Dismissed

M.Bhasker, v. The State of A.P.

Telangana HC6 Jan 2012CRLP/6071/2008

Case brief

AI extract

What is this about?

A criminal petition under Section 482 CrPC sought quashing of cheating charges on limitation grounds, arguing cognizance was taken beyond the one-year period despite timely filing of the charge sheet. The Single Judge held that limitation is calculated from the date of filing the charge sheet, summarizing prevailing High Court and Supreme Court authority and dismissing the plea.

What did the court decide?

Petition dismissed; limitation plea rejected as charge sheet was filed within time; death of complainant does not abate criminal case.

M.Bhasker, Vs The State of A.P. — Cheating and Forgery | Telangana HC (2012)

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THE HON'BLE SRI JUSTICE N. RAVI SHANKAR

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CRIMINAL PETITION No.6071 of 2008

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ORDER:

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In this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short Code) the petitioner who is accused in C.C.No.404/2004 on the file of the Court of the XIII Additional Chief Metropolitan Magistrate, Secunderabad (trial court), is seeking quashing of the said case on the ground of limitation.

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2. The point raised with regard to limitation is whether the period of limitation for prosecution for offences mentioned in Section 468 of the Code is to be calculated with reference to the date of filing of complaint/ charge sheet in the court or the date of taking cognizance of the case by the Magistrate or the court.

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3. The point arises in the following circumstances. The aforesaid case was registered on a police charge sheet against the petitioner for an offence under Section 417 IPC. The allegation is that the petitioner on a false promise of marriage developed intimacy with the de facto complainant and had cohabitation with her and it is also alleged that the de facto complainant became pregnant and the petitioner also got aborted that pregnancy but he subsequently refused to marry her and thereby cheated her. It is on the above allegation the petitioner has been charge sheeted for the offence under Section 417 IPC i.e. cheating a woman.

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4. The FIR in this case was admittedly given on 28.04.2001 by the de facto complainant naming the petitioner as the offender. After investigation the police filed charge sheet against the petitioner on 08.01.2002 for offences punishable under Sections

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493 and 417 IPC, but the trial court took cognizance of it only for the offence under Section 417 IPC on 13.09.2004. Section 493 IPC i.e. cohabiting with a woman by making her to believe that she is lawfully married to the accused is punishable with more than three years of imprisonment and hence there is no limitation for prosecution of the said offence. The trial court did not take cognizance of the said offence perhaps on the ground that it was not applicable. Now the offence under Section 417 IPC is punishable with imprisonment upto one year. For such offences the limitation is admittedly one year under Section 468(2)(b) of the Code.

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5. The contention of the petitioner is that though charge sheet is filed within limitation i.e. on 08.01.2002, the learned Magistrate took cognizance of it on 13.09.2004 which is clearly beyond the time of one year and therefore the case against him is barred by limitation. It should be noted that the prosecution did not get the delay condoned or the trial court did not record any reasons as contemplated under Section 473 Cr.P.C. holding that interests of justice require that it should take cognizance of the said offence. The contention of the petitioner’s counsel therefore is that the case should be quashed on the ground of limitation as cognizance is beyond limitation period. On the other hand, the contention of the learned Additional Public Prosecutor is that since the charge sheet is filed in time the delay in taking cognizance is not a ground to hold that the case is barred by limitation and therefore the plea of limitation cannot be entertained.

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6. As already mentioned, the charge sheet was admittedly filed on 08.01.2002 before the learned Magistrate and this date of filing was clearly within time. Regarding the delay in taking cognizance

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on 13.09.2004 a report was called for from the trial court and the present presiding officer has sent the report dated 08.12.2011. That report reads as follows.

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“It is further submitted that the SI of Police, Marredpally P.S filed charge sheet against the accused on 8.1.2002 based on the complaint given by the victim dated 14.4.2001 and thereby it is evident that the charge sheet filed within the period of one year from the date of the alleged offence. Due to the technicalities and returns made by the then XMM Court from time to time and also the re-presentations of the charge sheet before this Court (then XXII MM Court), and after calling the original FIR from the Court of X MM, Hyderabad, and after considering the entire record, my learned predecessor, took cognizance of the case against the accused for the offence punishable under section 417 IPC on 13.9.2004.”

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7. The above explanation would show that the charge sheet was filed within time but the delay in cognizance occurred due to returns made by the then X MM Court, Hyderabad, which then had jurisdiction and the subsequent delay in getting the records and in taking cognizance. The present court mentioned in the petition is XIII Additional CMM Court, Hyderabad, and it is clear that there was also change of jurisdictions between various Metropolitan Magistrate Courts at Hyderabad so far as this case is concerned. The above explanation is mentioned as it will have relevancy with regard to certain decisions, as will be presently seen, wherein it was held that since members of the litigant public have no say in the matter of cognizance of a case by a Court, only the date of filing of the complaint or case should be treated as relevant date for the purpose of calculating limitation. In the said decision this was made a ground for holding that it is only the date of filing of the complaint is relevant for calculating limitation.

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8. Then coming to the point, it is not new and it has already been decided giving conflicting opinions. In four decisions, which

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are in my notice, the view taken is that it is only the date of filing of the complaint/ charge sheet that is relevant and not the date of cognizance and this view is against the petitioner. However the petitioner’s counsel Sri Sudhakar Rao relied upon two other decisions i.e. one of the Supreme Court and the other of this Court which have taken a contrary view holding that it is only the date of cognizance that is relevant and not the date of filing of the complaint/ charge sheet.

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9. The question now is which of the above two views this court should now follow on the point of limitation. Alternatively, as I have heard this matter sitting single, whether it should be referred to a Division Bench or a larger Bench for an authoritative pronouncement having regard to the above contrary or conflicting views.

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10. To answer the above questions, I shall now first refer to the four decisions which are against the petitioner’s contention and later on the other two decisions which are in his favour and the reasons given in all the decisions. The first is Appu Ramani v. The Stat e^[1] (judgment dated 22.03.1993). In this case a Division Bench of this court after considering Sections 468 and 473 of the Code held that the relevant date for reckoning limitation is the date on which the complaint/ charge sheet is filed in the court. The second and third decisions are of the Hon’ble Supreme Court given in Bharat Damodar Kale v. State of A.P.^[2] (judgment dated 08.10.2003) and Japani Sahoo v. Chandra Sekhar Mohanty^[3] (judgment dated 27.07.2007) wherein also it is held that for the purpose of limitation under Section 468 of the Code it is the date of filing of the complaint/charge sheet that is relevant and not the

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date of taking cognizance. The fourth is also an earlier decision of the Hon’ble Supreme Court given in Rashmi Kumar (Smt.) v. Mahesh Kumar Bhad a^[4] (judgment dated 18.12.1996). This case was decided by a three-Judge Bench of the Supreme Court. In this earlier case also it has been clearly held that for the purpose of limitation the relevant date is the date of filing of the complaint.

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11. In the above referred to first three cases the provisions of the Code relating to limitation have been considered. The reasoning given in substance for the above conclusion is that an investigating agency or the complainant may take sufficient care to file the complaint/ charge sheet within time and since they cannot request or otherwise have any say in the matter of taking cognizance of the case by the Magistrate or the court within time and as the decision making regarding taking of cognizance is solely within the domain of the Magistrate or the court, any delay or time taken by them for taking cognizance cannot be made a ground to hold that the prosecution is barred by limitation. This conclusion was reached on the principle that an act of the court shall prejudice no man. In Bharat Damodar Kale’s case (2 supra), their Lordships referring to provisions in the case regarding limitation and the earlier decision given in Rashmi Kumar’s case (4 supra) in support of the above conclusion, observed thus.

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“10. On facts of this case and based on the arguments advanced before us, we consider it appropriate to decide the question whether the provisions of Chapter XXXVI of the Code apply to the delay in instituting the prosecution or to the delay in taking cognizance. As noted above, according to the learned counsel for the appellants, the limitation prescribed under the above Chapter applies to taking of cognizance by the court concerned, therefore even if a complaint is filed within the period of limitation mentioned in the said Chapter of the Code, if the cognizance is not taken within the period of limitation the same gets barred by limitation. This argument seems to be

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inspired by the chapter heading of Chapter XXXVI of the Code which reads thus: “Limitation for taking cognizance of certain offences”. It is primarily based on the above language of the heading of the Chapter, the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates 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 is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 471 indicates while computing the period of limitation, 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 said section also provides in the Explanation that in computing the time required for obtaining the consent or sanction of the Government or any other authority should be excluded. Similarly, the period during which the court was closed will also have to be excluded. All these provisions indicate that the court taking cognizance can take cognizance of an offence the complaint of which is filed before it within the period of limitation prescribed and if need be after excluding such time which is legally excludable. This in our opinion clearly indicates 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 beyond the period of limitation prescribed under the Code. Apart from the statutory indication of this view of ours, we find support for this view from the fact that taking of cognizance is an act of the Court over which the prosecuting agency or the complainant has no control. Therefore, a complaint filed within the period of limitation under the Code cannot be made infructuous by an act of Court. The legal phrase "actus curiae neminem gravabit" which means an act of the Court shall prejudice no man, or by a delay on the part of the Court neither party should suffer, also supports the view that the Legislature could not have intended to put a period of limitation on the act of the Court of taking cognizance of an offence so as to defeat the case of the complainant. This view of ours is also in conformity with the early decision of this Court

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in the case of Rashmi Kumar (supra).”

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12. The above observations were quoted and followed in Japani Sahoo’s case (3 supra). In Rashmi Kumar’s Case (4 supra), referred to in Bharat Damodar Kale’s case (2 supra), their Lordships were considering the question whether a complaint filed by wife against her husband for an offence under Section 406 IPC regarding alleged criminal breach of trust committed by her husband in respect of her jewellery and other properties, was within time. Answering this question, their Lordships held that since the complaint was filed in the court within three years from the alleged date of offence, it was within time. Of-course, the various reasons which were given in by their Lordships in Bharat Damodar Kale’s case (2 supra) were not mentioned in the said decision, but the conclusion reached shows that it was the date of filing which is relevant for limitation having regard to Section 468 of the Code.

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13. In this connection, it would also be useful to see Rule 84 of the Criminal Rules of Practice and Circular Orders, 1990 which are in force in our State and it reads as follows:

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84. Complaints barred by Limitation:- Where a case is filed after expiration of the period of limitation prescribed by law, the charge-sheet or the compliant shall show the ground upon which exemption from the law of limitation is claimed or explain the delay or state how it is necessary to take the case on file in the interest of justice.

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The language of the above Rule would also suggest that the limitation date is reckoned in the said rule with reference to the date of filing of the case. It must be mentioned here that if the rule that the date of cognizance of the case is held to be the relevant date for limitation for the purpose of Section 468 of the Code the above rule which is a delegated legislation will not come in the way

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and on the other hand it has to yield to the said statutory provision. The above rule is just mentioned for the purpose of reference as to how the rule of limitation is being followed in our state coupled with the view of the division bench decision of this court in Appu Ramani’s case (1 supra).

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14. The decisions relied upon by Sri Sudhakar Rao should now be seen. He placed strong reliance upon a decision of the threeJudge Bench of the Hon’ble Supreme Court given in Krishna Pillai v. T.A. Rajendra n^[5] (judgment dated 16.11.1989) in support of his contention that the date of filing is irrelevant and it is only the date of cognizance order passed by the court that is relevant for calculating limitation. The said case pertains to an offence under the Child Marriage Restraint Act, 1929. Section 9 of the said Act which prescribes the limitation for the offences under the said Act lays down “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”. In that case the date of cognizance was admittedly beyond limitation.

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15. A contention was raised in that case on behalf of the prosecution/ complainant that since the date of filing of the complaint was within time, the prosecution must be held to be within time on the ground that only that date is relevant for limitation for the offences under that Act. Rejecting that contention, the Hon’ble Supreme Court after quoting a previous decision of the Supreme Court as to what is meant by cognizance, observed as follows in expressing its opinion.

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“Taking cognizance has assumed a special meaning in our criminal jurisprudence. We may refer to the view taken by a five Judge bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak {(1983) 2 SCC 500: 1984 SCC (Cri) 277}. At

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p. 530 (para 31) of the reports this Court indicated:

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“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.”

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

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16. The above decision of the Supreme Court in Krishna Pillai’s case (5 supra) is also a decision rendered by a bench of threeJudges and this was, though a previously decided case, not taken to the notice of the learned Judges who decided the aforesaid other four cases which support the prosecution plea. There is no dispute that the expression “taking cognizance” means what is stated in the said decision and it is an act of the court as described in Bharat Damodar Kale’s case (2 supra).

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17. It should be noted that the decisions of the Supreme Court in Bharat Damodar Kale’s case (2 supra) and Japani Sahoo’s case (3 supra) are decisions of two-Judge Benches and Appu Ramani’s case (1 supra) is a decision of a Division Bench of this court. The petitioner’s counsel therefore asserts that the proposition laid down in Krishna Pillai’s case (5 supra) which is a decision of

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three-Judge Bench must prevail over the aforesaid three decisions and therefore the case should be quashed holding that it is the date of cognizance which is relevant for the purpose of limitation. He also relied upon the decision of a learned Single Judge of this Court given in Kimberly Clark Liver Limited, Maharashtra v. Stat e^[6] wherein also the decision in Krishna Pillai’s case (5 supra) was followed on the ground that it is the decision of a threeJudge Bench and consequently it prevails over the view in Bharat Damodar Kale’s case (2 supra) which was rendered by two-Judge Bench.

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18. It is true that Section 468 of the Code speaks of cognizance which is an act of the court or Magistrate and says that no court shall take cognizance of an offence mentioned therein after the periods prescribed therein regarding limitation and it does not speak of the date of filing of the case. However in the aforesaid three cases i.e. Appu Ramani’s case (1 supra), Bharat Damodar Kale’s case (2 supra) and Japani Sahoo’s case (3 supra) it was after considering limitation provisions in the Code held that the words that no court shall take cognizance of an offence occurring in Section 468 of the Code must be interpreted as meaning that no court shall take cognizance of a case relating to the offences for which limitation is prescribed when the complaints/ charge sheets relating to the same are filed beyond the period of limitation. It was also held that the legislature by Section 468 Cr.P.C cannot be understood to have placed any fetter or restriction on a court to take cognizance of a case once it is filed in time. The decision in Rashmi Kumar’s case (4 supra) is also a decision of three-Judge Bench and it also concluded that it is only the date of filing of the complaint that has to be taken into account for calculating

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limitation but in this case reasons were not elaborately given for reaching that conclusion as they were given in the aforesaid other three cases.

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19. Thus in the light of the reasons given in the four decisions which are in my notice, and the reasons given in the two decisions cited by Sri Sudhakara Rao, it is now proposed to answer the questions as to which view this court should follow or whether the matter should be referred to a Division Bench or a larger Bench on the point. At the risk of repetition, it should be noted that the reasons given in Bharat Damodar Kale’s case (2 supra) and Japani Sahoo’s case (3 supra) which are based on the rule that taking cognizance of a matter is an act of the court or Magistrate which are within their exclusive domain and over which the party or the investigating agency filing the case have no control and that further the legislature by reason of limitation provisions in the Code cannot be said to have intended to place any fetter or restriction on the power of the court or Magistrate to take cognizance and that therefore the rule that the date of filing of the charge sheet or the case should be treated as relevant date for computing the limitation under Section 468 of the Code can be said to be clearly in the interests of administration of criminal justice system. The same conclusion was reached earlier in Rashmi Kumar’s case (4 supra) which is a decision of a three-Judge Bench of the Supreme Court.

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20. In fact the report given by the trial court which I have already mentioned regarding the delay in taking cognizance of the present case though it was filed in time would show that the charge sheet was returned on some occasions for rectification of defects and there was also change in jurisdiction of the courts and the delay

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also occurred in getting the records from the earlier court which had jurisdiction. This report also shows that no investigating agency or complainant can have control over the said aspects and they are exclusively within the domain of the Magistrate or court and it was for this reason Rule 84 of the Criminal Rules of Practice in force in our State was also framed and this is already mentioned.

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21. It may be noted that the general rule is that when a crime is committed it is treated as committed not only against the immediate victim of the crime but also against the society at large and the State has got a fundamental duty to maintain law and order and the judiciary including the subordinate judiciary is considered as a branch of the State while the other two being the Legislature and the Executive. The above rule regarding limitation laid down in the aforesaid four cases which do not support the petitioner’s contention can therefore be said to be conducive and helpful to the effective administration of criminal justice. In Krishna Pillai’s case (5 supra) their Lordships did not consider provisions of the Code regarding limitation and also the above reasoning which was given by their Lordships in Bharat Damodar Kale’s case (2 supra) and Japani Sahoo’s case (3 supra). As against the view expressed in Krishna Pillai’s case (5 supra) there is the contrary view expressed in Rashmi Kumar’s case (4 supra) which is also a three-Judge Bench decision which supports the view that it is only the date of filing of the complaint that is relevant for limitation. Therefore the contention of the petitioner’s counsel that the view expressed in Krishna Pillai’s case (5 supra) should be followed as it is a decision of the three-Judge Bench of the Supreme Court cannot by itself have any weight.

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22. Regarding precedents and how they should be followed in the event of any divergence of opinion between two judgments rendered by co-equal benches of the Supreme Court, the opinion given by a division bench of this court in Jonnalagadda Samrajyam v. Registrar, The Special Court constituted under A.P. Land Grabbing (Prohibition) Act^[7] is relevant. In the said decision after relying upon a full-bench decision of this court in Ushodaya Enterprises Ltd. v. Commissioner of Commercial Taxes^[8] it has been held that the high court can follow that view which stands to reason and which gives purposive interpretation to the statutory provisions can be followed. Thus going by this division bench decision I am of the opinion that the view taken in the aforesaid four cases mentioned by me should be followed in preference to the view expressed in the cases cited by Sri Sudhakara Rao and there is no need to refer the matter to a division bench or a larger bench as there is already a division bench decision of this court in Appu Ramani’s case (1 supra) which has taken the same view.

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23. Thus the legal position would be that it is only the date of filing of the charge sheet/ complaint which is relevant for calculating the limitation under Section 468 of the Code. In the present case as the charge sheet has been admittedly filed within time, it follows that the petitioner’s contention that the case is barred by limitation is accordingly rejected.

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24. One more contention which has been raised by Sri Sudhakara Rao is that the de facto complainant/victim is now dead and therefore the case should be quashed on that ground as no body is showing interest in the matter. It may be noted that a criminal offence will never abate or get wiped out because of the

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death of the de facto complainant/ victim and the witnesses cited in the charge sheet may speak about the same or the prosecuting agency may take steps to prosecute the matter by examining the other suitable witnesses. It is ultimately for the trial court before which the prosecution is pending to decide the matter. Thus this argument of Sri Sudhakara Rao is also rejected.

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25. Accordingly this criminal petition is dismissed.

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______________________ N. RAVI SHANKAR, J

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6^th January 2012 Cvrk/Tjmr

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