Kathamuthu vs Balammal

Ratnavel Pandian, J.—The above matter is placed before us on a reference made by S. A. Kader, J., for decision on the following question,

viz., where the launching of a criminal prosecution is after the lapse of the period of limitation prescribed under S. 468, Cr.P.C., can the court

condone the delay after taking cognizance of the offence, or whether such condonation of delay should precede the taking cognizance of the

offence, since there is a cleavage of opinion on this question.

Before answering this question, we have to go into the scope and intendment of the newly introduced provisions contained in Ss. 467 to 473

coming under Chapter XXXVI with the caption ""Limitation for taking cognizance of certain offences"" in the Criminal PC 1973, (Act II of 1974).

These provisions prescribe various periods of limitation for launching a criminal prosecution in certain categories of cases. Under the old Code, no

period of limitation was prescribed for launching a prosecution and the court would not throw out a private complaint or police report solely on the

ground of delay though inordinate delay might be a ground for doubting the prosecution version. It would be apposite in this connection to recall a

critical view expressed by the Supreme Court in Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, about the delay in

launching a prosecution, observing :

The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict.

The general rule of limitation is contained in, the Latin Maxims ""Vigilantibus et non, Dormientibus Jura Subveniunt"", meaning ""the vigilant, and not

the sleepy, are assisted by the laws."" In other words, in all actions, suits and other proceedings at law and in equity, the diligent and careful plaintiff

is favoured to the prejudice of the person who is careless. But, an exception is made in favour of the Crown : Nullum Tempus Aut Lucus occurrit

Regi"" meaning that no time runs against, or place affects, the king. This implies that there can be no laches on the part of the king, i.e. the State and

that therefore no delay will bar his/its right. However, the new provisions under sections 467 to 473 of the Code, prescribing the periods of

limitation in certain categories of cases, having regard to the gravity of the offences and other relevant factors, have been introduced for the first

time in the Criminal Procedure Code, as the Joint Select Committee thought desirable that the Code of Criminal Procedure of India should contain

such periods of limitation as recommended by the Law Commission after taking into consideration the position of law in this respect prevailing in

many other countries of the world. Of these sections, S. 467 defines of the expression ""period of limitation"". Section 468 provides that except as

otherwise provided elsewhere in the Code, no court shall take cognizance of an offence of the category specified in sub-section (2) thereof, after

the expiry of the period of limitation. Section 469 speaks about the commencement of the period of limitation. Section 470 enumerates how the

period of limitation has to computed. Section 471 provides for the exclusion of the date on which the court is closed. Section 472 states how the

period has to be computed in the case of continuing offences. Section 473 provides for extension of the period of limitation in certain cases. The

Parliament, by Act XII of 1974, viz., the Economic Offences (Inapplicability of Limitation) Act, 1974, has made Chapter XXXVI of Act II of

1974 inapplicable to economic offences under specific Acts with effect from 1-4-1974.

As we are now concerned only with the limited question as to whether the condonation of delay, if any, in launching a criminal prosecution

beyond the period of limitation prescribed under the Code, should precede the taking cognizance of the offence, it is not necessary for us to make

a roving enquiry about the intendment of all the sections coming under Chapter XXXVI, but suffice it to examine the scope of Sections 468 and

473 in the above background.

Section 468 reads as follows :-

Bar to taking cognizance after lapse of the period of limitation -

(1) Except as otherwise provided elsewhere in this Code, no court shall take cognizance of an offence of the category specified in sub-section (2),

after the expiry of the period of limitation.

(2) The period of limitation shall be -

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, 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.

The period of limitation prescribed in the above Section is, however, subject to S. 473 whereunder the court is given a discretionary power to take

cognizance of an offence after the expiry of the period of limitation, on the Court being 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. Reference can be made in this connection to

A.K. Thaga Pillai and Others Vs. Superintendent, Regulated Market of the South Arcot Market Committee, . A plain reading of S. 468 would

show that except as otherwise provided elsewhere in the Code, such as the periods prescribed under sections 84(1), 96(1), 198(6), 199(5),

378(5) and 457(2) and the proviso to S. 125(3). No Court shall take cognizance of an offence of the category specified in sub-section (2) after

the expiry of the period of limitation. Therefore, S. 468 clearly bars every court from taking cognizance of the categories of offences in respect of

which the periods of limitation are prescribed under sub-section (2) of that section, after the expiry of such periods of limitation. In other words, if

a prosecution is launched after the expiry of the period of limitation in the above categories of offences, the court cannot take cognizance of the

offence. In this connection, reference can be had to the following observations made by the Supreme Court in Surinder Mohan Vikal Vs. Ascharaj

Lal Chopra, :

It would thus appear that the appellant was entitled to the benefit of sub-section (1) of Section 468 which prohibits every court from taking

cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that

statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from

unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because

of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed u/s 468 of the Cr.P.C. and

there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case.

However, the bar u/s 468 is subject to the provision contained in S. 473, which reads thus :

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.

The Supreme Court, in a recent decision viz., Bhagirath Kanoria and Others Vs. State of M. P., , taking into consideration the intendment of the

non obstante clause occurring in S. 473, Cr.P.C., reading ""notwithstanding anything contained in the foregoing provisions of this Chapter"", has

observed thus :

Before we close, we consider it necessary to draw attention to the provisions of Section 473 of the Code which we have extracted above. That

section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of

the Code, any court may take cognizance of an offence after the expiry of the period of limitation if, inter alia it is satisfied that it is necessary to do

so in the interest of justice. The hairsplitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing

nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of

the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in

cases of this nature, courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight

and consideration to the provisions contained in Section 473 of the Code.

The heading of this section, viz., ""extension of period of limitation in certain cases"" implies that the Court is vested with the power of extending the

prescribed period of limitation by condoning the delay in certain contingencies. The two contingencies mentioned in the section are : (1) where the

court is satisfied, on the facts and in the circumstances of the case, that the delay has been properly explained; and (2) where the court is satisfied,

on the facts and in the circumstances of the case, that it is necessary so to do in the interests of justice. The question is whether the court would be

competent to condone the delay and thereby extend the period of limitation after taking cognizance of the offence.

The Supreme Court in State of Punjab Vs. Sarwan Singh, , has pointed out the object of section 468 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 statute seeks to subserve is clearly in consonance with the concept of

fairness of trial as enshrined in Art. 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. The prosecution

against the respondent being barred by limitation, the conviction as also the sentence of the respondent as also the entire proceedings culminating in

the conviction of the respondent herein is non est.

Thus, the Supreme Court has gone to the extent of saying that the object of Section 468 is in consonance with the concept of fairness of trial as

enshrined in Art. 21 of the Constitution of India and that any proceeding culminating in the conviction in a criminal case, which has been taken

cognizance of after the expiry of the period of limitation, is non est.

""In Jagmohan Vs. The State, Luthra, J., has quoted the observation of the Division Bench of the Delhi High Court in State v. Anil Puri Criminal

Appeal No. 389 of 1977 viz., that ""once cognizance is barred in favour of a person, he acquires a valuable right, this right cannot be taken away

except under law.

6A. S. Natarajan, J. in Sulochana Vs. State Registrar of Chits (Investigation and Prosecution), , expressed his view as follows :

There is nothing in section 473 of the Code, which is an overriding provision, to show that the Court''s powers to extend the period of limitation

are limited in any manner with reference to time factor. Section 473 begins with the words ''notwithstanding anything contained in the foregoing

provisions of the chapter ....'' Correspondingly, section 468 also makes the provisions of limitation in the section subject to the other sections in the

Code. I do not therefore, find any basis either in S. 468 or in S. 473 to sustain the contention that the powers of a court to condone the delay in

the filing of a complaint where such condonation is called for in the interest of justice, or on account of a proper explanation for the delay, are

exercisable only before a complaint is taken on file and not thereafter. As a matter of fact, in the case cited by petitioner''s counsel itself Krishna

Sanghi and Others Vs. The State of Madhya Pradesh, , the learned Judge has observed that on ground of natural justice the accused persons also

must be heard before passing an order of condonation of delay u/s 473. If the accused is to be heard, notice has to be issued to him, and I fail to

see how notice can be issued to him unless the court takes the complaint on file. A safe and harmonious interpretation of Ss. 468 and 473 of the

Code, in may opinion, will be that, when a complaint is preferred by anyone, whether it be by an aggrieved person or otherwise, the court can take

cognizance of the offence or offences complained of therein, subject to defeasance of the complaint and the cognizance on the ground of the

limitation. After a notice is issued to the accused and he appears in court, the court can hear him also on the question of limitation and then pass an

order in accordance with the facts of the case and the needs of the situation.

In Krishna Sanghi and Others Vs. The State of Madhya Pradesh, , it was held that in view of the mandatory bar contained in S. 468 to the court

taking cognizance of the offences after the lapse of the period of the period of limitation, the overriding powers granted in S. 473 of the Code can

be brought into play only before cognizance of an offence is taken and not subsequently. It was further held that if the court acts otherwise, it

would be clearly acting without jurisdiction. S. Natarajan J., has expressed his disinclination to share this view.

A learned single Judge of the Gujarat High Court in Sureshbhai K. Desai Vs. State of Gujarat, , has also taken a similar view, observing thus :

Therefore, it cannot be said now that because the court has earlier taken cognizance without considering the provisions of the Limitation Act, all

the proceedings are non est .....

In that judgment, the learned Judge has also referred to the decision of S. Natarajan, J., Sulochana Vs. State Registrar of Chits (Investigation and

Prosecution), .

In Jagannathan and Others Vs. The State, wherein the judgment was rendered by one of us (Ratnavel Pandian, J.) the action of the Magistrate

in taking cognizance of the offence in that case beyond the period of limitation prescribed u/s 468(2) of the Code and without condoning the delay

by resorting to S. 473, and the subsequent proceedings, were quashed on the ground of illegality. However, in that judgment, the question whether

the Magistrate was competent to condone the delay after taking cognizance of the offence or not did not come up for consideration. S. A. Kader,

J., on whose order this reference has been made to us, has expressed his view on this legal aspect in the following words :-

A mere reading of the Section (Section 473) would itself show that a court can take cognizance of the offence after the period of limitation only

after condoning the delay. In other words, the condonation of the delay must precede the taking cognizance of the offence. To say that the court

has power to exercise the jurisdiction vested in it u/s 473 of the Code of Criminal Procedure after taking cognizance of the offence could mean that

this power can be exercised at any stage, i.e., even at the time of delivering the judgment after trial. That cannot be the intendment of the

Legislature. In my view, it is incumbent upon every Magistrate before taking cognizance of a complaint to apply his mind to the question of

limitation and if Prima Facie the complaint is out of time, to decide the question of limitation after due notice to the complaint and to the accused. I

am unable to visualise any difficulty in issuing notice to the accused before taking the complaint on file by giving a Criminal Miscellaneous number

and hearing the parties on the question of limitation, as is done u/s 5 of the Limitation Act.

However, in view of the contrary view held by S. Natarajan, J., and in view of the importance of the matter, I think an authoritive pronouncement

by a larger Bench is necessary.

It is only on such a reference, this matter has been posted for decision before us.

Before deciding the question referred to us, we shall now advert to some of the decisions rendered by the Supreme Court and the various High

Courts, dealing with the newly introduced provisions of the Criminal Procedure Code coming under Chapter XXXVI.

The Supreme Court has occasion to examine the import of Sections 468 and 473 in Surinder Mohan Vikal Vs. Ascharaj Lal Chopra, . The

brief facts of that case were as follows. The appellant in that case filed a complaint in the Court of the Judicial First Class Magistrate, Ambala

against the respondent and another for the commission of an offence under sections 406 and 420, I.P.C. The Magistrate convicted the respondent

and another and sentenced them to suffer regorous imprisonment for one year and to pay a fine of Rs. 1,000/-. On appeal they were acquitted and

the order of acquittal was upheld by the High Court. Thereafter the respondent Chopra filed a complaint against the appellant S. M. Vikal for the

commission of the offence u/s 500, I.P.C. The Magistrate took the case on his file and issued summons for the appearance of the appellant. The

appellant applied to the High Court u/s 482, Cr.P.C., for quashing the Magistrate''s order taking cognizance of the offence against him on the

ground that the cognizance of the offence had been taken in that case after the expiry of the period of limitation. The High Court rejected that

application. Hence he preferred an appeal before the Supreme Court. Their Lordships, having regard to the facts of the case, allowed the appeal

and quashed the proceedings on the ground that the provision of sub-section (1) of Section 470 could not avail the respondent and he was not

entitled to the exclusive of time therein, and it was observed :

It may be mentioned that the respondent has not sought the benefit of Section 473 which permits the extension of the period of limitation in certain

cases. It would thus appear that the appellant was entitled to the benefit of sub-section (1) of Section 468 which prohibits every court from taking

cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation ....

A reading of the above decision would show that though the Supreme Court did not exhaustively deal with the scope of Sections 468 and 473 of

the Code, it has indicated that unless the complainant who launches the prosecution after the expiry of the period of limitation, seeks the extension

of the period of limitation by invoking S. 473, S. 468 will come into play. From this, it should be taken that the Supreme Court is of the view that

the condonation of delay should precede the taking cognizance of the offence.

In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , while examining the scope of S. 468 of the Code, the

Supreme Court has expressed its view as follows :

It is, therefore, to be seen that the undertrial prisoners against whom charge-sheets have not been filed by the police within the period of limitation

provided in sub-section (2) of section 468, cannot be proceeded against at all and they would be entitled to be released forthwith as their further

detention would be unlawful and in violation of their fundamental right under Article 21.

This observation shows that once the period of limitation has expired, the accused would be entitled to be released forthwith, as otherwise that

would be in violation of his fundamental right under Art. 21 of the Constitution and also against the intendment of S. 468(2). This implies that the

moment the period of limitation comes to an end, the court is prohibited from taking cognizance of the offence unless the period is extended by

condoning the delay by virtue of section 473.

Next, we shall refer to yet another decision of the Supreme Court in State of Punjab Vs. Sarwan Singh, . In that case, the respondent therein

accused was charged u/s 408, I.P.C., for misappropriating the amount deposited with him as a cashier of the Tanda Badha Co-operative Society,

District Patiala. The Trial Court acquitted the respondent of the charge u/s 408, but convicted him of the charge u/s 406 and sentenced him to

suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-. On appeal the High Court set aside the conviction and acquitted the

respondent mainly on the ground that the prosecution launched against the respondent was clearly barred by limitation under Secs. 468 and 469,

Cr.P.C. As against this, an appeal was preferred before the Supreme Court by the Appellant. The Supreme Court dismissed the appeal pointing

out that the object which the provisions of the Criminal P.C. dealing with limitation of prosecution seek to subserve, is clearly in consonance with

the concept of fairness of trial as enshrined in Art. 21 of the Constitution and holding that the point of law regarding the applicability of S. 468 of

the Code has been correctly decided by the Punjab and Haryana High Court in that case.

A learned single Judge of the Rajasthan High Court in Panney Singh and Others Vs. State of Rajasthan, has pointed out that there is legislative

interdiction u/s 468 for taking cognizance of an offence after the expiry of the period of limitation for presentation of the charge sheet, that if the

court finds that the period of limitation has expired, the Court shall see as to whether there are sufficient grounds for condonation of delay or for

extension of the period of limitation, that it is not necessary that there should be a separate application moved by the prosecution u/s 473, that the

delay may be explained in the charge sheet itself or the grounds for extension of the period of limitation may be stated in the charge-sheet itself and

that the extension of limitation may also be sought by a separate application accompanied by an affidavit or papers in support of the same.

Ultimately the learned Judge held thus :

In my opinion, in view of what I have discussed above, the court could not, subsequent to the passing of the order taking cognizance, condone the

delay and extend the period of limitation.

In Krishna Sanghi and Others Vs. The State of Madhya Pradesh, , it has been held that before taking cognizance of the offence, delay, if any, is

required to be condoned u/s 473 Cr.P.C. See also Asiatic Oxygen and Acetylene Co. Ltd. v. Registrar of Companies, West Bengal 86 Cal WN

128 : 1982 Cri LJ NOC 61.

The Andhra Pradesh High Court in Bharat Hybrid Seeds & Agro Enterprises v. State 1978 MLJ Cri 659, while dealing with the scope of S.

473, had stated thus :

In fact, section 468 imposes a bar on the court in taking cognizance of offences which are brought to its notice after the prescribed period of

limitation. However, section 473 enables the court to extend that period if it is satisfied that the delay has been properly explained. It must be noted

that once the period of limitation prescribed under the Code or any other law for launching a prosecution has expired, certain rights would accrue

to the accused to the effect that there would be no prosecution thereafter. It is true that the court is clothed with power to extend time if it so thinks

fit on the basis of the evidence adduced by the complainant. When the court extends that time, it means it is interfering with the rights of the

accused which have vested in him by virtue of the expiry of the period of limitation. Therefore, even though there is no rule of law requiring the

court to issue notice to the proposed accused and to give him an opportunity for meeting the case of the complainant in regard to the extension of

time, interests of justice and principles of natural justice require that the condonation of the delay and extension of time can be done only after

giving a reasonable opportunity to the proposed accused.

Though in the present case we are not going into the question as to whether notice should be given to the proposed accused before condonation of

delay, thereby giving him an opportunity of putting forth his plea, we are citing the above decision for the purpose of showing that this decision is to

the effect that condonation of delay should precede taking of cognizance of the offence. See also Jethmal Himmatmal Jain and others Vs. State of

Maharashtra, .

David Annoussamy J., in Ubaidur Rahman K. M. v. K. E. Theerthamalai Deputy Commercial Tax Officer 1984 MLW Cri 222, before whom

the decision in Sulochana Vs. State Registrar of Chits (Investigation and Prosecution), was cited, has expressed his view that he is not in full

agreement with the view taken in that case.

For all the discussions made above, we hold that S. 468(1) Cr.P.C. which prohibits every court from taking cognizance of the categories of

offences in respect of which the periods of limitation have been prescribed under sub-section (2) of that section, after the expiry of such periods of

limitation, vests a valuable right in the persons sought to be prosecuted. The main object of such a prohibition is to see that parties do not resort to

dilatory tactics and to shut out belated and dormant claims in order to save the accused persons from unnecessary harassment but to seek their

remedies within the statutory periods fixed by the legislature. As observed by the Supreme Court in State of Punjab Vs. Sarwan Singh, , this

object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 21 of the Constitution.

Therefore, it is of the utmost importance that any prosecution, whether by the State or by a private person, must abide by the letter of law and take

the risk of the prosecution failing on the ground of limitation. This valuable right accrued to an accused person cannot be allowed to be taken away

except by strictly satisfying the conditions prescribed u/s 473 and that too for proper reasons. Section 473, which is an exception to S. 468,

empowers the court to extend the period of limitation in certain cases, which power has to be exercised having regard to the facts and

circumstances of those cases. As the discretion granted u/s 473 is wider, the very width requires a corresponding caution on the part of the court

while exercising that power. Of course, it cannot be laid down by any hard and fast rule as to what constitutes sufficient reason to properly explain

the delay occasioned or as to what is necessary so to do in the interests of justice. It must be determined with reference to the facts and

circumstances of each particular case. In other words, the limitation of Court''s jurisdiction must obviously be dictated by the exigency of the

situation and fair-play and good sense have to be the only safeguard. This power must be exercised only in suitable cases where the court is

satisfied that the delay has been properly explained or it is in the interest of justice, because the court, being the legal custodian and guardian of the

rights of the citizens, has a primary obligation to protect them from vindictive or vexatious time-barred prosecutions, and the valuable vested right

should not be easily brushed aside or whittled down by indiscriminately exercising this discretionary power. When once the court is satisfied that

the delay has been properly explained or that it is necessary for the court so to do in the interests of justice, then there cannot be any restriction or

limit or fetter in the exercise of such power. Needless to say that the discretion should not be exercised in a capricious or arbitrary manner or for

fanciful reasons. This discretionary power vested in the court can be exercised by applying its mind to the facts and circumstances of the case and

considering the reasons offered by the complainant in justification of his request for condonation of delay, which reasons can be made either in the

complaint or the charge-sheet, as the case may be, or in a separate application filed for the purpose, or the Court itself may suo motu condone the

delay on its being satisfied, on the facts and in the circumstances of the case, that it has become necessary so to do in the interests of justice. In any

case, the exercise of the power u/s 473, extending the period of limitation by condoning the delay in launching the prosecution, should precede the

taking cognizance of the offence. See Prakash Chandra Sharma v. Kaushal Kishore , Roshanlal v. State 1977 Cri LJ NOC 255, A.K. Thaga Pillai

and Others Vs. Superintendent, Regulated Market of the South Arcot Market Committee, and Thambiran Achari v. State 1984 MLW Cri 175.

While so exercising such discretionary power, the court it obliged to record its order in writing, giving its reasons therefor. In our opinion, any

proceeding culminating in the conviction of a person in a criminal case, the cognizance of which has been taken after the expiry of the period of

limitation as prescribed under S. 468(2) without first resorting to S. 472, is non est in the eye of law. We, therefore, with profound respect to S.

Natarajan, J., are unable to share the view taken by the learned Judge in Sulochana Vs. State Registrar of Chits (Investigation and Prosecution),

holding that there is no basis ""either in Section 468 or in S. 473 to sustain the contention that the powers of a court to condone the delay in the

filing of a complaint ..... are exercisable only before a complaint is taken on file and not thereafter"" and that ""the court can take the complaint on file

and incidentally take cognizance of the offence or offences complained of therein subject to defeasance of the complaint and the cognizance on the

ground of limitation"" and that the delay can be condoned thereafter on issuing notice to the accused and hearing him, if he appears, on the question

of limitation.

In the result, the reference is answered accordingly and the matter will be placed before the learned referring judge for disposal.

Order accordingly.