Mahendra Kumar Lohia and Others vs Sitaram More

S.N. Phukan, J.—This application u/s 482 of the Code of Criminal Procedure, 1973 is for quashing the criminal proceeding registered as C.R. Case No. 3260 of 1984 pending before the learned Judicial Magistrate, 1st Class, Nowgong.

Briefly stated the facts are as follows :

The petitioner No. 1 herein filed a complaint petition on 3-8-1981 u/s 407/34, IPC against the opposite party herein along with three other persons. Finally the above petition came up before the learned court on 21-9-1984 and on that date the complaint was dismissed for non-appearance of the complainant, namely the petitioner No. 1 herein. Thereafter, the present complaint was filed by the opposite party on 7-11-1984 u/s 500/34, IPC against the petitioner No. 1 and other two persons, viz:-- petitioners No. 2 and 3 before this court. The complaint petition filed in the present proceeding is at Annexure-II and the initial statement is at Annexure-III to this petition. By the impugned order dated 7-11-1984 passed in the present criminal proceeding, the learned Judicial Magistrate after recording the statement of the complainant directed issuance of summons u/s 500/34, IPC against all the three petitioners herein. Hence the present petition.

Dr. Sarma, learned counsel for the petitioners averred that in view of Section 468, Cr.P.C. the present complaint petition is barred by limitation, inasmuch as the original complaint by the petitioner No. 1 herein was filed on 3-8-1981, whereas the present petition was filed on 7-11-1984, i.e. more than three years after the cause of action. On the other hand Mr. A.C. Sarma, learned counsel for the respondent has urged that as the final order in the earlier case was passed on 21-9-1984, the present petition was within time as on and from the said date, the cause of action arose in view of the final order passed.

u/s 500, IPC the maximum period of imprisonment is two years. Section 468, Cr.P.C. is a bar to taking cognizance after the period of limitation as specified in the said section. The period of limitation for the present offence is three years in view of the maximum punishment u/s 500, IPC (Clause (c) of Sub-section (2) of Section 468). In this connection, Mr. Sarma has placed reliance in the decisions of the Apex Court.

The first decision referred to is Surinder Mohan Vikal Vs. Ascharaj Lal Chopra, In that case also the order of Magistrate was challenged on the ground that the Magistrate could not take cognizance of the offence u/s 500, IPC as the period of limitation prescribed by Section 468, Cr.P.C. had expired. It may be stated that the High Court overruled the objection on the ground that cause of action arose on the date when the earlier case was finally decided. This view of the High Court was rejected by the Apex Court, holding that the limitation will start from the date of filing of earlier complaint petition and not from the date of final disposal of the case. The relevant portion in paragraph 6 of the judgment runs as follows (at page 765 of Cri LJ) :--

As has been stated, Sub-section (1) of Section 469 of the Code specifically provides that the period of limitation prescribed in Section 168, in relation to an offender, shall commence (inter alia) on the date of the offence. It would therefore follow that the date of the offence was March 15, 1972, when the defamatory complaint was filed in the court of the Magistrate, and that was the starting point for the purpose of calculating the three years''s period of limitation. The High Court clearly erred in taking a contrary view.

Mr. Sarma also placed reliance in other decision of the Apex court.

Viz :-- State of Punjab Vs. Sarwan Singh, and two decisions of this Court, viz :-- State of Assam v. Abdul Samad (1985) 2 GLR 500 and Ramasanehi Mittal v. State of Assam (1987) 1 GLR 266.

I need not quote the ratio laid down in the above three decisions placed before this court as the present case is sqarely covered by the decision of the Apex Court in S M Vikal (Supra).

Situated thus, I hold from the reading of Sections 469 and 468, Cr.P.C. that for the purpose of limitation as specified in Section 468, Cr.P.C. the limitation starts on the date of the offence or where the commission of the offence was not known to the person aggreived by the offence, the first day on which such offence comes to the knowledge of such person or where it is not known by whom the offence is committed, the first day on which the identity of the offender is known to the person aggrieved by the offence. In the case in hand the alleged offence u/s 500, IPC came to the knowledge of the opposite party on the date when the complaint was filed, i.e. on 3-8-1981. As stated above, the period of limitation prescribed u/s 468, Cr.P.C. for the present offence is three years. But the present complaint petition was filed on 7-11-1984 and as such it is clearly barred u/s 468, Cr.P.C. and no court can take cognizance of such offence.

In view of the above, the impugned order being an illegal one cannot stand.

Accordingly, the petition is allowed by quashing the impugned criminal proceeding/ and the rule is made absolute.