no dispute about it) that it is not within the
domain of the complainant or prosecuting agency
to take cognizance of an offence or to issue
process and the only thing the former can do is
to file a complaint or initiate proceedings in
accordance with law, if that action of
initiation of proceedings has been taken within
the period of limitation, the complainant is
not responsible for any delay on the part of
the Court or Magistrate in issuing process or
taking cognizance of an offence.
In the instant case, the respondent
no.2/complainant has immediately lodged the complaint in
the concerned Police Station on the date of the alleged
incident itself. Thus, the date of institution of the
prosecution is material and, therefore, there is no
question of delay as such in institution of prosecution.
In computing period of limitation under section 468 of
the Cr.P.C., the relevant date is the date of
institution of the prosecution and not the date on which
the Magistrate takes cognizance on the basis of
chargesheet filed before it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 471 OF 2015
Rajesh S/o Kashiram Karad,
Vs.
The State of Maharashtra
CORAM : V.K. JADHAV, J.
DATE : 18/10/2016
Citation: 2017 ALLMR(CRI) 1432
2. Being aggrieved by the order below Exhibit 1
dated 21/01/2012, passed by learned Chief Judicial
Magistrate, Latur in Criminal Misc. Application no. 483
of 2004 and the judgment and order passed by the learned
II Additional Sessions Judge, Latur dated 21/01/2015 in
Criminal Revision No. 6 of 2015, the original accused
has preferred this Criminal Writ Petition.
3. Brief facts giving rise to the present Criminal
Writ Petition, are as follows :
. On the basis of the complaint lodged by
respondent no.2 herein, crime no. 78 of 2000 came to be
registered at Gategaon Police Station against the
present petitioner and others for having committed
offences punishable under section 147,148, 149, 323, 427
of the Indian Penal Code. After due investigation, the
concerned Police Station has submitted the chargesheet
before the Chief Judicial Magistrate, Latur on
24/8/2004. On presentation of the chargesheet before the
Court, the Public Prosecutor has filed Criminal Misc.
Application No. 483 of 2004 before the Chief Judicial
Magistrate in connection with Criminal Case bearing RCC
No. 644 of 2004 for condonation of delay in filing the
chargesheet. The learned Chief Judicial Magistrate
after giving an opportunity of being heard to both the
parties, allowed the said application No. 483 of 2004
and thereby condoned the delay in filing the chargesheet
in RCC No. 644 of 2004. The learned Chief Judicial
Magistrate has directed that as RCC No. 644 of 2004 is
part heard, the prosecution to proceed further in
accordance with law and to cooperate the Court for
early disposal of the matter.
. Being aggrieved by the same, the present
petitioner and other two accused persons preferred
Criminal Revision No. 6 of 2015 before the Sessions
Court, Latur. The learned II Additional Sessions Judge,
Latur by impugned judgment and order dated 21/1/2015
dismissed the revision and confirmed the order passed by
the Chief Judicial Magistrate, as aforesaid. Being
aggrieved by the same, the present writ petition is
preferred.
. Initially, the said Criminal Misc. Application
No. 483 of 2004 came to be disposed of by the learned
Chief Judicial Magistrate by order dated 29/10/2004 and
thereby condoned the delay in filing chargesheet against
the present petitioner and other accused persons in RCC
No. 644 of 2004. Thereafter, the charge has been framed
in the matter by the learned Chief Judicial Magistrate
against the accused in the said case including the
present writ petitioner and since all the accused
persons pleaded not guilty to the charge and claimed to
be tried, the prosecution has examined in all six
witnesses to substantiate the charges levelled against
them. However, when the prosecution has examined PW6,
instead of crossexamining the said witness, counsel
representing the accused in the said case, requested the
Court to defer the crossexamination, as accused wanted
to challenge the said order dated 29/10/2004 whereby
delay was condoned in filing the chargesheet exparte by
the Chief Judicial Magistrate.
. Accordingly, the accused persons including the
present writ petitioner preferred Criminal Application
No. 1284 of 2010 before this Court against the order
dated 29/10/2004 passed by the learned Chief Judicial
Magistrate, Latur in Criminal M.A. No. 483 of 2004.
This Court, by order dated 30/4/2010, partly allowed the
said application and directed the Chief Judicial
Magistrate to decide the said application bearing
Criminal M.A. No. 483 of 2004 afresh.
. Thereafter, the learned Chief Judicial
Magistrate, by order dated 21/1/2012, after giving
opportunity of being heard to both the parties, allowed
Criminal M.A. No. 483 of 2004 in RCC NO. 644 of 2004 and
thereby condoned the delay in filing the chargesheet.
Being aggrieved by the same, the present petitioner and
two other accused persons preferred Criminal Application
No. 1680 of 2012 before this Court. This Court has
disposed of the said Criminal Application in view of the
alternate remedy available. The applicant/accused
preferred Revision No. 69 of 2012 before the Sessions
Court and the learned Sessions Judge has dismissed the
said Criminal Revision on the ground that the same has
been preferred after the expiry of period of limitation.
. Being aggrieved by the same, the
petitioner/original accused filed Criminal Writ Petition
no. 754 of 2013 before this Court and this Court by
order dated 9/1/2014 directed the petitioner/original
accused to prefer revision afresh before the Sessions
Court alongwith application for condonation of delay and
further directed the Sessions Judge to consider the time
spent by the petitioner/accused in prosecuting the
various proceedings before the various forums.
. In view of the said directions, the
petitioner/original accused filed Criminal M.A. No. 10
of 2014 alongwith Criminal Revision Application and said
application for condonation of delay was allowed subject
to payment of costs of Rs.1000/. After payment of
costs, the Criminal Revision Application was registered
as Criminal Revision No. 6 of 2015. Learned II
Additional Sessions Judge, Latur by impugned judgment
and order dated 21/1/2015 dismissed the Revision
Application. Hence, the present Writ Petition.
4. Learned counsel for the petitioner submits that
in the year 2000, in respect of the incident occurred on
the same day, two crimes came to be registered against
the present petitioner and other accused persons at
Police Station, Gategaon. Police Station, Gategaon has
registered crime no. 78 of 2000 against the petitioner
and others and also registered crime no.79 of 2000
against the petitioner and some other persons. So far
as crime no. 79 of 2000 is concerned, Police Station,
Gategaon, after due investigation, submitted chargesheet
before the Court on 5/1/2001. Learned counsel submits
that as per the Court's endorsement on the chargesheet,
the chargesheet was received on 24/8/2004, however, the
learned A.P.P. has filed application before the Court on
6/9/2004 under section 473 of the Code of Criminal
Procedure for codonation of delay. The learned A.P.P.
has submitted said application on the ground that large
public interest is involved in the case and in the
interest of justice, the chargesheet may be accepted.
It has also contended in the said application that the
officers of Police Station, Gategaon were frequently
transferred and the chargesheet could not be submitted
to the Court within time. It has also contended in the
said application that the accused persons are political
persons and there is every possibility to pressurize the
Government servant. It has further stated in the
application that if the chargesheet is not accepted,
then that will cause injustice to the complainant and
other injured witnesses as well as public at large.
Learned counsel submits that frequent transfers of the
Police officers from the Police Station and the
likelihood of the political pressure applied on the
Police by the petitioner/accused cannot be a ground to
condone the delay in filing the chargesheet. Learned
counsel submits that the complaint has been lodged by
the complainant on 4/12/2000, however, the chargesheet
came to be filed on 24/8/2004 and, thereafter, the
cognizance was taken by the Chief Judicial Magistrate
and by order dated 30/10/2004 the process has been
issued against the accused. Learned counsel submits
that there is inordinate delay of 4 years in filing
chargesheet in the matter and the delay has not been
properly explained. Learned counsel submits that in
view of the bar of section 468 of the Cr.P.C., no
cognizance of such a case after the lapse of period of
limitation, can be taken for an offence of the category
as specified in subsection 2 of section 468 of the
Cr.P.C. Learned counsel submits that the period of
limitation in the instant case is maximum 3 years
considering the maximum punishment prescribed for the
offence punishable under section 148 of the Indian Penal
Code. Learned counsel submits that the chargesheet is
filed after the expiry of the said period without
explaining the delay or without giving justifiable
reasons for condonation of such inordinate delay. Even
the parties were the same, the same Police Station has
submitted the chargesheet immediately so far as crime
no. 79 of 2010 is concerned. However, for no reason,
chargesheet in crime no.78 of 2000 is delayed. The
Court may take cognizance of an offence before the
expiry of limitation in terms of provisions of section
473 of the Cr.P.C. if the Court is satisfied on the
facts and circumstances of the case that the delay has
been properly explained. The prosecution agency has to
give reasons for the delay and only if the Court is
satisfied about the delay or if if finds that it is
necessary in the interest of justice, to do so, it may
condone the delay and take cognizance of the case beyond
the period of limitation.
. In the instant case, the prosecution agency has
not explained the delay to the satisfaction of the Court
nor pointed out any special reasons necessary in the
interest of justice, to condone such an inordinate delay
in filing the chargesheet.
5. Learned counsel for the petitioner submits that
the learned Magistrate has erroneously observed that the
date of the filing of the complaint is material and the
delay on the part of the Investigating/Police machinery
for filing chargesheet in the Court or taking cognizance
of the matter by the Court, cannot be considered while
computing the period of limitation. Learned counsel
submits that the approach of the Magistrate as well as
the learned Sessions Judge is not proper, correct and
legal and thus the same calls for interference.
6. Learned counsel for the respondent
no.2/original complainant submits that the Five Judge
Bench of the Supreme Court has dealt with this issue and
the following questions were taken for consideration by
the Five Judge Bench of the Supreme Court in the case of
“Sarah Mathew & Ors. Vs. Institute of Cardio Vascular
Diseases by its Director Dr. K.M. Cherian & Ors.” 2014
Cri. L.J. 586.
(a) Whether for the purposes of computing the
period of limitation under section 468 of the Cr.P.C.
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 ?
(b) Which of the two cases i.e. Krishna Pillai or
Bharat Kale (which is followed in Japani Sahoo) lays
down the correct law ?
7. Learned counsel for respondent no.2 submits
that even though the respondent no.2/original
complainant has lodged the complaint in the concerned
Police Station on the date of the alleged incident
itself, the Investigating Officer has submitted the
chargesheet in the year 2004. Though apparently, there
is delay of 3 years 10 months and 27 days in filing the
chargesheet before the Court, in the light of the
observations made by the Hon'ble Five Judge Bench of the
Supreme Court, for the purpose of computing the period
of limitation under section 468 of the Cr.P.C., the
relevant date is the date of institution of the
prosecution and not the date on which the Magistrate
takes cognizance. Learned counsel submits that
considering the same, the Magistrate has rightly allowed
the said application and the learned Additional Sessions
Judge has confirmed the said order in Criminal Revision
No.6 of 2015. There is no substance in the writ
petition and thus the writ petition is liable to be
dismissed.
8. I have also heard learned A.P.P. for the State.
9. In “Sarah Mathew & Ors.”, (cited supra), relied
on by the learned counsel for respondent no.2, the
Supreme Court has considered the earlier decision in the
cases of Krishna Pillai Vs. T.A. Rajendran and Bharat
Damodar Kale Vs. State of Andhra Pradesh. In Bharat
Kale's case, offence under the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954 was decided 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 the cognizance on 25/3/2000
i.e. beyond the period of one year. In the said case,
is has observed that taking cognizance is an act of the
Court over which the prosecuting agency or the
complainant has no control. A complaint filed within
the period of limitation cannot be made infructuous by
the act of the Court which will cause prejudice to the
complainant. Such a construction will be against the
maxim actus curiae neminem gravabit, which means that
the act of the Court shall prejudice no man.
. In Japani Sahoo's case, the complainant therein
filed complaint in the Court of the concerned
Magistrate, alleging commission of the offences
punishable under section 161, 294, 323, 506 of the
Indian Penal Code and on 8/8/1997, the learned
Magistrate issued summons for the appearance of the
accused. The said order was challenged by the accused
mainly on the ground that no cognizance could have been
taken by the Court after the period of one year of
limitation prescribed under section 294 and 323 of the
Indian Penal Code. The High Court held that the
relevant date for deciding the bar of limitation was
date of taking cognizance by the Court and since the
cognizance was taken after a period of one year and
delay was not condoned by the Court by exercising powers
under section 473 of the Cr.P.C., the complaint is
liable to be dismissed. On appeal, the Supreme Court
referred another maxmim nullum tempus aut locus occurrit
regi, which means that the crime never dies.
. The Hon'ble Five Judge Bench of the Supreme
Court has considered the law of limitation in cases and
also considered the provisions of chapter XXXVI of the
Code of Criminal Procedure. The Supreme Court has
observed that all the provisions of this chapter will
have to be read cumulatively and section 468, 469 will
have to be read with section 470, to understand the term
'cognizance'. The provisions of section 190 of the Code
of Criminal Procedure are discussed at length and it is
observed that the only harmonious construction which can
be placed on section 468, 469 and 470 of the Cr.P.C. 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 and he would however be
entitled to exclude such time as is legally excludable.
In paragraph no.37 of the judgment, the Hon'ble Supreme
Court has made the following observations:
“37. We also concur with the observations in
Japani Sahoo, where this Court has examined
this issue in the context of Article 14 of the
Constitution and opted for reasonable
construction rather than literal construction.
The relevant paragraph reads thus:
“ The matter can be looked at from different
angle also. Once it is accepted (and there is
no dispute about it) that it is not within the
domain of the complainant or prosecuting agency
to take cognizance of an offence or to issue
process and the only thing the former can do is
to file a complaint or initiate proceedings in
accordance with law, if that action of
initiation of proceedings has been taken within
the period of limitation, the complainant is
not responsible for any delay on the part of
the Court or Magistrate in issuing process or
taking cognizance of an offence. Now, if he is
sought to be penalised because of the omission,
default or inaction on the part of the Court or
Magistrate, the provision of law may have to be
tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that
such a provision is totally arbitrary,
irrational and unreasonable. It is settled law
that a Court of law would interpret a provision
which would help sustaining the validity of law
by applying the doctrine of reasonable
construction rather than making it vulnerable
and unconstitutional by adopting rule of litera
legis. Connecting the provision of limitation
in Section 468 of the Code with issuing of
process or taking of cognizance by the Court
may make it unsustainable and ultra vires
Article 14 of the Constitution.”
. As observed by the Supreme Court, it is not
within the domain of the complainant or the prosecuting
agency to take cognizance of the offence or to issue
process and the only thing the former can do is to file
a complaint or initiate proceedings in accordance with
law. If the action of initiation of complaint has been
taken within the period of limitation, the complainant
is not responsible for any delay.
. In paragraph no.39 of the judgment, while
concluding the issue, the Hon'ble Supreme Court has made
following observations:
“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. Vs. State of
Maharashtra & Ors.) 43, 1976(3) S.C.C. 684 and
(Kisan Trimbak Kothula & Ors. Vs. State of
Maharashtra) 44, 1977(1) S.C.C. 300]. 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 the
Cr.P.C., which is a procedural law and it is
well settled that procedural laws must be
liberally construed to serve as handmaid of
justice and not as its mistress. See Sardar
Amarjeet Singh Kalra, (N. Balaji Vs. Virendra
Singh & Ors.) 45, reported in 2005(3) Bom.C.R.
370(S.C.) : 2004(8) S.C.C. 312 and Kailash.”
. It is also observed that the procedural law
must be liberally construed to serve as a handmaid of
justice and not as its mistress.
. Thus, in paragraph no.41 of the judgment,
Hon'ble Five Judge Bench of the Supreme Court concluded
the issue :
“41. In view of the above, we hold that for
the purpose of computing the period of
limitation under section 468 of the Cr.P.C.,
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. We further hodl
that Bharat Kale which is followed in Japani
Sahoo lays down the correct law. Krishna
Pillai will have to be restricted to its own
facts and it is not the 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 Cr.P.C.”.
10. In the instant case, the respondent
no.2/complainant has immediately lodged the complaint in
the concerned Police Station on the date of the alleged
incident itself. Thus, the date of institution of the
prosecution is material and, therefore, there is no
question of delay as such in institution of prosecution.
In computing period of limitation under section 468 of
the Cr.P.C., the relevant date is the date of
institution of the prosecution and not the date on which
the Magistrate takes cognizance on the basis of
chargesheet filed before it.
11. In view of above discussion, I do not find any
substance in the present writ petition. Both the Courts
below have rightly considered this position and accepted
the chargesheet. There is no substance in the writ
petition. Hence, I proceed to pass the following
order:
ORDER
I) Criminal Writ Petition is hereby dismissed.
II) Rule stands discharged.
12. In view of disposal of Criminal Writ Petition
No. 471 of 2015, Criminal Application No. 4441 of 2015
filed in this Writ Petition, seeking to vacate the
interim relief, does not survive and the same stands
disposed of.
[V.K. JADHAV]
JUDGE
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