2007 Supreme(SC) 1005

2007(5) Supreme 604
Supreme Court of India
(From High Court of Orissa)
C.K. Thakker & Tarun Chatterjee, JJ.
Japani Sahoo — Petitioner
versus
Chandra Sekhar Mohanty — Respondent
Appeal (crl.) 942 of 2007
[Arising Out of SLP (C) No. 4174 of 2006]
Decided on : 27-07-2007

Important POINT
If the complainant has filed the complaint and initiated the criminal proceeding 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.

Headnote:Code of Criminal Procedure, 1973 – Section 486 – Limitation for taking cognizance – The Limitation Act, 1963 does not apply to criminal proceedings unless there are express and specific provisions to that effect – Court of Law has no power to throw away prosecution solely on the ground of delay – Mere delay in approaching a Court of Law would not by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict – At the same time, no person can be kept under continuous apprehension that he can be prosecuted at ‘any time’ for ‘any crime’ irrespective of the nature or seriousness of the offence. (Paras 14, 16)

       (1969) 2 SCR 438 : AIR 1970 SC 962; (1981) 3 SCR 349 : AIR 1981 SC 1054 – Relied upon.

       Maxim – nullum tempus aut locus occurrit regi–A lapse of time is no bar to Crown in proceeding against offenders)–The general rule of criminal justice is that “a crime never dies”. (Para 14)

       Code of Criminal Procedure, 1973 – Section 486 r/w 471, 294 and 323 – Cognizance of an offence punishable u/ss 294 and 323 was taken after one and half years beyond the period of limitation of six months – It was barred under Section 468 of the Code if the material date is taken to be the date of cognizance by the Magistrate. (Para 23)

       Code of Criminal Procedure, 1973 – Section 468 – Limitation, date of reckoning – The two things, namely; (1) filing of complaint or initiation of criminal proceedings; and (2) taking cognizance or issuing process are totally different, distinct and independent – Because of several reasons, it may not be possible for the Court or the Magistrate to issue process or take cognizance, but a complainant cannot be penalized for such delay on the part of the Court nor can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under the Code – No criminal proceeding can be abruptly terminated when a complainant approaches the Court well within the time prescribed by law – In such cases, the doctrine “actus curiae neminem gravabit” (an act of Court shall prejudice none) would indeed apply. (Para 51)

       Code of Criminal Procedure, 1973 – Section 468 – If the complainant has filed the complaint and initiated the criminal proceeding 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 – 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. (Para 52)

       (2003) 8 SCC 559 : JT 2003 Supp (2) SC 569 – Relied upon.

       (1969) 2 SCR 438 : AIR 1970 SC 962; (1981) 3 SCR 349 : AIR 1981 SC 1054; (1978) 2 SCC 403; (1997) 2 SCC 397 : JT 1996 (11) SC 175 (1997); (2000) 1 SCC 230 : JT 1999 (9) SC 215 – Referred.

       Code of Criminal Procedure, 1973 – Section 468 – For the purpose of computing the period of limitation, the date of filing of complaint or initiating criminal proceedings should be the relevant date and not the date of taking cognizance by a Magistrate or issuance of process by a Court. (Para 53)

       Facts of the case :

       Appellant had constructed many shops on his land on the side of the main road of Chandrasekharpur Bazar from which he was earning substantial amount by way of rent. It is alleged by the complainant that the accused was, at the relevant time, Inspector of Police at Chandrasekharpur Police Station and was aware that the complainant was receiving good amount of income from shop rooms erected by him.

       According to the complainant, on February 2, 1996, a Constable of the said Police station came to his house and informed him that he was wanted by Officer-in-charge of the Police Station (Bada Babu) at 9 p.m. with monthly bounty. It was alleged by the complainant that even prior to the above incident, he was repeatedly asked by the accused to pay an amount of Rs.5,000/- per month as illegal gratification, but he did not oblige the accused. At about 9.30 p.m. on February 2, 1996, the complainant went to Chandrasekharpur Police Station where the accused was waiting for him anxiously to extract money. As soon as the complainant entered the Police Station, the accused abused him by using filthy language and pushed him as a result of which he fell down and sustained bodily pain. The accused also threatened the complainant that if the latter would not pay an amount of Rs.5,000/- by next morning, the former would book him in serious cases like ‘NDPS’ and dacoity.

       On the next day on advice of his lawyer, on February 5, 1996, the appellant filed a complaint in the Court of Sub Divisional Judicial Magistrate (SDJM), Bhubaneswar against the respondent-accused for commission of offences punishable under Sections 161, 294, 323 and 506, IPC.

       Ultimately, on August 8, 1997, the learned Magistrate took cognizance of the complaint filed by the complainant and issued summons fixing December 19, 1997 for appearance of accused observing inter alia that on the basis of the statements recorded, prima facie case had been made out for commission of offences punishable under Sections 294 and 323, IPC.

       After more than one year of issuance of summons, non-bailable warrant was issued by the learned Magistrate on September 23, 1998. The accused thereafter surrendered on November 23, 1998. He, however, filed a petition in the High Court of Orissa on November 20, 1998 under Section 482 of the Code of Criminal Procedure, 1973 for quashing criminal proceedings contending, inter alia, that no cognizance could have been taken by the Court after the period of one year of limitation prescribed for the offences under Sections 294 and 323, IPC and the complaint was barred by limitation. A prayer was, therefore, made by the accused to set aside order dated August 8, 1997 as also order of issuance of non-bailable warrant dated September 23, 1998 by quashing criminal proceedings. High Court quashed the proceedings.

       Findings of the Court :

       If the complainant has filed the complaint and initiated the criminal proceeding 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.

       Result : Appeal allowed.

       All decisions holding that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings overruled.