Trinath Sahu and others vs State of Orissa

Dr.D.P.Choudhury, J.

This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “the Codeâ€) to quash the entire

proceeding against the petitioners vide G.R. Case No.236 of 1997 pending in the Court of the learned S.D.J.M., Berhampur including the order dated

30.01.2004 taking cognizance of offence under Section 63 of the Copy Right Act, 1957 (hereinafter called as “the Act, 1957â€) and issuance of

process.

Mr.Choudhury, learned counsel for the petitioners submitted that on getting credible information, the Crime Branch made raid over the printing

press of the petitioners for printing “Sachitra Madhu Barnabodha†in their printing press. According to him, the FIR was lodged against the

petitioners for forging the design of “Chhabila Madhu Barnabodha†published by Sri Debabrata Kar, proprietor of Orissa Book Emporium,

Cuttack-2. But actually, there is no forgery of any design of publishing “Sachitra Madhu Barnabodha†or pirating any contents or the design of

“Chhabila Madhu Barnabodhaâ€​.

Mr.Choudhury, learned counsel for the petitioners further submitted that although the FIR was lodged under Sections 420/469/471 IPC read with

Section 63 of the Act, 1957, there is no basis for filing charge sheet against the petitioners for commission of such offence. Moreover, learned

S.D.J.M., Berhampur took cognizance for the offence under Section 63 of the Act, 1957 vide order dated 22.01.2001 for which the punishment

prescribed is one year and the period of limitation for taking cognizance is up to three years whereas in the present case, the cognizance of offence

was taken long after three years of period of limitation. According to him, the order of taking cognizance is barred by limitation.

Mr.Choudhury, learned counsel for the petitioners contended that against the order dated 22.01.2001 passed by the learned S.D.J.M., Berhampur,

the petitioners have preferred Criminal Revision No.7 of 2002 (C.R.P. No.16/2001-GDC) before the learned 2nd Additional Sessions Judge,

Berhampur where the revisional Court allowed the revision and remitted the matter back to the learned S.D.J.M., Berhampur to pass an order afresh

on the question of limitation after hearing both parties.

Learned counsel for the petitioners submitted that learned S.D.J.M., Berhampur, after hearing both parties, passed order on 30.01.2004 confirming

his earlier order dated 22.01.2001 and took cognizance of the offence under Section 63 of the Act, 1957. Thereafter, against the said order dated

30.01.2004 passed by the learned S.D.J.M., Berhampur, the petitioners preferred Crl. Revision No.1/05 (Crl. R.P.19/04 GDC) before the learned

2nd Additional Sessions Judge, Berhampur and vide order dated 2.3.2005, learned 2nd Additional Sessions Judge, Berhampur confirmed the order

passed by the learned S.D.J.M., Berhampur against which the present CRLMC has been filed to quash the entire proceeding so also the order of

taking cognizance.

Mr.Choudhury, learned counsel for the petitioners assails the order dated 30.01.2004 taking cognizance, which has been duly confirmed vide order

dated 2.3.2005 on the ground that the period of limitation is to commence from the date of FIR or date of occurrence but not on the offence for which

the registration of the FIR was made. Moreover, he submitted that in the instant case, although there is registration of FIR under Sections 420/469/471

IPC read with Section 63 of the Act, 1957, but the investigation cumulated by filing charge sheet for the offence under Section 63 of the Act, 1957.

Although there is no provision in the Code giving time limit for investigation but there is provision for period of limitation under Section 468 of the Code

to take cognizance of the certain offences for which investigation has to be completed within the prescribed period. This aspect has not been gone

through by the Courts below for which the order of taking cognizance, which has been confirmed in the Criminal Revision, are all bad in law. The

condonation of delay under Section 473 of the Code cannot be construed sou motu by the learned Magistrate unless the prosecution explains the

delay. In the instant case, both the Courts below have committed error by not considering this aspect and observed that the delay has been explained

for which cognizance of the offence was taken. So, he submitted to quash the order of taking cognizance of offence and further proceeding in the

case.

Learned counsel for the petitioners, relying on the decision of the Hon’ble Supreme Court in the case of Shakuntala Devi and others â€" V-

Chamru Mahto and another; 2009(2) Supreme 198, submitted that even if a revision is filed against the order of taking cognizance, there is no bar for

filing of this CRLMC under Section 482 of the Code.

Learned Additional Standing Counsel submitted that the action of the Crime Branch is appropriate and legal because the copy right of “Chhabila

Madhu Barnobadha†is with Sri Debabrata Kar, Orissa Book Emporium, Cuttack. The FIR was registered under Sections 420/469/471 IPC read

with Section 63 of the Act, 1957 but after due investigation, the charge-sheet under Section 63 of the Act, 1957 has been filed against the petitioners.

It is true that the allegations were made for other offences along with said offence but proper investigation took some time upon which the charge

sheet was filed. Thus, the learned learned S.D.J.M., Berhampur rightly took cognizance of the offence under Section 63 of the Act, 1957 on

22.01.2001. As the investigation for other offences whose punishment is more than threeyears, there is no delay occurred to contend that the

impugned order of taking cognizance is barred by limitation.

Learned Additional Standing Counsel further contended that the impugned order of taking cognizance is not barred by law of limitation even if there

is delay in taking cognizance of the same, the same is also condoned by the learned Court below under Section 473 of the Code for which there is no

defect in the impugned order. It is needless to say that the ingredients of Section 63 of the Act, 1957 have been well founded for which there is a

prima facie case made out against the petitioners basing on which learned Magistrate, after application of judicial mind, has taken cognizance of such

offence and issued process. In toto, learned Additional Standing Counsel submitted that the impugned order of taking cognizance is correct and legal.

DISCUSSIONS

Sections 468, 469, 470 and 473 of the Code are reproduced below for better appreciation:-

“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 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 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.

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 the offence or to any police officer, the first day on which such

offence comes to the knowledge of such 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.

Exclusion of time in certain cases.

(1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a

Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless

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.

(2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of

limitation, the period of the 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.

(3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent or sanction

of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the

period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.- In computing the

time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining

the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded.

(4) In computing the period of limitation, the time during which the offender-

(a)has been absent from India or from any territory outside India which is under the administration of the Central Government, or

(b) has avoided arrest by absconding or concealing himself, shall be excluded.

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.â€​

From the aforesaid provisions of the Code, it is made clear that no Court would take cognizance of offence after the period of limitation as prescribed

under Sub-section-2 of section 468 of the Code if the punishment for the said offence is within the prescribed limit. Similarly, Section 470 of the Code

enshrines that while computing the period of limitation, the time during which any person has been prosecuting with due diligence with another

prosecution in other case shall be executed. Moreover, any order of stay or injunction passed by the court shall also must be excluded. It is also clear

that the time taken by the Government to obtain sanction for prosecution must be excluded. Section 473 allows the Court to take cognizance of such

offence beyond the period of limitation if it is satisfied on facts and circumstances that the delay has been properly explained or it is necessary to do so

in the interest of justice. On the other hand, provisions of law direct that the cognizance of the offence can be taken after the period of limitation

provided the same has been explained properly by prosecution or the facts of the case compel the Court to take cognizance of offence in the interest

of justice.

It is reported in the case of State â€"V- Sahadev Dala; 1990 CRI. L.J. 1581, where this Court has held that where the offence report under

Section 27(b) of the Orissa Forest Act, 1972 was filed on 23.09.1979 and cognizance of offence under section 27(3)(b) was taken on 17.09.1980

where the limitation period for the same offence would be three years because of the sentence of imprisonment has been prescribed for such offence

is two years.With due regard to the above decision, it appears that the offence of which the cognizance is taken is the relevant factor to determine the

period of limitation.

The period of limitation ordinarily commence from the date of offence or where the commission of offence is not known, the first day on which

the offence came to the knowledge of the complainant or the investigating agency. Moreover, where the offender is not known, the date of limitation

will start from the date when the offender is identified.

Now, adverting to the present case, it is admitted fact that the offence was reported to the police on 18.03.1997 by the Crime Branch but after due

investigation, charge sheet submitted on 22.01.2001 and on the same day, cognizance was taken. Thus, it appears that the cognizance of offence

under Section 63 of the Act, 1957 was taken long after three years of the occurrence took place or the matter reported to the police.

According to Section 468 of the Code, the period of limitation is three years if the imprisonment of an offence is for a term exceeding one year but

not exceeding three years. It is reported in the case of Sarah Mathew â€"V- Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian

and others; (2014) 2 SCC 62 and at paragraphs-15, 16, 17 and 18, the Hon’ble Supreme Court has held in the following manner:

“15. 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 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 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 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 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

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.

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.

It is true that in Bharat Kale and Japani Sahoo this Court has referred to two important legal maxims. We may 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 Maximsâ€​ (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, 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.†With due regard to the aforesaid decision, it is clear that the date of filing of the complaint basing on which criminal

proceedings are initiated is material but not the date on which the cognizance was taken.

Since more than three years have lapsed in the case at hand, the impugned order of taking cognizance is placed below for reference:

“.......It is well settled in law that where the offences alleged in the complaint to be tried jointly, the period of limitation is to be determined on the

basis of the more sever punishment. Originally, this case was registered u/ss. 420/469/471 of IPC and u/s. 63 of the Copy Right Act, 1957, and

investigation started, in respect of the said offences, out of which, the offence u/s. 420 of the IPC involves imprisonment for seven years and fine. As

per the provisions u/s 468 of Cr.P.C., there is no limitation for submission of charge-sheet after investigation in respect of the offence involving

imprisonment for more than three years. Thus, I am of the opinion that the bar u/s 468 of Cr.P.C. is not applicable to the present case. So on

consideration of the facts and circumstances of the present case, I find that the delay in filing the charge-sheet has been properly explained and for

the interest of justice, the delay in filing the charge-sheet is required to be condoned. Accordingly, the petition u/s 473 of Cr.P.C. filed by the I.O. is

allowed and the delay in filing the charge-sheet is condoned.

Thus, it is clear from the aforesaid impugned order passed by the learned Magistrate that he has not given attention to the offence on which charge

sheet was submitted and the order of cognizance was taken. But he has paid attention to the offence on which the FIR was lodged because one of the

offence alleged is Section 420 IPC for which the prescribed punishment is imprisonment for seven years. Keeping in view this fact, learned

Magistrate has held that Section 468 of the Code would not apply but at the same time he condoned the delay under Section 473 of the Code to take

cognizance of offence. It must be borne in mind that if at all the period of limitation under Section 468 of the Code would not apply, application of

Section 473 of Code is otiose one. Moreover, when it has been observed above by catena of decisions that the offence on which charge sheet was

filed or the offence for which the cognizance is taken is the determining factor to compute the period of limitation, the mode of computing the period of

delay basing on offence under which FIR was registered by the learned Magistrate is inapposite under law. Not only this but also the view of the

learned Magistrate has been affirmed by the learned 2nd Additional Sessions Judge and for the reasons stated, view of the revisional Court is also not

tenable.

In terms of the above discussion, the Court is of the view that on the date of filing of the charge sheet under Section 63 of the Act, 1957 on the

date on which cognizance of such offence is taken where prescribed punishment is imprisonment for one year, the period of limitation as prescribed

under Section 468(2)(c) of the Code being already expired, the reasons for causing delay neither being ascribed nor being discussed in the impugned

order of the Courts below, the same is not sustainable in the eye of law.

In the case of Shakuntala Devi and others â€"V- Chamru Mahto and another (Supra), it has been held by the Hon’ble Supreme Court in the

following manner:

“16. He then submitted that the decision in Dayanand's case (supra) relied upon by Mr. Sanyal had, in fact, been overruled in Krishnan's case

(supra) and hence, reliance upon the judgment in Dayanand's case could not be supported. Mr. Narendra Kumar urged that while considering its

earlier decision in Dayanand's case, this Court in the latter case of Krishnan (supra) had also observed that despite the bar of Section 397(3) of the

Code, the relief contemplated under Section 482 was still available, though it was required to be exercised sparingly. Mr. Narendra Kumar submitted

that the High Court had rightly exercised its jurisdiction under Section 482 of the Code in order to do complete justice between the parties.

We have carefully considered the submissions made on behalf of the respective parties and we see no reason to take a stand which is different

from the stand that was taken both in Dayanand's case (supra) and Krishnan's case(supra). It is well settled that the object of the introduction of Sub-

section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a

litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under Section 397(3) could be lifted. In other

words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under Sub-section (3) of Section 397 of

the Code, and was capable of being invoked in appropriate cases. Mr. Sanyal's contention that there was a complete bar under Section 397(3) of the

Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.â€​

With due regard to the aforesaid decision of the Hon’ble Supreme Court, it is made clear that there is no bar under Section 397(3) of the Code

to exercise inherent jurisdiction under section 482 of the Code even if criminal revision is dismissed by the Court below. In the instant case, when

criminal revision of the petitioners is dismissed by the learned 2nd Additional Sessions Judge affirming with the order of taking cognizance, there is no

bar for this Court to intervene in this matter under Section 482 of the Code if the grounds therein are available to the petitioners. When the impugned

order dated 30.01.2004 passed by the learned S.D.J.M., Berhampur in G.R. Case No.236 of 1997 in taking cognizance of the offence under section

63 of the Act, 1957 is barred by limitation, proceeding further in the matter is abuse of process of Court. Hence, the impugned order of revisional

Court and the order of taking cognizance passed by the learned Magistrate along with further criminal proceeding are liable to be quashed under

section 482 of the Code and the Court do so. The CRLMC is disposed of accordingly. The interim order dated 07.06.2005 passed in Misc. Case

No.1042 of 2005 stands vacated. Registry is directed to communicate this order to the Courts below forthwith.