Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 118 (RAJ)

Manoj Kumar Chaudhary v. State Of Rajasthan

2023-01-10

ANOOP KUMAR DHAND

body2023
ORDER : Anoop Kumar Dhand, J. Instant petition has been filed by the petitioners against the impugned order dated 03.04.2014 passed by the Additional Civil Judge (JD) and Metropolitan Magistrate No. 24, Bassi Jaipur, Metropolitan (for short, 'learned Magistrate') in criminal case No. 460/2014 by which the cognizance has been taken against the petitioners under Section 323 IPC. 2. Counsel for the petitioners submits that the date of alleged offence is 05.09.2012 while time barred cognizance has been taken against the petitioners vide order dated 03.04.2014. Counsel submits that as per the provisions contained under Section 468 Cr.P.C., the limitation for taking cognizance is one year. Counsel submits that looking to the provisions contained under Section 468 Cr.P.C., cognizance has been taken against the petitioner after expiry of the period of limitation. Hence, under these circumstances, the impugned order is liable to be quashed and set aside. In support of his contentions, learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in the case of Mrs. Sarah Mathew v. Institute of Cardio Vascular Diseases and Ors. reported in 2014 CRl.L.J. 586. 3. Per contra, learned Public Prosecutor has opposed the prayer made by the learned counsel for the petitioner and submits that for the incident dated 05.09.2014, the FIR was registered on the same day that is within the period of limitation. Counsel submits that if the cognizance has been taken by the learned Magistrate on a subsequent date, the same cannot be treated as time barred. He further submits that the learned Magistrate has not committed any error in passing the impugned order, hence the interference of this Court is not warranted. 4. Heard and considered the rival submissions made at bar and perused the material available on record. 5. This fact is not in dispute that for the alleged incident dated 05.09.2012, the FIR was lodged on the same day. After investigation, police has submitted the charge sheet against the petitioners for the offence under Section 323 Cr.P.C. upon which cognizance has been taken against the petitioners vide order dated 03.04.2014 by the learned Magistrate. 6. The Hon'ble Apex Court in the case of Bharat Damodar Kale and Anr. After investigation, police has submitted the charge sheet against the petitioners for the offence under Section 323 Cr.P.C. upon which cognizance has been taken against the petitioners vide order dated 03.04.2014 by the learned Magistrate. 6. The Hon'ble Apex Court in the case of Bharat Damodar Kale and Anr. v. State of A.P, reported in AIR 2003 SC 4560 has held that if the complaint/FIR is filed within the time period of limitation and cognizance is taken on a subsequent date, the cognizance cannot be treated as time barred. It has been held by the Hon'ble Apex Court:- "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. 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. This view of ours is also in conformity with the early decision of this Court in the case of Rashmi Kumar (supra) If this interpretation of Chapter XXXVI of the Code is to be applied to the facts of the case then we notice that the offence was detected on 5.3.1999 and the complaint was filed before the court on 3.3.2000 which was well within the period of limitation, therefore, the fact that the court took cognizance of the offence only on 25.3.1999 about 25 days after it was filed, would not make the complaint barred by limitation." 7. Similarly the case cited by the learned counsel for the petitioners in the case of Mrs. Sarah Mathew (Supra) the same analogy has been decided by the constitutional Bench of the Hon'ble Apex and has held that if the complaint/FIR is filed within the time period of limitation from the date of offence and if cognizance is taken on a subsequent date by the Court then the same would be treated within the period of limitation. It has been held in para Nos. 34 to 39 as under:- 34. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term 'cognizance' and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons. 35. In this connection, our attention is drawn to the judgment of this Court in Sharadchandra Dongre. It is urged on the basis of this judgment that by condoning the delay, the Court takes away a valuable right which accrues to the accused. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 of the Cr.P.C. is presented before the Court. Keeping this argument in mind, let us examine both the view points i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. Hence, the accused has a right to be heard when an application for condonation of delay under Section 473 of the Cr.P.C. is presented before the Court. Keeping this argument in mind, let us examine both the view points i.e. whether the date of taking cognizance or the date of filing complaint is material for computing limitation. If the date on which complaint is filed is taken to be material, then if the complaint is filed within the period of limitation, there is no question of it being time barred. If it is filed after the period of limitation, the complainant can make an application for condonation of delay under Section 473 of the Cr.P.C. The Court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the Court takes cognizance within the period of limitation, there is no question of the complaint being time barred. If the Court takes cognizance after the period of limitation then, the question is how will Section 473 of the Cr.P.C. work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr. Luthra, learned A.S.G. submitted that use of disjunctive 'or' in Section 473 of the Cr.P.C. suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the later part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 of the Cr.P.C. has to be bifurcated or not. But, we do find this situation absurd. It is absurd to hold that the Court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass order condoning or not condoning the delay. Law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 of the Cr.P.C. is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period. He would, however, be entitled to exclude such time as is legally excludable. 36. The role of the court acting under Section 473 was aptly described by this Court in Vanka Radhamanohari (Smt.) where this Court expressed that this Section has a non-obstante clause, which means that it has an overriding effect on Section 468. This Court further observed that :: (SCC p.8, para 6) "6......There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Cr.P.C. For exercise of power under Section 5 of the Limitation Act, the onus is on the applicant to satisfy the court that there was sufficient cause for condonation of delay, whereas, Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether, it is the requirement of justice to ignore such delay." These observations indicate the scope of Section 473 of the Cr.P.C. Examined in light of legislative intent and meaning ascribed to the term 'cognizance' by this Court, it is clear that Section 473 of the Cr.P.C. postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material. 37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. 37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 of the Cr.P.C. would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra). 38. The conclusion reached by us is reinforced by the fact that the Law Commission in clause 24.20 of its Report, which we have quoted hereinabove, referred to Dau Dayal[39] where the three-Judge Bench of this Court was dealing with a Special Act i.e. the Merchandise Marks Act, 1889. Section 15 of the Merchandise Marks Act, 1889 stated that no prosecution shall be commenced after expiration of one year after the discovery of the offence by the prosecution. Section 15 of the Merchandise Marks Act, 1889 stated that no prosecution shall be commenced after expiration of one year after the discovery of the offence by the prosecution. The contention of the appellant was that the offence was discovered on 26-4-1954 when he was arrested, and that, in consequence, the issue of process on 22-7-1955, was beyond the period of one year provided under Section 15 of the Merchandise Marks Act, 1889 and that the proceedings should therefore be quashed as barred by limitation. While repelling this contention, the three-Judge Bench of this Court observed as under: "6. It will be noticed that the complainant is required to resort to the court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act. That means that if the complaint is presented within one year of such discovery, the requirements of Section 15 are satisfied. The period of limitation, it should be remembered, is intended to operate against the complainant and to ensure diligence on his part in prosecuting his rights, and not against the court. Now, it will defeat the object of the enactment and deprive traders of the protection which the law intended to give them, if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence, it should be thrown out. It will be an unfortunate state of the law if the trader whose rights had been infringed and who takes up the matter promptly before the criminal court is, nevertheless, denied redress owing to the delay in the issue of process which occurs in court." Though, this Court was not concerned with the meaning of the term 'taking cognizance', it did not accept the submission that limitation could be made dependent on the act of the Magistrate of issuing process. It held that if the complaint was filed within the stipulated period of one year, that satisfied the requirement. The complaint could not be thrown out because of the Magistrate's act of issuing process after one year. 39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.). The object of the criminal law is to punish perpetrators of crime. 39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.). The object of the criminal law is to punish perpetrators of crime. This is in tune with the well known legal maxim 'nullum tempus aut locus occurrit regi', which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim 'vigilantibus et non dormientibus, jura subveniunt'. Chapter XXXVI of the Cr.P.C. which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 of the IPC, which have lesser punishment may have serious social consequences. Provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim 'actus curiae neminem gravabit' which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. Provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles." 8. Analysing the entire facts of the case and material provided in the court and upon a cumulative consideration of the matter, this court is of the definite opinion that learned Magistrate has not committed any error while passing the impugned order dated 03.04.2014. 9. For the reasons aforesaid, this petition fails and accordingly the same is dismissed without any cost. 10. Stay application also stands dismissed. 11. At this stage, counsel for the petitioner has placed reliance on a circular dated 12.05.2022 issued by the Department of Home wherein the State has taken a decision to withdraw the cases which are pending before the Court since last more than three years in which offence is punishable with one year imprisonment. 12. Stay application also stands dismissed. 11. At this stage, counsel for the petitioner has placed reliance on a circular dated 12.05.2022 issued by the Department of Home wherein the State has taken a decision to withdraw the cases which are pending before the Court since last more than three years in which offence is punishable with one year imprisonment. 12. The petitioner may submit an appropriate application before the trial Court for putting this case before the next National Lok Adalat. 13. The National Lok Adalat is expected to decide the matter on the basis of the aforesaid circular issued by the State in accordance with law.