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2008 (1) TMI 618 - SC - Companies LawWhether issuance of process in a criminal case is one and the same thing or can be equated with taking cognizance by a Criminal Court ? If the period of initiation of criminal proceedings has elapsed at the time of issue of process by a Court, the proceedings should be quashed as barred by limitation ? Whether the proceedings were liable to be quashed on the ground that they were time-barred and upholding the contention of the accused, passed the impugned order? Held that - Appeal is allowed. The order passed by the High Court is set aside and it is held that cognizance of the offence had already been taken by the competent Criminal Court, i.e., Chief Metropolitan Magistrate, Mumbai on 24-5-2002 and it could not be said that the proceedings were barred by section 49(3) of FEMA. The Chief Metropolitan Magistrate will now proceed to consider the matter in accordance with law. All contentions of all parties are kept open except the one decided by us in this appeal. Since the matter is very old, the Court will give priority and will decide it as expeditiously as possible, preferably before 30-6-2008.
Issues Involved
1. Whether issuance of process in a criminal case is equivalent to taking cognizance by a Criminal Court. 2. Whether the proceedings should be quashed as barred by limitation if the period of initiation of criminal proceedings has elapsed at the time of issue of process by a Court. Issue-wise Detailed Analysis 1. Issuance of Process vs. Taking Cognizance The primary issue was whether the issuance of process in a criminal case is the same as taking cognizance by a Criminal Court. The Supreme Court clarified that the term "cognizance" is not defined in the Code but means "to take notice of judicially." Cognizance occurs as soon as a Magistrate applies his mind to the suspected commission of an offense, which is a condition precedent for holding a valid trial. The Court emphasized that taking cognizance of an offense is different from the commencement of proceedings. The Court referred to several precedents, including *Superintendent & Remembrancer of Legal Affairs v. Abani Kumar Banerjee* and *R.R. Chari v. State of Uttar Pradesh*, to establish that cognizance involves the Magistrate applying his mind to proceed under the relevant sections of the Code. The Court concluded that the Chief Metropolitan Magistrate, Mumbai, took cognizance on 24-05-2002, the day the complaint was filed, and not on 03-02-2003, when the process was issued. 2. Quashing of Proceedings as Barred by Limitation The second issue was whether the proceedings should be quashed as barred by limitation if the period of initiation of criminal proceedings had elapsed at the time of issue of process. The Court noted that under Section 49(3) of FEMA, cognizance of an offense under FERA could be taken within two years from the commencement of FEMA on 01-06-2000. The Court held that cognizance was taken on 24-05-2002, within the two-year limitation period. The High Court's decision to quash the proceedings based on the issuance of process in February 2003 was incorrect. The Court further discussed that the relevant date for considering the limitation period is the date of filing the complaint, not the date of taking cognizance or issuing the process. This view was supported by previous judgments, including *Bharat Damodar Kale v. State of A.P.* and *Japani Sahoo v. Chandra Sekhar Mohanty*. Conclusion The Supreme Court allowed the appeal, set aside the High Court's order, and held that the Chief Metropolitan Magistrate, Mumbai, had taken cognizance of the offense on 24-05-2002, within the period prescribed by Section 49(3) of FEMA. The matter was remitted to the Chief Metropolitan Magistrate to be decided in accordance with the law, keeping all contentions open except the one decided by the Supreme Court. The Court directed that the case be given priority and decided expeditiously, preferably before 30-06-2008.
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