For computing period of limitation U/s. 468, Cr.P.C. the relevant date is that of filing of the complaint and not the date when cognizance is taken.
Supreme Court dealt with following two questions in the matter Sarah Mathew and Ors. vs. Institute of Cardio Vascular Diseases and Anr., decided on 26.11.2013 and reported as (2014) 2 SCC 62; AIR 2014 SC 448
First, whether for the purposes of computing the period of limitation under Section 468 of the Code of Criminal Procedure, 1973 the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence?;
Second, which of the two cases i.e. Krishna Pillai or Bharat Kale (which is followed in Japani Sahoo case) lays down the correct law on the above position of law?
In Krishna Pillai case (1990) supp. SCC 121), the Court was concerned with Section 9 of the Child Marriage Restraint Act, 1929 which says that No court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. It was observed by the Court by making reference to the case of A.R. Antulay vs. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 that filing of a complaint is not taking cognizance and what exactly constitutes taking cognizance is different from filing a complaint. Since the magisterial action in the relevant case before it was beyond the period of one year from the date of commission of the offence, the Magistrate was not competent to take cognizance when he did in view of the bar under Section of the 9 of the Child Marriage Restraint Act, 1929.
In the case of Bharat Kale (2003) 8 SCC 559), the offence under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was detected on 5.3.1999 and the complaint was filed on 3.3.2000, which was within the period of limitation of one year. However, the Magistrate took cognizance on 25.3.2000 i.e. beyond the period of one year. It was argued that since cognizance was taken beyond the period of one year, the bar of limitation applies. After considering the provisions of Chapter XXXVI of the Code of Criminal Procedure, the Court observed that they indicate that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. A complaint filed within the period of limitation cannot be made infructuous by an act of the court which will cause prejudice to the complainant.
In Japani Sahoo case (2007) 7 SCC 394), a complaint was filed alleging commission of offences punishable under Sections 161, 294, 323 and 506 of the Indian Penal Code. On 8.8.1997 the Magistrate on the basis of statements of witnesses issued summons for appearance of the accused. The accused surrendered on 23.11.1998 and thereafter filed a petition uner Section 482 of the Code of Criminal Procedure for quashing criminal proceedings contending that no cognizance could have been taken by the court after the period of one year of limitation prescribed for the offences punishable under Sections 294 and 323 of the Indian Penal Code. The High Court held that the relevant date for deciding the bar of limitation was the date of taking cognizance by the court and since cognizance was taken after the period of one year and the delay was not condoned by the court by exercising power under Section 473 of the Code, the complaint was liable to be dismissed. In appeal against the above finding, Court referred to maxim ‘nullum tempus aut locus occurrit regi’ meaning that a crime never dies, elaborately discussed the scheme of Chapter XXXVI of the Code of Criminal Procedure and after following Bharat Kale verdict held that it is the date of filing of complaint or the date on which criminal proceedings are initiated which is material.
Court in the present matter observed that legal maxims are not mandatory rules but their importance as guiding principles can hardly be underestimated. The use of legal maxims as guiding principles in Bharat Kale and Japani Sahoo was held to be perfectly justified.
It was further observed by the Court in the background of the relevant Law Commission’s Report and the Report of the JPC that the object of Chapter XXXVI inserted in the Code of Criminal Procedure was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences. Law Commission had recommended provisions for exclusion of time and those provisions were made part of Chapter XXXVI.
Section 473 empowers the court to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Chapter XXXVI strikes a balance between the interest of the complainant and the interest of the accused.
The only harmonious construction which can be placed on Sections 468, 469 and 470 of the Criminal Procedure 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. Section 473 thereof has a non-obstante clause, which means that it has an overriding effect on Section 468. Then, there is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code of Criminal Procedure. For exercise of power under Section 5, 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. Section 473 thus postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material.
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.
It was accordingly held that Krishna Pillai case would have to be restricted to its own facts and cannot be considered as ane authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure primarily because in that case, the Court was dealing with Section 9 of the Child Marriage Restraint Act, 1929 which is a special Act. There is no reference either to Section 468 or S. 473 of the Code in that judgment. Reliance placed on Antulay ‘1984’ case was also held to not necessary as in that case Court was dealing with the contention that a private complaint is not maintainable in the court of Special Judge set-up under Section 6 of the Criminal Law Amendment Act, 1952.
It was accordingly held that for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. The principle set in by the judgment in Bharat Kale which was also followed in Japani Sahoo case was held to as laying down the correct law.