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Jharkhand High Court · body

2012 DIGILAW 1552 (JHR)

Upendra Pasi v. State of Jharkhand

2012-10-30

R.R.PRASAD

body2012
Judgment A case was lodged on 20.10.1991 for commission of offence of theft of cable in Moonidih area of B.C.C.L. After investigation of the case, charge sheet was submitted under Section 379/411 of the Indian Penal Code on 2.1.1992 but the cognizance of the offence was taken on 27.11.1996. Since cognizance of the offence was taken after five years of the commission of the offence of theft, punishable for a period of three years, an application was filed for discharge of the petitioner from the case taking a plea that order taking cognizance is itself barred by limitation. That application was rejected. Against that, Cr. Rev. No.31 of 2003 was preferred before the Sessions Judge, Dhanbad, who remanded the matter back to the trial court to pass a fresh order on the petition filed for discharge. However, learned Magistrate again rejected the petition for discharge on 25.8.2006. 2. Being aggrieved with that order, Cr. Rev. No.352 of 2006 was filed before the Sessions Judge, Dhanbad which on transfer was heard by Additional Sessions Judge-cum-FTC No.5, Dhanbad. 3. Learned Additional Sessions Judge having heard learned counsel appearing for the parties and placing his reliance on the decision rendered in a case of Bharat Damodar Kale vs. State of A.P [ (2003) 8 SCC 559 ] and also on a decision rendered in a case of Japani Sahoo vs. Chandra Sekhar Mohanty [ (2007) 7 SCC 394 ] held that for the purpose of computing the period of limitation relevant date be considered as the date of filing of the complaint or initiating criminal proceeding and not the date of taking cognizance by a Magistrate and thereby affirmed the order passed by the trial court whereby prayer for discharge had been rejected by the leaned Magistrate. 4. Being aggrieved with those orders, this application has been filed. 5. Mr. Jai Prakash, learned Sr. 4. Being aggrieved with those orders, this application has been filed. 5. Mr. Jai Prakash, learned Sr. counsel appearing for the petitioners submitted that from bare perusal of the provision as contained in Section 468 of the Code of Criminal Procedure there remains no doubt that for the purpose of computing the period of limitation, relevant date would be the date when the cognizance of the offence is taken and not the date on which complaint or criminal proceeding is initiated and that the wording of the said provision is so unambiguous that the court would be tempted to abide by the letter of law and therefore, the Hon’ble Supreme Court in a case of State of Punjab vs. Sarwan Singh [ (1981) 3 SCC 34 ] has taken the same view by holding that whether it is the State or a private complaint it must abide by the letter of law or take the risk of the prosecution falling on the ground of limitation. On the same line, there are several other decisions. But in course of time, the Hon’ble Supreme Court in a case of Bharat Damodar Kale vs. State of A.P (supra) and also in a case of Japani Sahoo vs. Chandra Sekhar Mohanty (supra) has taken a different view wherein it has been held that for the purpose of computing the period of limitation, relevant date must be considered as the date of filing of the complaint or initiating criminal proceeding. The said view has been taken in a case of Bharat Damodar Kale vs. State of A.P (supra) on the premise that taking cognizance is an act of the court over which prosecuting agency or the complainant has no control and on account of fault on the part of the court, if the court does not take cognizance within the time prescribed under Section 468 of the Code of Criminal Procedure, the parties should not be allowed to be suffered on that count but not passing an order by the court during the prescribed period, one cannot attach fault on the part of the court. Learned counsel in support of his submission has referred to a decision rendered in a case of Mithilesh Kumari and another vs. Prem Behari Khare [ (1989) 2 SCC 95 ] which was the matter relating to Benami Transaction (Prohibition) Act, 1988 wherein it has been held that delay in disposal of an appeal cannot be termed an action of the court. 6. Thus, the submission which was made is that even on account of delay being made by the court in taking cognizance of the offence within the prescribed period of limitation, it cannot be termed as action of the court and thereby prosecution has to reap the consequence as prescribed under Section 468 of the Code of Criminal Procedure. 7. Further it was submitted that the Hon’ble Supreme Court in a case of Japani Sahoo vs. Chandra Sekhar Mohanty (supra) though has held that for the purpose of computing the period of limitation relevant date must be considered as the date of filing of complaint or initiating criminal proceeding and not the date of taking cognizance by a Magistrate but the criminal proceeding gets initiated only when cognizance of the offence is taken which proposition of law has been reiterated recently by the Hon’ble Supreme Court in a case of Additional Director General, Army Headquarters vs. Central Bureau of Investigation [ (2012) 6 SCC 228 ] . Therefore, natural consequence would be that if the period of limitation as prescribed under Section 468 of the Code of Criminal Procedure gets expired on the date of taking cognizance, the order taking cognizance must be held to be barred by limitation as it has happened in the instant case. 8. No doubt it is true that the provision as contained in Section 468 of the Code of Criminal procedure prescribes about the bar in taking cognizance after lapse of the period of limitation which on plain reading does suggest that the court must take cognizance within the time prescribed of the offences punishable with fine, imprisonment for a term not exceeding one year and not exceeding three years. 9. When such matter in which charge sheet had been submitted after the prescribed period of limitation, came for consideration before the Hon’ble Supreme Court in a case of State of Punjab vs. Sarwan Singh (supra). 9. When such matter in which charge sheet had been submitted after the prescribed period of limitation, came for consideration before the Hon’ble Supreme Court in a case of State of Punjab vs. Sarwan Singh (supra). Their Lordships after taking into account the object for which legislature had put in that provision under the Code of Criminal Procedure held as under: “The object which the statutes seek to sub-serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. 10. Having held so, the Hon’ble Supreme Court found the case being hit by the provision as contained in Section 468(2)(c) as the charge sheet had been submitted beyond the period of limitation prescribed. 11. It does appear that thereafter in number of decisions same principle was followed. However, in a case of Bharat Damodar Kale vs. State of A.P (supra) when again such matter fell for consideration. Their Lordships after considering the provision not only under Section 468 but also the provision as contained in Sections 469 and 470 did hold that for the purpose of computing the period of limitation, relevant date must be considered as the date of filing of the complaint. While coming to such conclusion, it was observed as follows: “10. On facts of this case and based on the arguments advanced before us, we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned counsel for the appellants, the limitation prescribed under the above Chapter applies to taking of cognizance of the court concerned, therefore, even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be inspired by the chapter-heading o Chapter XXXVI of the Code which reads thus: ‘Limitation for taking cognizance of certain offences’. This argument seems to be inspired by the chapter-heading o 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 is of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 470 indicates that while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded. The said section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of he 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 indicate 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. 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.” 12. Subsequently, again the same issue, as had been decided in a case referred to above, fell for consideration before the Hon’ble Supreme Court in a case of Japani Sahoo vs. Chandra Sekhar Mohanty (supra) wherein argument which was advanced was that the provision as contained in Section 468 which puts embargo in taking cognizance of an offence by a court after the prescribed period is so specific that decision rendered in a case of Bharat Damodar Kale vs. State of A.P (supra) be held to be per incuriam. Their Lordships rejected the contention after holding as follows: “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 para 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 of 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 of ‘cumulative reading of various provisions’. 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 of ‘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 gravabir (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. 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 o 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 the 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. 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 can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such cases, the doctrine ‘actus curiae neminum gravebit’ (an act of court shall prejudice none) would indeed apply (Vide Alexander Rodger vs. Comptoir D’ Escompte). One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law. 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 is issuing process or taking cognizance of an offence. Now, he is he 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 provision is totally arbitrary, irrational and unreasonable. Now, he is he 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 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.” 13. After holding so, their Lordships did hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of compliant or initiating criminal proceedings and not the date of taking cognizance by a Magistrate and thereby all the decisions whereby contrary view has been taken were overruled. 14. In that view of the matter, the question of taking any contrary view never arises. 15. However, the argument was advanced that though the Hon’ble Supreme Court has been pleased to hold that the relevant date for computing the period of limitation in a case instituted on a police report would be the date when the criminal proceeding is initiated but the criminal proceeding gets initiated only when cognizance of the offence is taken by the court and in support of his submission a decision rendered in a case of Additional Director General, Army Headquarters vs. Central Bureau of Investigation (supra) has been referred to. 16. The submission advanced appears to be misconceived. 17. It has already been noticed that the ratio has been laid down in a case of Japani Sahoo vs. Chandra Sekhar Mohanty (supra) that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the compliant or initiating criminal proceeding and not taking cognizance of the offence by the Magistrate. However, their Lordships in a case of Additional Director General, Army Headquarters vs. Central Bureau of Investigation (supra) have expressed their views over the clause 'institution of a case' in altogether different context which would be apparent from paragraph 41 of the said decision whereby their Lordships have arrived to a conclusion of the matter which reads as follows: “Thus, in view of the above, it is evident that the expression “institution” has to be understood in the context of the scheme of the Act applicable in a particular case. So far as the criminal proceedings are concerned, ”institution” does not mean filing; presenting or initiating the proceedings, rather it means taking cognizance as per the provision contained in the Code of Criminal Procedure.” 18. Therefore, even if such expression has been used by their Lordships that hardly makes any difference so far the law has been laid down in a case of Japani Sahoo vs. Chandra Sekhar Mohanty (supra). 19. Hence, I do not find any illegality in the order passed either by the trial court or by the revisional court. 20. Accordingly, this application being devoid of any merit is dismissed.