IMPORTANT POINT
Taking of cognizance beyond the period of limitation entitles the accused to be discharged.

JUDGMENT

C.N. Aswathanarayana Rao, J. - The petitioners who are accused Nos. 1 and 2 in Special Case No.7 /88 on the file of the Court of the Special Judge, Bijapur have preferred this revision petition against an order dated 20-10-1990 passed by the said Court on I.A.II, an application filed by the accused praying for discharging them on the ground that the charge sheet was filed by the Investigating Officer after the expiry of the period of limitation prescribed under the law. After hearing the learned Counsel for the parties, the Special Judge dismissed the application. Being aggrieved by that order, the accused have come up with this revision petition.

2. I have heard the learned Counsel for the petitioners. Mr. S. Mahesh for Mr. R.B. Deshpande and Mr. B.H. Satish, learned High Court Government Pleader for the respondent and have perused the records. The impugned order goes to show that the charge sheet was filed into the Special Court on 16-7-1988 and the Court, by an order dated 3-8-1988, took cognizance of the offences and directed the issue of summons to the accused. It was contended before the Trial Court by the accused that there was delay in filing the charge sheet and it was Wed beyond the period of limitation urging that the charge sheet was filed on 3-8-1988. The learned Special Judge has pointed out in the impugned order the contention of the accused that the charge sheet was filed on 3-8-1988 is riot correct and it was actually, filed on 16-7-1988. On that ground he has rejected the contention of the accused and has dismissed the application. The entire confusion has arisen because in I.A. II filed in the Trial Court, the accused stated that the charge sheet is filed beyond the period of limitation. That is n6t the point involved at all. Under Section 468(1) Cr. P.C., as pointed out by the learned Counsel for the petitioners, it is provided that:

"no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation."

Sub-section (2)(b) provides that:

"the period of limitation for the offence punishable with imprisonment for a term not exceeding one year, is one year. "

3. It is not disputed by the learned High Court Government Pleader that the matter comes within the ambit of Section 468(2) (b) Cr. P.C. Now, a perusal of the impugned order and the order sheet in the case dated 3-8-1988 goes to show that while the charge sheet is filed on 16-71988, cognizance of the offence is taken by the Court on 3-8-1988, which is beyond the period of limitation of one year from the date of filing the charge sheet. In this regard, the learned Counsel for the petitioners relied upon a decision reported in Krishnapillai v. T.A. Rajendran1. Though that matter was decided under the provisions of the Child Marriage Restraint Act, 1929, the principle enunciated in the said, case applies to the facts of the case on hand also. It has been held therein that:

"The date of filing complaint cannot be treated as date of taking cognizance. Taking cognizance is different from filing the complaint."

4. No doubt the petitioners themselves are responsible for the error which has, crept in the impugned order because in the application I.A. II, they never said that the bar of limitation operates because the date of taking cognizance is beyond one year from the date of filing the charge sheet. What they contended in the application is there is delay which is beyond the period of limitation in filing the charge sheet itself, which has resulted in the learned Special Judge in not applying his mind to this aspect of the case. However, since it is a pure question of law, it can be urged at any stage and this Court can consider that aspect. In view of this clear position, taking of cognizance by the Special Judge was beyond the period of limitation and therefore the Special Judge ought to have allowed the application filed under Section 46& Cr. P.C., by the accused and discharged them.