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2014 DIGILAW 332 (SC)

Sarah Mathew v. Institute of Cardio Vascular Diseases

2014-03-26

DIPAK MISRA, R.M.LODHA, SUDHANSU JYOTI MUKHOPADHAYA

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ORDER : Bereft of unnecessary facts, suffice it to observe that the appellant (for short "complainant") filed a complaint (C.C. No. 3354 of 1997) in the court of XVIIth Metropolitan Magistrate, Saidapet, Chennai under Section 200 of the Code of Criminal Procedure, 1973 (for short "the Code") against the present respondents for an offence under Section 304A of the Indian Penal Code, 1860 (IPC). 2. On the day the complaint was filed, the Court made an endorsement "check and call on 13.12.1996". 3. On 13.12.1996, the complainant's statement was recorded in part and thereafter certain witnesses were also examined. 4. On 13.6.1997, the Metropolitan Magistrate found the prima facie case in the complaint and issued process to the accused. 5. The present respondents challenged the order issuing process in a petition under Section 482 of the Code before the Madras High Court. 6. Before the High Court, on behalf of the respondents, diverse contentions were raised. Save and except the contention that cognizance taken by the Magistrate was barred by period of limitation, insofar as other contentions were concerned, the High Court felt that those were founded on facts and disputed by the complainant and, therefore, could not be examined in the petition under section 482 of the Code. The learned counsel for the respondents, accordingly, confined the petition to the sole ground whether the prosecution would survive when the Magistrate has taken cognizance of the same after a period of limitation. 7. The High Court considered Section 468 of the Code and few decisions of this Court and ultimately held that the cognizance taken by the Magistrate on 13.6.1997 was barred by limitation provided under Section 468 of the Code and consequently quashed the proceedings in the complaint without going into the merits of the case. 8. It is from this order that the present criminal appeal has arisen, by special leave. 9. Initially the matter came up before the Court on 9.2.2011. On that day, the Court passed the order referring the matter to a 3-Judge Bench. The order of 9.2.2011 reads as follows: Mr. 8. It is from this order that the present criminal appeal has arisen, by special leave. 9. Initially the matter came up before the Court on 9.2.2011. On that day, the Court passed the order referring the matter to a 3-Judge Bench. The order of 9.2.2011 reads as follows: Mr. K. Swami, counsel appearing for the appellant, submitted that the High Court was clearly wrong in holding that the proceeding against the respondents was barred by limitation, as provided under Section 468(2)(c) of the Code of Criminal Procedure, 1973, because the order issuing summons against the accused was passed by the Magistrate after three years from the date of the occurrence, even though the complaint was admittedly filed within the period of limitation. In support of the contention, he relies upon a two Judges' Bench decision of this Court in Bharat Damodar Kale & Anr. v. State of A.P., (2003) 8 SCC 559 in which, on an examination of the provisions contained in Chapter XXXVI of the Code of Criminal Procedure, it was held that the Court can take cognizance of an offence, the complaint of which is filed before it, within a period of limitation prescribed and, if need be, after excluding such time which is legally excludable. It further held 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 of Criminal Procedure. The decision in Bharat Damodar Kale is followed in another two Judges' Bench decision of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 In paragraph 52 of the decision in Japani Sahoo, it was reiterated 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. Mr. K.V. Viswanathan, learned senior counsel appearing on behalf of respondent No.1, submits that in both the decisions, an earlier three Judges' Bench decision in Krishna Pillai v. T.A. Rajendran & Anr., (1990) Supp SCC 121 was not taken note of. Mr. K.V. Viswanathan, learned senior counsel appearing on behalf of respondent No.1, submits that in both the decisions, an earlier three Judges' Bench decision in Krishna Pillai v. T.A. Rajendran & Anr., (1990) Supp SCC 121 was not taken note of. The decision in Krishna Pillai, though arising under the Child Marriage Restraint Act, 1929, also dealt with the period of limitation prescribed for taking cognizance, as provided under Section 9 of that Act. In Krishna Pillai, the Court after referring to the Constitution Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 , made the following observations: "The extract from the Constitution Bench judgment clearly indicates that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Since the magisterial action in this case was beyond the period of one year from the date of the commission of the offence the Magistrate was not competent to take cognizance when he did in view of the bar under Section 9 of the Act. We accordingly allow the appeal and quash the prosecution. The writ petition is permitted to be withdrawn as not pressed." Mr. Viswanathan contends that in terms of section 4(2) of the Code of Criminal Procedure, all the provisions to Chapter XXXVI, i.e. Section 469, 473, etc., would equally apply to a proceeding under the Child Marriage Restraint Act, 1929. According to Mr. Viswanathan, the latter two Judges' Bench decisions are directly in conflict with the view taken by the three Judges' Bench decision in Krishna Pillai. In view of the aforesaid position, put up this case before a three Judges' Bench for an authoritative pronouncement on the issue. 10. When the matter came up for consideration before the 3-Judge Bench on 6.9.2011, it found that being a co-ordinate Bench, it was not possible for it to declare that the judgment of this Court in Krishna Pillai v. T.A. Rajendra and another, (1990) Supp SCC 121 did not law down correct law. Accordingly, on that day the matter was referred to a 5-Judge Bench to examine the correctness of the view taken in Krishna Pillai. Accordingly, on that day the matter was referred to a 5-Judge Bench to examine the correctness of the view taken in Krishna Pillai. The order dated 6.9.2011 reads as under: This matter has been referred to a three Judge Bench as there is a direct conflict in the three Judge Bench decision of this Court in Krishna Pillai v. T.A. Rajendran and Anr., 1990 (Supp.) SCC 121 on the one hand and the two Judge Bench decisions; (one) Bharat Damodar Kale and Anr. v. State of A.P., (2003) 8 SCC 559 ; (two) Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , on the other. The later two decisions have not noted the earlier decision in Krishna Pillai (supra). We have heard Mr. K. Swami, learned counsel for the appellant and Mr. K.V. Viswanathan, learned senior counsel for respondent no. 1 for some time. Prima facie, we are persuaded by the decision in Bharat Damodar Kale (supra) which has been followed in Japani Sahoo (supra) wherein it has been held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate or issuance of process by a Court. The three Judge Bench in Krishna Pillai (supra) has not adverted to diverse aspects including the aspect that inaction on the part of the Court by not taking cognizance swiftly or within limitation, although the complaint has been filed within time or the prosecution has been instituted within time, should not act prejudicial to the prosecution or the complainant. As a co-ordinate Bench, we cannot declare that Krishna Pillai (supra) does not lay down correct law. We are, therefore, of the view that matter should be referred to a Five Judge Bench to examine the correctness of the view in Krishna Pillai (supra). Let the papers be placed before the Hon'ble the Chief Justice for constitution of an appropriate Bench. 11. The Judge Bench has now answered the reference on 26.11.2013. The view taken in Krishna Pillai has not been accepted and the view taken by this Court in Bharat Damodar Kale and Japani Sahoo has been approved. This is what the 5-Judge Bench has answered: 40..........For all these, we are unable to endorse the view taken in Krishna Pillai. 41. The Judge Bench has now answered the reference on 26.11.2013. The view taken in Krishna Pillai has not been accepted and the view taken by this Court in Bharat Damodar Kale and Japani Sahoo has been approved. This is what the 5-Judge Bench has answered: 40..........For all these, we are unable to endorse the view taken in Krishna Pillai. 41. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale which is followed in Japani Sahoo lays down the correct law. Krishna Pillai will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. 12. In view of the authoritative pronouncement of the 5-Judge Bench on the question of law referred to it, the view taken by the High Court cannot be allowed to stand. The view of the High Court is clearly wrong and has to be set-aside. 13. Consequently, the impugned order is setaside. The 17th Metropolitan Magistrate, Saidapet, Chennai shall now proceed with the complaint. It will be open to the accused to raise all available pleas for discharge at the time of framing of charges by the Metropolitan Magistrate including the plea based on a decision of this Court in Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 . Obviously, on such plea being raised, the Metropolitan Magistrate shall consider the same after hearing the counsel for the complaint in accordance with law. 14. Appeal is allowed as above.