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CASE NO.: Appeal (crl.)  942 of 2007

PETITIONER: JAPANI SAHOO

RESPONDENT: CHANDRA SEKHAR MOHANTY

DATE OF JUDGMENT: 27/07/2007

BENCH: C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     942        OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 4174 OF 2006

C.K. THAKKER, J.

1.      Leave granted.

2.      An important and interesting question of law has  been raised by the appellant in the present appeal which  is directed against the judgment and order passed by the  High Court of Orissa on June 20, 2006 in Crl. M. C. No.  5148 of 1998. By the said order, the High Court quashed  criminal proceedings initiated against the respondent- accused for offences punishable under Sections 294 and  323 of the Indian Penal Code, 1860 (hereinafter referred  to as ’IPC’). 3.      Brief facts of the case are that the appellant is a  complainant who is inhabitant of village Damana under  Chandrasekharpur Police Station. He had constructed  many shops on his land on the side of the main road of  Chandrasekharpur Bazar from which he was earning  substantial amount by way of rent. It is alleged by the  complainant that the accused was, at the relevant time,  Inspector of Police at Chandrasekharpur Police Station  and was aware that the complainant was receiving good  amount of income from shop rooms erected by him. 4.      According to the complainant, on February 2, 1996,  a Constable of Chandrasekharpur Police Station came to  his house and informed him that he was wanted by  Officer-in-charge of the Police Station (Bada Babu) at 9  p.m. with monthly bounty. It was alleged by the  complainant that even prior to the above incident, he was  repeatedly asked by the accused to pay an amount of  Rs.5,000/- per month as illegal gratification, but he did  not oblige the accused. At about 9.30 p.m. on February  2, 1996, the complainant went to Chandrasekharpur  Police Station where the accused was waiting for him  anxiously to extract money. As soon as the complainant  entered the Police Station, the accused abused him by  using filthy language.  The complainant was shocked.  The accused pushed him as a result of which he fell  down and sustained bodily pain. The accused also  threatened the complainant that if the latter would not  pay an amount of Rs.5,000/- by next morning, the  former would book him in serious cases like ’NDPS’ and

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dacoity. The complainant silently returned home. On the  next day, he went to his lawyer and narrated the  incident. His lawyer advised him to lodge a complaint  before a competent Court instead of lodging FIR against  the accused. Accordingly, on February 5, 1996, the  appellant filed a complaint being ICC Case No.45 of 1996  in the Court of Sub Divisional Judicial Magistrate  (SDJM), Bhubaneswar against the respondent-accused  for commission of offences punishable under Sections  161, 294, 323 and 506, IPC. 5.      As stated by the appellant, the SDJM examined  witnesses produced by the appellant-complainant  between March 29, 1996 and July 24, 1996. The matter  was adjourned from time to time. Ultimately, on August  8, 1997, the learned Magistrate on the basis of statement  of witnesses, took cognizance of the complaint filed by  the complainant and issued summons fixing December  19, 1997 for appearance of accused observing inter alia  that on the basis of the statements recorded, prima facie  case had been made out for commission of offences  punishable under Sections 294 and 323, IPC.  6.              According to the appellant, the summons was  served on the respondent-accused but he did not remain  present. After more than one year of issuance of  summons, non-bailable warrant was issued by the  learned Magistrate on September 23, 1998. The accused  thereafter surrendered on November 23, 1998.  He,  however, filed a petition in the High Court of Orissa on  November 20, 1998 under Section 482 of the Code of  Criminal Procedure, 1973 (hereinafter referred to as ’the  Code’) for quashing criminal proceedings contending,  inter alia, that no cognizance could have been taken by  the Court after the period of one year of limitation  prescribed for the offences under Sections 294 and 323,  IPC and the complaint was barred by limitation. A prayer  was, therefore, made by the accused to set aside order  dated August 8, 1997 as also order of issuance of non- bailable warrant dated September 23, 1998 by quashing  criminal proceedings.  7.              A counter was filed by the complainant  asserting that admittedly, the complaint was filed by him  in the Court of SDJM within three days of the incident  i.e. the incident took place on February 2, 1996 and the  complaint was filed on February 5, 1996. There was,  therefore, no question of the complaint being barred by  limitation. According to the complainant, the question of  limitation should be considered on the basis of an act of  filing complaint; and not an act of taking cognizance by  the Court. It was submitted that two acts, viz. (i) act of  filing complaint and (ii) act of taking cognizance are  separate, distinct and different.  Whereas the former was  within the domain of the complainant, the latter was in  the exclusive control of the Court. The accused,  according to the complainant, was labouring under the  misconception that the ’countdown’ begins from the date  of taking cognizance by the Court and not from the date  of instituting a complaint by the complainant.  It was,  therefore, submitted that the complaint was within time  and should be decided on merits. 8.              The High Court, in the order impugned in the  present appeal, held that the date relevant and material  for deciding the bar of limitation under the Code was the  date of taking cognizance by the Court.  Since the  offences under Sections 294 and 323 were punishable for  six months and one year respectively, cognizance thereof

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ought to have been taken within one year of the  commission of offences. Cognizance was admittedly taken  on August 8, 1997, i.e. after more than one year of the  commission of offences and as such, it was barred by  limitation under Section 468 of the Code. The learned  Magistrate had not condoned delay by exercising power  under Section 473 of the Code and hence, the complaint  was liable to be dismissed on the ground of limitation.  The proceedings were accordingly quashed. The  complainant has questioned the legality of the order  passed by the High Court. 9.              We have heard the learned counsel for the  parties. 10.             The learned counsel for the appellant  contended that the High Court committed an error of law  in holding that the complaint filed by the complainant  was barred by limitation. According to him, when the  complaint was filed within three days from the date of  incident complained of, the learned Magistrate was  wholly justified in proceeding with the said complaint  treating it within the period of limitation. It was stated  that the complainant produced his witnesses who were  examined between March 29, 1996 and July 24, 1996  and after taking into consideration the statements of  those witnesses and after application of mind, the  learned Magistrate took cognizance of offences and  issued summons under Sections 294 and 323, IPC. It  was also submitted that provisions of Section 468 must  be read reasonably by construing that the action must be  taken by the complainant of filing a complaint or taking  appropriate proceedings in a competent Court of Law.  Once the complainant takes such action, he cannot be  penalized or non-suited for some act/omission on the  part of the Court in not taking cognizance. It was  submitted that taking of cognizance was within the  domain of the Magistrate and not within the power,  authority or jurisdiction of the complainant and the act  of Court cannot adversely or prejudicially affect a party to  a litigation. It was also submitted that the respondent- accused abused his position and misused his powers  and, by administering threat and intimidating the  complainant, wanted to extract money by resorting to  illegal means. The complainant, therefore, by proceeding  in a recognized legal mode, instituted a complaint and  there was no reason for the High Court to abruptly  terminate the proceedings half-way without entering into  merits of the matter. It was, therefore, submitted that the  appeal deserves to be allowed by setting aside the order  passed by the High Court and by directing the learned  Magistrate to decide the matter on merits. 11.             The learned counsel for the respondent- accused, on the other hand, supported the order passed  by the High Court. He submitted that the bar imposed by  the Code is against ’taking cognizance’ and not filing  complaint. The High Court properly interpreted Section  468, applied to the facts of the case and held that since  cognizance was taken by the Court after one year, the  provision of law had been violated and the complaint was  barred by limitation. No fault can be found against such  an order and the appeal deserves to be dismissed.  12.             Before we proceed to deal with the question, it  would be appropriate if we consider the relevant  provisions of law. Chapter XXXVI (Sections 466-473) has  been inserted in the Code of Criminal Procedure, 1973  (new Code) which did not find place in the Code of

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Criminal Procedure, 1898 (old Code). This Chapter  prescribes period of limitation for taking cognizance of  certain offences. Section 467 is a ’dictionary’ provision  and defines the phrase ’period of limitation’ to mean the  period specified in Section 468 for taking cognizance of  an offence. Sub-section (1) of Section 468 bars a Court  from taking cognizance of certain offences of the category  specified in sub-section (2) after expiry of the period of  limitation. It is material and may be quoted in extenso.          Section 468. Bar to taking cognizance after  lapse of the period of limitation.\027(1) Except  as otherwise provided elsewhere in this 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\027 (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.

(3)     For the purpose of this section, the period  of limitation, in relation to offences which may  be tried together, shall be determined with  reference to the offence which is punishable  with the more severe punishment or, as the  case may be, the most severe punishment.

13.             Section 469 declares as to when the period of  limitation would commence. Sections 470-471 provide for  exclusion of period of limitation in certain cases. Section  472 deals with ’continuing’ offences. Section 473 is an  overriding provision and enables Courts to condone delay  where such delay has been properly explained or where  the interest of justice demands extension of period of  limitation. 14.             The general rule of criminal justice is that "a  crime never dies". The principle is reflected in the well- known maxim nullum tempus aut locus occurrit regi (lapse  of time is no bar to Crown in proceeding against  offenders). The Limitation Act, 1963 does not apply to  criminal proceedings unless there are express and  specific provisions to that effect, for instance, Articles  114, 115, 131 and 132 of the Act. It is settled law that a  criminal offence is considered as a wrong against the  State and the Society even though it has been committed  against an individual. Normally, in serious offences,  prosecution is launched by the State and a Court of Law  has no power to throw away prosecution solely on the  ground of delay. Mere delay in approaching a Court of  Law would not by itself afford a ground for dismissing the  case though it may be a relevant circumstance in  reaching a final verdict. 15.             In Assistant Collector of Customs, Bombay &  Anr. v. L.R. Melwani & Anr., (1969) 2 SCR 438 : AIR 1970  SC 962, this Court stated: "This takes us to the contention whether  the prosecution must be quashed because of  the delay in instituting the same. It is urged on

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behalf of the accused that because of the delay  in launching the same, the present  prosecution amounts to an abuse of the  process of the Court. The High Court has  repelled that contention. It has come to the  conclusion that the delay in filing the  complaint is satisfactorily explained. That  apart, it is not the case of the accused that any  period of limitation is prescribed for filing the  complaint. Hence the court before which the  complaint was filed could not have thrown out  the same on the sole ground that there has  been delay in filing it. The question of delay  in filing a complaint may be a  circumstance to be taken into  consideration in arriving at the final  verdict. But by itself it affords no ground  for dismissing the complaint. Hence we see  no substance in the contention that the  prosecution should be quashed on the ground  that there was delay in instituting the  complaint".     (emphasis supplied)

16.             At the same time, however, ground reality also  cannot be ignored.  Mere delay may not bar the right of  the ’Crown’ in prosecuting ’criminals’.  But it also cannot  be overlooked that no person can be kept under  continuous apprehension that he can be prosecuted at  ’any time’ for ’any crime’ irrespective of the nature or  seriousness of the offence.  "People will have no peace of  mind if there is no period of limitation even for petty  offences".   17.             The Law Commission considered the question  in the light of legal systems in other countries and  favoured to prescribe period of limitation for initiating  criminal proceedings of certain offences. 18.             In the Statement of Objects and Reasons, it  had been observed; "There are new clauses prescribing  periods of limitation on a graded scale for  launching a criminal prosecution in certain  cases.  At present there is no period of  limitation for criminal prosecution and a Court  cannot throw out a complaint or a police  report solely on the ground of delay although  inordinate delay may be a good ground for  entertaining doubts about the truth of the  prosecution story.  Periods of limitation have  been prescribed for criminal prosecution in the  laws of many countries and Committee feels  that it will be desirable to prescribe such  periods in the Code as recommended by the  Law Commission."

19.             The Joint Committee of Parliament also  considered the following as sufficient grounds for  prescribing the period of limitation; (1)     As time passes the testimony of witnesses  becomes weaker and weaker because of lapse  of memory and evidence becomes more and  more uncertain with the result that the danger  of error becomes greater. (2)     For the purpose of peace and repose, it is  necessary that an offender should not be kept  under continuous apprehension that he may

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be prosecuted at any time particularly because  with multifarious laws creating new offences  many persons at sometime or other commit  some crime or the other. People will have no  peace of mind if there is no period of limitation  even for petty offences. (3)     The deterrent effect of punishment is impaired  if prosecution is not launched and punishment  is not inflicted before the offence has been  wiped off the memory of persons concerned. (4)     The sense of social retribution which is one of  the purposes of criminal law loses its edge  after the expiry of long period. (5)     The period of limitation would put pressure on  the organs of criminal prosecution to make  every effort to ensure the detection and  punishment of the crime quickly. (vide Report,  dated December 4, 1972; pp. xxx-xxxi) 20.             It is thus clear that provisions as to limitation  have been inserted by Parliament in the larger interest of  administration of criminal justice keeping in view two  conflicting considerations;  (i)     the interest of persons sought to be  prosecuted (prospective accused); (ii)    and organs of State (prosecuting agencies).

21.             In State of Punjab v. Sarwan Singh, (1981) 3  SCR 349 : AIR 1981 SC 1054, this Court stated: "The object which the statutes seek to  subserve 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".

22.             Bearing in mind the above fundamental  principles, let us examine the rival contentions and  conflicting decisions on the point. 23.             Admittedly in the instant case, the offence was  alleged to have been committed by the accused on  February 2, 1996 and complaint was filed on February 5,  1996.  It was punishable under Sections 294, 323, 161  read with 506, IPC.  It is not in dispute that the learned  Magistrate took cognizance of an offence punishable  under Sections 294 and 323, IPC on August 8, 1997.   Concededly, the period of limitation for an offence  punishable under Sections 294 and 323 is six months  and hence, it was barred under Section 468 of the Code if  the material date is taken to be the date of congnizance  by the Magistrate. 24.             The learned counsel for the parties drew our  attention to decisions of various High Courts as also of  this Court.  From the decisions cited, it is clear that at  one time, there was cleavage of opinion on interpretation  of Section 468 of the Code.  According to one view, the  relevant date is the date of filing of complaint by the  complainant.  As per that view, everything which is  required to be done by the complainant can be said to  have been done as soon as he institutes a complaint.   Nothing more is to be done by him at that stage.  It is,  therefore, the date of filing of complaint which is material  for the purpose of computing the period of limitation

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under Section 468 of the Code.   25.             According to the other view, however, the law  places an embargo on Court in taking cognizance of an  offence after lapse of period of limitation and hence, the  material date is the date on which the Magistrate takes  cognizance of offence.  If such cognizance is taken after  the period prescribed in sub-section (2) of Section 468 of  the Code, the complaint must be held to be barred by  limitation. 26.             Let us consider some of the decisions on the  point. 27.             In Jagannathan & Ors. v. State, 1983 Crl.LJ  1748 (Mad), an occurrence took place on March 2, 1981.   Investigation was completed by May 6, 1981 and the  Magistrate took cognizance for offences punishable under  Sections 448, 341 and 323, IPC on March 12, 1982 after  the expiry of period of limitation prescribed under clause  (b) of sub-section (2) of Section 468 of the Code. 28.             Dismissing the complaint on the ground of  limitation, a single Judge of the High Court of Madras  observed;  "Therefore, when the punishments provided  for these offences are one year and less, the  cognizance of the offences ought to have been  taken within a period of one year from the date of  the offences.  Indisputably the trial Court has  taken cognizance of the offences beyond the  statutory period of limitation of one year.  On  that ground, the entire proceeding in C.C. 78 of  1982 on the file of the Court below is quashed\005."

29.             In Court on its own motion v. Sh. Shankroo,  1983 Crl. LJ 63 (HP), the offence in question alleged to  have been committed by the accused was punishable  under Section 33 of the Forest Act, 1927 of illicit felling of  trees.  The offence was punishable with imprisonment for  a term which may extend to six months or with fine  which may extend to five hundred rupees or with both.  It  was said to have been committed by the accused on  March 26, 1979, but the challan was presented in the  Court on August 11, 1980, i.e. after a period of one year.   The Court held that the challan ought to have been filed  within one year and since it was not done, "the Court had  no jurisdiction to take cognizance of the offence".  The  proceedings were, therefore, ordered to be dropped. 30.             In Shyam Sunder Sarma v. State of Assam &  Ors, 1988 Crl. LJ 1560 (Gau), the Court held that  cognizance of offence ought to be taken within the period  of limitation.  In Shyam Sunder, the offence in question  was punishable under Sections 448, 427, 336  and 323  read with 34, IPC.  It was alleged to have been committed  on May 28, 1974.  The matter was submitted before the  Magistrate on June 11, 1974.  But after the investigation,  the police submitted the charge-sheet on December 8,  1978 and process was issued by the Magistrate on  January 2, 1979.  It was held by the Court that the  cognizance could not be said to have been taken on June  11, 1974 when the matter was submitted to the  Magistrate, but only on January 2, 1979 when the  process was issued.  It was clearly barred by limitation  and since the offence was not a "continuing offence"  within the meaning of Section 472 of the Code,  prosecution was barred by limitation. 31.             In Bipin Kalra v. State, 2003 Crl LJ (NOC) 51

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(Del), the High Court held that valid cognizance in  respect of an offence punishable under Section 323, IPC  could be taken within one year ’from the date of  commission of offence’.  Cognizance could not be taken  after lapse of that period. 32.             In Dr. Harihar Nath Garg v. State of Madhya  Pradesh, (2003) 3 Crimes 412 (MP), the offence with  which the Court was concerned was punishable under  Section 491, IPC.  The incident was of June 27, 1996 and  charge-sheet was filed on January 17, 1997, i.e. after a  period of six months.  It was held to be barred by  limitation and the proceedings were quashed. 33.             In Dandapani & Ors. v. State by Sub-Inspector  of Police, Tiruvannamalai Town, (2002) 1 Crimes 675  (Mad), offences punishable under Sections 147, 148, 325,  427, 323 and 324, IPC had been committed by the  accused on February 1, 1999.  The case was registered  on the same day.  Cognizance was taken by the  Magistrate on February 11, 2000 for an offence of affray  punishable under Section 160, IPC.  It was held that  prosecution was barred by limitation and was liable to be  quashed.  Referring to an earlier decision in ARU v. State,  1993 L.W. (Cri) 127, the Court observed that the  investigating agency and the prosecuting authority must  be aware of the Law of Limitation and its link to  cognizance contemplated under Section 468 of the Code  and they should perform their duties diligently. 34.             There are, however, several decisions wherein  the courts have taken the view that the relevant date for  the purpose of deciding the period of limitation is the  date of filing of complaint or initiation of proceedings and  not of taking cognizance by a Magistrate or a Court.   35.             The leading decision on the point is Kamal H.  Javeri & Anr. v. Chandulal Gulabchand Kothari & Anr. of  the High Court of Bombay reported in 1985 Crl. LJ 1215  (Bom).  In that case, a complaint was filed for an offence  punishable under Section 500, IPC within the period of  limitation, but the process was issued by the  Metropolitan Magistrate after the prescribed period of  limitation.  The Court was called upon to consider and  interpret Sections 468, 469 and 473 of the Code.  The  Court examined the relevant provisions of the Code and  observed;              The Limitation Act prescribes the limitation  for taking action in the Court of law and if the  action is taken after the expiry of the period  prescribed under the Limitation Act, the remedy  is said to be barred. The same principle would  also apply while considering the question of  limitation provided under Section 468 of the Cr.  P.C. I may give an illustration to demonstrate  how the submission of Shri Vashi in connection  with the interpretation of Section 468, will lead to  illogical situation and disastrous result. It is also  well settled that a party can take action on the  last date of the limitation prescribed under the  Act. (1) Suppose a complaint is filed on the last  day of limitation prescribed under the Act and if  on that date the Magistrate is on leave and/or  otherwise unable to hear the party and/or apply  his mind to the complaint on that date then  naturally his complaint will have to be held  barred by limitation if arguments of Shri Vashi  are to be accepted. (2) Suppose a complaint is filed quite in advance

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before the expiry of the period of limitation and if  the Magistrate in his discretion postpones the  issue of process by directing an investigation  under Section 202, Cr. P.C. and if that,  investigation is not completed within the  prescribed period of limitation, naturally the  Magistrate shall not be able to apply his mind  and take cognizance and/or issue the process  until report Under Section 202 of the Code is  received and in that event the complaint will have  to be dismissed on the ground that the Court  cannot take cognizance of an offence after the  expiry of the period of limitation from the date of  offence. There could be several such situations.  The complaint although filed within limitation  but the Magistrate due to some or other reasons  beyond his control could not apply his mind and  take cognizance of the complaint and/or could  not issue the process within the prescribed  period of limitation as provided under Section  468 of the Code, then the complaint will have to  be dismissed in limine. So also if the Magistrate  takes cognizance after the period prescribed  under Section 468 of the Code the said order of  taking cognizance would render illegal and  without jurisdiction. In such contingencies can  the complainant be blamed who has approached  the Court quite within limitation prescribed  under the Act but no cognizance could be taken  for the valid and good reasons on the part of the  Magistrate and should the complainant suffer for  no fault on his part. This could not be the object  of the framers of the provisions of Section 468,  Cr. P.C.           36.             After referring to several decisions, the Court  held that the limitation prescribed under Section 468 of  the Code should be related to the filing of complaint and  not to the date of cognizance by the Magistrate or  issuance of process by the Court. 37.             In Basavantappa Basappa Bannihalli & Anr. v.  Shankarappa Marigallappa Bannihalli, 1990 Crl LJ 360  (Kant), a complaint was filed within ten days of the  occurrence, but cognizance was taken by the Magistrate  after the period of limitation prescribed by the Code.   Following Kamal Javeri, the Court held that the relevant  date would be date of filing complaint and not of taking  cognizance by the Magistrate for deciding the bar of  limitation. 38.             In Anand R. Nerkar v. Smt. Rahimbi Shaikh  Madar & Ors., 1991 Crl. LJ 557 (Bom), the High Court  held that the relevant date for deciding the period of  limitation is the date of prosecution of complaint by the  complainant in the Court and not the date on which  process is issued.  It was observed that various sections  of the Code make it clear that before taking cognizance of  a complaint, the Magistrate has to consider certain  preliminary issues, such as, jurisdiction of court, inquiry  by police, securing appearance of accused, etc.  It,  therefore, necessarily follows, observed the Court, that  the material date is not the date of issuance of process,  but the date of filing of complaint.  Subsequent steps  after the filing of the complaint, such as, examination of  witnesses, consideration of case on merits, etc. are by the  court.  Moreover, taking cognizance or issuance of

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process depends on the time available to the court over  which the complainant has no control.  It would,  therefore, be wholly unreasonable to hold that a  complaint even if presented within the period of  limitation would be held barred by limitation merely  because the Court took time in taking cognizance or in  issuing process. 39.             In Zain Sait v. Intex-Painter, etc., 1993 Crl. LJ  2213 (Ker), the Court held that the crucial date for  computing period of limitation would be date of filing of  complaint.  Limitation under Section 468 of the Code has  to be reckoned with reference to date of complaint and  not with reference to date of taking cognizance.  It was  also observed that there could be a case where a  complaint is filed on the last day of limitation and on  account of inconvenience or otherwise of the court, the  sworn statement of the complainant could be recorded on  a later date and the Magistrate takes cognizance after the  expiry of limitation.  If the date of cognizance is taken as  the date for determining the period of limitation, it would  be penalizing the party for no fault of his.  Such a  construction cannot be placed on Section 468 of the  Code.  [See also Malabar Market Committee v. Nirmala,  (1988) 2 Ker LT 420] 40.             In Labour Enforcement Officer (Central) Cochin,  v. Avarachan & Ors., 2004 Crl. LJ 2582 (Ker), the same  High Court held that starting point of limitation is the  date when the complaint is presented in the Court and  not the date on which cognizance is taken.  If the initial  presentation of the complaint is within the period of  limitation prescribed by the Code, it cannot be dismissed  as barred by limitation and proceedings cannot be  dropped.   41.             In Hari Jai Singh & Anr. v. Suresh Kumar  Gupta, 2004 Crl LJ 3768 (HP), it was held that the period  of limitation should be counted from the date of  presentation of complaint and not from the date of  issuance of process by the Magistrate. In that case,  defamatory news was published on May 31, 1995 and a  complaint was presented on May 14, 1998, well within  three years prescribed for the purpose.  Process was,  however, issued by the trial Magistrate on November 12,  1998, i.e. after three years.  It was held by the Court that  the complaint could not be dismissed on the ground of  limitation. 42.         The Court said;         The words "A Magistrate taking cognizance of  an offence on complaint shall examine on oath the  complainant and the witnesses present" evidently  provides the manner in which the Magistrate taking  cognizance on the complaint is to proceed to take  preliminary evidence of the complainant on the  basis of which he is to determine whether process  against the accused is to be issued or not.  Therefore, with reference to the context it cannot be  held for the purpose of Section 468 of the Code that  the Magistrate invariably takes cognizance of  offences only when he decides to issues process  against the accused under Section 204 of the Code.  Therefore, for all intents and purposes of Section  468 of the Code, a Court must be deemed to have  taken cognizance on a criminal complaint at the  stage of presentation of the complaint to the Court  and its proceedings therewith as provided under  Section 200 of the Code. To hold contrary, will lead

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to injustice and defeat the provisions of the Code  intended to promote the administration of criminal  justice. It cannot be disputed that after the  presentation of the complaint the Magistrate has to  examine the complainant and his witnesses or  postpone the issue of process and inquire into the  case himself or direct an investigation to be made  by the police officer or by such other person as he  thinks fit for the purposes of deciding whether or  not there is sufficient ground for proceeding. These  processes in a given case are likely to take time and  are dependent on the time available with the  Magistrate or the person who has been directed to  investigate the allegations made in the complaint  and early conclusion of these processes is not  within the power and control of the complainant.  Therefore, it would be unreasonable to hold that a  complaint even if presented within the period of  limitation but the process against the accused is not  issued by the Magistrate within the period of  limitation, the Court shall be debarred from taking  cognizance of an offence. Therefore, it will be  rational and reasonable to hold that the period of  limitation is to be determined in view of the date of  presentation of the complaint and not with regard to  the date when the process is ordered to be issued by  the Magistrate against the accused under Section  204 of the Code.          43.             We may now refer to some of the decisions of  this Court. The first in point of time was Surinder Mohan  Vikal v. Ascharaj Lal Chopra, (1978) 2 SCC 403.  In that  case a complaint under Section 500, IPC was filed on  February 11, 1976.  It was alleged that the accused had  committed an offence of defamation on March 15, 1972.   A petition was, therefore, filed by the accused in the High  Court under Section 482 of the Code for quashing  proceedings on the ground that the complaint was barred  by limitation.  Upholding the contention and observing  that the complaint was time-barred, the Court observed;         "But, as has been stated, the complaint under  Section 500, IPC was filed on February 11, 1977,  much after the expiry of that period.  It was  therefore not permissible for the Court of the  Magistrate to take cognizance of the offence  after the expiry of the period of limitation."         (emphasis supplied)

44.             It is thus clear in that case the complaint itself  was filed after the expiry of period of limitation which was  held barred under Section 468 of the Code. 45.             In Rashmi Kumar (Smt.) v. Mahesh Kumar  Bhada, (1997) 2 SCC 397 : JT 1996 (11) SC 175, a  complaint was filed by the wife against her husband on  September 10, 1990 for an offence punishable under  Section 406, IPC.  It was alleged in the complaint that  she demanded from the respondent-husband return of  jewellery and household articles on December 5, 1987,  but the respondent refused to return stridhana to the  complainant-wife and she was forced to leave  matrimonial home.  The complaint was admittedly within  the period of three years from the date of demand and  refusal of stridhana by the respondent-husband.  The  complaint was held to be within time and the matter was  decided on merits.

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46.             In State of H.P. v. Tara Dutt & Anr., (2000) 1  SCC 230 : JT 1999 (9) SC 215, this Court held that in  computing the period of limitation where the accused is  charged with major offences, but convicted only for minor  offences, the period of limitation would be determined  with reference to major offences. 47.             Special reference may be made to Bharat  Damodar Kale & Anr. v. State of A.P., (2003) 8 SCC 559 :  JT 2003 Supp (2) SC 569.  This Court there considered  the scheme of the Code and particularly Section 468  thereof and held that the crucial date for computing the  period of limitation is the date of filing of complaint and  not the date when the Magistrate takes cognizance of an  offence.  In Bharat Damodar, a complaint was filed by  Drugs Inspector against the accused for offences  punishable under the Drugs and Magic Remedies  (Objectionable Advertisements) Act, 1954.  The complaint  was lodged in the Court on March 3, 2000 in respect of  offence detected on March 5, 1999.  The period of  limitation was one year. The Magistrate took cognizance  of the offence on March 25, 2000.  Now, if the date of  complaint was to be taken into consideration, it was  within time, but if the date of cognizance by the  Magistrate was the material date, admittedly it was  barred by time.  The Court considered the relevant  provisions of the Code, referred to Rashmi Kumar and  held the complaint within time observing that the  material date for deciding the period of limitation was the  date of filing of complaint and not the date of taking  cognizance by the Magistrate. 48.             The Court observed; "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

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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.                                           (emphasis supplied)    

49.             The learned counsel for the appellant-accused,  no doubt, submitted relying on the italicized portion  quoted above, that the Court was not right in observing  that the argument of the accused was based on and  inspired by the ’Chapter Heading’ of Chapter XXXVI of  the Code which reads "Limitation for taking cognizance of  certain offences".  The counsel submitted that the Court  proceeded to decide the point primarily on the basis of  the argument advanced by the accused that the  limitation prescribed by the ’Chapter Heading’ applied to  taking of cognizance and not filing of complaint, which  was not correct.  He submitted that apart from title  (Chapter Heading), Section 468 itself places bar and puts  embargo on taking cognizance of an offence by a Court.   It expressly provides and explicitly states that "No court  shall take cognizance of an offence\005"  Bharat Damodar,  thus, submitted the learned counsel, is per incuriam and  is not binding upon this Court.  The counsel, therefore,

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submitted that in that case the matter may be referred to  a larger Bench. 50.             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 paragraph  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 by 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 on ’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 gravabit" (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. 51.             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 of 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  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.  But a complainant cannot be penalized for  such delay on the part of the Court nor he can 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 neminem gravabit" (an act of Court shall prejudice

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none) would indeed apply. [Vide Alexander Rodger v.  Comptoir D’Escompte, (1871) 3 LR PC 465]. 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. 52.             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 in issuing  process or taking cognizance of an offence. Now, if he is  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 a 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. 53.             In view of the above, we hold 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. We, therefore, overrule all decisions  in which it has been held that the crucial date for  computing the period of limitation is taking of cognizance  by the Magistrate/Court and not of filing of complaint or  initiation of criminal proceedings. 54.             In the instant case, the complaint was filed  within a period of three days from the date of alleged  offence.  The complaint, therefore, must be held to be  filed within the period of limitation even though  cognizance was taken by the learned Magistrate after a  period of one year. Since the criminal proceedings have  been quashed by the High Court, the order deserves to be  set aside and is accordingly set aside by directing the  Magistrate to proceed with the case and pass an  appropriate order in accordance with law, as  expeditiously as possible. 55.             Appeal is accordingly allowed.