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the Court.” According to the learned counsel, going through the provisions of Chapter XXXVI of the Code, it cannot be held that the scheme of the Act reckons the date of filing of the complaint as the date of cognizance. 14. I have considered all the contentions raised. The observation in Antulay’s case, (1984)2 S. C. C. 500 extracted above perhaps indicate that visible manifestation of taking cognizance occurs when process is issued and taking cognizance does not take place completely when the complaint is filed. I find no merit in the submission of the learned counsel for the respondent that it is not necessary while interpreting Sec.468, Crl.P.C. to ascertain the precise point of time when a Court can be said to have taken cognizance. It is to a single point act. It is a process. The process by which the Court applies its mind to the materials available on the record to decide whether there are sufficient grounds to proceed is included in the concept of taking cognizance. It certainly starts from the point of time when the complaint is filed. If there is want of jurisdiction or other fundamental defect the complaint may be returned straightaway. It certainly starts from the point of time when the complaint is filed. If there is want of jurisdiction or other fundamental defect the complaint may be returned straightaway. The fact that it is not returned certainly suggests that the process of application of mind to the materials had commenced. That process ends ultimately when an order under Sec.203/204, Crl.P.C. is passed. In between the sworn statement of the complainant or statements of witnesses may have to be recorded under Sec.200 and/or 202, Crl.P.C. Taking cognizance is a process and certainly not a one point act. In this view of the matter the argument that the expressing “taking cognizance” in Sec.468 must be understood in a larger perspective to include the filing of the complaint appears to me to be impressive, though in Krishna Pillai’s case that approach is not adopted by the Supreme Court. 15. Perhaps it is not necessary to go into that aspect in greater detail as in B.D.Kale’s case, (2004)1 K.L.T, (S.C.) (S.N.) 98: A.I.R. 2003 S.C. 4560, the Supreme Court was seized specifically of that question under Chapter XXXVI of the Crl.P.C, whereas in Krishna Pillai’s case, 1990 S. C. C. (Crl.) 646, the Supreme Court was dealing only with the provisions of the Child Marriage Restraint Act, 1929 and Sec.9, therein. It is perhaps significant that in paragraph 10 of B.D.Kale’s case, the Supreme Court has observed that, “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.”The Two Judge Bench of the Supreme Court was dealing with the specific question only in B.D.Kale’s case and in Krishna Pillai’s case, the Supreme Court was not called upon to ascertain the ambit of the expression “taking cognizance” as required for interpretation of Chapter XXXVI, Crl.P.C. 16. Undaunted, the learned counsel for the petitioner contends that in B.D.Kale’s case, (2004)1 K.L.T. (S.C.) (S.N.) 98: A.I.R. 2003 S.C. 4560 on facts the Supreme Court was not called upon to consider the specific question as the delay in that case could be explained away under Sec.473, Crl.P.C. on the ground that the delay occurred in the process of obtaining sanction from the Central Government. I am unable to agree. I am unable to agree. In paragraph 10 of B.D.Kale’s case, the Supreme Court had squarely tackled the question of law. The question whether the date of filing of the complaint or the date of the magisterial act of issuing process has to be reckoned as the date of taking cognizance for the purpose of Chapter XXXVI was specifically considered and the law was declared by the Supreme Court. Paragraph 11 shows that the case was decided on the basis of this interpretation and declaration of the law in so far as it applies to interpretation of Chapter XXXVI. 17. There is certainly a real distinction between exclusion of the period of limitation under Secs.470 and 471 and extension of period of limitation under Sec.473. If the period were to be excluded as declared in Secs.470 and 471, there is no question of any limitation or extension of the period of limitation under Sec.473. It would be unreasonable to assume that the framers of the Code wanted the period of time during which a complainant was prosecuting with due diligence the prosecution before another Court to be excluded that and that before the same Court not to be excluded. Such a construction would certainly lead to absurdity. A person who had filed the complaint before elapse of the period of limitation before the same Court cannot certainly be said to be in a worse position than another who was prosecuting his cause under an erroneous, but bona fide impression before another Court. For the reason that such a conclusion leads to absurd results also, the question “taking cognizance” in Sec.468 has to be interpreted to take within its sweep the date of filing the complaint also. 18. I have no hesitation to agree that if the cogency and convincing nature of reasons were to appeal to this Court certainly the conclusion in B.D.Kale’s case, (2004)1 K.L. T. (S. C.) (S.N.) 98: A.I.R. 2003 S.C. 4560 has to be preferred. A complainant, who comes to Court within the stipulated period of limitation, cannot be nonsuited and shown the door merely because the Court, because of its prior commitments or other reasons, could not consider his complaint and take cognizance before lapse of the period of limitation. That would be unfair and unjust. In B.D.Kale’s case, the Supreme Court had also considered the application of the legal maxim “actus curiae neminem gravabit”. That would be unfair and unjust. In B.D.Kale’s case, the Supreme Court had also considered the application of the legal maxim “actus curiae neminem gravabit”. Going by the cogency and acceptability of the reasons and considering the fact that an exactly identical situation was being considered by the Supreme Court in B.D.Kale’s case and not so in Krishna Pillai’s case, 1990 S.C.C. (Crl.) 646, I am of opinion that the dictum which this Court has to accept and follow is that declared in B.D.Kale. In that view of the matter there can be no doubt that the complaint filed on 13.12.1990 is perfectly within time and does not offend the mandate of Sec.468, Crl.P.C. The date on which the Court actually issued process i.e., 3.2.1995, is irrelevant while considering the applicability of Sec.468, Crl.P.C. In this view of the matter the conclusion of the Court below has to be upheld. 19. The counsel points out that though the private complaint was filed on 13.12.1990 and the same was kept without further action by the learned Magistrate, sworn statement of the complainant was recorded on 3.6.1993 and cognizance was taken ultimately on 3.2.1995. The counsel further points out that between 13.12.1990 to 3.2.1995 there has been contumacious laches on the part of the complainant in prosecuting the case. Because of this also, he contends, that delay is not liable to be condoned and the period of limitation cannot be extended under Sec.473, Crl.P.C. I have already taken the view relying on the decision in B.D.Kale’s case, (2004)1 K.L.T. (S.C.) (S.N.) 98: A.I.R. 2003 S.C. 4560, that there is no bar of limitation and therefore, the question of extension of the period of limitation under Sec.473, Crl.P.C. has no relevance in this case. 20. The learned counsel for the petitioner then contends that, at any rate, cognizance taken against the petitioner is bad for the reason that the learned Magistrate who accepted the final report of the police reviewed his decision to drop the petitioner as an accused for the offence and took cognizance again on the basis of a private complaint on 3.2.1995. The counsel contends that the procedure adopted is illegal and incorrect. It amounts to review of a decision by a Criminal Court, which it is legally not competent to do. 21. The counsel contends that the procedure adopted is illegal and incorrect. It amounts to review of a decision by a Criminal Court, which it is legally not competent to do. 21. Coming to the contention that the learned Magistrate had no jurisdictional competence to take cognizance on a private complaint after accepting the negative final report in favour of the petitioner, after detailed discussions at the Bar, it is fairly conceded that the question has been answered by the Supreme Court against the petitioner in the decisions reported in Gopal Vijay Verma v. Bhuneswazr Prasad Sinha and others, (1982)3 S.C.C. 510 , Kishore Kumar Gyanchandani v. G.D.Mehrotra and another, 2002 S.C.C. (Crl.) 1116 and in Kishore Kumar Gyanchandani v. G.D.Mehrotra and another, A.I.R. 2002 S.C. 483. The position has bene reiterated later in the decision reported in Mahesh Chand v. B.Jananrdhan Reddy and another, (2003)1 S.C.C. 734 . In these circumstances, the second contention urged has got to be answered against the petitioner. It is now trite, and doubts, if any, on that aspect are already laid to rest, that acceptance of the negative final report by the Magistrate in favour of an accused, does not affect the power of the Magistrate to take cognizance thereafter on the basis of a private complaint. The learned Senior counsel Sri M.K.Damodaran does not press this latter contention after research and discussions at the Bar on this aspect. 22. It follows from the above discussions that the impugned order does not warrant interference. The challenge fails. 23. In the result this Crl.M.C. is dismissed.