In this petition filed under Sec. 482 Crl.P.C. the petitioners who re accused Nos. 1 and 2 in C.C. No. 119 of 2004 on the file of the J.f.C.M. Malappuram for offences punishable under Sections 323, 341 and 506 (1) read with Sec. 34 I.P.C., seek to quash the aforesaid proceedings before the Magistrate.

2. Adv. Sri. Sunil V. Mohammed, the learned counsel appearing for the petitioners/accused made the following submissions before me in support of his contentions:-

The alleged occurrence in this case took place on 17-11- 2000 The refer report was filed on 18-2-2001. The protest complaint was filed on 3-3-2001. The cognizance was taken by the Magistrate on 11-2-2004. The cognizance so taken was clearly beyond the period of three years prescribed for the offence under Section 468 Cr.P.C. which reads as follows:-

"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-section

(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.

3) For the purposes of this section the period of limitation, in relation to offence which may be tried together , shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment".

The date of filing of the complaint cannot be treated as the date of taking cognizance. Taking cognizance is different from filing the complaint. In Krishna Pillai v. T.A. Rajendran and Another 1990 (Suppl.) SCC 121, the Apex Court held as follows:-

"3. It is not disputed that cognizance has been taken by the court more than a year after the offence was committed. The counsel for the respondents has stated that since the complaint had been filed within a year from the commission of the offence it must be taken that the court has taken cognizance on the date when the complaint was filed. In that view of the matter there would be no limitation.

4. Taking cognizance has assumed a special meaning in our criminal jurisprudence. We may refer to the view taken by a five Judge bench of this Court in A.R. Antulay v. Ramdas Srinivas Nayak, at p. 530 (para 31) of the reports this Court indicated:

"When a private complaint is filed, the Court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.P.C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court".

The extract from the Constitution Bench judgment clearly indicates that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Since the magisterial action in this case was beyond the period of one year from the date of the commission of the offence the Magistrate was not competent to take cognizance when he did in view of the bar under Sec. 9 of the Act. We accordingly allow the appeal and quash the prosecution".

This is a decision rendered by a three Judge Bench of the Supreme Court and decisions of the Supreme Court with lesser coram strength holding otherwise cannot prevail over Krishna Pillais case. Going by the decision of a Const