In view of the above, we hold that for the purpose of
computing the period of limitation under Section 468 of the
Cr.P.C. the relevant date is the date of filing of the complaint
or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. We further hold that
Bharat Kale which is followed in Japani Sahoo lays
down the correct law. Krishna Pillai will have to be
restricted to its own facts and it is not the authority for
deciding the question as to what is the relevant date for the
purpose of computing the period of limitation under Section
468 of the Cr.P.C.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.829 OF 2005
Mrs. Sarah Mathew Vs The Institute of Cardio Vascular
Diseases by its Director – Dr. K.M. Cherian & Ors.
Dated;NOVEMBER 26, 2013.
1. While dealing with Criminal Appeal No. 829 of 2005 a
two-Judge Bench of this Court noticed a conflict between a
two-Judge Bench decision of this Court in Bharat Damodar
Kale & Anr. v. State of Andhra Pradesh1
which is
followed in another two-Judge Bench decision in Japani
Sahoo v. Chandra Sekhar Mohanty2
and a three-Judge
Bench decision of this Court in Krishna Pillai v. T.A.
Rajendran & Anr.3
. In Bharat Kale it was held that for the
purpose of computing the period of limitation, the relevant
date is the date of filing of complaint or initiating criminal
proceedings and not the date of taking cognizance by a
Magistrate or issuance of a process by court. In Krishna
Pillai this Court was concerned with Section 9 of the Child
Marriage Restraint Act, 1929 which stated that no court shall
take cognizance of any offence under the Child Marriage
1
(2003) 8 SCC 559
2
(2007) 7 SCC 394
3
(1990) supp. SCC 121
2Page 3
Restraint Act, 1929 after the expiry of one year from the
date on which the offence is alleged to have been
committed. The three-Judge Bench held that since
magisterial action in the case before it was beyond the
period of one year from the date of commission of the
offence, the Magistrate was not competent to take
cognizance when he did in view of bar under Section 9 of the
Child Marriage Restraint Act, 1929. Thus, there was
apparent conflict on the question whether for the purpose of
computing the period of limitation under Section 468 of the
Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) in
respect of a criminal complaint the relevant date is the date
of filing of the complaint or the date of institution of
prosecution or whether the relevant date is the date on
which a Magistrate takes cognizance. The two-Judge Bench,
therefore, directed that this case may be put up before a
three-Judge Bench for an authoritative pronouncement.
When the matter was placed before the three-Judge Bench,
the three-Judge Bench doubted the correctness of Krishna
Pillai and observed that as a co-ordinate Bench, it cannot
3Page 4
declare that Krishna Pillai does not lay down the correct
law and, therefore, the matter needs to be referred to a fiveJudge
Bench to examine the correctness of the view taken in
Krishna Pillai. Accordingly, this appeal along with other
matters where similar issue is involved is placed before this
Constitution Bench.
2. No specific questions have been referred to us. But, in
our opinion, the following questions arise for our
consideration:
A. Whether for the purposes of computing the
period of limitation under Section 468 of the
Cr.P.C the relevant date is the date of filing of
the complaint or the date of institution of
prosecution or whether the relevant date is
the date on which a Magistrate takes
cognizance of the offence?
4Page 5
B. Which of the two cases i.e. Krishna Pillai or
Bharat Kale (which is followed in Japani
Sahoo) lays down the correct law.
3. We have heard learned counsel for the parties at great
length and carefully read their written submissions. We may
give gist of their submissions and then proceed to answer
the questions which fall for our consideration.
4. Gist of submissions of Mr. Krishnamurthi Swami,
learned counsel for the appellant in Criminal Appeal No. 829
of 2005.
a. Krishna Pillai was rendered in the context
of Section 9 of the Child Marriage Restraint
Act, 1929. There is no reference to either
Section 468 or Section 473 of the Cr.P.C. in
this judgment. This judgment merely focuses
on the meaning of the term ‘taking
cognizance’ and has accordingly interpreted
5Page 6
Section 9 without reference to any provisions
of the Cr.P.C. Hence, this judgment cannot
be considered authority for the purposes of
interpretation of provisions of Chapter XXXVI.
On the other hand Bharat Kale considers
various provisions of Chapter XXXVI. All the
provisions have been cumulatively read to
conclude that the limitation prescribed is not
for taking cognizance within the period of
limitation, but for taking cognizance of an
offence in regard to which a complaint is filed
or prosecution is initiated within the period of
the limitation prescribed under the Cr.P.C.
This judgment lays down the correct law.
b. Section 468 of the Cr.P.C. has to be read
keeping in view other provisions particularly
Section 473 of the Cr.P.C. A person filing a
complaint within time cannot be penalized
because the Magistrate did not take
6Page 7
cognizance. A person filing a complaint after
the period of limitation can file an application
for condonation of delay and the Magistrate
could condone delay if the explanation is
reasonable. If Section 468 is interpreted to
mean that a Magistrate cannot take
cognizance of an offence after the period of
limitation without any reference to the date
of filing of the complaint or the institution of
the prosecution it would be rendered
unconstitutional. A court of law would
interpret a provision which would help
sustaining the validity of the law by applying
the doctrine of reasonable construction
rather than accepting an interpretation which
may make such provision unsustainable and
ultra vires the Constitution. [U.P. Power
Corpon. Ltd. v. Ayodhya Prasad Mishra
& Anr4
].
4
(2008) 10 SCC 139
7Page 8
c. Chapter XXXVI requires to be harmoniously
interpreted keeping the interests of both the
complainant as well as the accused in mind.
d. The law of limitation should be interpreted
from the standpoint of the person who
exercises the right and whose remedy would
be barred. The laws of limitation do not
extinguish the right but only bar the remedy.
[Mela Ram v. The Commissioner of
Income Tax Punjab5
].
e. If delay in filing a complaint can be condoned
in terms of Section 473 of the Cr.P.C. then,
Section 468 of the Cr.P.C cannot be
interpreted to mean that a complaint or
prosecution instituted within time cannot be
proceeded with, merely because the
5
1956 SCR 166
8Page 9
Magistrate took cognizance after the period
of limitation.
f. The question of delay in launching a criminal
prosecution may be a circumstance to be
taken into consideration while arriving at a
final decision. However, the same may not
by itself be a ground for dismissing the
complaint at the threshold. [Udai Shankar
Awasthi v. State of U.P. & Anr.6
]. In
certain exceptional circumstances delay may
have to be condoned considering the gravity
of the charge.
g. The contention that Section 468 should be
interpreted to mean that where the
Magistrate does not take cognizance within
the period of limitation it must be treated as
having the object of giving quietus to petty
6
(2013) 2 SCC 435
9Page 10
offences in the Indian Penal Code is
untenable. Some offences which fall within
the periods of limitation specified in Section
468 of the Cr.P.C are serious. It could never
have been the intention of the legislature to
accord quietus to such offences.
h. Procedure is meant to sub-serve and not rule
the cause of justice. Procedural laws must
be liberally construed to really serve as
handmaid. Technical objections which tend
to defeat and deny substantial justice should
be strictly discouraged. [Sushil Kumar Jain
v. State of Bihar7
, Sardar Amarjeet
Singh Kalra (dead) by LRs. & Ors. v.
Promod Gupta (dead) by LRs. & Ors.8
,
Kailash v. Nanhku & Ors.9
]
7
1975 (3) SCR 944
8
(2003) 3 SCC 272
9
(2005) 4 SCC 480]
10Page 11
5. Gist of submissions of Mr. S. Guru Krishnakumar,
learned senior counsel and Mrs. V. Mohana, learned counsel
for respondent 1 in Criminal Appeal No. 829 of 2005.
a. Bharat Kale and Japani Sahoo do not
represent the correct position in law.
Krishna Pillai rightly holds that the relevant
date for considering period of limitation is the
date of taking cognizance.
b. The settled principles of statutory
construction require that the expression
‘cognizance’ occurring in Chapter XXXVI of
the Cr.P.C. has to be given its legal sense,
since it has acquired a special connotation in
criminal law. It is a settled position in law
that taking cognizance is judicial application
of mind to the contents of a complaint/police
report for the first time. [R.R. Chari v. The
State of Uttar Pradesh10
, Bhushan
10 AIR 1951 SC 207
11Page 12
Kumar & Anr. v. State (NCT of Delhi) &
Anr.11
]. If an expression has acquired a
special connotation in law, dictionary or
general meaning ceases to be helpful in
interpreting such a word. Such an expression
must be given its legal meaning and no
other. [State of Madras v. Gannon
Dukerley & Co. (Madras) Ltd.12
].
c. The heading of Chapter XXXVI providing for
limitation for taking cognizance of certain
offences is clearly reflective of the legislative
intent to treat the date of taking cognizance
as the relevant date in computing limitation.
Pertinently, Section 467 defines the
expression ‘period of limitation’ as the period
specified in Section 468 for taking cognizance
of an offence. The express language of
Section 468 makes it clear that the
11 (2012) 5 SCC 424
12 1959 SCR 379
12Page 13
legislature considers the relevant date for
computing the date of limitation to be the
date of taking cognizance and not the date of
filing of a complaint. Further, the situations
in Section 470 of the Cr.P.C. providing for
exclusion in computing the period of
limitation are again relatable to taking
cognizance and institution of prosecution. So
also, exclusion under Section 471 of the
Cr.P.C. relates only to taking cognizance and
Section 473 of the Cr.P.C. also provides for
extension of period of limitation in taking
cognizance.
d. The scheme of the Cr.P.C. envisages
cognizance to be the point of initiation of
proceedings. Chapter XIV of the Cr.P.C. which
contains provisions of taking cognizance is
titled “Conditions requisite for initiation of
proceedings”. All provisions contained
13Page 14
therein use the expression ‘cognizance’.
They do not refer to filing of complaint at all.
e. Where the words of a statute are absolutely
clear and unambiguous, recourse cannot be
had to the principles of interpretation other
than the literal rule. Even if the literal
interpretation results in hardship or
inconvenience it has to be followed
(Raghunath Rai Bareja and Anr. v.
Punjab National Bank and Ors.)13
. On a
plain and literal interpretation of Section 468
of the Cr.P.C. read in the background of
object of Chapter XXXVI the intention of the
legislature is clearly evident that bar of
limitation is only for taking cognizance of an
offence after the expiry of the period
specified therein.
13 (2007) 2 SCC 230
14Page 15
f. Chapter XV of the Cr.P.C. sets out procedure
to be followed in respect of complaints filed
directly to a Magistrate. It reflects a well laid
out scheme which envisages judicial
application of mind to be a pre-requisite for
initiation of proceedings. The definition of
the term ‘complaint’ contained in Section
2(d) also makes this evident. Thus, initiation
of proceedings in criminal law can only be
upon taking cognizance. It is clear, therefore,
that under Section 468 of the Cr.P.C.
legislature has barred taking of cognizance as
envisaged by Chapters XIV and XV after
expiry of period of limitation. Hence, the date
for purpose of limitation would be the date of
taking cognizance. Mere filing of a complaint
does not result in cognizance being taken, for
the law requires the court to apply its mind
judicially even before deciding to issue
process.
15Page 16
g. There was no period of limitation under the old
Cr.P.C. A long delay led to serious negligence
on the part of the prosecuting agencies,
forgetfulness on the part of the prosecution
and defence witness and mental anguish to
the accused. Infliction of punishment long
after the commission of offence impairs its
utility as social retribution to the offender. To
obviate these lacunae Chapter XXXVI was
introduced in the Cr.P.C.
h. Bharat Kale and Japani Sahoo have missed
the object of introduction of Chapter XXXVI in
the Cr.P.C. namely to serve larger interest of
administration of criminal justice keeping in
view the interest of the accused and the
interest of prosecuting agencies. These
judgments fail to advert to the prejudice that
will be caused to the accused if benefit of
16Page 17
delay in taking cognizance is not given to
them. The likelihood of prejudice being
caused to the complainant which weighed
with this court in the above two decisions can
be taken care of by Section 473 which
provides for condonation of delay. [State of
Punjab v. Sarwan Singh14
, Vanka
Radhamanohari (Smt.) v. Vanka Venkata
Reddy and others15 and State of H.P. v.
Tara Dutt & Anr.16]
i. Object of Section 473 of the Cr.P.C. has not
been considered in Bharat Kale and Japani
Sahoo. They are sub-silentio in this regard.
(Municipal Corporation of Delhi V.
Gurnam Kaur17). They have also not taken
note of difference of language in Sections
468 and 469 of the Cr.P.C.
14 AIR 1981 SC 1054
15 (1993) 3 SCC 4
16 (2000) 1 SCC 230
17 (1989) 1 SCC 101
17Page 18
j. There are seven exceptions in the Cr.P.C. to
Section 468 namely Sections 84(1), 96(1),
198(6), 199(5), 378(5), 457(2) and the
proviso to Section 125(3). In all these
provisions period of limitation has been
expressly provided by the legislature. The
language of each of these provisions is
different from language of Section 468. A
perusal of these seven exceptions show that
what is intended in Section 468 of the Cr.P.C.
is limitation for taking cognizance and not for
filing complaints.
6. Gist of submissions of Mr. Padmanabhan, learned
counsel for respondent 2 in Criminal Appeal No. 829 of
2005.
a. The legislature has been very specific
wherever time limit has to be fixed for
18Page 19
initiation of prosecution. In certain special
legislations like the Negotiable Instruments
Act bar of limitation is not co-related to
taking cognizance of an offence by a court,
but it is co-related to filing of a complaint
within a specific period. It is apparent that
the bar under Chapter XXXVI of the Cr.P.C.
must be co-related to taking cognizance of an
offence by the court in view of specific
language used by the relevant sections
contained therein.
b. Chapter XXXVI of the Cr.P.C. is captioned as
‘Limitation for Taking Cognizance of Certain
Offences’. Therefore, this Chapter has to be
understood as a Chapter placing limitation
upon the court for the purposes of taking
cognizance within the timeframe prescribed
and not for filing of a complaint. In this
Chapter the word ‘complaint’ or
19Page 20
‘complainant’ are conspicuously absent.
Emphasis is on ‘offences’.
c. Section 473 of the Cr.P.C enjoins a duty on
the court to examine not only whether the
delay has been explained or not but whether
it is necessary to do so in the interest of
justice.
d. If the charge-sheet is hit by Section 468, the
Court may then resort to Section 473 in
exceptional cases in the interest of justice.
The same consideration may not arise if a
private complaint is filed. Section 473 is
designed to cater to situations when for
genuine reasons investigation is delayed. It
is not intended to give long rope to litigants
who take long time to approach the court.
20Page 21
e. Marginal Heading or Note can be usefully
referred to, to determine the sense of any
doubtful expression in a section ranged under
that heading though it cannot be referred to
for giving a different effect to clear words in
the section.
7. Gist of submissions of Mr. Amrendra Sharan, learned
senior counsel appearing for the petitioner in SLP (Crl.) Nos.
5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013.
a. Chapter XXXVI of the Cr.P.C. is a complete
code in itself which deals with issue of bar of
limitation for taking cognizance of an offence.
b. A bare reading of Section 468 of the Cr.P.C
leaves no manner of doubt that the bar of
limitation applies as on the date of
cognizance. It specifically targets cognizance
and it debars taking cognizance of an offence
after expiration of the statutory period of
21Page 22
limitation. One cannot make fundamental
alteration in the words of the statute. Taking
cognizance cannot be altered to filing
complaint within statutory period.
c. Taking cognizance is distinct from filing
complaint. The term cognizance has been
defined by this Court in R.R. Chari and
Darshan Singh Ram Kishan v. State of
Maharashtra18. Cognizance takes place
when a Magistrate first takes judicial notice of
an offence on a complaint, or on a police
report or upon information of a person other
than a police officer.
d. Operation of legal maxims can be excluded
by statutes but operation of statutes cannot
be excluded by legal maxims. Reliance on a
maxim by this Court in Japani Sahoo for
carving out an exception and supplying
18 (1971) 2 SCC 654
22Page 23
words to the complete Code of limitation is
erroneous.
e. Penal statutes have to be interpreted strictly.
[Tolaram Relumal & Anr. v. The State of
Bombay]
19. It is the cardinal rule of
interpretation that where a statute provides a
particular thing should be done, it should be
done in the manner prescribed and not in any
other way. (State of Jharkhand & Anr. v.
Ambay Cements & Anr.20
)
f. The rule of Casus Omissus stipulates that a
matter which should have been, but has not
been provided for in the statute cannot be
supplied by the courts as, to do so, will be
legislation by court and not construction. The
legislative casus omissus cannot be supplied
by judicial interpretative process. There is no
scope for supplying/ supplanting any word,
19 AIR 1954 SC 496
20 (2005) 1 SCC 368
23Page 24
phrase or sentence or creating any exception
in Chapter XXXVI which is a complete Code in
itself. [Shiv Shakti Co-operative Housing
Society, Nagpur v. Swaraj Developers &
Ors21
., Bharat Aluminum Co. etc. v.
Kaiser Aluminum Technical Services
etc.22
, Assistant Commissioner,
Assessment-II, Bangalore & Ors. v.
Velliappa Textiles Ltd. & Anr.23
].
g. Japani Sahoo does not lay down the correct
law because by stipulating that the date of
limitation is to be calculated from the date of
filing of complaint rather than from the date
on which the cognizance is taken, it has
created a casus omissus, where the language
of the statute was plain and no casus
omissus existed.
21 (2003) 6 SCC 659
22 (2012) 9 SCC 552
23 (2003) 11 SCC 405
24Page 25
h. The Golden Rule of Interpretation provides
that a statute has to be interpreted by
grammatical or literal meaning unmindful of
the consequences if the language of the
statute is plain and simple. [Maulavi
Hussein Haji Abraham Umarji v. State of
Gujarat & Anr24
].
i. The Law Commission’s 42nd Report
demonstrates the rational for introduction of
limitation in Cr.P.C. The legislature wanted to
ensure that prosecution should not result in
persecution especially in cases of minor
offences which could be tried and disposed of
speedily.
j. The accused has a fundamental right to
speedy trial which is a facet of Article 21.
[ A.R. Antulay v. R.S. Nayak25
(“Antulay
24 (2004) 6 SCC 672
25 (1992) 1 SCC 225
25Page 26
‘1992’ Case”)] Therefore, it is the duty of
the courts to take cognizance within a
prescribed timeframe. If the court fails to do
so, it is not open to it to take cognizance of
such offence as it might prejudice the right of
the accused. Therefore, no cognizance can be
taken after the period of limitation. [Raj Deo
Sharma (II) v. State of Bihar26
and
Sarwan Singh.]
k. The accused has a right to be heard at the
time of condonation of delay in taking
cognizance by the courts. Delay cannot be
condoned without notice to the accused.
[State of Maharashtra v. Sharadchandra
Vinayak Dongre & Ors.27
, P.K.
Choudhary v. Commander, 48 BRTF,
26 (1999) 7 SCC 604
27 (1995) 1 SCC 42
26Page 27
(GREF)28
, Krishna Sanghai v. State of
M.P.29
]
l. The accused have to be heard when an
application under Section 473 of the Cr.P.C. is
moved by the prosecution before cognizance
is taken. Section 468 of the Cr.P.C. is clear
and unambiguous and it bars taking
cognizance of an offence, if on the date of
taking cognizance the period prescribed
under Section 468(2) of the Cr.P.C. has
expired. Japani Sahoo, therefore, does not
lay down the correct law.
8. Gist of submissions of Mr. Sidharth Luthra, learned
Additional Solicitor General, appearing for the respondent–
State (NCT of Delhi) in SLP (Crl.) Nos. 5687-5688 of 2013 and
SLP (Crl.) No. 5764 of 2013.
28 (2008) 13 SCC 229
29 1997 Cr.L.J 90 (MP)
27Page 28
a. Bharat Kale lays down the correct law and
not Krishna Pillai.
b. Legislative history of Chapter XXXVI indicates
its object.
c. Stage of process is not to be mistaken for
cognizance. Cognizance indicates the point
when a court takes judicial notice of an
offence with a view to initiating process in
respect of the offence [S.K. Sinha, Chief
Enforcement Officer v. Videocon
International Ltd. & Ors.30
]. Cognizance is
entirely a different thing from initiation of
proceedings, rather it is the condition
precedent to the initiation of proceedings by
the court. Cognizance is taken of the case
and not of persons. Under Section 190 of the
Cr.P.C. it is the application of mind to the
averments in the complaint that constitutes
30 (2008) 2 SCC 492
28Page 29
cognizance (Bhushan Kumar). Stage of
process is not relevant for the purpose of
computing limitation under Section 468 of the
Cr.P.C.
d. Chapter XXXVI has to be read as a whole. To
understand the scheme of this Chapter
reference may be made to Vanka
Radhamanohari.
e. On interpretation of Section 473 of the Cr.P.C
particularly the disjunctive ‘or’ used therein
reference may be made to Municipal
Corporation of Delhi v. Tek Chand
Bhatia31
. Once the complainant has acted
with due diligence and there are delays on
the part of the Court, it would be in the
interest of justice to condone such delay and
not call for explanation from the complainant
which in any case he cannot possibly give.
31 (1980) 1 SCC 158
29Page 30
On condonation of delay reference may be
made to Sharadchandra Dongre.
f. Taking cognizance is not dictated by the
prosecution of the complaint or police report
but is predicated upon application of judicial
mind by the Magistrate which is not in the
control of the individual instituting the
prosecution. If date of taking cognizance is
considered to be relevant in computing
limitation, the act of the court can prejudice
the complainant which will be against the
maxim ‘the acts of courts should not
prejudice anyone’. [Rodger v. Comptoir
D’Escompte De Paris32
].
g. Krishna Pillai relates to Section 9 of the
Child Marriage Restraint Act, 1929 which is a
special law and which provides for a
limitation for taking cognizance and could
32 (1870-71) VII Moore N.S. 314
30Page 31
exclude the application of Chapter XXXVI
and, hence, Section 473 of the Cr.P.C. and
perhaps in such facts there was no reference
to Section 473 of the Cr.P.C. Similar is the
view in P.P. Unnikrishnan & Anr. v.
Puttiyottil Alikutty & Anr.33
.
h. It is settled law that Sections 4 and 5 of the
Cr.P.C. create an exception for special laws
with special procedures. Krishna Pillai was
in the context of specific limitation period
where Section 473 of the Cr.P.C. had no
application. Thus, it cannot be considered or
applied to interpret Sections 468 and 473 of
the Cr.P.C. as they stand. On the contrary,
view taken in Bharat Kale and Japani
Sahoo relying upon Rashmi Kumar (Smt.)
v. Mahesh Kumar Bhada,
34 reach the same
33 (2000) 8 SCC 131
34 (1997) 2 SCC 397
31Page 32
conclusion as contended herein i.e. the acts
of the court should not prejudice anyone.
9. Having given the gist of the submissions, we shall now
advert to Krishna Pillai, Bharat Kale and Japani Sahoo
which have led to this reference. In Krishna Pillai this
Court was concerned with Section 9 of the Child Marriage
Restraint Act, 1929 which reads as under:
“No court shall take cognizance of any
offence under this Act after the expiry of one
year from the date on which the offence is
alleged to have been committed.”
It was not disputed that cognizance of the offence had
been taken by the court more than a year after the offence
was committed. The appellant challenged the continuance
of prosecution by filing an application under Section 482 of
the Cr.P.C. before the High Court contending that the
cognizance was barred under Section 9 of the Child Marriage
Restraint Act, 1929. It was contended by the respondent
that since the complaint had been filed within a year from
32Page 33
the commission of the offence it must be taken that the
court has taken cognizance on the date when the complaint
was filed. Therefore, the complaint cannot be said to be
barred by limitation. This Court quoted the following
observations of the judgment of the Constitution Bench in
A.R. Antulay v. Ramdas Sriniwas Nayak (“Antulay
‘1984’ Case”35
:
“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 CrPC
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.”
This Court observed that cognizance has assumed a
special meaning in our criminal jurisprudence and the above
extract from Antulay ‘1984’ Case indicates that filing of a
35 (1984) 2 SCC 500
33Page 34
complaint is not taking cognizance and what exactly
constitutes taking cognizance is different from filing a
complaint. This Court observed that since the magisterial
action in the case before it was beyond the period of one
year from the date of commission of the offence, the
Magistrate was not competent to take cognizance when he
did in view of the bar under Section 9 of the Child Marriage
Restraint Act, 1929.
10. Before discussing Bharat Kale, it is necessary to go to
Rashmi Kumar (Smt.) on which reliance is placed in
Bharat Kale. In that case, the question was whether the
complaint filed by the complainant-wife against the husband
under Section 406 of the IPC in September, 1990 was time
barred. The offence under Section 406 of the IPC is
punishable with imprisonment which could extend to three
years or with fine or with both. Therefore, under Section
468(3) of the Cr.P.C., the limitation period for the said
offence is three years. It was urged by the counsel for the
husband that the evidence of the complainant-wife recorded
34Page 35
under Section 200 of the Cr.P.C. establishes that in October,
1986 the complainant-wife demanded return of jewelry and
the husband refused to return the jewelry. Therefore, the
period of limitation began to run from October, 1986 and the
complaint filed in September, 1990 was time barred, it
having been filed beyond the period of three years. A threeJudge
Bench of this Court negatived this contention and held
that it was clearly averred in the complaint that on
5/12/1987, the complainant-wife had demanded jewelry from
the husband and the husband had refused to do so and,
therefore, the complaint filed on 10/9/1990 was within three
years from the date of demand of jewelry and refusal to
return it by the husband. Thus, for the purpose of
computation of period of limitation, the date of filing of the
complaint was held to be relevant.
11. In Bharat Kale, the offence under the Drugs and
Magic Remedies (Objectionable Advertisements) Act, 1954
was detected on 5/3/1999. The complaint was filed on
3/3/2000 which was within the period of limitation of one
35Page 36
year. However, the Magistrate took cognizance on
25/3/2000 i.e. beyond the period of one year. It was argued
that since cognizance was taken beyond the period of one
year, the bar of limitation applies. After considering the
provisions of Chapter XXXVI of the Cr.P.C. this Court
observed that they indicate that the limitation prescribed
therein is only for the filing of the complaint or initiation of
the prosecution and not for taking cognizance. It, of course,
prohibits the court from taking cognizance of an offence
where the complaint is filed before the court after the expiry
of the period mentioned in the said Chapter. This Court
further observed that taking cognizance is an act of the
court over which the prosecuting agency or the complainant
has no control. A complaint filed within the period of
limitation cannot be made infructuous by an act of the court
which will cause prejudice to the complainant. Such a
construction will be against the maxim ‘actus curiae
neminem gravabit’, which means the act of court shall
prejudice no man. It was also observed relying on Rashmi
Kumar (Smt.) that the legislature could not have intended
36Page 37
to put a period of limitation on the act of the court for taking
cognizance of an offence so as to defeat the case of the
complainant.
12. In Japani Sahoo, the complainant therein filed a
complaint in the court of the concerned Magistrate alleging
commission of offences punishable under Sections 161, 294,
323 and 506 of the IPC. On 8/8/1997 learned Magistrate on
the basis of statements of witnesses issued summons for
appearance of the accused. The accused surrendered on
23/11/1998 and thereafter filed a petition under Section 482
of the Cr.P.C. in the High Court 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 punishable under
Sections 294 and 323 of the IPC. The High Court held that
the relevant date for deciding the bar of limitation was the
date of taking cognizance by the court and since cognizance
was taken after the period of one year and the delay was not
condoned by the court by exercising power under Section
37Page 38
473 of the Code, the complaint is liable to be dismissed. On
appeal, this Court referred to another well known maxim
‘nullum tempus aut locus occurrit regi’ which means that a
crime never dies. This Court elaborately discussed the
scheme of Chapter XXXVI of the Cr.P.C. and after following
Bharat Kale held that it is the date of filing of complaint or
the date on which criminal proceedings are initiated which is
material.
13. At the outset, we must deal with the criticism leveled
against Bharat Kale and Japani Sahoo that they place
undue reliance on legal maxims. It was argued that legal
maxims can neither expand nor delete any part of an
express statutory provision, nor can they give an
interpretation which is directly contrary to what the provision
stipulated. Their operation can be excluded by statutes but
operation of statutes cannot be excluded by legal maxims.
14. It is true that in Bharat Kale and Japani Sahoo this
Court has referred to two important legal maxims. We may
38Page 39
add that in Vanka Radhamanohari, to which our attention
has been drawn by the counsel, it is stated that the general
rule of limitation is based on Latin maxim ‘vigilantibus et non
dormientibus, jura subveniunt’, which means the vigilant and
not the sleepy, are assisted by laws. We are, however,
unable to accept the submission that reliance placed on
legal maxims was improper. We are mindful of the fact
that legal maxims are not mandatory rules but their
importance as guiding principles can hardly be
underestimated. Herbert Broom in the preface to the First
Edition of his classical work “Legal Maxims” (as seen in
Broom’s Legal Maxims, Tenth Edition, 1939) stated:
“In the Legal Science, perhaps more frequently
than in any other, reference must be made to the
first principles. Indeed, a very limited
acquaintance with the earlier Reports will show
the importance which was attached to the
acknowledged Maxims of the Law, in periods when
civilization and refinement had made
comparatively little progress. In the ruder ages,
without doubt, the great majority of questions
respecting the rights, remedies, and liabilities of
private individuals were determined by an
immediate reference to such maxims, many of
which obtained in the Roman law, and are so
manifestly founded in reason, public convenience,
39Page 40
and necessity, as to find a place in the code of
every civilized nation. In more modern times, the
increase of commerce, and of national and social
intercourse, has occasioned a corresponding
increase in the sources of litigation, and has
introduced many subtleties and nice distinctions,
both in legal reason and in the application of legal
principles, which were formerly unknown. This
change, however, so far from diminishing the
value of simple fundamental rules, has rendered
an accurate acquaintance with them the more
necessary, in order that they may be either
directly applied, or qualified, or limited, according
to the exigencies of the particular case, and the
novelty of the circumstances which present
themselves.
In our opinion, therefore, use of legal maxims as
guiding principles in Bharat Kale and Japani Sahoo is
perfectly justified.
15. To address the questions which arise in this reference,
it is necessary to have a look at the legislative history of
Chapter XXXVI of the Cr.P.C. The Criminal Procedure Code,
1898 contained no general provision for limitation. Though
under certain special laws like the Negotiable Instruments
Act, 1881, Trade and Merchandise Marks Act, 1958, the
Police Act, 1861, The Factories Act, 1948 and the Army Act,
40Page 41
1950, there are provisions prescribing period of limitation for
prosecution of offences, there was no general law of
limitation for prosecution of other offences. The approach
of this Court while dealing with the argument that there was
delay in launching prosecution, when in the Criminal
Procedure Code (1898), there was no general provision
prescribing limitation, could be ascertained from its
judgment in The Assistant Collector of Customs ,
Bombay & Anr. v. L.R. Melwani & Anr.36. It was urged
before the High Court in that case that there was delay in
launching prosecution. The High Court held that the delay
was satisfactorily explained. While dealing with this
question, this Court held that in any case prosecution could
not have been quashed on the ground of delay because it
was not the case of the accused that any period of limitation
was prescribed for filing the complaint. Hence the complaint
could not have been thrown out on the sole ground that
there was delay in filing the same. This Court further
observed that the question of delay in filing complaint may
36 AIR 1970 SC 962
41Page 42
be a circumstance to be taken into consideration in arriving
at the final verdict and by itself it affords no ground for
dismissing the complaint. This position underwent a change
to some extent when Chapter XXXVI was introduced in the
Cr.P.C. as we shall soon see.
16. It is pertinent to note that the Limitation Act, 1963 does
not apply to criminal proceedings except for appeals or
revisions for which express provision is made in Articles 114,
115, 131 and 132 thereof. After conducting extensive study
of criminal laws of various countries, the Law Commission of
India appears to have realized that providing provision of
limitation for prosecution of criminal offences of certain type
in general law would, in fact, be good for the criminal justice
system. The Law Commission noted that the reasons to
justify introduction of provisions prescribing limitation in
general law for criminal cases are similar to those which
justify such provisions in civil law such as likelihood of
evidence being curtailed, failing memories of witnesses and
disappearance of witnesses. Such a provision, in the opinion
42Page 43
of the Law Commission, will quicken diligence, prevent
oppression and in the general public interest would bring an
end to litigation. The Law Commission also felt that the
court would be relieved of the burden of adjudicating
inconsequential claims. Paragraph 24.3 is material. It reads
thus:
“24.3 – In civil cases, the law of limitation in
almost all countries where the rule of law prevails,
Jurists have given several convincing reasons to
justify the provision of such a law; some of those
which are equally applicable to criminal
prosecutions may be referred to here:-
(1) The defendant ought not to be called on to
resist a claim when “evidence has been lost,
memories have faded, and witnesses have
disappeared.”
(2) The law of limitation is also a means of
suppressing fraud, and perjury, and quickening
diligence and preventing oppression.
(3) It is in the general public interest that there
should be an end to litigation. The statute of
limitation is a statute of repose.
(4) A party who is insensible to the value of civil
remedies and who does not assert his own claim
with promptitude has little or no right to require
the aid of the state in enforcing it.
43Page 44
(5) The court should be relieved of the burden of
adjudicating inconsequential or tenuous claims.”
The Law Commission stated its case for extending
limitation to original prosecutions as under:
“24.11 - It seems to us that there is a strong case
for having a period of limitation for offences which
are not very serious. For such offences,
considerations of fairness to the accused and the
need for ensuring freedom from prosecution after
a lapse of time should outweigh other
considerations. Moreover, after the expiry of a
certain period the sense of social retribution loses
its edge and the punishment does not serve the
purpose of social retribution. The deterrent effect
of punishment which is one of the most important
objectives of penal law is very much impaired if
the punishment is not inflicted promptly and if it is
inflicted at a time when it has been wiped off the
memory of the offender and of other persons who
had knowledge of the crime.
Paragraphs 24.13, 24.14, 24.20, 24.22, 24.23, 24.24,
24.25, and 24.26 could also be advantageously quoted.
“24.13 – At present no court can throw out a
complaint solely on the ground of delay, because,
as pointed out by the Supreme Court, “the
question of delay in filing a complaint may be a
circumstance to be taken into consideration in
arriving at the final verdict, but by itself, it affords
44Page 45
no grounds for dismissing the complaint”. It is
true that unconscionable delay is a good ground
for entertaining grave doubts about the truth of
the complainant’s story unless he can explain it to
the satisfaction of the court. But it would be
illegal for a court to dismiss a complaint merely
because there was inordinate delay.
24.14. - We, therefore, recommend that the
principle of limitation should be introduced for less
serious offences under the Code. We suggest
that, for the present, offences punishable with fine
only or with imprisonment upto three years should
be made subject to the law of limitation. The
question of extending the law to graver offences
may be taken up later on in the light of the
experience actually gained.
24.20. - The question whether prosecution
commences on the date on which the court takes
cognizance of the offence or only on the date on
which process is issued against the accused, has
been settled by the Supreme Court with reference
to Section 15 of the Merchandise Marks Act, 1889.
Where the complaint was filed within one year of
the discovery of offence, it cannot be thrown out
merely because process was not issued within one
year of such discovery. The complainant is
required by section 15 of the Act to “commence
prosecution” within this period, which means that
if the complaint is presented within one year of
such discovery, the requirements of section 15 are
satisfied. The period of limitation is intended to
operate against complainant and to ensure
diligence on his part in prosecuting his rights, and
not against the Court. It will defeat the object to
the enactment deprive traders of the protection
which the law intended to give them, to hold that
unless process is issued on their complaint within
45Page 46
one year of the discovery of the offence, it should
be thrown out.
24.22 - Secondly, as in civil cases, in computing
the period of limitation for taking cognizance of
offence, the time during which any person has
been prosecuting with the due diligence another
prosecution whether in a court of first instance or
in a court of appeal or revision, against the
offender, should be excluded, where 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.
24.23 - Thirdly, in the case of a continuing
offence, a fresh period of limitation should begin
to run at every moment of the time during which
the offence continues; and we recommend the
insertion of a provision to that effect.
24.24 - Impediments to the institution of a
prosecution have also to be provided for. Such
impediments could be (a) legal, or (b) due to
conduct of the accused, or (c) due to the court
being closed on the last day.
As regards legal impediments, two aspects may
be considered, first, the time for which institution
of prosecution is stayed under a legal provision,
and secondly, prosecutions for which previous
sanction is required, or notice has to be given,
under legal provision. Both are appropriate cases
for a special provision for extending the period of
limitation. We recommend that, where the
institution of the prosecution in respect of an
offence has been stayed by an injunction or order,
than, in computing the period of limitation for
taking cognizance of that offence, the time of the
46Page 47
continuance of the injunction or order, the day on
which it was issued or made, and the day on
which it was withdrawn, shall be excluded.
24.25 - We also recommend that where notice
of prosecution for an offence has been given, or
where for prosecution for an offence the previous
consent or sanction of the Government or any
other authority is required, in accordance with the
requirements of any law for the time being in
force, then in computing the period of limitation
for taking cognizance of the offence, the period of
such notice or, as the case may be, the time
required for obtaining such consent or sanction,
shall be excluded.
24.26 - As illustrations of impediments caused
by the conduct of the accused, we may refer to his
being out of India, and his absconding or
concealing himself. Running of the period of
limitation should be excluded in both cases.”
17. The Joint Parliament Committee (“the JPC”) accepted
the recommendations of the Law Commission for prescribing
period of limitation for certain offences. The relevant
paragraphs of its report dated 30/11/1972 read as under:
“Clauses 467 to 473 (new clauses) – These
are new clauses prescribing periods of limitation
on a graded scale for launching a criminal
prosecution in certain cases. At present, there is
no period of limitation for criminal prosecution and
47Page 48
a Court cannot throw out complaint or a police
report solely on the ground of delay although
inordinate delay may be a good ground for
entertaining doubts about the truth of the
prosecution story. Periods of limitation have been
prescribed for criminal prosecution in the laws of
many countries and the Committee feels that it
will be desirable to prescribe such periods in the
Code as recommended by the Law Commission.
Among the grounds in favour of prescribing the
limitation may be mentioned the following:
1. As time passes the testimony of witnesses
become weaker and weaker because of lapse of
memory and evidence becomes more and more
uncertain with the result that the danger of error
becomes greater.
2. For the purpose of peace and repose it is
necessary that an offender should not be kept
under continuous apprehension that he may be
prosecuted at any time particularly because with
the multifarious laws creating new offences many
persons at some time or the other commit some
crime or the other. People will have no peace of
mind if there is no period of limitation even for
petty offences.
3. The deterrent effect of punishment is
impaired if prosecution is not launched and
punishment is not inflicted before the offence has
been wiped off the memory of the persons
concerned.
4. The sense of social retribution which is one of
the purposes of criminal law looses its edge after
the expiry of a long period.
48Page 49
5. The period of limitation would put pressure
on the organs of criminal prosecution to make
every effort to ensure the detection and
punishment of the crime quickly.
The actual periods of limitation provided for in the
new clauses would, in the Committee’s opinion be
appropriate having regard to the gravity of the
offences and other relevant factors.
As regards the date from which the period is to be
counted the Committee considered has fixed the
date as the date of the offence. As, however this
may create practical difficulties and may also
facilitate an accused person to escape punishment
by simply absconding himself for the prescribed
period, the Committee has also provided that
when the commission of the offence was not
known to the person aggrieved by the offence or
to any police officer, the period of limitation would
commence from the day on which the
participation of the offender in the offence first
comes to the knowledge of a person aggrieved by
the offence or of any police officer, whichever is
earlier. Further, when it is not known by whom
the offence has committed, the first day on which
the identity of the offender is known to the person
aggrieved by the offence or to the police officer
making investigation into the offence.
The Committee has considered it necessary to
make a specific provision for extension of time
whenever the court is satisfied on the materials
that the delay has been properly explained or that
the accused had absconded. This provision would
be particularly useful because limitation for
criminal prosecution is being prescribed for the
first time in this country”.
49Page 50
18. Read in the background of the Law Commission’s
Report and the Report of the JPC, it is clear that the object of
Chapter XXXVI inserted in the Cr.P.C. was to quicken the
prosecutions of complaints and to rid the criminal justice
system of inconsequential cases displaying extreme
lethargy, inertia or indolence. The effort was to make the
criminal justice system more orderly, efficient and just by
providing period of limitation for certain offences. In
Sarwan Singh, this Court stated the object of Cr.P.C in
putting a bar of limitation as follows:
“The object of the Criminal Procedure Code in
putting a bar of limitation on prosecutions was
clearly to prevent the parties from filing cases
after a long time, as a result of which material
evidence may disappear and also to prevent
abuse of the process of the court by filing
vexatious and belated prosecutions long after the
date of the offence. The object which the statutes
seek to sub-serve is clearly in consonance with the
concept of fairness of trial as enshrined in Article
21 of the Constitution of India. It is, therefore, of
the utmost importance that any prosecution,
whether by the State or a private complainant
must abide by the letter of law or take the risk of
the prosecution failing on the ground of
limitation.”
50Page 51
19. It is equally clear however that the law makers did not
want cause of justice to suffer in genuine cases. Law
Commission recommended provisions for exclusion of time
and those provisions were made part of Chapter XXXVI. We,
therefore, find in Chapter XXXVI provisions for exclusion of
time in certain cases (Section 470), for exclusion of date on
which the Court is closed (Section 471), for continuing
offences (Section 472) and for extension of period of
limitation in certain cases (Section 473). Section 473 is
crucial. It empowers the court to take cognizance of an
offence after the expiry of the period of limitation, if it is
satisfied on the facts and in the circumstances of the case
that the delay has been properly explained or that it is
necessary to do so in the interest of justice. Therefore,
Chapter XXXVI is not loaded against the complainant. It is
true that the accused has a right to have a speedy trial and
this right is a facet of Article 21 of the Constitution. Chapter
XXXVI of the Cr.P.C. does not undermine this right of the
accused. While it encourages diligence by providing for
limitation it does not want all prosecutions to be thrown
51Page 52
overboard on the ground of delay. It strikes a balance
between the interest of the complainant and the interest of
the accused. It must be mentioned here that where the
legislature wanted to treat certain offences differently, it
provided for limitation in the section itself, for instance,
Section 198(6) and 199(5) of the Cr.P.C. However, it chose
to make general provisions for limitation for certain types of
offences for the first time and incorporated them in Chapter
XXXVI of the Cr.P.C.
20. To understand the scheme of Chapter XXXVI it would be
advantageous to quote Sections 467, 468, 469 and 473 of
the Cr.P.C. Section 467 reads as under:
“467. Definitions. – For the purposes of this
Chapter, unless the context otherwise requires,
“period of limitation” means the period specified
in section 468 for taking cognizance of an offence”
Section 468 reads as under:
“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
52Page 53
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 offences 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.”
Section 469 reads as under:
“469. Commencement of the period of
limitation. - (1) The period of limitation, in
relation to an offender, shall commence, -
(a) on the date of the offence; or
(b) where the commission of the
offence was not known to the person
aggrieved by he offence or to any police
officer, the first day on which such
offence comes to the knowledge of such
53Page 54
person or to any police officer,
whichever is earlier; or
(c) where it is not known by whom the
offence was committed, the first day on
which the identity of the offender is
known to the person aggrieved by the
offence or to the police officer making
investigation into the offence,
whichever is earlier.
(2) In computing the said period, the day from
which such period is to be computed shall be
excluded.”
Section 473 reads as under:
“473. Extension of period of limitation in
certain cases. – Notwithstanding anything
contained in the foregoing provisions of this
Chapter, any Court may take cognizance of an
offence after the expiry of the period of limitation,
if it is satisfied on the facts and in the
circumstances of the case that the delay has been
properly explained or that it is necessary so to do
in the interests of justice.”
21. Gist of these provisions could now be stated. Section
467 defines the phrase ‘period of limitation’ to mean the
period specified in Section 468 for taking cognizance of
certain offences. Section 468 stipulates the bar of limitation.
54Page 55
Sub-section (1) of Section 468 makes it clear that a fetter is
put on the court’s power to take cognizance of an offence of
the category mentioned in sub-section (2) after the expiry of
period of limitation. Sub-section (2) lays down the period of
limitation for certain offences. Section 469 states when the
period of limitation commences. It is dexterously drafted so
as to prevent advantage of bar of limitation being taken by
the accused. It states that period of limitation in relation to
an offence shall commence either from the date of offence
or from the date when the offence is detected. Section 470
provides for exclusion of time in certain cases. It inter alia
states that while computing the period of limitation in
relation to an offence, time taken during which the case was
being diligently prosecuted in another court or in appeal or
in revision against the offender, should be excluded. The
explanation to this section states that in computing
limitation, the time required for obtaining the consent or
sanction of the government or any other authority should be
excluded. Similarly time during which the accused is
absconding or is absent from India shall also be excluded.
55Page 56
Section 471 provides for exclusion of date on which court is
closed and Section 472 provides for continuing offence.
Section 473 is an overriding provision which enables courts
to condone delay where such delay has been properly
explained or where the interest of justice demands extension
of period of limitation. Analysis of these provisions indicates
that Chapter XXXVI is a Code by itself so far as limitation is
concerned. All the provisions of this Chapter will have to be
read cumulatively. Sections 468 and 469 will have to be
read with Section 473.
22. It is now necessary to see what the words ‘taking
cognizance’ mean. Cognizance is an act of the court. The
term ‘cognizance’ has not been defined in the Cr.P.C. To
understand what this term means we will have to have a
look at certain provisions of the Cr.P.C. Chapter XIV of the
Code deals with ‘Conditions requisite for initiation of
proceedings’. Section 190 thereof empowers a Magistrate to
take cognizance upon (a) receiving a complaint of facts
which constitute such offence; (b) upon a police report of
56Page 57
such facts; (c) upon information received from any person
other than a police officer, or upon his own knowledge, that
such offence has been committed. Chapter XV relates to
‘Complaints to Magistrates’. Section 200 thereof provides for
examination of the complainant and the witnesses on oath.
Section 201 provides for the procedure which a Magistrate
who is not competent to take cognizance has to follow.
Section 202 provides for postponement of issue of process.
He may, if he thinks fit, and shall in a case where the
accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process
against the accused and either inquire into the case himself
or direct an investigation to be made by a police officer for
the purpose of deciding whether there is sufficient ground
for proceeding. Chapter XVI relates to commencement of
proceedings before the Magistrate. Section 204 provides for
issue of process. Under this section if the Magistrate is of
the opinion that there is sufficient ground for proceeding and
the case appears to be a summons case, he shall issue
summons for the attendance of the accused. In a warrant
57Page 58
case, he may issue a warrant. Thus, after initiation of
proceedings detailed in Chapter XIV, comes the stage of
commencement of proceedings covered by Chapter XVI.
23. In Jamuna Singh & Ors. v. Bhadai Shah37
, relying
on R.R. Chari and Gopal Das Sindhi & Ors. v. State of
Assam & Anr.38
, this Court held that it is well settled that
when on a petition or complaint being filed before him, a
Magistrate applies his mind for proceeding under the various
provisions of Chapter XVI of the Cr.P.C., he must be held to
have taken cognizance of the offences mentioned in the
complaint.
24. After referring to the provisions of the Cr.P.C. quoted by
us hereinabove, in S.K. Sinha, Chief Enforcement
Officer, this Court explained what is meant by the term
‘taking cognizance’. The relevant observations of this Court
could be quoted:
37 AIR 1964 SC 1541
38 AIR 1961 SC 986
58Page 59
“19. The expression “cognizance” has not been
defined in the Code. But the word (cognizance) is
of indefinite import. It has no esoteric or mystic
significance in criminal law. It merely means
“become aware of” and when used with reference
to a court or a Judge, it connotes “to take notice of
judicially”. It indicates the point when a court or a
Magistrate takes judicial notice of an offence with
a view to initiating proceedings in respect of such
offence said to have been committed by someone.
20. “Taking cognizance” does not involve any
formal action of any kind. It occurs as soon as a
Magistrate applies his mind to the suspected
commission of an offence. Cognizance is taken
prior to commencement of criminal proceedings.
Taking of cognizance is thus a sine qua non or
condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an
offender. Whether or not a Magistrate has taken
cognizance of an offence depends on the facts and
circumstances of each case and no rule of
universal application can be laid down as to when
a Magistrate can be said to have taken
cognizance.”
In several judgments, this view has been reiterated. It
is not necessary to refer to all of them.
25. Thus, a Magistrate takes cognizance when he applies
his mind or takes judicial notice of an offence with a view to
initiating proceedings in respect of offence which is said to
59Page 60
have been committed. This is the special connotation
acquired by the term ‘cognizance’ and it has to be given the
same meaning wherever it appears in Chapter XXXVI. It
bears repetition to state that taking cognizance is entirely an
act of the Magistrate. Taking cognizance may be delayed
because of several reasons. It may be delayed because of
systemic reasons. It may be delayed because of the
Magistrate’s personal reasons.
26. In this connection, our attention is drawn to the
judgment of this Court in Sharadchandra Dongre. It is
urged on the basis of this judgment that by condoning the
delay, the Court takes away a valuable right which accrues
to the accused. Hence, the accused has a right to be heard
when an application for condonation of delay under Section
473 of the Cr.P.C. is presented before the Court. Keeping
this argument in mind, let us examine both the view points
i.e. whether the date of taking cognizance or the date of
filing complaint is material for computing limitation. If the
date on which complaint is filed is taken to be material, then
60Page 61
if the complaint is filed within the period of limitation, there
is no question of it being time barred. If it is filed after the
period of limitation, the complainant can make an
application for condonation of delay under Section 473 of the
Cr.P.C. The Court will have to issue notice to the accused
and after hearing the accused and the complainant decide
whether to condone the delay or not. If the date of taking
cognizance is considered to be relevant then, if the Court
takes cognizance within the period of limitation, there is no
question of the complaint being time barred. If the Court
takes cognizance after the period of limitation then, the
question is how will Section 473 of the Cr.P.C. work. The
complainant will be interested in having the delay condoned.
If the delay is caused by the Magistrate by not taking
cognizance in time, it is absurd to expect the complainant to
make an application for condonation of delay. The
complainant surely cannot explain that delay. Then in such
a situation, the question is whether the Magistrate has to
issue notice to the accused, explain to the accused the
reason why delay was caused and then hear the accused
61Page 62
and decide whether to condone the delay or not. This would
also mean that the Magistrate can decide whether to
condone delay or not, caused by him. Such a situation will
be anomalous and such a procedure is not known to law. Mr.
Luthra, learned A.S.G. submitted that use of disjunctive ‘or’
in Section 473 of the Cr.P.C. suggests that for the first part
i.e. to find out whether the delay has been explained or not,
notice will have to be issued to the accused and for the later
part i.e. to decide whether it is necessary to do so in the
interest of justice, no notice will have to be issued. This
question has not directly arisen before us. Therefore, we do
not want to express any opinion whether for the purpose of
notice, Section 473 of the Cr.P.C. has to be bifurcated or not.
But, we do find this situation absurd. It is absurd to hold that
the Court should issue notice to the accused for condonation
of delay, explain the delay caused at its end and then pass
order condoning or not condoning the delay. Law cannot be
reduced to such absurdity. Therefore, the only harmonious
construction which can be placed on Sections 468, 469 and
470 of the Cr.P.C. is that the Magistrate can take cognizance
62Page 63
of an offence only if the complaint in respect of it is filed
within the prescribed limitation period. He would, however,
be entitled to exclude such time as is legally excludable.
27. The role of the court acting under Section 473 was aptly
described by this Court in Vanka Radhamanohari (Smt.)
where this Court expressed that this Section has a nonobstante
clause, which means that it has an overriding effect
on Section 468. This Court further observed that there is a
basic difference between Section 5 of the Limitation Act and
Section 473 of the Cr.P.C. For exercise of power under
Section 5 of the Limitation Act, the onus is on the applicant
to satisfy the court that there was sufficient cause for
condonation of delay, whereas, Section 473 enjoins a duty
on the court to examine not only whether such delay has
been explained but as to whether, it is the requirement of
justice to ignore such delay. These observations indicate the
scope of Section 473 of the Cr.P.C. Examined in light of
legislative intent and meaning ascribed to the term
‘cognizance’ by this Court, it is clear that Section 473 of the
63Page 64
Cr.P.C. postulates condonation of delay caused by the
complainant in filing the complaint. It is the date of filing of
the complaint which is material.
28. We are inclined to take this view also because there
has to be some amount of certainty or definiteness in
matters of limitation relating to criminal offences. If, as
stated by this Court, taking cognizance is application of mind
by the Magistrate to the suspected offence, the subjective
element comes in. Whether a Magistrate has taken
cognizance or not will depend on facts and circumstances of
each case. A diligent complainant or the prosecuting agency
which promptly files the complaint or initiates prosecution
would be severely prejudiced if it is held that the relevant
point for computing limitation would be the date on which
the Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation
period because of several reasons; systemic or otherwise. It
cannot be the intention of the legislature to throw a diligent
64Page 65
complainant out of the court in this manner. Besides it must
be noted that the complainant approaches the court for
redressal of his grievance. He wants action to be taken
against the perpetrators of crime. The courts functioning
under the criminal justice system are created for this
purpose. It would be unreasonable to take a view that delay
caused by the court in taking cognizance of a case would
deny justice to a diligent complainant. Such an
interpretation of Section 468 of the Cr.P.C. would be
unsustainable and would render it unconstitutional. It is well
settled that a court of law would interpret a provision which
would help sustaining the validity of the law by applying the
doctrine of reasonable construction rather than applying a
doctrine which would make the provision unsustainable and
ultra vires the Constitution. (U.P. Power Corporation Ltd.
v. Ayodhaya Prasad Mishra).
29. The conclusion reached by us is reinforced by the fact
that the Law Commission in clause 24.20 of its Report, which
65Page 66
we have quoted hereinabove, referred to Dau Dayal39
where the three-Judge Bench of this Court was dealing with a
Special Act i.e. the Merchandise Marks Act, 1889. Section 15
of the Merchandise Marks Act, 1889 stated that no
prosecution shall be commenced after expiration of one year
after the discovery of the offence by the prosecution. The
contention of the appellant was that the offence was
discovered on 26/4/1954 when he was arrested, and that, in
consequence, the issue of process on 22/7/1955, was
beyond the period of one year provided under Section 15 of
the Merchandise Marks Act, 1889 and that the proceedings
should therefore be quashed as barred by limitation. While
repelling this contention, the three-Judge Bench of this Court
observed as under:
“6. It will be noticed that the complainant is
required to resort to the court within one year of
the discovery of the offence if he is to have the
benefit of proceeding under the Act. That means
that if the complaint is presented within one year
of such discovery, the requirements of Section 15
are satisfied. The period of limitation, it should be
remembered, is intended to operate against the
complainant and to ensure diligence on his part in
39 AIR 1959 SC 433
66Page 67
prosecuting his rights, and not against the court.
Now, it will defeat the object of the enactment and
deprive traders of the protection which the law
intended to give them, if we were to hold that
unless process is issued on their complaint within
one year of the discovery of the offence, it should
be thrown out. It will be an unfortunate state of
the law if the trader whose rights had been
infringed and who takes up the matter promptly
before the criminal court is, nevertheless, denied
redress owing to the delay in the issue of process
which occurs in court.”
Though, this Court was not concerned with the meaning
of the term ‘taking cognizance’, it did not accept the
submission that limitation could be made dependent on the
act of the Magistrate of issuing process. It held that if the
complaint was filed within the stipulated period of one year,
that satisfied the requirement. The complaint could not be
thrown out because of the Magistrate’s act of issuing process
after one year.
30. As we have already noted in reaching this conclusion,
light can be drawn from legal maxims. Legal maxims are
referred to in Bharat Kale, Japani Sahoo and Vanka
Radhamanohari (Smt.). The object of the criminal law is
67Page 68
to punish perpetrators of crime. This is in tune with the well
known legal maxim ‘nullum tempus aut locus occurrit regi’,
which means that a crime never dies. At the same time, it is
also the policy of law to assist the vigilant and not the
sleepy. This is expressed in the Latin maxim ‘vigilantibus et
non dormientibus, jura subveniunt’. Chapter XXXVI of the
Cr.P.C. which provides limitation period for certain types of
offences for which lesser sentence is provided draws support
from this maxim. But, even certain offences such as Section
384 or 465 of the IPC, which have lesser punishment may
have serious social consequences. Provision is, therefore,
made for condonation of delay. Treating date of filing of
complaint or date of initiation of proceedings as the relevant
date for computing limitation under Section 468 of the Code
is supported by the legal maxim ‘actus curiae neminem
gravabit’ which means that the act of court shall prejudice
no man. It bears repetition to state that the court’s inaction
in taking cognizance i.e. court’s inaction in applying mind to
the suspected offence should not be allowed to cause
prejudice to a diligent complainant. Chapter XXXVI thus
68Page 69
presents the interplay of these three legal maxims.
Provisions of this Chapter, however, are not interpreted
solely on the basis of these maxims. They only serve as
guiding principles.
31. It is submitted that the settled principles of statutory
construction require that the expression ‘cognizance’
occurring in Chapter XXXVI should be given its legal sense.
It is further submitted that if an expression acquires a
special connotation in law, dictionary or general meaning
ceases to be helpful in interpreting such a word. Reliance is
also placed on the heading of Chapter XXXVI providing for
“Limitation for taking cognizance of certain offences”.
Reliance is placed on observations of the three-Judge Bench
of this Court in Sarwan Singh, where in the context of
limitation on prosecution it is observed that it is of utmost
importance that any prosecution, whether by the State or by
the private complainant, must abide by the letter of law.
Relying on Raghunath Rai Bareja, it is urged that the first
principle of interpretation of the statute in every system is
69Page 70
the literal rule of interpretation. Purposive interpretation can
only be resorted to when the plain words of statute are
ambiguous. It is submitted that there is no ambiguity here
and, therefore, literal interpretation must be resorted to.
32. There can be no dispute about the rules of
interpretation cited by the counsel. It is true that there is no
ambiguity in the relevant provisions. But, it must be borne
in mind that the word ‘cognizance’ has not been defined in
the Cr.P.C. This Court had to therefore interpret this word.
We have adverted to that interpretation. In fact, we have
proceeded to answer this reference on the basis of that
interpretation and keeping in mind that special connotation
acquired by the word ‘cognizance’. Once that interpretation
is accepted, Chapter XXXVI along with the heading has to be
understood in that light. The rule of purposive construction
can be applied in such a situation. A purposive construction
of an enactment is one which gives effect to the legislative
purpose by following the literal meaning of the enactment
where that meaning is in accordance with the legislative
70Page 71
purpose or by applying a strained meaning where the literal
meaning is not in accordance with the legislative purpose
(See: Francis Bennion on Statutory Interpretation).
After noticing this definition given by Francis Bennion in
National Insurance Co. Ltd. v. Laxmi Narain Dhut40
,
this Court noted that more often than not, literal
interpretation of a statute or a provision of a statute results
in absurdity. Therefore, while interpreting statutory
provisions, the courts should keep in mind the objectives or
purpose for which statute has been enacted. In light of this
observation, we are of the opinion that if in the instant case
literal interpretation appears to be in any way in conflict with
the legislative intent or is leading to absurdity, purposive
interpretation will have to be adopted.
33. In New India Assurance Company Ltd. v. Nusli
Neville Wadia and another etc.41
while dealing with
eviction proceedings initiated under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 this Court
was concerned with interpretation of Sections 4 and 5
40 (2007) 3 SCC 700
41 (2008) 3 SCC 279
71Page 72
thereof. This Court was of the view that literal meaning
thereof would place undue burden on the noticee and would
lead to conclusion that the landlord i.e. the State would not
be required to adduce any evidence at all. This Court
observed that such a construction would lead to an
anomalous situation. In the context of fairness in State
action this Court observed that with a view to reading the
provisions of the said Act, in a proper and effective manner,
literal interpretation which may give rise to an anomaly or
absurdity will have to be avoided. This Court further
observed that so as to enable a superior court to interpret a
statute in a reasonable manner, the court must place itself in
the chair of a reasonable legislator. So done, the rules of
purposive construction will have to be resorted to which
would require the construction of the statute in such a
manner so as to see that it’s object is fulfilled.
34. In this connection, we may also usefully refer to the
following paragraph from Justice G.P. Singh’s ‘Principles of
Statutory Interpretation’ [13th
edition – 2012].
72Page 73
“With the widening of the idea of context and
importance being given to the rule that the
statute has to be read as a whole in its context it
is nowadays misleading to draw a rigid distinction
between literal and purposive approaches. The
difference between purposive and literal
constructions is in truth one of degree only. The
real distinction lies in the balance to be struck in
the particular case between literal meaning of the
words on the one hand and the context and
purpose of the measure in which they appear on
the other. When there is a potential clash, the
conventional English approach has been to give
decisive weight to the literal meaning but this
tradition is now weakening in favour of the
purposive approach for the pendulum has swung
towards purposive methods of constructions.”
35. We must also bear in mind that we are construing rules
of limitation. Our approach should, therefore, be in
consonance with this Court’s observation in Mela Ram that
“it is well established that rules of limitation pertain to
domain of adjectival law and that they operate only to bar
the remedy but not to extinguish the right”.
36. It is argued that legislative Casus Omissus cannot be
supplied by judicial interpretation. It is submitted that to
73Page 74
read Section 468 of the Cr.P.C. to mean that the period of
limitation as period within which a complaint/charge-sheet is
to be filed, would amount to adding words to Sections 467
and 468. It is further submitted that if the legislature has
left a lacuna, it is not open to the Court to fill it on some
presumed intention of the legislature. Reliance is placed on
Shiv Shakti Co-operative Housing Society, Bharat
Aluminum, and several other judgments of this Court where
doctrine of Casus Omissus is discussed. In our opinion, there
is no scope for application of doctrine of Casus Omissus to
this case. It is not possible to hold that the legislature has
omitted to incorporate something which this Court is trying
to supply. The primary purpose of construction of the
statute is to ascertain the intention of the legislature and
then give effect to that intention. After ascertaining the
legislative intention as reflected in the 42nd Report of the Law
Commission and the Report of the JPC, this Court is only
harmoniously construing the provisions of Chapter XXXVI
along with other relevant provisions of the Cr.P.C. to give
effect to the legislative intent and to ensure that its
74Page 75
interpretation does not lead to any absurdity. It is not
possible to say that the legislature has kept a lacuna which
we are trying to fill up by judicial interpretative process so as
to encroach upon the domain of the legislature. The
authorities cited on doctrine of Casus Omissus are,
therefore, not relevant for the present case.
37. We also concur with the observations in Japani Sahoo,
where this Court has examined this issue in the context of
Article 14 of the Constitution and opted for reasonable
construction rather than literal construction. The relevant
paragraph reads thus:
“The matter can be looked at from different angle
also. Once it is accepted (and there is no dispute
about it) that it is not within the domain of the
complainant or prosecuting agency to take
cognizance of an offence or to issue process and
the only thing the former can do is to file a
complaint or initiate proceedings in accordance
with law, if that action of initiation of proceedings
has been taken 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. Now, if
he is sought to be penalised because of the
75Page 76
omission, default or inaction on the part of the
court or Magistrate, the provision of law may have
to be tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that such a
provision is totally arbitrary, irrational and
unreasonable. It is settled law that a court of law
would interpret a provision which would help
sustaining the validity of law by applying the
doctrine of reasonable construction rather than
making it vulnerable and unconstitutional by
adopting rule of litera legis. 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.”
38. So far ‘heading’ of the chapter is concerned, it is well
settled that ‘heading’ or ‘title’ prefixed to sections or group
of sections have a limited role to play in the construction of
statutes. They may be taken as very broad and general
indicators or the nature of the subject matter dealt with
thereunder but they do not control the meaning of the
sections if the meaning is otherwise ascertainable by reading
the section in proper perspective along with other provisions.
In M/s. Frick India Ltd. v. Union of India & Ors.42
, this
Court has observed as under:
42 (1990) 1 SCC 400
76Page 77
“It is well settled that the headings prefixed to
sections or entries cannot control the plain words
of the provisions; they cannot also be referred to
for the purpose of construing the provision when
the words used in the provision are clear and
unambiguous; nor can they be used for cutting
down the plain meaning of the words in the
provision. Only, in the case of ambiguity or doubt
the heading or sub-heading may be referred to as
an aid in construing the provision but even in such
a case it could not be used for cutting down the
wide application of the clear words used in the
provision.”
Therefore, the submission that heading of Chapter
XXXVI is an indicator that the date of taking cognizance is
material must be rejected.
39. It is true that the penal statutes must be strictly
construed. There are, however, cases where this Court has
having regard to the nature of the crimes involved, refused
to adopt any narrow and pedantic, literal and lexical
construction of penal statutes. [See Muralidhar Meghraj
Loya & Anr. v. State of Maharashtra & Ors.43
and
Kisan Trimbak Kothula & Ors. v. State of
43 (1976) 3 SCC 684
77Page 78
Maharashtra44
]. In this case, looking to the legislative
intent, we have harmoniously construed the provisions of
Chapter XXXVI so as to strike a balance between the right of
the complainant and the right of the accused. Besides, we
must bear in mind that Chapter XXXVI is part of the Cr.P.C.,
which is a procedural law and it is well settled that
procedural laws must be liberally construed to serve as
handmaid of justice and not as its mistress. [See Sardar
Amarjeet Singh Kalra, N. Balaji v. Virendra Singh &
Ors.45
and Kailash].
40. Having considered the questions which arise in this
reference in light of legislative intent, authoritative
pronouncements of this Court and established legal
principles, we are of the opinion that Krishna Pillai will
have to be restricted to its own facts and it is not the
authority for deciding the question as to what is the relevant
date for the purpose of computing the period of limitation
under Section 468 of the Cr.P.C., primarily because in that
44 (1977) 1 SCC 300
45 (2004) 8 SCC 312
78Page 79
case, this Court was dealing with Section 9 of the Child
Marriage Restraint Act, 1929 which is a special Act. It
specifically stated that no court shall take cognizance of any
offence under the said Act after the expiry of one year from
the date on which offence is alleged to have been
committed. There is no reference either to Section 468 or
Section 473 of the Cr.P.C. in that judgment. It does not refer
to Sections 4 and 5 of the Cr.P.C. which carve out exceptions
for Special Acts. This Court has not adverted to diverse
aspects including the aspect that inaction on the part of the
court in taking cognizance within limitation, though the
complaint is filed within time may work great injustice on the
complainant. Moreover, reliance placed on Antulay ‘1984’
Case, in our opinion, was not apt. In Antulay ‘1984’ Case,
this Court was dealing inter alia with the contention that a
private complaint is not maintainable in the court of Special
Judge set-up under Section 6 of the Criminal Law
Amendment Act, 1952 (‘the 1952 Act’). It was urged that
the object underlying the 1952 Act was to provide for a more
speedy trial of offences of corruption by a public servant. It
79Page 80
was argued that if it is assumed that a private complaint is
maintainable then before taking cognizance, a Special Judge
will have to examine the complainant and all the witnesses
as per Section 200 of the Cr.P.C. He will have to postpone
issue of process against the accused and either inquire into
the case himself or direct an investigation to be made by a
police officer and in cases under the Prevention of Corruption
Act, 1947 by police officers of designated rank for the
purpose of deciding whether or not there is sufficient ground
for proceeding. It was submitted that this would thwart the
object of the 1952 Act which is to provide for a speedy trial.
This contention was rejected by this Court holding that it is
not a condition precedent to the issue of process that the
court of necessity must hold the inquiry as envisaged by
Section 202 of the Cr.P.C. or direct investigation as therein
contemplated. That is matter of discretion of the court. Thus,
the questions which arise in this reference were not involved
in Antulay ‘1984’ Case: Since there, this Court was not
dealing with the question of bar of limitation reflected in
Section 468 of the Cr.P.C. at all, in our opinion, the said
80Page 81
judgment could not have been usefully referred to in
Krishna Pillai while construing provisions of Chapter
XXXVI of the Cr.P.C. For all these, we are unable to endorse
the view taken in Krishna Pillai.
41. In view of the above, we hold that for the purpose of
computing the period of limitation under Section 468 of the
Cr.P.C. the relevant date is the date of filing of the complaint
or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. We further hold that
Bharat Kale which is followed in Japani Sahoo lays
down the correct law. Krishna Pillai will have to be
restricted to its own facts and it is not the authority for
deciding the question as to what is the relevant date for the
purpose of computing the period of limitation under Section
468 of the Cr.P.C.
81Page 82
42. The Reference is answered accordingly. The Registry
may list the matters before the appropriate courts for
disposal.
…………………………………………..CJI
(P. SATHASIVAM)
……………………………………………..J.
(B.S. CHAUHAN)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
……………………………………………..J.
(RANJAN GOGOI)
……………………………………………..J.
(S.A. BOBDE)
NEW DELHI,
NOVEMBER 26, 2013.
Print Page
computing the period of limitation under Section 468 of the
Cr.P.C. the relevant date is the date of filing of the complaint
or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. We further hold that
Bharat Kale which is followed in Japani Sahoo lays
down the correct law. Krishna Pillai will have to be
restricted to its own facts and it is not the authority for
deciding the question as to what is the relevant date for the
purpose of computing the period of limitation under Section
468 of the Cr.P.C.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.829 OF 2005
Mrs. Sarah Mathew Vs The Institute of Cardio Vascular
Diseases by its Director – Dr. K.M. Cherian & Ors.
Dated;NOVEMBER 26, 2013.
1. While dealing with Criminal Appeal No. 829 of 2005 a
two-Judge Bench of this Court noticed a conflict between a
two-Judge Bench decision of this Court in Bharat Damodar
Kale & Anr. v. State of Andhra Pradesh1
which is
followed in another two-Judge Bench decision in Japani
Sahoo v. Chandra Sekhar Mohanty2
and a three-Judge
Bench decision of this Court in Krishna Pillai v. T.A.
Rajendran & Anr.3
. In Bharat Kale it was held that for the
purpose of computing the period of limitation, the relevant
date is the date of filing of complaint or initiating criminal
proceedings and not the date of taking cognizance by a
Magistrate or issuance of a process by court. In Krishna
Pillai this Court was concerned with Section 9 of the Child
Marriage Restraint Act, 1929 which stated that no court shall
take cognizance of any offence under the Child Marriage
1
(2003) 8 SCC 559
2
(2007) 7 SCC 394
3
(1990) supp. SCC 121
2Page 3
Restraint Act, 1929 after the expiry of one year from the
date on which the offence is alleged to have been
committed. The three-Judge Bench held that since
magisterial action in the case before it was beyond the
period of one year from the date of commission of the
offence, the Magistrate was not competent to take
cognizance when he did in view of bar under Section 9 of the
Child Marriage Restraint Act, 1929. Thus, there was
apparent conflict on the question whether for the purpose of
computing the period of limitation under Section 468 of the
Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) in
respect of a criminal complaint the relevant date is the date
of filing of the complaint or the date of institution of
prosecution or whether the relevant date is the date on
which a Magistrate takes cognizance. The two-Judge Bench,
therefore, directed that this case may be put up before a
three-Judge Bench for an authoritative pronouncement.
When the matter was placed before the three-Judge Bench,
the three-Judge Bench doubted the correctness of Krishna
Pillai and observed that as a co-ordinate Bench, it cannot
3Page 4
declare that Krishna Pillai does not lay down the correct
law and, therefore, the matter needs to be referred to a fiveJudge
Bench to examine the correctness of the view taken in
Krishna Pillai. Accordingly, this appeal along with other
matters where similar issue is involved is placed before this
Constitution Bench.
2. No specific questions have been referred to us. But, in
our opinion, the following questions arise for our
consideration:
A. Whether for the purposes of computing the
period of limitation under Section 468 of the
Cr.P.C the relevant date is the date of filing of
the complaint or the date of institution of
prosecution or whether the relevant date is
the date on which a Magistrate takes
cognizance of the offence?
4Page 5
B. Which of the two cases i.e. Krishna Pillai or
Bharat Kale (which is followed in Japani
Sahoo) lays down the correct law.
3. We have heard learned counsel for the parties at great
length and carefully read their written submissions. We may
give gist of their submissions and then proceed to answer
the questions which fall for our consideration.
4. Gist of submissions of Mr. Krishnamurthi Swami,
learned counsel for the appellant in Criminal Appeal No. 829
of 2005.
a. Krishna Pillai was rendered in the context
of Section 9 of the Child Marriage Restraint
Act, 1929. There is no reference to either
Section 468 or Section 473 of the Cr.P.C. in
this judgment. This judgment merely focuses
on the meaning of the term ‘taking
cognizance’ and has accordingly interpreted
5Page 6
Section 9 without reference to any provisions
of the Cr.P.C. Hence, this judgment cannot
be considered authority for the purposes of
interpretation of provisions of Chapter XXXVI.
On the other hand Bharat Kale considers
various provisions of Chapter XXXVI. All the
provisions have been cumulatively read to
conclude that the limitation prescribed is not
for taking cognizance within the period of
limitation, but for taking cognizance of an
offence in regard to which a complaint is filed
or prosecution is initiated within the period of
the limitation prescribed under the Cr.P.C.
This judgment lays down the correct law.
b. Section 468 of the Cr.P.C. has to be read
keeping in view other provisions particularly
Section 473 of the Cr.P.C. A person filing a
complaint within time cannot be penalized
because the Magistrate did not take
6Page 7
cognizance. A person filing a complaint after
the period of limitation can file an application
for condonation of delay and the Magistrate
could condone delay if the explanation is
reasonable. If Section 468 is interpreted to
mean that a Magistrate cannot take
cognizance of an offence after the period of
limitation without any reference to the date
of filing of the complaint or the institution of
the prosecution it would be rendered
unconstitutional. A court of law would
interpret a provision which would help
sustaining the validity of the law by applying
the doctrine of reasonable construction
rather than accepting an interpretation which
may make such provision unsustainable and
ultra vires the Constitution. [U.P. Power
Corpon. Ltd. v. Ayodhya Prasad Mishra
& Anr4
].
4
(2008) 10 SCC 139
7Page 8
c. Chapter XXXVI requires to be harmoniously
interpreted keeping the interests of both the
complainant as well as the accused in mind.
d. The law of limitation should be interpreted
from the standpoint of the person who
exercises the right and whose remedy would
be barred. The laws of limitation do not
extinguish the right but only bar the remedy.
[Mela Ram v. The Commissioner of
Income Tax Punjab5
].
e. If delay in filing a complaint can be condoned
in terms of Section 473 of the Cr.P.C. then,
Section 468 of the Cr.P.C cannot be
interpreted to mean that a complaint or
prosecution instituted within time cannot be
proceeded with, merely because the
5
1956 SCR 166
8Page 9
Magistrate took cognizance after the period
of limitation.
f. The question of delay in launching a criminal
prosecution may be a circumstance to be
taken into consideration while arriving at a
final decision. However, the same may not
by itself be a ground for dismissing the
complaint at the threshold. [Udai Shankar
Awasthi v. State of U.P. & Anr.6
]. In
certain exceptional circumstances delay may
have to be condoned considering the gravity
of the charge.
g. The contention that Section 468 should be
interpreted to mean that where the
Magistrate does not take cognizance within
the period of limitation it must be treated as
having the object of giving quietus to petty
6
(2013) 2 SCC 435
9Page 10
offences in the Indian Penal Code is
untenable. Some offences which fall within
the periods of limitation specified in Section
468 of the Cr.P.C are serious. It could never
have been the intention of the legislature to
accord quietus to such offences.
h. Procedure is meant to sub-serve and not rule
the cause of justice. Procedural laws must
be liberally construed to really serve as
handmaid. Technical objections which tend
to defeat and deny substantial justice should
be strictly discouraged. [Sushil Kumar Jain
v. State of Bihar7
, Sardar Amarjeet
Singh Kalra (dead) by LRs. & Ors. v.
Promod Gupta (dead) by LRs. & Ors.8
,
Kailash v. Nanhku & Ors.9
]
7
1975 (3) SCR 944
8
(2003) 3 SCC 272
9
(2005) 4 SCC 480]
10Page 11
5. Gist of submissions of Mr. S. Guru Krishnakumar,
learned senior counsel and Mrs. V. Mohana, learned counsel
for respondent 1 in Criminal Appeal No. 829 of 2005.
a. Bharat Kale and Japani Sahoo do not
represent the correct position in law.
Krishna Pillai rightly holds that the relevant
date for considering period of limitation is the
date of taking cognizance.
b. The settled principles of statutory
construction require that the expression
‘cognizance’ occurring in Chapter XXXVI of
the Cr.P.C. has to be given its legal sense,
since it has acquired a special connotation in
criminal law. It is a settled position in law
that taking cognizance is judicial application
of mind to the contents of a complaint/police
report for the first time. [R.R. Chari v. The
State of Uttar Pradesh10
, Bhushan
10 AIR 1951 SC 207
11Page 12
Kumar & Anr. v. State (NCT of Delhi) &
Anr.11
]. If an expression has acquired a
special connotation in law, dictionary or
general meaning ceases to be helpful in
interpreting such a word. Such an expression
must be given its legal meaning and no
other. [State of Madras v. Gannon
Dukerley & Co. (Madras) Ltd.12
].
c. The heading of Chapter XXXVI providing for
limitation for taking cognizance of certain
offences is clearly reflective of the legislative
intent to treat the date of taking cognizance
as the relevant date in computing limitation.
Pertinently, Section 467 defines the
expression ‘period of limitation’ as the period
specified in Section 468 for taking cognizance
of an offence. The express language of
Section 468 makes it clear that the
11 (2012) 5 SCC 424
12 1959 SCR 379
12Page 13
legislature considers the relevant date for
computing the date of limitation to be the
date of taking cognizance and not the date of
filing of a complaint. Further, the situations
in Section 470 of the Cr.P.C. providing for
exclusion in computing the period of
limitation are again relatable to taking
cognizance and institution of prosecution. So
also, exclusion under Section 471 of the
Cr.P.C. relates only to taking cognizance and
Section 473 of the Cr.P.C. also provides for
extension of period of limitation in taking
cognizance.
d. The scheme of the Cr.P.C. envisages
cognizance to be the point of initiation of
proceedings. Chapter XIV of the Cr.P.C. which
contains provisions of taking cognizance is
titled “Conditions requisite for initiation of
proceedings”. All provisions contained
13Page 14
therein use the expression ‘cognizance’.
They do not refer to filing of complaint at all.
e. Where the words of a statute are absolutely
clear and unambiguous, recourse cannot be
had to the principles of interpretation other
than the literal rule. Even if the literal
interpretation results in hardship or
inconvenience it has to be followed
(Raghunath Rai Bareja and Anr. v.
Punjab National Bank and Ors.)13
. On a
plain and literal interpretation of Section 468
of the Cr.P.C. read in the background of
object of Chapter XXXVI the intention of the
legislature is clearly evident that bar of
limitation is only for taking cognizance of an
offence after the expiry of the period
specified therein.
13 (2007) 2 SCC 230
14Page 15
f. Chapter XV of the Cr.P.C. sets out procedure
to be followed in respect of complaints filed
directly to a Magistrate. It reflects a well laid
out scheme which envisages judicial
application of mind to be a pre-requisite for
initiation of proceedings. The definition of
the term ‘complaint’ contained in Section
2(d) also makes this evident. Thus, initiation
of proceedings in criminal law can only be
upon taking cognizance. It is clear, therefore,
that under Section 468 of the Cr.P.C.
legislature has barred taking of cognizance as
envisaged by Chapters XIV and XV after
expiry of period of limitation. Hence, the date
for purpose of limitation would be the date of
taking cognizance. Mere filing of a complaint
does not result in cognizance being taken, for
the law requires the court to apply its mind
judicially even before deciding to issue
process.
15Page 16
g. There was no period of limitation under the old
Cr.P.C. A long delay led to serious negligence
on the part of the prosecuting agencies,
forgetfulness on the part of the prosecution
and defence witness and mental anguish to
the accused. Infliction of punishment long
after the commission of offence impairs its
utility as social retribution to the offender. To
obviate these lacunae Chapter XXXVI was
introduced in the Cr.P.C.
h. Bharat Kale and Japani Sahoo have missed
the object of introduction of Chapter XXXVI in
the Cr.P.C. namely to serve larger interest of
administration of criminal justice keeping in
view the interest of the accused and the
interest of prosecuting agencies. These
judgments fail to advert to the prejudice that
will be caused to the accused if benefit of
16Page 17
delay in taking cognizance is not given to
them. The likelihood of prejudice being
caused to the complainant which weighed
with this court in the above two decisions can
be taken care of by Section 473 which
provides for condonation of delay. [State of
Punjab v. Sarwan Singh14
, Vanka
Radhamanohari (Smt.) v. Vanka Venkata
Reddy and others15 and State of H.P. v.
Tara Dutt & Anr.16]
i. Object of Section 473 of the Cr.P.C. has not
been considered in Bharat Kale and Japani
Sahoo. They are sub-silentio in this regard.
(Municipal Corporation of Delhi V.
Gurnam Kaur17). They have also not taken
note of difference of language in Sections
468 and 469 of the Cr.P.C.
14 AIR 1981 SC 1054
15 (1993) 3 SCC 4
16 (2000) 1 SCC 230
17 (1989) 1 SCC 101
17Page 18
j. There are seven exceptions in the Cr.P.C. to
Section 468 namely Sections 84(1), 96(1),
198(6), 199(5), 378(5), 457(2) and the
proviso to Section 125(3). In all these
provisions period of limitation has been
expressly provided by the legislature. The
language of each of these provisions is
different from language of Section 468. A
perusal of these seven exceptions show that
what is intended in Section 468 of the Cr.P.C.
is limitation for taking cognizance and not for
filing complaints.
6. Gist of submissions of Mr. Padmanabhan, learned
counsel for respondent 2 in Criminal Appeal No. 829 of
2005.
a. The legislature has been very specific
wherever time limit has to be fixed for
18Page 19
initiation of prosecution. In certain special
legislations like the Negotiable Instruments
Act bar of limitation is not co-related to
taking cognizance of an offence by a court,
but it is co-related to filing of a complaint
within a specific period. It is apparent that
the bar under Chapter XXXVI of the Cr.P.C.
must be co-related to taking cognizance of an
offence by the court in view of specific
language used by the relevant sections
contained therein.
b. Chapter XXXVI of the Cr.P.C. is captioned as
‘Limitation for Taking Cognizance of Certain
Offences’. Therefore, this Chapter has to be
understood as a Chapter placing limitation
upon the court for the purposes of taking
cognizance within the timeframe prescribed
and not for filing of a complaint. In this
Chapter the word ‘complaint’ or
19Page 20
‘complainant’ are conspicuously absent.
Emphasis is on ‘offences’.
c. Section 473 of the Cr.P.C enjoins a duty on
the court to examine not only whether the
delay has been explained or not but whether
it is necessary to do so in the interest of
justice.
d. If the charge-sheet is hit by Section 468, the
Court may then resort to Section 473 in
exceptional cases in the interest of justice.
The same consideration may not arise if a
private complaint is filed. Section 473 is
designed to cater to situations when for
genuine reasons investigation is delayed. It
is not intended to give long rope to litigants
who take long time to approach the court.
20Page 21
e. Marginal Heading or Note can be usefully
referred to, to determine the sense of any
doubtful expression in a section ranged under
that heading though it cannot be referred to
for giving a different effect to clear words in
the section.
7. Gist of submissions of Mr. Amrendra Sharan, learned
senior counsel appearing for the petitioner in SLP (Crl.) Nos.
5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013.
a. Chapter XXXVI of the Cr.P.C. is a complete
code in itself which deals with issue of bar of
limitation for taking cognizance of an offence.
b. A bare reading of Section 468 of the Cr.P.C
leaves no manner of doubt that the bar of
limitation applies as on the date of
cognizance. It specifically targets cognizance
and it debars taking cognizance of an offence
after expiration of the statutory period of
21Page 22
limitation. One cannot make fundamental
alteration in the words of the statute. Taking
cognizance cannot be altered to filing
complaint within statutory period.
c. Taking cognizance is distinct from filing
complaint. The term cognizance has been
defined by this Court in R.R. Chari and
Darshan Singh Ram Kishan v. State of
Maharashtra18. Cognizance takes place
when a Magistrate first takes judicial notice of
an offence on a complaint, or on a police
report or upon information of a person other
than a police officer.
d. Operation of legal maxims can be excluded
by statutes but operation of statutes cannot
be excluded by legal maxims. Reliance on a
maxim by this Court in Japani Sahoo for
carving out an exception and supplying
18 (1971) 2 SCC 654
22Page 23
words to the complete Code of limitation is
erroneous.
e. Penal statutes have to be interpreted strictly.
[Tolaram Relumal & Anr. v. The State of
Bombay]
19. It is the cardinal rule of
interpretation that where a statute provides a
particular thing should be done, it should be
done in the manner prescribed and not in any
other way. (State of Jharkhand & Anr. v.
Ambay Cements & Anr.20
)
f. The rule of Casus Omissus stipulates that a
matter which should have been, but has not
been provided for in the statute cannot be
supplied by the courts as, to do so, will be
legislation by court and not construction. The
legislative casus omissus cannot be supplied
by judicial interpretative process. There is no
scope for supplying/ supplanting any word,
19 AIR 1954 SC 496
20 (2005) 1 SCC 368
23Page 24
phrase or sentence or creating any exception
in Chapter XXXVI which is a complete Code in
itself. [Shiv Shakti Co-operative Housing
Society, Nagpur v. Swaraj Developers &
Ors21
., Bharat Aluminum Co. etc. v.
Kaiser Aluminum Technical Services
etc.22
, Assistant Commissioner,
Assessment-II, Bangalore & Ors. v.
Velliappa Textiles Ltd. & Anr.23
].
g. Japani Sahoo does not lay down the correct
law because by stipulating that the date of
limitation is to be calculated from the date of
filing of complaint rather than from the date
on which the cognizance is taken, it has
created a casus omissus, where the language
of the statute was plain and no casus
omissus existed.
21 (2003) 6 SCC 659
22 (2012) 9 SCC 552
23 (2003) 11 SCC 405
24Page 25
h. The Golden Rule of Interpretation provides
that a statute has to be interpreted by
grammatical or literal meaning unmindful of
the consequences if the language of the
statute is plain and simple. [Maulavi
Hussein Haji Abraham Umarji v. State of
Gujarat & Anr24
].
i. The Law Commission’s 42nd Report
demonstrates the rational for introduction of
limitation in Cr.P.C. The legislature wanted to
ensure that prosecution should not result in
persecution especially in cases of minor
offences which could be tried and disposed of
speedily.
j. The accused has a fundamental right to
speedy trial which is a facet of Article 21.
[ A.R. Antulay v. R.S. Nayak25
(“Antulay
24 (2004) 6 SCC 672
25 (1992) 1 SCC 225
25Page 26
‘1992’ Case”)] Therefore, it is the duty of
the courts to take cognizance within a
prescribed timeframe. If the court fails to do
so, it is not open to it to take cognizance of
such offence as it might prejudice the right of
the accused. Therefore, no cognizance can be
taken after the period of limitation. [Raj Deo
Sharma (II) v. State of Bihar26
and
Sarwan Singh.]
k. The accused has a right to be heard at the
time of condonation of delay in taking
cognizance by the courts. Delay cannot be
condoned without notice to the accused.
[State of Maharashtra v. Sharadchandra
Vinayak Dongre & Ors.27
, P.K.
Choudhary v. Commander, 48 BRTF,
26 (1999) 7 SCC 604
27 (1995) 1 SCC 42
26Page 27
(GREF)28
, Krishna Sanghai v. State of
M.P.29
]
l. The accused have to be heard when an
application under Section 473 of the Cr.P.C. is
moved by the prosecution before cognizance
is taken. Section 468 of the Cr.P.C. is clear
and unambiguous and it bars taking
cognizance of an offence, if on the date of
taking cognizance the period prescribed
under Section 468(2) of the Cr.P.C. has
expired. Japani Sahoo, therefore, does not
lay down the correct law.
8. Gist of submissions of Mr. Sidharth Luthra, learned
Additional Solicitor General, appearing for the respondent–
State (NCT of Delhi) in SLP (Crl.) Nos. 5687-5688 of 2013 and
SLP (Crl.) No. 5764 of 2013.
28 (2008) 13 SCC 229
29 1997 Cr.L.J 90 (MP)
27Page 28
a. Bharat Kale lays down the correct law and
not Krishna Pillai.
b. Legislative history of Chapter XXXVI indicates
its object.
c. Stage of process is not to be mistaken for
cognizance. Cognizance indicates the point
when a court takes judicial notice of an
offence with a view to initiating process in
respect of the offence [S.K. Sinha, Chief
Enforcement Officer v. Videocon
International Ltd. & Ors.30
]. Cognizance is
entirely a different thing from initiation of
proceedings, rather it is the condition
precedent to the initiation of proceedings by
the court. Cognizance is taken of the case
and not of persons. Under Section 190 of the
Cr.P.C. it is the application of mind to the
averments in the complaint that constitutes
30 (2008) 2 SCC 492
28Page 29
cognizance (Bhushan Kumar). Stage of
process is not relevant for the purpose of
computing limitation under Section 468 of the
Cr.P.C.
d. Chapter XXXVI has to be read as a whole. To
understand the scheme of this Chapter
reference may be made to Vanka
Radhamanohari.
e. On interpretation of Section 473 of the Cr.P.C
particularly the disjunctive ‘or’ used therein
reference may be made to Municipal
Corporation of Delhi v. Tek Chand
Bhatia31
. Once the complainant has acted
with due diligence and there are delays on
the part of the Court, it would be in the
interest of justice to condone such delay and
not call for explanation from the complainant
which in any case he cannot possibly give.
31 (1980) 1 SCC 158
29Page 30
On condonation of delay reference may be
made to Sharadchandra Dongre.
f. Taking cognizance is not dictated by the
prosecution of the complaint or police report
but is predicated upon application of judicial
mind by the Magistrate which is not in the
control of the individual instituting the
prosecution. If date of taking cognizance is
considered to be relevant in computing
limitation, the act of the court can prejudice
the complainant which will be against the
maxim ‘the acts of courts should not
prejudice anyone’. [Rodger v. Comptoir
D’Escompte De Paris32
].
g. Krishna Pillai relates to Section 9 of the
Child Marriage Restraint Act, 1929 which is a
special law and which provides for a
limitation for taking cognizance and could
32 (1870-71) VII Moore N.S. 314
30Page 31
exclude the application of Chapter XXXVI
and, hence, Section 473 of the Cr.P.C. and
perhaps in such facts there was no reference
to Section 473 of the Cr.P.C. Similar is the
view in P.P. Unnikrishnan & Anr. v.
Puttiyottil Alikutty & Anr.33
.
h. It is settled law that Sections 4 and 5 of the
Cr.P.C. create an exception for special laws
with special procedures. Krishna Pillai was
in the context of specific limitation period
where Section 473 of the Cr.P.C. had no
application. Thus, it cannot be considered or
applied to interpret Sections 468 and 473 of
the Cr.P.C. as they stand. On the contrary,
view taken in Bharat Kale and Japani
Sahoo relying upon Rashmi Kumar (Smt.)
v. Mahesh Kumar Bhada,
34 reach the same
33 (2000) 8 SCC 131
34 (1997) 2 SCC 397
31Page 32
conclusion as contended herein i.e. the acts
of the court should not prejudice anyone.
9. Having given the gist of the submissions, we shall now
advert to Krishna Pillai, Bharat Kale and Japani Sahoo
which have led to this reference. In Krishna Pillai this
Court was concerned with Section 9 of the Child Marriage
Restraint Act, 1929 which reads as under:
“No court shall take cognizance of any
offence under this Act after the expiry of one
year from the date on which the offence is
alleged to have been committed.”
It was not disputed that cognizance of the offence had
been taken by the court more than a year after the offence
was committed. The appellant challenged the continuance
of prosecution by filing an application under Section 482 of
the Cr.P.C. before the High Court contending that the
cognizance was barred under Section 9 of the Child Marriage
Restraint Act, 1929. It was contended by the respondent
that since the complaint had been filed within a year from
32Page 33
the commission of the offence it must be taken that the
court has taken cognizance on the date when the complaint
was filed. Therefore, the complaint cannot be said to be
barred by limitation. This Court quoted the following
observations of the judgment of the Constitution Bench in
A.R. Antulay v. Ramdas Sriniwas Nayak (“Antulay
‘1984’ Case”35
:
“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 CrPC
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.”
This Court observed that cognizance has assumed a
special meaning in our criminal jurisprudence and the above
extract from Antulay ‘1984’ Case indicates that filing of a
35 (1984) 2 SCC 500
33Page 34
complaint is not taking cognizance and what exactly
constitutes taking cognizance is different from filing a
complaint. This Court observed that since the magisterial
action in the case before it was beyond the period of one
year from the date of commission of the offence, the
Magistrate was not competent to take cognizance when he
did in view of the bar under Section 9 of the Child Marriage
Restraint Act, 1929.
10. Before discussing Bharat Kale, it is necessary to go to
Rashmi Kumar (Smt.) on which reliance is placed in
Bharat Kale. In that case, the question was whether the
complaint filed by the complainant-wife against the husband
under Section 406 of the IPC in September, 1990 was time
barred. The offence under Section 406 of the IPC is
punishable with imprisonment which could extend to three
years or with fine or with both. Therefore, under Section
468(3) of the Cr.P.C., the limitation period for the said
offence is three years. It was urged by the counsel for the
husband that the evidence of the complainant-wife recorded
34Page 35
under Section 200 of the Cr.P.C. establishes that in October,
1986 the complainant-wife demanded return of jewelry and
the husband refused to return the jewelry. Therefore, the
period of limitation began to run from October, 1986 and the
complaint filed in September, 1990 was time barred, it
having been filed beyond the period of three years. A threeJudge
Bench of this Court negatived this contention and held
that it was clearly averred in the complaint that on
5/12/1987, the complainant-wife had demanded jewelry from
the husband and the husband had refused to do so and,
therefore, the complaint filed on 10/9/1990 was within three
years from the date of demand of jewelry and refusal to
return it by the husband. Thus, for the purpose of
computation of period of limitation, the date of filing of the
complaint was held to be relevant.
11. In Bharat Kale, the offence under the Drugs and
Magic Remedies (Objectionable Advertisements) Act, 1954
was detected on 5/3/1999. The complaint was filed on
3/3/2000 which was within the period of limitation of one
35Page 36
year. However, the Magistrate took cognizance on
25/3/2000 i.e. beyond the period of one year. It was argued
that since cognizance was taken beyond the period of one
year, the bar of limitation applies. After considering the
provisions of Chapter XXXVI of the Cr.P.C. this Court
observed that they indicate that the limitation prescribed
therein is only for the filing of the complaint or initiation of
the prosecution and not for taking cognizance. It, of course,
prohibits the court from taking cognizance of an offence
where the complaint is filed before the court after the expiry
of the period mentioned in the said Chapter. This Court
further observed that taking cognizance is an act of the
court over which the prosecuting agency or the complainant
has no control. A complaint filed within the period of
limitation cannot be made infructuous by an act of the court
which will cause prejudice to the complainant. Such a
construction will be against the maxim ‘actus curiae
neminem gravabit’, which means the act of court shall
prejudice no man. It was also observed relying on Rashmi
Kumar (Smt.) that the legislature could not have intended
36Page 37
to put a period of limitation on the act of the court for taking
cognizance of an offence so as to defeat the case of the
complainant.
12. In Japani Sahoo, the complainant therein filed a
complaint in the court of the concerned Magistrate alleging
commission of offences punishable under Sections 161, 294,
323 and 506 of the IPC. On 8/8/1997 learned Magistrate on
the basis of statements of witnesses issued summons for
appearance of the accused. The accused surrendered on
23/11/1998 and thereafter filed a petition under Section 482
of the Cr.P.C. in the High Court 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 punishable under
Sections 294 and 323 of the IPC. The High Court held that
the relevant date for deciding the bar of limitation was the
date of taking cognizance by the court and since cognizance
was taken after the period of one year and the delay was not
condoned by the court by exercising power under Section
37Page 38
473 of the Code, the complaint is liable to be dismissed. On
appeal, this Court referred to another well known maxim
‘nullum tempus aut locus occurrit regi’ which means that a
crime never dies. This Court elaborately discussed the
scheme of Chapter XXXVI of the Cr.P.C. and after following
Bharat Kale held that it is the date of filing of complaint or
the date on which criminal proceedings are initiated which is
material.
13. At the outset, we must deal with the criticism leveled
against Bharat Kale and Japani Sahoo that they place
undue reliance on legal maxims. It was argued that legal
maxims can neither expand nor delete any part of an
express statutory provision, nor can they give an
interpretation which is directly contrary to what the provision
stipulated. Their operation can be excluded by statutes but
operation of statutes cannot be excluded by legal maxims.
14. It is true that in Bharat Kale and Japani Sahoo this
Court has referred to two important legal maxims. We may
38Page 39
add that in Vanka Radhamanohari, to which our attention
has been drawn by the counsel, it is stated that the general
rule of limitation is based on Latin maxim ‘vigilantibus et non
dormientibus, jura subveniunt’, which means the vigilant and
not the sleepy, are assisted by laws. We are, however,
unable to accept the submission that reliance placed on
legal maxims was improper. We are mindful of the fact
that legal maxims are not mandatory rules but their
importance as guiding principles can hardly be
underestimated. Herbert Broom in the preface to the First
Edition of his classical work “Legal Maxims” (as seen in
Broom’s Legal Maxims, Tenth Edition, 1939) stated:
“In the Legal Science, perhaps more frequently
than in any other, reference must be made to the
first principles. Indeed, a very limited
acquaintance with the earlier Reports will show
the importance which was attached to the
acknowledged Maxims of the Law, in periods when
civilization and refinement had made
comparatively little progress. In the ruder ages,
without doubt, the great majority of questions
respecting the rights, remedies, and liabilities of
private individuals were determined by an
immediate reference to such maxims, many of
which obtained in the Roman law, and are so
manifestly founded in reason, public convenience,
39Page 40
and necessity, as to find a place in the code of
every civilized nation. In more modern times, the
increase of commerce, and of national and social
intercourse, has occasioned a corresponding
increase in the sources of litigation, and has
introduced many subtleties and nice distinctions,
both in legal reason and in the application of legal
principles, which were formerly unknown. This
change, however, so far from diminishing the
value of simple fundamental rules, has rendered
an accurate acquaintance with them the more
necessary, in order that they may be either
directly applied, or qualified, or limited, according
to the exigencies of the particular case, and the
novelty of the circumstances which present
themselves.
In our opinion, therefore, use of legal maxims as
guiding principles in Bharat Kale and Japani Sahoo is
perfectly justified.
15. To address the questions which arise in this reference,
it is necessary to have a look at the legislative history of
Chapter XXXVI of the Cr.P.C. The Criminal Procedure Code,
1898 contained no general provision for limitation. Though
under certain special laws like the Negotiable Instruments
Act, 1881, Trade and Merchandise Marks Act, 1958, the
Police Act, 1861, The Factories Act, 1948 and the Army Act,
40Page 41
1950, there are provisions prescribing period of limitation for
prosecution of offences, there was no general law of
limitation for prosecution of other offences. The approach
of this Court while dealing with the argument that there was
delay in launching prosecution, when in the Criminal
Procedure Code (1898), there was no general provision
prescribing limitation, could be ascertained from its
judgment in The Assistant Collector of Customs ,
Bombay & Anr. v. L.R. Melwani & Anr.36. It was urged
before the High Court in that case that there was delay in
launching prosecution. The High Court held that the delay
was satisfactorily explained. While dealing with this
question, this Court held that in any case prosecution could
not have been quashed on the ground of delay because it
was not the case of the accused that any period of limitation
was prescribed for filing the complaint. Hence the complaint
could not have been thrown out on the sole ground that
there was delay in filing the same. This Court further
observed that the question of delay in filing complaint may
36 AIR 1970 SC 962
41Page 42
be a circumstance to be taken into consideration in arriving
at the final verdict and by itself it affords no ground for
dismissing the complaint. This position underwent a change
to some extent when Chapter XXXVI was introduced in the
Cr.P.C. as we shall soon see.
16. It is pertinent to note that the Limitation Act, 1963 does
not apply to criminal proceedings except for appeals or
revisions for which express provision is made in Articles 114,
115, 131 and 132 thereof. After conducting extensive study
of criminal laws of various countries, the Law Commission of
India appears to have realized that providing provision of
limitation for prosecution of criminal offences of certain type
in general law would, in fact, be good for the criminal justice
system. The Law Commission noted that the reasons to
justify introduction of provisions prescribing limitation in
general law for criminal cases are similar to those which
justify such provisions in civil law such as likelihood of
evidence being curtailed, failing memories of witnesses and
disappearance of witnesses. Such a provision, in the opinion
42Page 43
of the Law Commission, will quicken diligence, prevent
oppression and in the general public interest would bring an
end to litigation. The Law Commission also felt that the
court would be relieved of the burden of adjudicating
inconsequential claims. Paragraph 24.3 is material. It reads
thus:
“24.3 – In civil cases, the law of limitation in
almost all countries where the rule of law prevails,
Jurists have given several convincing reasons to
justify the provision of such a law; some of those
which are equally applicable to criminal
prosecutions may be referred to here:-
(1) The defendant ought not to be called on to
resist a claim when “evidence has been lost,
memories have faded, and witnesses have
disappeared.”
(2) The law of limitation is also a means of
suppressing fraud, and perjury, and quickening
diligence and preventing oppression.
(3) It is in the general public interest that there
should be an end to litigation. The statute of
limitation is a statute of repose.
(4) A party who is insensible to the value of civil
remedies and who does not assert his own claim
with promptitude has little or no right to require
the aid of the state in enforcing it.
43Page 44
(5) The court should be relieved of the burden of
adjudicating inconsequential or tenuous claims.”
The Law Commission stated its case for extending
limitation to original prosecutions as under:
“24.11 - It seems to us that there is a strong case
for having a period of limitation for offences which
are not very serious. For such offences,
considerations of fairness to the accused and the
need for ensuring freedom from prosecution after
a lapse of time should outweigh other
considerations. Moreover, after the expiry of a
certain period the sense of social retribution loses
its edge and the punishment does not serve the
purpose of social retribution. The deterrent effect
of punishment which is one of the most important
objectives of penal law is very much impaired if
the punishment is not inflicted promptly and if it is
inflicted at a time when it has been wiped off the
memory of the offender and of other persons who
had knowledge of the crime.
Paragraphs 24.13, 24.14, 24.20, 24.22, 24.23, 24.24,
24.25, and 24.26 could also be advantageously quoted.
“24.13 – At present no court can throw out a
complaint solely on the ground of delay, because,
as pointed out by the Supreme Court, “the
question of delay in filing a complaint may be a
circumstance to be taken into consideration in
arriving at the final verdict, but by itself, it affords
44Page 45
no grounds for dismissing the complaint”. It is
true that unconscionable delay is a good ground
for entertaining grave doubts about the truth of
the complainant’s story unless he can explain it to
the satisfaction of the court. But it would be
illegal for a court to dismiss a complaint merely
because there was inordinate delay.
24.14. - We, therefore, recommend that the
principle of limitation should be introduced for less
serious offences under the Code. We suggest
that, for the present, offences punishable with fine
only or with imprisonment upto three years should
be made subject to the law of limitation. The
question of extending the law to graver offences
may be taken up later on in the light of the
experience actually gained.
24.20. - The question whether prosecution
commences on the date on which the court takes
cognizance of the offence or only on the date on
which process is issued against the accused, has
been settled by the Supreme Court with reference
to Section 15 of the Merchandise Marks Act, 1889.
Where the complaint was filed within one year of
the discovery of offence, it cannot be thrown out
merely because process was not issued within one
year of such discovery. The complainant is
required by section 15 of the Act to “commence
prosecution” within this period, which means that
if the complaint is presented within one year of
such discovery, the requirements of section 15 are
satisfied. The period of limitation is intended to
operate against complainant and to ensure
diligence on his part in prosecuting his rights, and
not against the Court. It will defeat the object to
the enactment deprive traders of the protection
which the law intended to give them, to hold that
unless process is issued on their complaint within
45Page 46
one year of the discovery of the offence, it should
be thrown out.
24.22 - Secondly, as in civil cases, in computing
the period of limitation for taking cognizance of
offence, the time during which any person has
been prosecuting with the due diligence another
prosecution whether in a court of first instance or
in a court of appeal or revision, against the
offender, should be excluded, where 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.
24.23 - Thirdly, in the case of a continuing
offence, a fresh period of limitation should begin
to run at every moment of the time during which
the offence continues; and we recommend the
insertion of a provision to that effect.
24.24 - Impediments to the institution of a
prosecution have also to be provided for. Such
impediments could be (a) legal, or (b) due to
conduct of the accused, or (c) due to the court
being closed on the last day.
As regards legal impediments, two aspects may
be considered, first, the time for which institution
of prosecution is stayed under a legal provision,
and secondly, prosecutions for which previous
sanction is required, or notice has to be given,
under legal provision. Both are appropriate cases
for a special provision for extending the period of
limitation. We recommend that, where the
institution of the prosecution in respect of an
offence has been stayed by an injunction or order,
than, in computing the period of limitation for
taking cognizance of that offence, the time of the
46Page 47
continuance of the injunction or order, the day on
which it was issued or made, and the day on
which it was withdrawn, shall be excluded.
24.25 - We also recommend that where notice
of prosecution for an offence has been given, or
where for prosecution for an offence the previous
consent or sanction of the Government or any
other authority is required, in accordance with the
requirements of any law for the time being in
force, then in computing the period of limitation
for taking cognizance of the offence, the period of
such notice or, as the case may be, the time
required for obtaining such consent or sanction,
shall be excluded.
24.26 - As illustrations of impediments caused
by the conduct of the accused, we may refer to his
being out of India, and his absconding or
concealing himself. Running of the period of
limitation should be excluded in both cases.”
17. The Joint Parliament Committee (“the JPC”) accepted
the recommendations of the Law Commission for prescribing
period of limitation for certain offences. The relevant
paragraphs of its report dated 30/11/1972 read as under:
“Clauses 467 to 473 (new clauses) – These
are new clauses prescribing periods of limitation
on a graded scale for launching a criminal
prosecution in certain cases. At present, there is
no period of limitation for criminal prosecution and
47Page 48
a Court cannot throw out complaint or a police
report solely on the ground of delay although
inordinate delay may be a good ground for
entertaining doubts about the truth of the
prosecution story. Periods of limitation have been
prescribed for criminal prosecution in the laws of
many countries and the Committee feels that it
will be desirable to prescribe such periods in the
Code as recommended by the Law Commission.
Among the grounds in favour of prescribing the
limitation may be mentioned the following:
1. As time passes the testimony of witnesses
become weaker and weaker because of lapse of
memory and evidence becomes more and more
uncertain with the result that the danger of error
becomes greater.
2. For the purpose of peace and repose it is
necessary that an offender should not be kept
under continuous apprehension that he may be
prosecuted at any time particularly because with
the multifarious laws creating new offences many
persons at some time or the other commit some
crime or the other. People will have no peace of
mind if there is no period of limitation even for
petty offences.
3. The deterrent effect of punishment is
impaired if prosecution is not launched and
punishment is not inflicted before the offence has
been wiped off the memory of the persons
concerned.
4. The sense of social retribution which is one of
the purposes of criminal law looses its edge after
the expiry of a long period.
48Page 49
5. The period of limitation would put pressure
on the organs of criminal prosecution to make
every effort to ensure the detection and
punishment of the crime quickly.
The actual periods of limitation provided for in the
new clauses would, in the Committee’s opinion be
appropriate having regard to the gravity of the
offences and other relevant factors.
As regards the date from which the period is to be
counted the Committee considered has fixed the
date as the date of the offence. As, however this
may create practical difficulties and may also
facilitate an accused person to escape punishment
by simply absconding himself for the prescribed
period, the Committee has also provided that
when the commission of the offence was not
known to the person aggrieved by the offence or
to any police officer, the period of limitation would
commence from the day on which the
participation of the offender in the offence first
comes to the knowledge of a person aggrieved by
the offence or of any police officer, whichever is
earlier. Further, when it is not known by whom
the offence has committed, the first day on which
the identity of the offender is known to the person
aggrieved by the offence or to the police officer
making investigation into the offence.
The Committee has considered it necessary to
make a specific provision for extension of time
whenever the court is satisfied on the materials
that the delay has been properly explained or that
the accused had absconded. This provision would
be particularly useful because limitation for
criminal prosecution is being prescribed for the
first time in this country”.
49Page 50
18. Read in the background of the Law Commission’s
Report and the Report of the JPC, it is clear that the object of
Chapter XXXVI inserted in the Cr.P.C. was to quicken the
prosecutions of complaints and to rid the criminal justice
system of inconsequential cases displaying extreme
lethargy, inertia or indolence. The effort was to make the
criminal justice system more orderly, efficient and just by
providing period of limitation for certain offences. In
Sarwan Singh, this Court stated the object of Cr.P.C in
putting a bar of limitation as follows:
“The object of the Criminal Procedure Code in
putting a bar of limitation on prosecutions was
clearly to prevent the parties from filing cases
after a long time, as a result of which material
evidence may disappear and also to prevent
abuse of the process of the court by filing
vexatious and belated prosecutions long after the
date of the offence. The object which the statutes
seek to sub-serve is clearly in consonance with the
concept of fairness of trial as enshrined in Article
21 of the Constitution of India. It is, therefore, of
the utmost importance that any prosecution,
whether by the State or a private complainant
must abide by the letter of law or take the risk of
the prosecution failing on the ground of
limitation.”
50Page 51
19. It is equally clear however that the law makers did not
want cause of justice to suffer in genuine cases. Law
Commission recommended provisions for exclusion of time
and those provisions were made part of Chapter XXXVI. We,
therefore, find in Chapter XXXVI provisions for exclusion of
time in certain cases (Section 470), for exclusion of date on
which the Court is closed (Section 471), for continuing
offences (Section 472) and for extension of period of
limitation in certain cases (Section 473). Section 473 is
crucial. It empowers the court to take cognizance of an
offence after the expiry of the period of limitation, if it is
satisfied on the facts and in the circumstances of the case
that the delay has been properly explained or that it is
necessary to do so in the interest of justice. Therefore,
Chapter XXXVI is not loaded against the complainant. It is
true that the accused has a right to have a speedy trial and
this right is a facet of Article 21 of the Constitution. Chapter
XXXVI of the Cr.P.C. does not undermine this right of the
accused. While it encourages diligence by providing for
limitation it does not want all prosecutions to be thrown
51Page 52
overboard on the ground of delay. It strikes a balance
between the interest of the complainant and the interest of
the accused. It must be mentioned here that where the
legislature wanted to treat certain offences differently, it
provided for limitation in the section itself, for instance,
Section 198(6) and 199(5) of the Cr.P.C. However, it chose
to make general provisions for limitation for certain types of
offences for the first time and incorporated them in Chapter
XXXVI of the Cr.P.C.
20. To understand the scheme of Chapter XXXVI it would be
advantageous to quote Sections 467, 468, 469 and 473 of
the Cr.P.C. Section 467 reads as under:
“467. Definitions. – For the purposes of this
Chapter, unless the context otherwise requires,
“period of limitation” means the period specified
in section 468 for taking cognizance of an offence”
Section 468 reads as under:
“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
52Page 53
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 offences 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.”
Section 469 reads as under:
“469. Commencement of the period of
limitation. - (1) The period of limitation, in
relation to an offender, shall commence, -
(a) on the date of the offence; or
(b) where the commission of the
offence was not known to the person
aggrieved by he offence or to any police
officer, the first day on which such
offence comes to the knowledge of such
53Page 54
person or to any police officer,
whichever is earlier; or
(c) where it is not known by whom the
offence was committed, the first day on
which the identity of the offender is
known to the person aggrieved by the
offence or to the police officer making
investigation into the offence,
whichever is earlier.
(2) In computing the said period, the day from
which such period is to be computed shall be
excluded.”
Section 473 reads as under:
“473. Extension of period of limitation in
certain cases. – Notwithstanding anything
contained in the foregoing provisions of this
Chapter, any Court may take cognizance of an
offence after the expiry of the period of limitation,
if it is satisfied on the facts and in the
circumstances of the case that the delay has been
properly explained or that it is necessary so to do
in the interests of justice.”
21. Gist of these provisions could now be stated. Section
467 defines the phrase ‘period of limitation’ to mean the
period specified in Section 468 for taking cognizance of
certain offences. Section 468 stipulates the bar of limitation.
54Page 55
Sub-section (1) of Section 468 makes it clear that a fetter is
put on the court’s power to take cognizance of an offence of
the category mentioned in sub-section (2) after the expiry of
period of limitation. Sub-section (2) lays down the period of
limitation for certain offences. Section 469 states when the
period of limitation commences. It is dexterously drafted so
as to prevent advantage of bar of limitation being taken by
the accused. It states that period of limitation in relation to
an offence shall commence either from the date of offence
or from the date when the offence is detected. Section 470
provides for exclusion of time in certain cases. It inter alia
states that while computing the period of limitation in
relation to an offence, time taken during which the case was
being diligently prosecuted in another court or in appeal or
in revision against the offender, should be excluded. The
explanation to this section states that in computing
limitation, the time required for obtaining the consent or
sanction of the government or any other authority should be
excluded. Similarly time during which the accused is
absconding or is absent from India shall also be excluded.
55Page 56
Section 471 provides for exclusion of date on which court is
closed and Section 472 provides for continuing offence.
Section 473 is an overriding provision which enables courts
to condone delay where such delay has been properly
explained or where the interest of justice demands extension
of period of limitation. Analysis of these provisions indicates
that Chapter XXXVI is a Code by itself so far as limitation is
concerned. All the provisions of this Chapter will have to be
read cumulatively. Sections 468 and 469 will have to be
read with Section 473.
22. It is now necessary to see what the words ‘taking
cognizance’ mean. Cognizance is an act of the court. The
term ‘cognizance’ has not been defined in the Cr.P.C. To
understand what this term means we will have to have a
look at certain provisions of the Cr.P.C. Chapter XIV of the
Code deals with ‘Conditions requisite for initiation of
proceedings’. Section 190 thereof empowers a Magistrate to
take cognizance upon (a) receiving a complaint of facts
which constitute such offence; (b) upon a police report of
56Page 57
such facts; (c) upon information received from any person
other than a police officer, or upon his own knowledge, that
such offence has been committed. Chapter XV relates to
‘Complaints to Magistrates’. Section 200 thereof provides for
examination of the complainant and the witnesses on oath.
Section 201 provides for the procedure which a Magistrate
who is not competent to take cognizance has to follow.
Section 202 provides for postponement of issue of process.
He may, if he thinks fit, and shall in a case where the
accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process
against the accused and either inquire into the case himself
or direct an investigation to be made by a police officer for
the purpose of deciding whether there is sufficient ground
for proceeding. Chapter XVI relates to commencement of
proceedings before the Magistrate. Section 204 provides for
issue of process. Under this section if the Magistrate is of
the opinion that there is sufficient ground for proceeding and
the case appears to be a summons case, he shall issue
summons for the attendance of the accused. In a warrant
57Page 58
case, he may issue a warrant. Thus, after initiation of
proceedings detailed in Chapter XIV, comes the stage of
commencement of proceedings covered by Chapter XVI.
23. In Jamuna Singh & Ors. v. Bhadai Shah37
, relying
on R.R. Chari and Gopal Das Sindhi & Ors. v. State of
Assam & Anr.38
, this Court held that it is well settled that
when on a petition or complaint being filed before him, a
Magistrate applies his mind for proceeding under the various
provisions of Chapter XVI of the Cr.P.C., he must be held to
have taken cognizance of the offences mentioned in the
complaint.
24. After referring to the provisions of the Cr.P.C. quoted by
us hereinabove, in S.K. Sinha, Chief Enforcement
Officer, this Court explained what is meant by the term
‘taking cognizance’. The relevant observations of this Court
could be quoted:
37 AIR 1964 SC 1541
38 AIR 1961 SC 986
58Page 59
“19. The expression “cognizance” has not been
defined in the Code. But the word (cognizance) is
of indefinite import. It has no esoteric or mystic
significance in criminal law. It merely means
“become aware of” and when used with reference
to a court or a Judge, it connotes “to take notice of
judicially”. It indicates the point when a court or a
Magistrate takes judicial notice of an offence with
a view to initiating proceedings in respect of such
offence said to have been committed by someone.
20. “Taking cognizance” does not involve any
formal action of any kind. It occurs as soon as a
Magistrate applies his mind to the suspected
commission of an offence. Cognizance is taken
prior to commencement of criminal proceedings.
Taking of cognizance is thus a sine qua non or
condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an
offender. Whether or not a Magistrate has taken
cognizance of an offence depends on the facts and
circumstances of each case and no rule of
universal application can be laid down as to when
a Magistrate can be said to have taken
cognizance.”
In several judgments, this view has been reiterated. It
is not necessary to refer to all of them.
25. Thus, a Magistrate takes cognizance when he applies
his mind or takes judicial notice of an offence with a view to
initiating proceedings in respect of offence which is said to
59Page 60
have been committed. This is the special connotation
acquired by the term ‘cognizance’ and it has to be given the
same meaning wherever it appears in Chapter XXXVI. It
bears repetition to state that taking cognizance is entirely an
act of the Magistrate. Taking cognizance may be delayed
because of several reasons. It may be delayed because of
systemic reasons. It may be delayed because of the
Magistrate’s personal reasons.
26. In this connection, our attention is drawn to the
judgment of this Court in Sharadchandra Dongre. It is
urged on the basis of this judgment that by condoning the
delay, the Court takes away a valuable right which accrues
to the accused. Hence, the accused has a right to be heard
when an application for condonation of delay under Section
473 of the Cr.P.C. is presented before the Court. Keeping
this argument in mind, let us examine both the view points
i.e. whether the date of taking cognizance or the date of
filing complaint is material for computing limitation. If the
date on which complaint is filed is taken to be material, then
60Page 61
if the complaint is filed within the period of limitation, there
is no question of it being time barred. If it is filed after the
period of limitation, the complainant can make an
application for condonation of delay under Section 473 of the
Cr.P.C. The Court will have to issue notice to the accused
and after hearing the accused and the complainant decide
whether to condone the delay or not. If the date of taking
cognizance is considered to be relevant then, if the Court
takes cognizance within the period of limitation, there is no
question of the complaint being time barred. If the Court
takes cognizance after the period of limitation then, the
question is how will Section 473 of the Cr.P.C. work. The
complainant will be interested in having the delay condoned.
If the delay is caused by the Magistrate by not taking
cognizance in time, it is absurd to expect the complainant to
make an application for condonation of delay. The
complainant surely cannot explain that delay. Then in such
a situation, the question is whether the Magistrate has to
issue notice to the accused, explain to the accused the
reason why delay was caused and then hear the accused
61Page 62
and decide whether to condone the delay or not. This would
also mean that the Magistrate can decide whether to
condone delay or not, caused by him. Such a situation will
be anomalous and such a procedure is not known to law. Mr.
Luthra, learned A.S.G. submitted that use of disjunctive ‘or’
in Section 473 of the Cr.P.C. suggests that for the first part
i.e. to find out whether the delay has been explained or not,
notice will have to be issued to the accused and for the later
part i.e. to decide whether it is necessary to do so in the
interest of justice, no notice will have to be issued. This
question has not directly arisen before us. Therefore, we do
not want to express any opinion whether for the purpose of
notice, Section 473 of the Cr.P.C. has to be bifurcated or not.
But, we do find this situation absurd. It is absurd to hold that
the Court should issue notice to the accused for condonation
of delay, explain the delay caused at its end and then pass
order condoning or not condoning the delay. Law cannot be
reduced to such absurdity. Therefore, the only harmonious
construction which can be placed on Sections 468, 469 and
470 of the Cr.P.C. is that the Magistrate can take cognizance
62Page 63
of an offence only if the complaint in respect of it is filed
within the prescribed limitation period. He would, however,
be entitled to exclude such time as is legally excludable.
27. The role of the court acting under Section 473 was aptly
described by this Court in Vanka Radhamanohari (Smt.)
where this Court expressed that this Section has a nonobstante
clause, which means that it has an overriding effect
on Section 468. This Court further observed that there is a
basic difference between Section 5 of the Limitation Act and
Section 473 of the Cr.P.C. For exercise of power under
Section 5 of the Limitation Act, the onus is on the applicant
to satisfy the court that there was sufficient cause for
condonation of delay, whereas, Section 473 enjoins a duty
on the court to examine not only whether such delay has
been explained but as to whether, it is the requirement of
justice to ignore such delay. These observations indicate the
scope of Section 473 of the Cr.P.C. Examined in light of
legislative intent and meaning ascribed to the term
‘cognizance’ by this Court, it is clear that Section 473 of the
63Page 64
Cr.P.C. postulates condonation of delay caused by the
complainant in filing the complaint. It is the date of filing of
the complaint which is material.
28. We are inclined to take this view also because there
has to be some amount of certainty or definiteness in
matters of limitation relating to criminal offences. If, as
stated by this Court, taking cognizance is application of mind
by the Magistrate to the suspected offence, the subjective
element comes in. Whether a Magistrate has taken
cognizance or not will depend on facts and circumstances of
each case. A diligent complainant or the prosecuting agency
which promptly files the complaint or initiates prosecution
would be severely prejudiced if it is held that the relevant
point for computing limitation would be the date on which
the Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the
Magistrate, who may take cognizance after the limitation
period because of several reasons; systemic or otherwise. It
cannot be the intention of the legislature to throw a diligent
64Page 65
complainant out of the court in this manner. Besides it must
be noted that the complainant approaches the court for
redressal of his grievance. He wants action to be taken
against the perpetrators of crime. The courts functioning
under the criminal justice system are created for this
purpose. It would be unreasonable to take a view that delay
caused by the court in taking cognizance of a case would
deny justice to a diligent complainant. Such an
interpretation of Section 468 of the Cr.P.C. would be
unsustainable and would render it unconstitutional. It is well
settled that a court of law would interpret a provision which
would help sustaining the validity of the law by applying the
doctrine of reasonable construction rather than applying a
doctrine which would make the provision unsustainable and
ultra vires the Constitution. (U.P. Power Corporation Ltd.
v. Ayodhaya Prasad Mishra).
29. The conclusion reached by us is reinforced by the fact
that the Law Commission in clause 24.20 of its Report, which
65Page 66
we have quoted hereinabove, referred to Dau Dayal39
where the three-Judge Bench of this Court was dealing with a
Special Act i.e. the Merchandise Marks Act, 1889. Section 15
of the Merchandise Marks Act, 1889 stated that no
prosecution shall be commenced after expiration of one year
after the discovery of the offence by the prosecution. The
contention of the appellant was that the offence was
discovered on 26/4/1954 when he was arrested, and that, in
consequence, the issue of process on 22/7/1955, was
beyond the period of one year provided under Section 15 of
the Merchandise Marks Act, 1889 and that the proceedings
should therefore be quashed as barred by limitation. While
repelling this contention, the three-Judge Bench of this Court
observed as under:
“6. It will be noticed that the complainant is
required to resort to the court within one year of
the discovery of the offence if he is to have the
benefit of proceeding under the Act. That means
that if the complaint is presented within one year
of such discovery, the requirements of Section 15
are satisfied. The period of limitation, it should be
remembered, is intended to operate against the
complainant and to ensure diligence on his part in
39 AIR 1959 SC 433
66Page 67
prosecuting his rights, and not against the court.
Now, it will defeat the object of the enactment and
deprive traders of the protection which the law
intended to give them, if we were to hold that
unless process is issued on their complaint within
one year of the discovery of the offence, it should
be thrown out. It will be an unfortunate state of
the law if the trader whose rights had been
infringed and who takes up the matter promptly
before the criminal court is, nevertheless, denied
redress owing to the delay in the issue of process
which occurs in court.”
Though, this Court was not concerned with the meaning
of the term ‘taking cognizance’, it did not accept the
submission that limitation could be made dependent on the
act of the Magistrate of issuing process. It held that if the
complaint was filed within the stipulated period of one year,
that satisfied the requirement. The complaint could not be
thrown out because of the Magistrate’s act of issuing process
after one year.
30. As we have already noted in reaching this conclusion,
light can be drawn from legal maxims. Legal maxims are
referred to in Bharat Kale, Japani Sahoo and Vanka
Radhamanohari (Smt.). The object of the criminal law is
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to punish perpetrators of crime. This is in tune with the well
known legal maxim ‘nullum tempus aut locus occurrit regi’,
which means that a crime never dies. At the same time, it is
also the policy of law to assist the vigilant and not the
sleepy. This is expressed in the Latin maxim ‘vigilantibus et
non dormientibus, jura subveniunt’. Chapter XXXVI of the
Cr.P.C. which provides limitation period for certain types of
offences for which lesser sentence is provided draws support
from this maxim. But, even certain offences such as Section
384 or 465 of the IPC, which have lesser punishment may
have serious social consequences. Provision is, therefore,
made for condonation of delay. Treating date of filing of
complaint or date of initiation of proceedings as the relevant
date for computing limitation under Section 468 of the Code
is supported by the legal maxim ‘actus curiae neminem
gravabit’ which means that the act of court shall prejudice
no man. It bears repetition to state that the court’s inaction
in taking cognizance i.e. court’s inaction in applying mind to
the suspected offence should not be allowed to cause
prejudice to a diligent complainant. Chapter XXXVI thus
68Page 69
presents the interplay of these three legal maxims.
Provisions of this Chapter, however, are not interpreted
solely on the basis of these maxims. They only serve as
guiding principles.
31. It is submitted that the settled principles of statutory
construction require that the expression ‘cognizance’
occurring in Chapter XXXVI should be given its legal sense.
It is further submitted that if an expression acquires a
special connotation in law, dictionary or general meaning
ceases to be helpful in interpreting such a word. Reliance is
also placed on the heading of Chapter XXXVI providing for
“Limitation for taking cognizance of certain offences”.
Reliance is placed on observations of the three-Judge Bench
of this Court in Sarwan Singh, where in the context of
limitation on prosecution it is observed that it is of utmost
importance that any prosecution, whether by the State or by
the private complainant, must abide by the letter of law.
Relying on Raghunath Rai Bareja, it is urged that the first
principle of interpretation of the statute in every system is
69Page 70
the literal rule of interpretation. Purposive interpretation can
only be resorted to when the plain words of statute are
ambiguous. It is submitted that there is no ambiguity here
and, therefore, literal interpretation must be resorted to.
32. There can be no dispute about the rules of
interpretation cited by the counsel. It is true that there is no
ambiguity in the relevant provisions. But, it must be borne
in mind that the word ‘cognizance’ has not been defined in
the Cr.P.C. This Court had to therefore interpret this word.
We have adverted to that interpretation. In fact, we have
proceeded to answer this reference on the basis of that
interpretation and keeping in mind that special connotation
acquired by the word ‘cognizance’. Once that interpretation
is accepted, Chapter XXXVI along with the heading has to be
understood in that light. The rule of purposive construction
can be applied in such a situation. A purposive construction
of an enactment is one which gives effect to the legislative
purpose by following the literal meaning of the enactment
where that meaning is in accordance with the legislative
70Page 71
purpose or by applying a strained meaning where the literal
meaning is not in accordance with the legislative purpose
(See: Francis Bennion on Statutory Interpretation).
After noticing this definition given by Francis Bennion in
National Insurance Co. Ltd. v. Laxmi Narain Dhut40
,
this Court noted that more often than not, literal
interpretation of a statute or a provision of a statute results
in absurdity. Therefore, while interpreting statutory
provisions, the courts should keep in mind the objectives or
purpose for which statute has been enacted. In light of this
observation, we are of the opinion that if in the instant case
literal interpretation appears to be in any way in conflict with
the legislative intent or is leading to absurdity, purposive
interpretation will have to be adopted.
33. In New India Assurance Company Ltd. v. Nusli
Neville Wadia and another etc.41
while dealing with
eviction proceedings initiated under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 this Court
was concerned with interpretation of Sections 4 and 5
40 (2007) 3 SCC 700
41 (2008) 3 SCC 279
71Page 72
thereof. This Court was of the view that literal meaning
thereof would place undue burden on the noticee and would
lead to conclusion that the landlord i.e. the State would not
be required to adduce any evidence at all. This Court
observed that such a construction would lead to an
anomalous situation. In the context of fairness in State
action this Court observed that with a view to reading the
provisions of the said Act, in a proper and effective manner,
literal interpretation which may give rise to an anomaly or
absurdity will have to be avoided. This Court further
observed that so as to enable a superior court to interpret a
statute in a reasonable manner, the court must place itself in
the chair of a reasonable legislator. So done, the rules of
purposive construction will have to be resorted to which
would require the construction of the statute in such a
manner so as to see that it’s object is fulfilled.
34. In this connection, we may also usefully refer to the
following paragraph from Justice G.P. Singh’s ‘Principles of
Statutory Interpretation’ [13th
edition – 2012].
72Page 73
“With the widening of the idea of context and
importance being given to the rule that the
statute has to be read as a whole in its context it
is nowadays misleading to draw a rigid distinction
between literal and purposive approaches. The
difference between purposive and literal
constructions is in truth one of degree only. The
real distinction lies in the balance to be struck in
the particular case between literal meaning of the
words on the one hand and the context and
purpose of the measure in which they appear on
the other. When there is a potential clash, the
conventional English approach has been to give
decisive weight to the literal meaning but this
tradition is now weakening in favour of the
purposive approach for the pendulum has swung
towards purposive methods of constructions.”
35. We must also bear in mind that we are construing rules
of limitation. Our approach should, therefore, be in
consonance with this Court’s observation in Mela Ram that
“it is well established that rules of limitation pertain to
domain of adjectival law and that they operate only to bar
the remedy but not to extinguish the right”.
36. It is argued that legislative Casus Omissus cannot be
supplied by judicial interpretation. It is submitted that to
73Page 74
read Section 468 of the Cr.P.C. to mean that the period of
limitation as period within which a complaint/charge-sheet is
to be filed, would amount to adding words to Sections 467
and 468. It is further submitted that if the legislature has
left a lacuna, it is not open to the Court to fill it on some
presumed intention of the legislature. Reliance is placed on
Shiv Shakti Co-operative Housing Society, Bharat
Aluminum, and several other judgments of this Court where
doctrine of Casus Omissus is discussed. In our opinion, there
is no scope for application of doctrine of Casus Omissus to
this case. It is not possible to hold that the legislature has
omitted to incorporate something which this Court is trying
to supply. The primary purpose of construction of the
statute is to ascertain the intention of the legislature and
then give effect to that intention. After ascertaining the
legislative intention as reflected in the 42nd Report of the Law
Commission and the Report of the JPC, this Court is only
harmoniously construing the provisions of Chapter XXXVI
along with other relevant provisions of the Cr.P.C. to give
effect to the legislative intent and to ensure that its
74Page 75
interpretation does not lead to any absurdity. It is not
possible to say that the legislature has kept a lacuna which
we are trying to fill up by judicial interpretative process so as
to encroach upon the domain of the legislature. The
authorities cited on doctrine of Casus Omissus are,
therefore, not relevant for the present case.
37. We also concur with the observations in Japani Sahoo,
where this Court has examined this issue in the context of
Article 14 of the Constitution and opted for reasonable
construction rather than literal construction. The relevant
paragraph reads thus:
“The matter can be looked at from different angle
also. Once it is accepted (and there is no dispute
about it) that it is not within the domain of the
complainant or prosecuting agency to take
cognizance of an offence or to issue process and
the only thing the former can do is to file a
complaint or initiate proceedings in accordance
with law, if that action of initiation of proceedings
has been taken 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. Now, if
he is sought to be penalised because of the
75Page 76
omission, default or inaction on the part of the
court or Magistrate, the provision of law may have
to be tested on the touchstone of Article 14 of the
Constitution. It can possibly be urged that such a
provision is totally arbitrary, irrational and
unreasonable. It is settled law that a court of law
would interpret a provision which would help
sustaining the validity of law by applying the
doctrine of reasonable construction rather than
making it vulnerable and unconstitutional by
adopting rule of litera legis. 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.”
38. So far ‘heading’ of the chapter is concerned, it is well
settled that ‘heading’ or ‘title’ prefixed to sections or group
of sections have a limited role to play in the construction of
statutes. They may be taken as very broad and general
indicators or the nature of the subject matter dealt with
thereunder but they do not control the meaning of the
sections if the meaning is otherwise ascertainable by reading
the section in proper perspective along with other provisions.
In M/s. Frick India Ltd. v. Union of India & Ors.42
, this
Court has observed as under:
42 (1990) 1 SCC 400
76Page 77
“It is well settled that the headings prefixed to
sections or entries cannot control the plain words
of the provisions; they cannot also be referred to
for the purpose of construing the provision when
the words used in the provision are clear and
unambiguous; nor can they be used for cutting
down the plain meaning of the words in the
provision. Only, in the case of ambiguity or doubt
the heading or sub-heading may be referred to as
an aid in construing the provision but even in such
a case it could not be used for cutting down the
wide application of the clear words used in the
provision.”
Therefore, the submission that heading of Chapter
XXXVI is an indicator that the date of taking cognizance is
material must be rejected.
39. It is true that the penal statutes must be strictly
construed. There are, however, cases where this Court has
having regard to the nature of the crimes involved, refused
to adopt any narrow and pedantic, literal and lexical
construction of penal statutes. [See Muralidhar Meghraj
Loya & Anr. v. State of Maharashtra & Ors.43
and
Kisan Trimbak Kothula & Ors. v. State of
43 (1976) 3 SCC 684
77Page 78
Maharashtra44
]. In this case, looking to the legislative
intent, we have harmoniously construed the provisions of
Chapter XXXVI so as to strike a balance between the right of
the complainant and the right of the accused. Besides, we
must bear in mind that Chapter XXXVI is part of the Cr.P.C.,
which is a procedural law and it is well settled that
procedural laws must be liberally construed to serve as
handmaid of justice and not as its mistress. [See Sardar
Amarjeet Singh Kalra, N. Balaji v. Virendra Singh &
Ors.45
and Kailash].
40. Having considered the questions which arise in this
reference in light of legislative intent, authoritative
pronouncements of this Court and established legal
principles, we are of the opinion that Krishna Pillai will
have to be restricted to its own facts and it is not the
authority for deciding the question as to what is the relevant
date for the purpose of computing the period of limitation
under Section 468 of the Cr.P.C., primarily because in that
44 (1977) 1 SCC 300
45 (2004) 8 SCC 312
78Page 79
case, this Court was dealing with Section 9 of the Child
Marriage Restraint Act, 1929 which is a special Act. It
specifically stated that no court shall take cognizance of any
offence under the said Act after the expiry of one year from
the date on which offence is alleged to have been
committed. There is no reference either to Section 468 or
Section 473 of the Cr.P.C. in that judgment. It does not refer
to Sections 4 and 5 of the Cr.P.C. which carve out exceptions
for Special Acts. This Court has not adverted to diverse
aspects including the aspect that inaction on the part of the
court in taking cognizance within limitation, though the
complaint is filed within time may work great injustice on the
complainant. Moreover, reliance placed on Antulay ‘1984’
Case, in our opinion, was not apt. In Antulay ‘1984’ Case,
this Court was dealing inter alia with the contention that a
private complaint is not maintainable in the court of Special
Judge set-up under Section 6 of the Criminal Law
Amendment Act, 1952 (‘the 1952 Act’). It was urged that
the object underlying the 1952 Act was to provide for a more
speedy trial of offences of corruption by a public servant. It
79Page 80
was argued that if it is assumed that a private complaint is
maintainable then before taking cognizance, a Special Judge
will have to examine the complainant and all the witnesses
as per Section 200 of the Cr.P.C. He will have to postpone
issue of process against the accused and either inquire into
the case himself or direct an investigation to be made by a
police officer and in cases under the Prevention of Corruption
Act, 1947 by police officers of designated rank for the
purpose of deciding whether or not there is sufficient ground
for proceeding. It was submitted that this would thwart the
object of the 1952 Act which is to provide for a speedy trial.
This contention was rejected by this Court holding that it is
not a condition precedent to the issue of process that the
court of necessity must hold the inquiry as envisaged by
Section 202 of the Cr.P.C. or direct investigation as therein
contemplated. That is matter of discretion of the court. Thus,
the questions which arise in this reference were not involved
in Antulay ‘1984’ Case: Since there, this Court was not
dealing with the question of bar of limitation reflected in
Section 468 of the Cr.P.C. at all, in our opinion, the said
80Page 81
judgment could not have been usefully referred to in
Krishna Pillai while construing provisions of Chapter
XXXVI of the Cr.P.C. For all these, we are unable to endorse
the view taken in Krishna Pillai.
41. In view of the above, we hold that for the purpose of
computing the period of limitation under Section 468 of the
Cr.P.C. the relevant date is the date of filing of the complaint
or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. We further hold that
Bharat Kale which is followed in Japani Sahoo lays
down the correct law. Krishna Pillai will have to be
restricted to its own facts and it is not the authority for
deciding the question as to what is the relevant date for the
purpose of computing the period of limitation under Section
468 of the Cr.P.C.
81Page 82
42. The Reference is answered accordingly. The Registry
may list the matters before the appropriate courts for
disposal.
…………………………………………..CJI
(P. SATHASIVAM)
……………………………………………..J.
(B.S. CHAUHAN)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
……………………………………………..J.
(RANJAN GOGOI)
……………………………………………..J.
(S.A. BOBDE)
NEW DELHI,
NOVEMBER 26, 2013.
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