TaxTMI 
TaxTMI 
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2013 (11) TMI 1587
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.... 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 the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance. The two-Judge Bench, therefore, directed that this case may be put up before a three-Judge Bench for an authoritative pronouncement. When t....
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....tion 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. Chapter XXXVI requires to be harmoniously interpreted keeping the interests of both the complainant as well as the accused in mind. d. The law of limitation should be interpreted from the standpoint of the person who exercises the right and whose remedy would be barred. The laws of limitation ....
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....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 relevant date for computing the date of limitation to be the date of taking cognizance and not the date of filing of a complaint. Further, the situations in Section 470 of the Cr.P.C. providing for exclusion in computing the period of limitation are again relatable to taking cognizance and institution of prosecu....
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....e 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 Sahoo. They are sub-silentio in this regard. (Municipal Corporation of Delhi V. Gurnam Kaur[17]). They have also not taken note of difference of language in Sections 468 and 469 of the Cr.P.C. j. There are seven exceptions in the Cr.P.C. to Section 468 namely Sections 84(1), 96(1), 198(6), 199(5), 378(5), 457(2) and....
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.... (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 a complaint, or on a police report or upon information of a person other than a police officer. d. Operation of legal maxims can be excluded by statutes but operation of statutes cannot be excluded by legal maxims. Reliance on a maxim by this Court in Japani Sahoo for carving out an exception and supplying words to the complete Code of l....
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.... 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 General, appearing for the respondent-State (NCT of Delhi) in SLP (Crl.) Nos. 5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013. a. Bharat Kale lays down the correct law and not Krishna Pillai. b. Legislative history of Chapter XXXVI indicates its object. c. Stage of process is not to be mistaken for cognizance. Cognizance indicates the point when a co....
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....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 the offence had been taken by the court more than a year after the offence was committed. The appellant challenged the continuance of prosecution by filing an application under Section 482 of the Cr.P.C. before the High Court contending that the cognizance was barred under Section 9 of the Child Marriage Restraint Act, 1929. It was contended by the respondent that since the....
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....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 (Objectionable Advertisements) Act, 1954 was detected on 5/3/1999. 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 provisi....
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....rial. 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 vigilant and not the sleepy, are assisted by laws. We are, however, unable to accept the submission that reliance placed on legal maxims was improper. We are mindful of the fact that legal maxims are not mandatory rules but their importance as guiding principles can hardly be underestimated. Herbert Broom in the preface to the First Edition of his classical work "Legal Maxims" (as seen in Bro....
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...., 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 underwent a change to some extent when Chapter XXXVI was introduced in the Cr.P.C. as we shall soon see. 16. It is pertinent to note that the Limitation Act, 1963 does not apply to criminal proceedings except for appeals or revisions for which express provision is made in Articles 114, 115, 131 and 132 thereof. After conducting extensive study of criminal laws of various countries, the Law Commiss....
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....t 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 entertaining grave doubts about the truth of the complainant's story unless he can explain it to the satisfaction of the court. But it would be illegal for a court to dismiss a complaint merely because there was inordinate delay. 24.14. - We, therefore, recommend that the principle of limitation should be introduced for less serious offences under the Code. We suggest that, for the present, offences punishable with ....
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....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 Government or any other authority is required, in accordance with the requirements of any law for the time being in force, then in computing the period of limitation for taking cognizance of the offence, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction, shall be excluded. 24.26 - As illustrations of impediments caused by the conduct of the accused, we may refer to his being ou....
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....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 identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence. The Committee has considered it necessary to make a specific provision for extension of time whenever the court is satisfied on the materials that the delay has been properly explained or that the accused had absconded. This provision would be particularly useful because limitation for criminal prosecution is be....
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....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. Section 467 reads as under: "467. Definitions. - For the purposes of this Chapter, unless the context otherwise requires, "period of limitation" means the period specified in section 468 for taking cognizance of an offence" Section 468 reads 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-s....
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....on 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 obtaining the consent or sanction of the government or any other authority should be excluded. Similarly time during which the accused is absconding or is absent from India shall also be excluded. Section 471 provides for exclusion of date on which court is closed and Section 472 provides for continuing offence. Section 473 is an overriding provision which enables courts to condone delay where such delay has been properly explained or where the interest of justice demands extension of....
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....arious 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 the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a val....
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....ving 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 disjunctive 'or' in Section 473 of the Cr.P.C. suggests that for the first part i.e. to find out whether the delay has been explained or not, notice will have to be issued to the accused and for the later part i.e. to decide whether it is necessary to do so in the interest of justice, no notice will have to be issued. This question has not directly arisen before us. Therefore, we do not want to express any opinion whether for the purpose of notice, Section 473 of the Cr.P.C. has to be bifurcated or no....
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....ing 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 interpretation of Section 468 of the Cr.P.C. would be unsustainable and would render it unconstitutional. It is well settled that 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 applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra). 29. The conclusion reached by us is reinforced by the fact that the L....
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....harat 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 may have serious social consequences. Provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim 'actus curiae neminem gravabit' which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should n....
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....ncis 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. In New India Assurance Company Ltd. v. Nusli Neville Wadia and another etc.[41] while dealing with eviction proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 this Court was concerned with interpretation of Sections 4 and 5 thereof. This Court was of the view that literal meaning thereof would place undue burden on the noticee and would lead to conclusion that the landlord i.e. the State would not be required to adduce any evidence at all. This Court observed that such a....
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....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 Report of the JPC, this Court is only harmoniously construing the provisions of Chapter XXXVI along with other relevant provisions of the Cr.P.C. to give effect to the legislative intent and to ensure that its interpretation does not lead to any absurdity. It is not possible to say that the legislature has kept a lacuna which we are trying to fill up by judicial interpretative process so as to encroach upon the domain of the legislature. The authorities cited on doctrine of Casus Omissus are, therefore, not relevant for th....
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.... 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 regard to the nature of the crimes involved, refused to adopt any narrow and pedantic, literal and lexical construction of penal statutes. [See Muralidhar Meghraj Loya & Anr. v. State of Maharashtra & Ors.[43] and Kisan Trimbak Kothula & Ors. v. State of Maharashtra[44]]. In this case, looking to the legislative intent, we have harmoniously construed the provisions of Chapter XXXVI so as to strike a balance between the right of the complainant and the right of the accused. Besides, we must bear in mind that Chapter XXXVI is part of th....