Surinder Mohan Vikal vs Ascharaj Lal Chopra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1978 Supreme(SC) 90

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND P.N. SHINGHAL, JJ.
Surinder Mohan Vikal, Appellant
Versus
Ascharj Lal Chopra, Respondent.
Criminal Appeal No. 246 of 1972
Decided on 28-2-1978.
Advocates appeared
M/s. S. C. Agarwal, Swaraj Kaushal and S. C. Patel, Advocates, for Appellant; Mr. D. Mookerjee, Sr. Advocate (M/s. B. M. Srivastava and Sarwa Mitter, Advocates with him) for Respondent.

Advocates:
B.M.SRIVASTAVA, D.MUKHERJI, S.C.AGRAWAL, S.C.PATEL, SARVA M.MITTER, SVARAJ KAUSHAL

Headnote:
Criminal Procedure Code – Section 468 – Indian Penal Code – Section 500 – Quash of order – Bank – employment and service - Additional Sessions Judge of however acquitted both of them by his judgment and that judgment was upheld by the High Court Chopra then filed a complaint against the present appellant Court of Judicial Magistrate First Class commission of the offence under S. 500 I.P.C. The Magistrate examined the complainant and his witnesses, and made the order dated Sept. 15, 1976 for the issue of summons for the appearance of the present appellant in that case. That was why the present appellant applied to the High Court under S. 482 I.P.C. for quashing the Magistrates order taking cognizance of the offence against him. As his application has been rejected by the High Court, accused preferred the present appeal as aforesaid – Held, ) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded - Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it - It is an essential requirement of the sub-section that the person who seeks its benefit should be able to establish that he was "prosecuting" another prosecution in one Court or the other referred to in the sub-section. But it is not the case of the respondent that he was prosecuting the appellant in any other prosecution. It is also not his case that that prosecution related to the "same facts" within the meaning of the proviso to the sub-section. The provision of sub-sec. (1) of S. 470 cannot therefore avail the respondent, and he is not entitled to the exclusion of any time thereunder. It may be mentioned that the respondent has not sought the benefit of S. 473 which permits the extension of the period of limitation in certain cases - It would thus appear that the appellant was entitled to the benefit of sub-sec. (1) of S. 468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-sec. (2) after expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under S. 468 of the Cr. P. C. and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case - Appeal allowed

JUDGMENT

P. N. SHINGHAL J. :— This appeal by special leave has been filed by accused Surinder Mohan Vikal against the judgment of the Punjab and Haryana High Court dated March 2, 1977, rejecting his application for revision of the Magistrates order dated Sept. 15, 1976 summoning him as an accused for the trial of an offence under S. 500 I.P.C. at the instance of respondent Ascharaj Lal Chopra.

2. The appellant challenged the Magistrates order for two reasons, but the controversy before us refers to his claim that the Magistrate could not take cognizance of the offence under S. 500 I.P.C. as the period of limitation prescribed by S. 468 of the Cr. P.C. had expired. The controversy thus relates to a short point of law and can well be examined on the basis of the admitted facts.

3. The appellant was working as General Secretary of the Central Bank of India Employees Union, Punjab Ludhiana, which was a registered body. The respondent was employed as Special Assistant in that Bank, and one Amreek Singh was employed there as a clerk. The respondent worked as the General Secretary of the Union while Amreek Singh worked as its Treasurer before the appellant took over as General Secretary. The appellant filed a complaint in the Court of judicial Magistrate First Class, Ambala Cantt, on March 15, 1972, for the commission of an offence under S. 406/420 I.P.C. alleging that the respondent and Amreek Singh with "a common intention and collusion with each other, transferred a donation entry of Rs. 1100/- in the personal account of accused No. 1 (A. L. Chopra) by adjustment vide voucher dated 19-2-71 at Ambala Cantt." It was also alleged that the accused misappropriated a sum of Rs. 1100/- of the Union with "criminal intention" and "fraudulently and with a dishonest intention." By his judgment dated Feb. 11, 1975, the Magistrate convicted the respondent and Amreek Singh of the offence under S. 408/34 I.P.C. and sentenced them to rigorous imprisonment for one year and a fine of Rs. 1000/-. The Additional Sessions Judge of Ambala however acquitted both of them by his judgment dated April 1, 1975, and that judgment was upheld by the High Court on May 15, 1975. Respondent Ascharaj Lal Chopra then filed a complaint against the present appellant Surinder Mohan Vikal in the Court of Judicial Magistrate First Class, Ambala, dated Feb. 11, 1976, for the commission of the offence under S. 500 I.P.C. The Magistrate examined the complainant and his witnesses, and made the order dated Sept. 15, 1976 for the issue of summons for the appearance of the present appellant in that case. That was why the present appellant applied to the High Court under S. 482 I.P.C. for quashing the Magistrates order taking cognizance of the offence against him. As his application has been rejected by the High Court, accused Surinder Mohan Vikal has preferred the present appeal as aforesaid.

4. Chapter XXXVI of the Cr.P.C. 1973, deals with limitation for taking cognizance of certain offences. For purposes of that chapter, S. 467 defines the expression "period of limitation" to mean the period specified in S. 468 for taking cognizance of an offence. In its turn, S. 468, which bars the taking of cognizance of an offence after the expiry of period of limitation, reads as follows,-

"468 (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-sec. (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years."

The section thus not only raises the bar of limitation, but also prescribes the period thereof. It is not in controversy before us that the period of limitation in the present case would be three years a

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