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Prakash Chandra Sharma v. Kaushal Kishore
Judgment Summary — P.N. Bakshi, J.
Factual and Procedural Background
Proceedings under Section 145 Cr. P.C. were pending between Prakash Chandra Sharma and Babuddin. On 20 December 1975 Prakash Chandra informed the Municipal Board that the Section 145 proceedings were over and that the rasta in dispute had been released; this information was supplied to obtain sanction for a plan then before the Municipal Board. On the same day the Municipal Board sanctioned the plan submitted by Prakash Chandra.
On 11 November 1976 Babuddin filed an application and affidavit before the officer‑in‑charge of the Municipal Board alleging that the information conveyed by Prakash Chandra about termination of Section 145 proceedings was false and that the proceedings were still pending.
On 6 May 1977 the officer‑in‑charge of the Municipal Board filed a criminal complaint (for an offence under Section 182 IPC alleging giving false information to a public servant). The accused was summoned for 2 June 1977 and objected under Section 68(b) Cr. P.C., contending that the complaint was barred by limitation. On 7 February 1978 the Assistant District Government Counsel filed an application asserting that the officer‑in‑charge first obtained knowledge of the alleged offence on 11 November 1976 (the date of Babuddin's affidavit), and that if limitation were computed from that date the complaint would fall within one year.
The Magistrate dismissed the complaint and discharged the accused on the ground that it was filed after the expiry of the period of limitation. A revision filed before the Sessions Judge, Bulandshahr was allowed on 2 June 1978. The present revision challenges the Sessions Judge's order.
Legal Issues Presented
- Whether it is incumbent upon a party filing a time‑barred criminal complaint to simultaneously file an application for condonation of delay under Section 473 Cr. P.C., supported by an affidavit explaining the delay, so that the court may consider taking cognisance despite the expiry of the period of limitation.
- Whether, for computing the period of limitation under Section 469 Cr. P.C., the date of knowledge (allegedly 11 November 1976) can be treated as the commencement date for limitation when that fact is not pleaded or supported by an affidavit in the complaint.
Arguments of the Parties
Prosecution / Officer‑in‑Charge (as represented by Assistant District Government Counsel)
- Asserted that the officer‑in‑charge first obtained knowledge of the alleged offence on 11 November 1976 (when Babuddin filed his application and affidavit), and therefore, if limitation is computed from that date the complaint (filed 6 May 1977) would be within one year.
- On that basis, the prosecution sought that any delay be condoned so the court could take cognisance of the offence.
Accused / Respondent
- The accused objected under Section 68(b) Cr. P.C. that the complaint was time‑barred and the court could not take cognisance because the period of limitation had expired.
- Respondent's counsel contended that a Magistrate could take cognisance of a prima facie time‑barred complaint, proceed to summon the accused and record evidence, and subsequently consider condonation of delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R.K. Tankhu (Madhya Pradesh High Court) in Krishna Sanghi v. The State | Courts must first determine whether Section 468 is attracted when a complaint or challan is filed; if it is, the court should not register the case but should give the complainant or police an opportunity to satisfy the court on the point of limitation for purposes of condonation. Condonation must not be granted as a matter of course and requires judicial discretion. | The court relied on this precedent to support the proposition that a court must examine limitation before taking cognisance and should require applicants to satisfy the court on limitation/condonation before proceeding. |
| Bharat Hybrid Seeds and Agro Enterprises, Karnool v. The State (Andhra Pradesh High Court) | Where the period of limitation has expired certain rights accrue to the accused; it is desirable and essential in the interests of justice that, before a court takes cognisance after the period of limitation, it should give notice and opportunity to the proposed accused and satisfy itself as to the adequacy of the reasons for delay. | The court invoked this authority to emphasize that courts should ensure adequacy of reasons for delay before taking cognisance and that the practice of examining limitation before proceeding should be followed. |
Court's Reasoning and Analysis
The court proceeded step by step from the statutory provisions and the facts before it:
- Identification of the offence and applicable limitation period: The alleged offence was giving false information to a public servant under Section 182 IPC, alleged to have occurred on 20 December 1975. Section 182 IPC is punishable with imprisonment which may extend to six months; accordingly the court held that Section 468(2)(b) Cr. P.C. (one year) applied to the offence.
- Computation of limitation: Section 469 Cr. P.C. provides that limitation commences on the date of the offence or, where the commission was not known to the person aggrieved or to any police officer, on the first day such offence comes to the knowledge of such person or any police officer. The court noted it was not concerned with clause (c) (identity).
- Assessment of the prosecution's contention on the date of knowledge: The prosecution's contention that the officer‑in‑charge obtained knowledge only on 11 November 1976 did not appear in the complaint filed by the officer‑in‑charge on 6 May 1977, and no affidavit by the officer‑in‑charge was filed before the Magistrate to support that assertion. The court held that a mere application by the Assistant District Government Counsel was insufficient to establish that the officer‑in‑charge lacked earlier knowledge.
- Nature and effect of Section 468 Cr. P.C.: The court observed that Section 468 bars the taking of cognisance after the expiry of the period of limitation and that this bar is absolute and goes to the root of the court's jurisdiction. It provides an amnesty/right to the accused not to be prosecuted after the statutory period has elapsed.
- Requirement to seek condonation under Section 473 Cr. P.C.: Because the complaint was, on its face, time‑barred (offence 20 December 1975; complaint 6 May 1977), the court held it was necessary for the prosecuting agency to file an application for condonation of delay under Section 473 Cr. P.C. simultaneously with the complaint, supported by an affidavit explaining the delay. Absent such an application, the Magistrate had no jurisdiction to take cognisance and was obliged to dismiss the complaint as time‑barred.
- Rejection of the alternative practice suggested by respondent's counsel: The court rejected the submission that a Magistrate could take cognisance of a prima facie time‑barred complaint, proceed to summon the accused, record evidence and only thereafter consider condonation. The court held the initial question is the question of limitation and that the statutory provision was enacted to prevent vexatious prosecutions and must be strictly construed.
- Reliance on precedent: The court relied upon the decisions cited (R.K. Tankhu and Bharat Hybrid Seeds) which supported the approach that courts should first examine whether Section 468 applies and require satisfactory explanation for delay before taking cognisance.
- Consideration of remedies and merits: On merits the court found no sufficient justification to interfere with the Magistrate's dismissal. The prosecuting agency's grievance — that a plan was sanctioned in favour of Prakash Chandra by misrepresentation — could be addressed by statutory remedies under the Municipalities Act (cancellation of a sanctioned plan obtained by fraud or misrepresentation) or by civil suit for removal of construction. These civil remedies provide adequate relief to the Municipal Board.
Holding and Implications
Holding: This Court allowed the revision, set aside the order of the Sessions Judge dated 2 June 1978, and restored the order of the trial Magistrate dismissing the complaint as time‑barred.
Implications:
- The direct effect is that the Magistrate's dismissal of the complaint (filed 6 May 1977) as barred by limitation is restored; the accused remains discharged from the criminal complaint based on the alleged offence of 20 December 1975.
- The judgment emphasizes that when a complaint appears prima facie to be time‑barred, the prosecuting agency must, as a reasonable and cautious litigant, file an application for condonation of delay under Section 473 Cr. P.C. together with the complaint, supported by an affidavit explaining the delay; in the absence of such an application the Magistrate lacks jurisdiction to take cognisance.
- The court reaffirmed that Section 468 Cr. P.C. is an absolute bar to taking cognisance after the period of limitation and must be strictly construed to prevent vexatious or frivolous prosecutions.
- The opinion also notes that statutory/civil remedies under the Municipalities Act are available to the Municipal Board to obtain relief for fraudulent or misrepresented sanctioning of plans; accordingly the criminal route was not the only or necessary remedy in the circumstances of this case.
- The court did not purport to lay down a novel rule of law beyond strict application of the cited statutory provisions and the established authorities it applied; its decision restores the pre‑existing approach that limitation must be examined before taking cognisance and condonation should be sought and explained at the outset.
P.N Bakshi, J.:— It appears that proceedings under Section 145 Cr. P.C were pending between Prakash Chandra Sharma and Babuddin. On 20th December, 1975, Prakash Chandra filed an application informing the Municipal Board that these proceedings were over and the rasta in dispute had been released. This information was supplied for the purpose of obtaining sanction with respect to which an earlier application was already pending before the Municipal Board. On the same day, viz. 20th December, 1975, the Municipal Board sanctioned the plan submitted by Prakash Chandra. It appears that on 11th November, 1976, Babuddin filed an application and affidavit before the officer-incharge of the Municipal Board that the information was conveyed by Prakash Chandra regarding the termination of proceeding under Section 145 Cr. P.C was false and that the same were still pending. On 6th May, 1977, a complaint was filed by the Officer-incharge of the Municipal Board Bulandshahr. The accused was summoned for June 2, 1977. He appeared and filed an objection under Section 68(b) Cr. P.C on the ground that the period of limitation had already expired and the court court not take cognisance of the complaint. On 7th February, 1978, the Asstt. District Government Counsel filed an application that the officer-incharge Municipal Board obtained knowledge of the false information given by Prakash Chandra on 11th November, 1976 when Babuddin filed his application and affidavit before him. If the period of limitation is computed from the date of knowledge, the complaint would be well within 1 year of such date and the delay in filing the complaint should, therefore be condoned. The Magistrate on a consideration of all the facts and circumstances of the case dismissed the complaint and discharged the accused on the ground that it had been filed after the expiry of the period of limitation. Aggrieved thereby a revision was filed before the Sessions Judge, Bulandshahr which has been allowed on 2nd June, 1978; hence this revision.
2. I have heard learned counsel for the parties and have also perused the impugned orders. The question of law which has to be determined in the instant case is whether it is incumbent upon a party to file an application for condonation of the delay along with a time barred complaint, so that he can get the benefit of Section 473 Cr. P.C Section 468 of the New Code of Criminal Procedure 1973 has now specified the period of limitation within which a court can take cognisance of various offences mentioned therein. It bars the taking of cognisance after the expiry of the period of limitation.
3. Section 468: (1) Except as otherwise provided elsewhere in this code, no court shall take cognisance 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 exceeding one year but not exceeding three years.”
(c) three years, if the offence is punishable with imprisonment for it term exceeding one year but not exceeding three years.”
4. In the instant case the offence under Section 182 I.P.C is punishable with imprisonment which may extend to 6 months, therefore, Section 468(2)(b) would be applicable. Under Section 469 Cr. P.C “the period of limitation in relation to an offender commences:
(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, which ever 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:
A perusal of Section 469 Cr. P.C quoted above clearly indicates that the period of limitation commences either on the date of the offence or when the commission of the offence was not known to the person from the date when he first got knowledge of it. We are here not concerned with clause (c) of Section 469 Cr. P.C
The next section to be taken into consideration is 473 Cr. P. Code which is quoted as under;
Section 473:—“Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognisance 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.”
5. These are the relevant provisions of the Criminal Procedure Code with regard to the question in hand.
6. It is not disputed that the offence in question if at all had been committed on 20th December, 1975, when the incorrect information was given by Prakash Chandra to the Municipal Board. Therefore, the date of the offence for which he was sought to be prosecuted under Section 182 I.P.C, would be 20th December, 1975. It is significant to note that the case set-up by Asset. District Government Counsel that the officer-in-charge, Municipal Board had no knowledge of the offence in question tilt 11th November 1976, does not find place at all in the complaint, which had been by the official-in-charge on 6th May, 1977. No affidavit either was filed before the Magistrate by the officer-in-charge to sport the assertion that he had no knowledge prior to 11th November, 1976. A mere application by the A.C is not sufficient to hold that the officer-in-charge did not have any knowledge of the offence earlier than 11th November, 76. As such Section 46(b) Cr. P.C will not be applicable to the instant case.
7. Section 468 Cr. P.C bars the taking of cognisance by a court with respect to an offence for which the complaint, is filed after the expiry of the period of limitation. The bar of limitation is an absolute bar. It goes to the root of the jurisdiction of the court. It provided amnesty to the accused from prosecution, which he would otherwise be faced, with, if the limitation had not been prescribed. He has a right not to be prosecuted for the alleged offence, when the period for such prosecution has elapsed in accordance with law. Therefore, when a complaint is filed against the accused, which prima facie is barred by time, it becomes necessary for the prosecuting agency to simultaneously file an application for condonation of the delay under Section 473 Cr. P.C Unless the delay is condoned, the court cannot taken cognisance of the complaint. In the instant case admittedly the complaint was belated by years. The offence was alleged to have been committed on 20th December, 1975, which the complaint was filed on 6th May, 1977. The officer-incharge Municipal Board Bulandshahr with its Law section to assist him must be aware that such a belated complaint could not, in law, be filed and its cognisance could not be taken by the court, therefore, as a reasonable and cautious litigant, it was necessary for him to have filed the application for consideration of delay along with the complaint supported by an affidavit explaining the delay. In the absence of such an application, the Magistrate had no other alternative but to dismiss the complaint as time barred. The Magistrate could not, in law, proceed with the complaint and summon the accused. The question of explaining the delay at subsequent stage could not, therefore, arise for, at the initial stage itself the complaint had to be dismissed by the Magistrate in accordance with Section 468 Cr. P.C I am not inclined to agree with the submission made on behalf of the respondent's counsel that cognisance could be taken of a prima facie time barred complaint by a Magistrate, who could proceed with the case, summon the accused and even record the evidence and thereafter consider the question whether cognisance should at all be taken and the delay condoned. The initial question for determination before proceeding with a time barred complaint is the question of limitation. The new provision has been enacted for the purpose of preventing a vexatious and frivolous prosecution of the accused leading to an unnecessary harassment of the citizen. It must be strictly construed, so that the intention of the law is achieved.
8. I am supported in my view by a decision of late Mr. Justice R.K Tankhu of Madhya Pradesh High Court in Krishna Sanghi v. The State of Madhya Pradesh, 1., who had made the following observations in this connection.
“Whenever a complaint or a chalan is filed at the instance of any person or any police officer, the Court must first see that Section 468 is attracted or not. If it does, it should not register the case but given an opportunity to the person or the police officer filing the complaint or chalan to satisfy it on the point of limitation for purposes of condonation of delay. As regards the condonation of delay it should not be done as a matter of course. The delay has to be condoned with exercise of judicial discretion.”
9. A similar view has been expressed by Andhra Pradesh High Court in Bharat Hybrid Seeds and Agro Enterprises, Karnool v. The State, 2., as under:—
“It must be noted that 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…………
Although as held in 1977 Cr. L.J 160 (Cal) reasons for the extension of time can be given by the Court even in a later stage when the accused enter their appearance and object to the prosecution having been barred by limitation, it is only desirable but also essential in the interests of justice that even before cognisance of the offence is taken by the Court after the period of limitation, it should be given notice and opportunity to the proposed accused and satisfy itself as to the adequacy of the reason for the delay. This rule of practise should always be followed by Courts”.
10. On the merits also, I do not find sufficient justification for interference with the order of the Magistrate. The only grievance of the prosecution appears to be that a plan has been sanctioned in favour of Prakash Chandra by the of officer-in-charge Municipal Board on the misrepresentation of a fact. There is ample provision under the Municipalities Act for cancellation of a sanctioned plan which has been obtained by fraud or misrepresentation. There is also ample provision under the said Act for the institution of a suit for the removal of construction if any which may have been made in pursuance of the erroneous sanctioned plan.
11. Thus, there is sufficient remedy open to the Municipal Board Bulandshahr to vindicate its rights in the civil court which will provide an adequate solution to the grievance of the Municipal Board.
12. This revision application is accordingly allowed. The order of the Sessions Judge Bulandshahr date 2nd June, 1978 is set aside and that of the trial court restored.
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