Aru vs State

Arunachalam, J.—The only ground raised in this revision is that the impugned prosecution against the Petitioner pending in C.C. No. 562 of

1990 on the file of the Judicial Magistrate No. VII, Coimbatore, is barred by limitation.

Facts, in brief, will have to be stated to appreciate this legal contention. Petitioner was involved in an occurrence which had taken place on

27.8.1987 leading to registration of a crime on the same day for offences punishable under Ss.279, 337, 338 and 304-A, I.P.C. Learned

Magistrate has taken on file the final report on 12.10.1990. On that day, Magistrate has ordered issue of summons to the Petitioner and had

posted the case for further proceedings to 25.10.1990. The offences taken cognizance of are punishable under Ss.279, 304- A, 337 and 338,

I.P.C. An offence u/s 279, I.P.C. is punishable with imprisonment which may extend to six months or with fine which may extend to one thousand

rupees, or with both. An offence u/s 304-A, I.P.C. is punishable with imprisonment which may extend to two years or with fine, or with both. The

punishment prescribed for an offence u/s 338, I.P.C. can extend to two years'' imprisonment or fine which may extend to one thousand rupees, or

both. The maximum punishment prescribed for an offence u/s 337, I.P.C. is imprisonment which may extend to six months or fine which may

extend to five hundred rupees, or both. It is, therefore, apparent that the offence u/s 304-A, I.P.C. in this group of offences, is the one punishable

with maximum imprisonment.

u/s 468, Code of Criminal Procedure there is a bar for taking cognizance of offences contemplated therein after lapse of period of limitation. u/s

468-(2)(c), the period of limitation fixed is three years, if the offence is punishable with imprisonment for a term exceeding one year, but not

exceeding three years. Section 468(3) makes it abundantly clear that for the purpose of reckoning the period of limitation in relation to offences

which may be tried together, it shall be determined with reference to the offence which is punishable with more severe punishment or, as the case

may be, the most severe punishment. On facts detailed earlier, learned trial Magistrate ought to have taken cognizance of this group of offences

before the expiry of three years from the date of commission of the offences, or where the commission of the offences, was not known, from the

first day on which such commission such offences had come to the knowledge of the person aggrieved or the police officer. There cannot be any

dispute that even on the date of commission of offences, the Respondent had become aware of the same, since the first information report was

registered on the very same day. It is apparent, that for an occurrence which had taken place on 27.8.1987, of which the Respondent had

knowledge on the same day, final report ought to have been filed on or before 26.8.1990, to facilitate cognizance by the Magistrate within the

period prescribed u/s 468, Code of Criminal Procedure Obviously, that was not done, for the final report was presented on 8.10.1990 before the

Magistrate and cognizance was taken on 12.10.1990.

This objection of limitation bar was raised before the learned Magistrate, who had negatived the plea on the ground, that initially the final report

had been presented before Court on 7.6.1989 and was returned by the Magistrate on 23.6.1989 to get the approval of the Assistant Public

Prosecutor in charge and therefore the date of presentation of the charge-sheet (final report) must be taken as the reckoning period to calculate

limitation and if that be so, prosecution had been initiated well within time.

After hearing learned Counsel for the Petitioner and learned Additional Public Prosecutor, I am satisfied that the impugned order of the

Magistrate cannot be sustained. The following facts are not in dispute:

(a) Occurrence had taken place on 27.8.1987 and the prosecuting agency became aware of the occurrence on the very same day.

(b) Final report was filed on 7.6.1989 which was returned on 23.6.1989 for getting the approval of the Assistant Public Prosecutor concerned.

The Respondent has taken his own time for over a year and four months to re-presented the charge sheet and only on 8.10.1990 it was received

by the Magistrate over again.

(c) Application of mind by the Magistrate to proceed to issue process to the accused, was only on 12.10.1990.

The question to be considered is whether mere presentation of a final report before the Magistrate concerned will be sufficient to save limitation

contemplated u/s 468, Code of Criminal Procedure or the date of reckoning limitation must relate to cognizance being taken by the Magistrate.

Section 468, Code of Criminal Procedure is very specific that except as otherwise provided elsewhere in the Code, no Court shall take

cognizance of an offence of the category specified in sub-S. (2), after the expiry of the period of limitation. Apparently, the bar contemplated must

be correlated to taking cognizance of an offence by a Court. If that be so, cognizance had been taken by the Magistrate only on 12.10.1990,

nearly 11/2 months after the prosecution was barred by limitation.

If the object of the legislature was to reckon limitation on the mere presentation of the complaint, it would have been so stated in the section. A

reference can be made to Section 142 of the Negotiable Instruments Act relating to cognizance of offence, which reads as follows:

Notwithstanding anything contained in the Criminal Procedure Code, 1973,

(a) no court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may

be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138.

This section only specifies of complaint being made within the prescribed period, and not of cognizance being taken by the Magistrate, within one

month.

Let us now scrutinise, as to the meaning attributable to the words taking cognizance"". In Krishna Pillai v. T.A. Rajendran , the Apex Court

observed that taking cognizance has assumed a special meaning in our criminal jurisprudence. They have referred to the view taken by a five Judge

Bench in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, which reads as hereunder:

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, Code

of Criminal Procedure. 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.

In the opinion of the Supreme Court, filing of a compliant in Court was not taking cognizance and what exactly constituted taking cognizance was

different from filing of a complaint.

""Taking cognizance"" which is a judicial function means, judicial application of mind by the Magistrate to the facts mentioned in the complaint with

a view to taking further action. In other words, these words denote that the Magistrate, after becoming fully aware of the allegations made in the

complaint, decides to examine and test the validity of the said allegations and chooses to issue process to the accused. There can be no doubt that

the question as to when cognizance is taken of an offence will depend upon circumstances of each case and it will not be possible to attempt to

carve out an infallible formula for universal application on such ""taking of cognizance"". It can positively be stated, that if the Magistrate had applied

his mind judicially to proceed further on the allegations made in the complaint, he had taken cognizance. To put it differently, the Magistrate must

have applied his mind to the offences mentioned in the complaint or the report, for the purpose of proceeding in a particular way as indicated in the

several provisions concerning trials and enquiries in the Code of Criminal Procedure. All that Section 190, Cr.P.C, provides for taking cognizance

of offences by Magistrates, is not exhaustive. However, cognizance can be taken on the complaint of an aggrieved person or a police report or

upon other information. In Jamuna Singh and Others Vs. Bhadai Sah, , the Apex Court has observed, that when a Magistrate takes cognizance of

an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate''s Court and such a case is one

instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police

officer, it is a case instituted in the Magistrate''s Court on a police report. Thus as far as cognizance is concerned, be it on a complaint of facts or

on a police report, it cannot have different meaning.

In Krishna Pillai v. T.A. Rajendran referred to earlier, Supreme Court concluded that since the magisterial action 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. In that

case, a complaint was filed within the period of limitation, but cognizance was taken after the expiry of the period of limitation. It was under those

circumstances that the Supreme Court held that taking cognizance was different from mere filing of a complaint.

On the law laid down by the Supreme Court, it is apparent that mere presentation of a final report will not save limitation and limitation bar will

have to be reckoned from the date of taking cognizance of the offence by the Magistrate. Learned Additional Public Prosecutor has brought to my

notice that final reports presented before Magistrates are haphazardly returned without any purpose and before the same is resubmitted, the period

of limitation gets expired. Unless specific details are available, it would be too difficult to conclude, if in a given case return of the final report by the

Magistrate for proper presentation was justified or not. However, the Magistracy, the investigating agency and the prosecuting agency in the Court,

must be aware of the application of law of limitation and its link to cognizance contemplated u/s 468, Code of Criminal Procedure Mechanical

return of final reports as though a ritual, should be avoided and equally while returns are made purposefully, the investigating agency and the

prosecuting agency must re-present the final reports within time, to save limitation. As I have stated earlier, on facts in the instant prosecution, the

investigating agency and the prosecuting agency had gone to slumber for about a year and four months before the final report was re-presented.

Invoking of the provisions u/s 473 Cr.P.C., was not even sought. As much as the liberty of the citizen is bound to be safeguarded, the interest of

Society requires equal protection. To that end, all agencies concerned in bringing the offender before court, and the Court as well, must perform

their duties diligently and should not allow prosecutions to be closed purely due to lethargy, total purposelessness in action or probable wilful

support to free the accused from the clutches of law, on technical grounds. The impugned prosecution is hopelessly barred by limitation. On that

sole ground, all further proceedings in C.C. No. 562 of 1990 on the file of the Judicial Magistrate No. VII, Coimbatore, shall stand quashed.