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TMI Blog2013 (11) TMI 1587X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in Krishna Pillai v. T.A. Rajendran Anr.[3] . In Bharat Kale it was held that for the purpose of computing the period of limitation, the relevant date is the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of a process by court. In Krishna Pillai this Court was concerned with Section 9 of the Child Marriage Restraint Act, 1929 which stated that no court shall take cognizance of any offence under the Child Marriage Restraint Act, 1929 after the expiry of one year from the date on which the offence is alleged to have been committed. The three-Judge Bench held that since magisterial action in the 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 bar under Section 9 of the Child Marriage Restraint Act, 1929. Thus, there was apparent conflict on the question whether for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure, 1973 (for short the Cr.P.C. ) in respect of a criminal complaint the relevant date is the date of filing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of an offence in regard to which a complaint is filed or prosecution is initiated within the period of the limitation prescribed under the Cr.P.C. This judgment lays down the correct law. b. Section 468 of the Cr.P.C. has to be read keeping in view other provisions particularly Section 473 of the Cr.P.C. A person filing a complaint within time cannot be penalized because the Magistrate did not take cognizance. A person filing a complaint after the period of limitation can file an application for condonation of delay and the Magistrate could condone delay if the explanation is reasonable. If Section 468 is interpreted to mean that a Magistrate cannot take cognizance of an offence after the period of limitation without any reference to the date of filing of the complaint or the institution of the prosecution it would be rendered unconstitutional. A court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than accepting an interpretation which may make such provision unsustainable and ultra vires the Constitution. [U.P. Power Corpon. Ltd. v. Ayodhya Prasad Mishra Anr[4]]. c. Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statutory construction require that the expression cognizance occurring in Chapter XXXVI of the Cr.P.C. has to be given its legal sense, since it has acquired a special connotation in criminal law. It is a settled position in law that taking cognizance is judicial application of mind to the contents of a complaint/police report for the first time. [R.R. Chari v. The State of Uttar Pradesh[10], Bhushan Kumar Anr. v. State (NCT of Delhi) Anr.[11]]. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal meaning and no other. [State of Madras v. Gannon Dukerley Co. (Madras) Ltd.[12]]. c. The heading of Chapter XXXVI providing for limitation for taking cognizance of certain offences is clearly reflective of the legislative intent to treat the date of taking cognizance as the relevant date in computing limitation. Pertinently, Section 467 defines the expression period of limitation as the period specified in Section 468 for taking cognizance of an offence. The express language of Section 468 makes it clear that the legislature considers the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay led to serious negligence on the part of the prosecuting agencies, forgetfulness on the part of the prosecution and defence witness and mental anguish to the accused. Infliction of punishment long after the commission of offence impairs its utility as social retribution to the offender. To obviate these lacunae Chapter XXXVI was introduced in the Cr.P.C. h. Bharat Kale and Japani Sahoo have missed the object of introduction of Chapter XXXVI in the Cr.P.C. namely to serve larger interest of administration of criminal justice keeping in view the interest of the accused and the interest of prosecuting agencies. These judgments fail to advert to the prejudice that will be caused to the accused if benefit of delay in taking cognizance is not given to them. The likelihood of prejudice being caused to the complainant which weighed with this court in the above two decisions can be taken care of by Section 473 which provides for condonation of delay. [State of Punjab v. Sarwan Singh[14], Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy and others[15] and State of H.P. v. Tara Dutt Anr.[16]] i. Object of Section 473 of the Cr.P.C. has not been considered in Bharat Kale and Japani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to, to determine the sense of any doubtful expression in a section ranged under that heading though it cannot be referred to for giving a different effect to clear words in the section. 7. Gist of submissions of Mr. Amrendra Sharan, learned senior counsel appearing for the petitioner in SLP (Crl.) Nos. 5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013. a. Chapter XXXVI of the Cr.P.C. is a complete code in itself which deals with issue of bar of limitation for taking cognizance of an offence. b. A bare reading of Section 468 of the Cr.P.C leaves no manner of doubt that the bar of limitation applies as on the date of cognizance. It specifically targets cognizance and it debars taking cognizance of an offence after expiration of the statutory period of limitation. One cannot make fundamental alteration in the words of the statute. Taking cognizance cannot be altered to filing complaint within statutory period. c. Taking cognizance is distinct from filing complaint. The term cognizance has been defined by this Court in R.R. Chari and Darshan Singh Ram Kishan v. State of Maharashtra[18]. Cognizance takes place when a Magistrate first takes judicial notice of an offence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nayak[25] ( Antulay 1992 Case )] Therefore, it is the duty of the courts to take cognizance within a prescribed timeframe. If the court fails to do so, it is not open to it to take cognizance of such offence as it might prejudice the right of the accused. Therefore, no cognizance can be taken after the period of limitation. [Raj Deo Sharma (II) v. State of Bihar[26] and Sarwan Singh.] k. The accused has a right to be heard at the time of condonation of delay in taking cognizance by the courts. Delay cannot be condoned without notice to the accused. [State of Maharashtra v. Sharadchandra Vinayak Dongre Ors.[27], P.K. Choudhary v. Commander, 48 BRTF, (GREF)[28], Krishna Sanghai v. State of M.P.[29]] l. The accused have to be heard when an application under Section 473 of the Cr.P.C. is moved by the prosecution before cognizance is taken. Section 468 of the Cr.P.C. is clear and unambiguous and it bars taking cognizance of an offence, if on the date of taking cognizance the period prescribed under Section 468(2) of the Cr.P.C. has expired. Japani Sahoo, therefore, does not lay down the correct law. 8. Gist of submissions of Mr. Sidharth Luthra, learned Additional Solicitor Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rhaps in such facts there was no reference to Section 473 of the Cr.P.C. Similar is the view in P.P. Unnikrishnan Anr. v. Puttiyottil Alikutty Anr.[33]. h. It is settled law that Sections 4 and 5 of the Cr.P.C. create an exception for special laws with special procedures. Krishna Pillai was in the context of specific limitation period where Section 473 of the Cr.P.C. had no application. Thus, it cannot be considered or applied to interpret Sections 468 and 473 of the Cr.P.C. as they stand. On the contrary, view taken in Bharat Kale and Japani Sahoo relying upon Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada,[34] reach the same conclusion as contended herein i.e. the acts of the court should not prejudice anyone. 9. Having given the gist of the submissions, we shall now advert to Krishna Pillai, Bharat Kale and Japani Sahoo which have led to this reference. In Krishna Pillai this Court was concerned with Section 9 of the Child Marriage Restraint Act, 1929 which reads as under: 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 not disputed that cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with imprisonment which could extend to three years or with fine or with both. Therefore, under Section 468(3) of the Cr.P.C., the limitation period for the said offence is three years. It was urged by the counsel for the husband that the evidence of the complainant-wife recorded under Section 200 of the Cr.P.C. establishes that in October, 1986 the complainant-wife demanded return of jewelry and the husband refused to return the jewelry. Therefore, the period of limitation began to run from October, 1986 and the complaint filed in September, 1990 was time barred, it having been filed beyond the period of three years. A three-Judge Bench of this Court negatived this contention and held that it was clearly averred in the complaint that on 5/12/1987, the complainant-wife had demanded jewelry from the husband and the husband had refused to do so and, therefore, the complaint filed on 10/9/1990 was within three years from the date of demand of jewelry and refusal to return it by the husband. Thus, for the purpose of computation of period of limitation, the date of filing of the complaint was held to be relevant. 11. In Bharat Kale, the offence under the Drugs and Magic Remedies ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be dismissed. On appeal, this Court referred to another well known maxim nullum tempus aut locus occurrit regi which means that a crime never dies. This Court elaborately discussed the scheme of Chapter XXXVI of the Cr.P.C. and after following Bharat Kale held that it is the date of filing of complaint or the date on which criminal proceedings are initiated which is material. 13. At the outset, we must deal with the criticism leveled against Bharat Kale and Japani Sahoo that they place undue reliance on legal maxims. It was argued that legal maxims can neither expand nor delete any part of an express statutory provision, nor can they give an interpretation which is directly contrary to what the provision stipulated. Their operation can be excluded by statutes but operation of statutes cannot be excluded by legal maxims. 14. It is true that in Bharat Kale and Japani Sahoo this Court has referred to two important legal maxims. We may add that in Vanka Radhamanohari, to which our attention has been drawn by the counsel, it is stated that the general rule of limitation is based on Latin maxim vigilantibus et non dormientibus, jura subveniunt , which means the vigilan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for prosecution of offences, there was no general law of limitation for prosecution of other offences. The approach of this Court while dealing with the argument that there was delay in launching prosecution, when in the Criminal Procedure Code (1898), there was no general provision prescribing limitation, could be ascertained from its judgment in The Assistant Collector of Customs , Bombay Anr. v. L.R. Melwani Anr.[36]. It was urged before the High Court in that case that there was delay in launching prosecution. The High Court held that the delay was satisfactorily explained. While dealing with this question, this Court held that in any case prosecution could not have been quashed on the ground of delay because it was not the case of the accused that any period of limitation was prescribed for filing the complaint. Hence the complaint could not have been thrown out on the sole ground that there was delay in filing the same. This Court further observed that the question of delay in filing complaint may be a circumstance to be taken into consideration in arriving at the final verdict and by itself it affords no ground for dismissing the complaint. This position unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation for offences which are not very serious. For such offences, considerations of fairness to the accused and the need for ensuring freedom from prosecution after a lapse of time should outweigh other considerations. Moreover, after the expiry of a certain period the sense of social retribution loses its edge and the punishment does not serve the purpose of social retribution. The deterrent effect of punishment which is one of the most important objectives of penal law is very much impaired if the punishment is not inflicted promptly and if it is inflicted at a time when it has been wiped off the memory of the offender and of other persons who had knowledge of the crime. Paragraphs 24.13, 24.14, 24.20, 24.22, 24.23, 24.24, 24.25, and 24.26 could also be advantageously quoted. 24.13 At present no court can throw out a complaint solely on the ground of delay, because, as pointed out by the Supreme Court, 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 grounds for dismissing the complaint . It is true that unconscionable delay is a good ground for enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continues; and we recommend the insertion of a provision to that effect. 24.24 - Impediments to the institution of a prosecution have also to be provided for. Such impediments could be (a) legal, or (b) due to conduct of the accused, or (c) due to the court being closed on the last day. As regards legal impediments, two aspects may be considered, first, the time for which institution of prosecution is stayed under a legal provision, and secondly, prosecutions for which previous sanction is required, or notice has to be given, under legal provision. Both are appropriate cases for a special provision for extending the period of limitation. We recommend that, where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, than, in computing the period of limitation for taking cognizance of that offence, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. 24.25 - We also recommend that where notice of prosecution for an offence has been given, or where for prosecution for an offence the previous consent or sanction of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of criminal law looses its edge after the expiry of a 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. The actual periods of limitation provided for in the new clauses would, in the Committee s opinion be appropriate having regard to the gravity of the offences and other relevant factors. As regards the date from which the period is to be counted the Committee considered has fixed the date as the date of the offence. As, however this may create practical difficulties and may also facilitate an accused person to escape punishment by simply absconding himself for the prescribed period, the Committee has also provided that when the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the period of limitation would commence from the day on which the participation of the offender in the offence first comes to the knowledge of a person aggrieved by the offence or of any police officer, whichever is earlier. Further, when it is not known by whom the offence has committed, the first day on which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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. Therefore, Chapter XXXVI is not loaded against the complainant. It is true that the accused has a right to have a speedy trial and this right is a facet of Article 21 of the Constitution. Chapter XXXVI of the Cr.P.C. does not undermine this right of the accused. While it encourages diligence by providing for limitation it does not want all prosecutions to be thrown overboard on the ground of delay. It strikes a balance between the interest of the complainant and the interest of the accused. It must be mentioned here that where the legislature wanted to treat certain offences differently, it provided for limitation in the section itself, for instance, Section 198(6) and 199(5) of the Cr.P.C. However, it chose to make general provisions for limitation for certain types of offences for the first time and incorporated them in Chapter XXXVI of the Cr.P.C. 20. To understand the scheme of Chapter XXXVI it would be advantageous to quote Sections 467, 468, 469 and 473 of the Cr.P.C. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now be stated. Section 467 defines the phrase period of limitation to mean the period specified in Section 468 for taking cognizance of certain offences. Section 468 stipulates the bar of limitation. Sub-section (1) of Section 468 makes it clear that a fetter is put on the court s power to take cognizance of an offence of the category mentioned in sub-section (2) after the expiry of period of limitation. Sub-section (2) lays down the period of limitation for certain offences. Section 469 states when the period of limitation commences. It is dexterously drafted so as to prevent advantage of bar of limitation being taken by the accused. It states that period of limitation in relation to an offence shall commence either from the date of offence or from the date when the offence is detected. Section 470 provides for exclusion of time in certain cases. It inter alia states that while computing the period of limitation in relation to an offence, 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 explanation to this section states that in computing limitation, the time required for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI. 23. In Jamuna Singh Ors. v. Bhadai Shah[37], relying on R.R. Chari and Gopal Das Sindhi Ors. v. State of Assam Anr.[38], this Court held that it is well settled that when on a petition or complaint being filed before him, a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Cr.P.C., he must be held to have taken cognizance of the offences mentioned in the complaint. 24. After referring to the provisions of the Cr.P.C. quoted by us hereinabove, in S.K. Sinha, Chief Enforcement Officer, this Court explained what is meant by the term taking cognizance . The relevant observations of this Court could be quoted: 19. The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means become aware of and when used with reference to a court or a Judge, it connotes to take notice of judicially . It indicates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.P.C. The Court will have to issue notice to the accused and after hearing the accused and the complainant decide whether to condone the delay or not. If the date of taking cognizance is considered to be relevant then, if the Court takes cognizance within the period of limitation, there is no question of the complaint being time barred. If the Court takes cognizance after the period of limitation then, the question is how will Section 473 of the Cr.P.C. work. The complainant will be interested in having the delay condoned. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by him. Such a situation will be anomalous and such a procedure is not known to law. Mr. Luthra, learned A.S.G. submitted that use of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. 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. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of the term taking cognizance , it did not accept the submission that limitation could be made dependent on the act of the Magistrate of issuing process. It held that if the complaint was filed within the stipulated period of one year, that satisfied the requirement. The complaint could not be thrown out because of the Magistrate s act of issuing process after one year. 30. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale, Japani Sahoo and Vanka Radhamanohari (Smt.). The object of the criminal law is to punish perpetrators of crime. This is in tune with the well known legal maxim nullum tempus aut locus occurrit regi , which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus, jura subveniunt . Chapter XXXVI of the Cr.P.C. which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 of the IPC, which have lesser punishment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce . Once that interpretation is accepted, Chapter XXXVI along with the heading has to be understood in that light. The rule of purposive construction can be applied in such a situation. A purposive construction of an enactment is one which gives effect to the legislative purpose by following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or by applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (See: Francis Bennion on Statutory Interpretation). After noticing this definition given by Francis Bennion in National Insurance Co. Ltd. v. Laxmi Narain Dhut[40], this Court noted that more often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the courts should keep in mind the objectives or purpose for which statute has been enacted. In light of this observation, we are of the opinion that if in the instant case literal interpretation appears to be in any way in conflict with the legislative intent or is leading to absurdity, purposive interpretation will have to be adopted. 33. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main of adjectival law and that they operate only to bar the remedy but not to extinguish the right . 36. It is argued that legislative Casus Omissus cannot be supplied by judicial interpretation. It is submitted that to read Section 468 of the Cr.P.C. to mean that the period of limitation as period within which a complaint/charge-sheet is to be filed, would amount to adding words to Sections 467 and 468. It is further submitted that if the legislature has left a lacuna, it is not open to the Court to fill it on some presumed intention of the legislature. Reliance is placed on Shiv Shakti Co- operative Housing Society, Bharat Aluminum, and several other judgments of this Court where doctrine of Casus Omissus is discussed. In our opinion, there is no scope for application of doctrine of Casus Omissus to this case. It is not possible to hold that the legislature has omitted to incorporate something which this Court is trying to supply. The primary purpose of construction of the statute is to ascertain the intention of the legislature and then give effect to that intention. After ascertaining the legislative intention as reflected in the 42nd Report of the Law Commission and the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicators or the nature of the subject matter dealt with thereunder but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. In M/s. Frick India Ltd. v. Union of India Ors.[42], this Court has observed as under: It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provisions; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. Therefore, the submission that heading of Chapter XXXVI is an indicator that the date of taking cognizance is material must be rejected. 39. It is true that the penal statutes must be strictly construed. There are, however, cases where this Court has having regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by a public servant. It was argued that if it is assumed that a private complaint is maintainable then before taking cognizance, a Special Judge will have to examine the complainant and all the witnesses as per Section 200 of the Cr.P.C. He will have to postpone issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer and in cases under the Prevention of Corruption Act, 1947 by police officers of designated rank for the purpose of deciding whether or not there is sufficient ground for proceeding. It was submitted that this would thwart the object of the 1952 Act which is to provide for a speedy trial. This contention was rejected by this Court holding that it is not a condition precedent to the issue of process that the court of necessity must hold the inquiry as envisaged by Section 202 of the Cr.P.C. or direct investigation as therein contemplated. That is matter of discretion of the court. Thus, the questions which arise in this reference were not involved in Antulay 1984 Case: Since there, this Court was not dealing with the question of bar of limitation reflected in Section 468 of the Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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