Cognizance cannot be taken after the limitation period without condoning the delay, violating statutory provisions.

ORDER :

C.PRATHEEP KUMAR, J.

1. The sole accused in C.C.No.556/2024 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ) praying for quashing all further proceedings against him

2. The offences alleged against the petitioner are under Section 354 and 509 of the IPC. The date of the alleged incident was on 22.04.2009. Annexure A1 complaint was given only on 26.08.2024, after more than 15 years.

3. Relying upon Section 468 of Cr.PC, the learned counsel for the petitioner Sri. Santheep Ankarath would argue that since the maximum punishment provided for the offences under Sections 354 and 509 of IPC in 2009 were two years and one year respectively, the period of limitation for taking cognizance of the aforesaid offences was only three years from the date of commission of the offences. Therefore, according to the learned counsel, the charge is hopelessly barred by limitation. Further, according to the learned counsel, the application filed under S.473 Cr.PC subsequent to taking cognisance of the offence is of no use.

4. On the other hand, the learned Public Prosecutor Sri.U.Jayakrishnan while opposing the petition would argue that the reason for the delay has been explained in the final report and in the application filed under S.473 Cr.PC. Though notice was served on the de facto complainant, she did not turn up.

5. In this case, as per the report filed by the learned Magistrate, the police filed final report on 16.11.2024 and the Magistrate has taken cognizance of the offence on 29.11.2024. Though on 19.11.2024 the investigating officer has filed an application seeking validation of the final report by explaining the delay, it was not considered and deferred till the time of appreciation of the evidence.

6. Now the points that arise for consideration are the following:

1) Whether the learned Magistrate was justified in taking cognizance of the offence after the period of limitation, without condoning the delay?

2) Whether the procedure adopted by the learned Magistrate in deferring the question of limitation till the time of appreciation of the evidence is correct?

7. The Points:- The learned counsel for the petitioner has also relied upon the decision of this Court in Agron Remedies PVT.Ltd. (M/s) and Others vs. Drug Inspector, Tvm and Another [2022 (2) KHC 684] , in support of his argument. In the above decision in paragraph 15 this Court held that:

“Here no petition was filed by the complainant at pre - cognizance stage to condone the delay with satisfactory explanation, if cognizance has to be taken even after expiry of the period of limitation. Moreover no grounds were shown to condone the delay in the interest of justice. The delay has to be explained satisfactorily and it should have been condoned before taking cognizance of the offence, and S.473 of Cr.P.C cannot have any application, after cognizance was taken on a time barred complaint. The provisions of S.473 of Cr.P.C' has to be invoked at the pre-cognizance stage, and once cognizance is taken, the court cannot go back to condone the delay to save the period of limitation. Before taking cognizance the learned Magistrate should have applied his mind to see that the prosecution is within time”.

8. In the decision in Johnson Alexander vs. State By CBI, ACB [Manu/SC/0443/2015] the Apex Court held that:

“In view of the clear bar under Clause (b) of Sub-section (2) of Section 468 Code of Criminal procedure, the complaint is barred by limitation, more so there is no application filed