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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 775  OF 2008

[Arising out of SLP(Crl.) No. 46/2008]

MAHENDRA SINGH SAINI ... APPELLANT(S)

:VERSUS:

STATE OF UTTARAKHAND AND ANR. ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated

20.9.2007 passed by a learned Single Judge of the High Court of Uttarakhand in Criminal

Miscellaneous Application No. 685/2007 whereby and whereunder the application filed by him

under Section 482 of the Code of Criminal Procedure, questioning the legality or validity of the

order dated 5.7.2000 passed by learned 1st Additional Civil Judge, Roorkee, was dismissed.   

3. Appellant was elected as Gram Pradhan of Village Salempur in the year 1989 and

remained on the said post till 1995. Indisputably, 95 persons, most of whom belonged to the

Scheduled Caste, had been occupying the land of the Gram Panchayat. In or around March

1993, the appellant purported to have granted settlement of the lands occupied by them, after

taking Rs. 10,000 from each of the allottees.  He, however, in the meanwhile had initiated a

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proceeding for their eviction and they were evicted from the lands occupied by them.  

4. The successor in office of the appellant, through the said persons made a complaint to

the  Governor  alleging  that  the  appellant  had  taken  money  from them in  March  1993  for

allotting them the land and in stead of allowing them to continue to occupy  the land allotted to

them, he got them evicted.   

5. The Nayab Tehsildar, Roorkee was asked to make an inquiry into the said allegations

by the Sub Divisional Magistrate in terms of his letter dated 31st August, 1996.   

6. The inquiry report was submitted on 11.9.1996 and pursuant thereto or in furtherance

thereof, a first information report was lodged by the Naiab Tehsildar, Roorkee on 4.12.1996.  A

charge sheet was filed by the Investigating Officer.   

7. By an order dated 15.7.1998 cognizance was taken by the learned Magistrate under

Section 406 of the Indian Penal Code.  Appellant herein filed an application for recall of the

said order, inter alia on the premise that the said order was barred by limitation. The said

application was rejected by order dated 5.7.2000.  

8. As noticed  hereinbefore,  the  said  order  has  been  affirmed by  the  High  Court  by

reason of the impugned judgment.  

9. Mr. Tiwari, learned counsel for the appellant would submit that keeping in view the

provisions contained in Section 468 of the Code of Criminal Procedure (Cr.P.C.) vis-a-vis the

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period which was required to be excluded in terms thereof, namely, the period between 30th

August, 1996 and 11th September, 1996 i.e. a period of 11 days,  the learned Magistrate must be

held to have committed a serious error in opining that the order taking cognizance was barred

by limitation.  Reliance in this behalf has been placed on Japani Sahoo vs.  Chandra Shekhar

Mohanty, [2007 (7) SCC 394].  

10. Mr. Bhatia, learned counsel for the respondents, on the other hand, would submit that

keeping in view the fact that the appellant continued to hold the office of Gram Pradhan till

1995  and  the  aforementioned  65  persons  having  made  complaints  before  the  new  Gram

Pradhan,  an inquiry  was  conducted by the  Naib  Tehsildar,  Roorkee,  and the same having

found to be true, the first information report was lodged and in that view of the matter the

order taking cognizance must be held to have been made with reference to the provisions of

Section 469(1)(b) of Cr.P.C.

11. It was not the case of the first informant, namely, the respondent No.2 herein, that he

was aware of the alleged commission of offence by the appellant in March 1993. He came to

know thereabout when the persons concerned, keeping in view the change in the office of Gram

Pradhan, made a complaint to the Governor of the State, with a copy forwarded to the Sub

Divisional Magistrate.   

12. It has been noticed by us heretobefore that an inquiry was directed to be conducted

immediately upon receipt of the said complaint by the Sub Divisional Magistrate and the Naib

Tehsildar, Roorkee to whom the inquiry was entrusted,  also completed the same within the

period of 11 days.  Indisputably, within a few days thereafter, a first information report was

lodged.  In that view of the matter, we are of the opinion that it is not a case where we should

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interfere with the impugned judgment at this stage.  

13. Section 468 and Section 469(1)(b) of Cr.P.C. read as under:

“468. Bar to taking cognizance after lapse of the period of

limitation.-  (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-  

(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 purposes 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.”

“469.  Commencement  of  the  period  of  limitation.-  (1)  The period of limitation, in relation to an offence, shall commence,-

(a) on the date of the offence; or  

(b) where the commission of the offence was not known to the

person aggrieved by the offence or to any police officer, the first day

on which such offence comes to the knowledge of such person or to

any police officer, whichever is earlier; or........”

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14. There  cannot  be  any  doubt  whatsoever  that  the  aforementioned  provisions  were

inserted  in  the  Code  with  a  view to  see  to  it  that  a  criminal  prosecution  is  launched  and

punishment inflicted before the offence is wiped off from the memory of the person concerned.

It is not necessary for us to go into the underlying objects for insertion of the said provisions as

the same has been recently been noticed by a Division Bench of this Court in  Japani Sahoo

(supra).  

15. There cannot, however, be any doubt whatsoever that the concept of fairness both in

initiation of prosecution as also in trial must be protected and preserved so as to uphold the

fundamental and human rights of the accused as enshrined in Article 21 of the Constitution of

India. But it does not mean that the Court shall shut its eyes over the actual state of affairs,

namely, that although the persons concerned came to know about the commission of the offence

on a later date, a person guilty thereof shall be allowed to go unpunished, having regard to the

conflicting interests viz. the interest of the accused persons, on the one hand, and the society

and the victim on the other.   

16. Whereas the Parliament, on the one hand, created a right in favour of the accused,

the same stands curtailed by enacting  Sections 469 and 470 of the Cr.P.C. Thus each case with

regard to application of the provision providing limitation, as envisaged under Section 468 of

the Cr.P.C., must be decided on its own facts.  

17. We may profitably notice a decision of this Court in Bharat Damodar Kale and Anr.

vs. State of A.P., [2003 (8) SCC 559] wherein it was opined:

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“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  ofence  is  detected.

Section 470 indicates  that while  computing he 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  form  the  fact  that  taking  of

cognizance is an act of the court over which the prosecuting agency or

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the complainant has no control.”

18. In  the  circumstances,  therefore,  an  order  taking  cognizance,  whether  barred  by

limitation or not would depend upon various factors.  

19. We  have  been  taken  through  the  order  dated  5.7.2000,  passed  by  learned  1st

Additional Civil Judge, Roorkee, from a perusal whereof it appears that therein cognizance of

the provisions of Section 469 of the Cr.P.C. was taken by the learned Judge to conclude:

“In my opinion exclusion of the period for investigation from

calculating the limitation period is justified because it is not necessary in

each case that limitation period starts from the date of offence. Learned

Assistant Public Prosecutor on behalf of State has agreed that various

cases is also made out under different sections in the present matters on

which limitation period does not apply.

I  do not  find  it  appropriate  to  discuss  on  the  events  of  the

matter because it will  be justified to hear it at the time of framing of

charges.

After  considering  the  aforesaid  facts  and  circumstances  and

keeping in view the relevant facts on record, I come to the conclusion

that in calculating the period of limitation in the instant case it would be

justified  that  the  time  taken  by  the  Tehsildar  for  investigation  be

excluded and in the present case the limitation period will be calculated

not  from  the  date  of  incident  but  from  the  date  of  completion  of

investigation.  And therefore I  find  no force in  the  application  of  the

applicant  and  his  application  is  liable  to  be  dismissed.  Accordingly

order is being passed.”   

20. We do not find any error in the said approach of the learned Magistrate.  We would,

however,  like  to  observe  that  in  the  event  the  findings  of  fact  arrived  at  by  the  learned

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Magistrate appears to be incorrect at an appropriate stage of the trial, it would be open to the

appellant  to  urge  the  said  ground.   The  appeal  is  dismissed  with  the  aforementioned

observations.    

..........................J (S.B. SINHA)

..........................J   (MUKUNDAKAM SHARMA) NEW DELHI, APRIL 15, 2008.