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PETITIONER: SURINDER MOHAN VIKAL

       Vs.

RESPONDENT: ASCHARAJ LAL CHOPRA

DATE OF JUDGMENT28/02/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR  986            1978 SCR  (3) 434  1978 SCC  (2) 403  CITATOR INFO :  RF         1988 SC1729  (7)

ACT: Limitation  for  taking  cognizance  of  certain   offences- Criminal  Procedure Code (Act 2 of 1974), 1973,-S. 468  r/w. Sections  469(a),  470 & 473 Legislative policy  behind  the statute of limitation.

HEADNOTE: Section 468 of Criminal Procedure Code (Act 2 of 1974), 1973 bars  taking  cognizance  after  lapse  of  the  period   of limitation.   Under  sub-s.  (2) of S.  468  the  period  of limitation  shall  be  (a) six months,  if  the  offence  is punishable  with for only; (b) one year, if the  offence  is punishable  with imprisonment for a term not  exceeding  one year and (c) three years, if the offence is punishable  with imprisonment for a term exceeding one year but not exceeding three years. The  appellant,  while working as General Secretary  of  the Central  Bank  of India Employees Union, Ludhiana,  filed  a criminal complaint on 15-3-1972 against respondents Ascharaj Lal  Chopra,  who  was his predecessor in  office  and  also against  one Amreek Singh a treasurer for the commission  of an  offence  under  ss. 406/420 IPC using  the  words  viz., "criminal intention" and "fraudulently and with a  dishonest intention" etc.  The trial Court convicted them on 11-2-1975 but  the First Appellate Court by its order  dated  1-4-1975 acquitted them’ which was affirmed by the High Court by  its judgment   dated   15-5-1975.   Respondent   Ascharaj   Lal, therefore filed a complaint under s. 500 I.P.C. against  the appellant   on  11-2-1976.   The  Magistrate  examined   the plaintiff  and  issued a summons to the appellant  on  15-9- 1976.   The appellant moved the High Court under s.  482  of the  Criminal Procedure Code for quashing  the  Magistrate’s order taking cognizance of the offence against him, and  the High Court rejected it. Allowing the appeal by special leave, the Court HELD : 1. The statutes of limitation have legislative policy behind  them.  They shut out belated and dormant  claims  in order  to save the accused from unnecessary  harassment  and from  the risk of facing trial at a time when  his  evidence might have been lost because of the delay on the part of the

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prosecutor. [438 B-C] 2.  Section  468  of the Criminal Procedure  Code  not only raises  bar  of limitation but also  prescribes  the  period thereof..  The question when the period of limitation  could be said to commence lies within the purview of s. 469 Sub-s. (1)  of  s.  469 specifically provides that  the  period  of limitation prescribed in s.   468,   in   relation   to an offence,  shall  commence  inter alia "on the  date  of  the offence". [436 F-G] 3.  It is an essential requirement of sub-s. (1) of  s.  470 Criminal Procedure Code, 1973 that the person who seeks  its benefit   should   be  able  to  establish   that   he   was "prosecuting" another prosecution in one Court or the  other referred to in the sub-section. [437 6] 4.  In  the instant case, (a) the date of  the  offence  was March  15, 1972 when defamatory complaint was filed  in  the Court of the Magistrate and that was the starting point  for the  purposes  of calculating the  three  years’  limitation provided  by s. 468; (b) the complaint under s.  500  I.P.C. was filed on 11-2-1976 much after the expiry of three  years limitation prescribed for that offence.  It was,  therefore, not  possible  for  the  Court of  the  Magistrate  to  take cognizance of the offence after the expiry of the period  of limitation : (c) the question of 435 cause  of  action" contemplated in s.  469(1)(c)  could  not arise  as the controversy related to "the commission  of  an offence" and (d) the provision of sub-s.     (1)  of s.  470 cannot avail the respondent as his case, was not so.  He did not  claim  the benefit of s. 473 either. [436 II, 437  A-C, 438 A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 246 of 1972. (Appeal by Special Leave from the, Judgment and Order dt. 2- 2-3-77  of  the Punjab & Haryana High Court in  Crl.   Misc. No. 5979-M of 1977). S.  C.  Agarwal,  Swaraj  Kaushal &,S.   C.  Patel  for  the Appellant. D.  Mookerjee,  B.  M. Srivastva and Sarwa  Mitter  for  the Respondent. The Judgment of the Court was delivered by SHINGHAL, J.-This appeal by Special leave has been filed  by accused  Surinder  Mohan Vikal against the judgment  of  the Punjab and Haryana High Court dated March 2, 1977, rejecting his application for revision of the Magistrate’s order dated September 15, 1976 summoning him as an accused for the trial of  an offence under section 500 I.P.C. at the  instance  of respondent Ascharaj Lal Chopra. The  appellant  challenged the Magistrate’s  order  for  two reasons,  but the controversy before us refers to his  claim that the Magistrate could not take cognizance of the offence under  section  500  I.P.C.  as  the  period  of  limitation prescribed by section 468 of the Code of Criminal  Procedure had expired.  The controversy thus relates to a short  point of  law  and  can well be examined on  the  basis  of  the admitted facts. The,  appellant  was  working as General  Secretary  of  the Central  Bank  of India Employees  Union,  Punjab  Ludhiana, which was a registered body.  The respondent was employed as Special  Assistant  in that ’Bank, and one Amreek  Singh  as employed  there  as a clerk.  The respondent worked  as  the

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General Secretary of the Union while Amreek Singh worked  as its  Treasurer  before the appellant took  over  as  General Secretary.  The appellant filed a complaint in the Court  of Judicial Magistrate First Class, Ambala Cantt. on March, 15, 1972, for the commission of an offence under section 406/420 I.P.C. alleging that the respondent and Amreek Singh with "a common intention and collusion with each other,  transferred a  donation  entry of Rs. 1100/in the  personal  account  of accused  No.  1 (A.  L. Chopra) by adjustment  vide  voucher dated 19-2-71 at Ambala Cantt." It was also alleged that the accused  misappropriated  a sum of Rs. 1100/- of  the  Union with  "criminal  intention"  and "fraudulently  and  with  a dishonest  intention."  By his judgment dated  February  11, 1975,  the  Magistrate convicted the respondent  and  Amreek Singh  of  the  offence  under  section  408/34  I.P.C.  and sentenced them to rigorous imprisonment for 436 one  year  and  a fine of  Rs.  1000         The  additional Sessions  Judge of Ambala however acquitted both of them  by his  judgment  dated April 1, 1975, and  that  judgment  was upheld  by  the  High Court on  May  15,  1975.   Respondent Ascharaj  Lal  Chopra  then filed a  complaint  against  the present  appellant  Surinder  Mohan Vikal in  the  Court  of Judicial.   Magistrate First Class, Ambala,  dated  February II,  1976, for the commission of the offence  under  section 500  I.P.C. The Magistrate examined the complainant and  his witnesses,  and made the order dated September 15, 1976  for the  issue  of summons for the appearance  of  the,  present appellant in that case.  That was why the present  appellant applied to the High Court under section 482 Crl.  P. C.  for quashing  the  Magistrate’s order taking cognizance  of  the offence  against him.  As his application has been  rejected by  the  High  Court,  accused  Surinder  Mohan  Vikal   has preferred the present appeal as aforesaid. Chapter XXXVI of the Code of Criminal Procedure, 1973, deals with  limitation for taking cognizance of certain  offences. For  purposes  of  that chapter,  section  467  defines  the expression  "period  of  limitation"  to  mean  the   period specified  in  section  468  for  taking  cognizance  of  an offence.  In its turn, section 468, which bars the taking of cognizance  of  an  offence after the expiry  of  period  of limitation, reads as follows,- "468 (1) Except as otherwise provided elsewhere in the Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.               (2) The period of limitation shall be-               (a)  six months, if the offence is  punishable               with fine only;               (b)  one  year, if the offence  is  punishable               with imprisonment for a term not exceeding one               year;               (c) three years, if the offence is  punishable               with  imprisonment for a term.  exceeding  one               year but not exceeding three years. The section thus not only raises the bar of limitation,  but also   prescribes  the  period  thereof.   It  is   not   in controversy  before us that the period of limitation in  the present  case would be three years as prescribed  in  clause (c) of sub-section (2).  The question is when the period  of limitation  could  be said to commence for  puposes  of  the present  case  ?  That is a matter which  falls  within  the purview  of section 469.  Clause (a) of sub-section  (1)  of that  section  provides that the period  of  limitation,  in relation to an offender, shall’ commence,-

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"(a) on the date of the offence;" It is not urged before us that clause (b) or (c) of the sub- section, or Sub-section (2), have any bearing on the present controversy.   It has therefore to be examined on what  data the  offence under section 500 I.P.C. could be said to  have been committed. It will be recalled that the complaint for the commission of the offence under section 406/420 I.P.C. was. filed on March 15, 437 It  has specially been stated in the  respondents  complaint under  section  500 I.P.C. that the  defamatory  matter  was contained in that complaint. So, according to the complaint, the offence under section 500 I.P.C. was committed on  March 15,  1972, which was the date of the within the  meaning  of section  469  (1) (a) of the Code, and the of  three  years’ limitation  would be calculated with reference to ,date  for purposes of the bar provided by section 468.  But, as has  b stated, the complaint under section 500 I.P.C. was filed  on February 11, 1976, much after the expiry of that period.  It was therefore permissible for the Court of the Magistrate to take cognizance of offence after the expiry of the period of limitation. The  High Court ignored the bar of limitation on the  ground the "cause of action for proceeding for defamation could not before  he  (respondent)  was  acquitted  by  the  Court  of Session." the respondent was acquitted on April 1, 1975,  it appears  that High Court took the view that the  "protection of  section 468(c) was not available to the  appellant.   We are  constrained  to say the question of  "cause  of  action could not really arise in this as the controversy relates to the  commission of an offence. It been stated,  sub-section (1)  of section 469 of the Code specific provides  that  the period of limitation prescribed in section 468, relation  to an  offender, shall commence (inter alia) on the  date  the offence.  It would therefore follow that the date of the  of was  March 15, 1972, when the defamatory complaint was  file the Court of the Magistrate, and that was the starting point for  purpose  of  calculating the  three  years’  period  of limitation.   High Court clearly erred in taking a  contrary view. An attempt was made to argue before us that the respond was, at  any rate, entitled to the exclusion of time  under  sub- section  (1)  of section 470 of the Code  in  computing  the period of limitation The sub-section reads as follows,-               "470   (1)   In  computing   the   period   of               limitation,  the time during which any  person               has   been  prosecuting  with  dud   diligence               another  prosecution,  whether in a  Court  of               first  instance  or in a Court  of  appeal  or               revision,.  against  the  offender,  shall  be               excluded :               Provided that no such exclusion shall be  made               unless  the  prosecution relates to  the  same               facts  and  is prosecuted in good faith  in  a               Court  which  from defect of  jurisdiction  or               other  cause  of a like nature, is  unable  to               entertain it." It  is an essential requirement of the sub-section that  the person  ,seeks its benefit should be able to establish  that he was "prosecuting" another prosecution in one Court or the other  referred to the sub-section.  But it is not the  case of  the respondent that ,%,as prosecuting the  appellant  in any  other  prosecution.   It  is not  his  case  that  that prosecution  related to the "same facts" within the  meaning

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of the proviso to the sub-section.  The provision of 438 sub-section  (1) of section 470 cannot therefore  avail  the respondent,  and he is not entitled to the exclusion of  any time  thereunder.  It may, be mentioned that the  respondent has not sought the benefit of sub-section (1) of section 473 which  permits the extension of the period of limitation  in certain cases. It would thus appear that the appellant was entitled to  the benefit  of sub-section (1) of section 468  which  prohibits every  Court  from taking cognizance of an  offence  of  the category  specified in sub-section (2) after the  expiry  of the  period  of limitation.  It is hardly necessary  to  say that  statutes of limitation have legislative policy  behind them.   For  instance,  they shut out  belated  and  dormant claims in order to save the accused from unnecessary harass- ment.  They also save the accused from the risk of having to face trial at a time when his evidence might have been  lost because of the delay on the part of the prosecutor.  As  has been  stated,  a bar to the taking of  cognizance  has  been prescribed  under  section  468  of  the  Code  of  Criminal Procedure  and there is no reason why the  appellant  should not be entitled to it in the facts and circumstances of this case. The  appeal  is allowed, the impugned judgment of  the  High Court dated March 2, 1977 is set aside and the order of  the Magistrate dated September 15, 1976 taking cognizance of the offence against the appellant is quashed. S. R.              Appeal allowed. 439