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Hari Jai Singh And Another v. Suresh Kumar Gupta .
Summary of Legal Opinion
Factual and Procedural Background
The complainant filed a complaint under Section 500 of the Indian Penal Code alleging that a defamatory news item concerning him was published in the Tribune, Chandigarh on 31-5-1995 and that the newspaper was run by the accused (the petitioners). The complaint was presented to the trial Magistrate on 14-5-1998. After recording preliminary evidence, the trial Magistrate directed issuance of process against the accused by order dated 12-11-1998.
The accused applied to have the proceedings dropped on the ground that the trial Court had taken cognizance of the offence after the expiry of the period of limitation prescribed by Section 468 of the Code of Criminal Procedure. The trial Magistrate accepted this plea and dropped the proceedings by an order dated 1-5-1999. The complainant preferred a revision petition before the Additional Sessions Judge, who by the impugned order dated 31-8-2000 set aside the trial Magistrate's order and directed the Magistrate to proceed with the trial on the basis that the complaint had been presented within the period of limitation. The accused (petitioners) challenged that order by way of the present petition under Sections 397/401 read with Section 482 of the Code of Criminal Procedure.
The court heard learned counsel for the petitioners; the complainant did not appear.
Legal Issues Presented
- For the purpose of Section 468 Cr.P.C., at what point must a Court be deemed to have "taken cognizance" of an offence — is it (a) the date of presentation/filing of the complaint/charge-sheet in Court, or (b) the later date when the Magistrate issues process under Section 204 after preliminary examination?
- Whether the trial Magistrate correctly dropped the proceedings under Section 468 on the ground that cognizance was taken after the period of limitation, despite the complaint having been presented within the limitation period.
Arguments of the Parties
Petitioners' (Accused) Arguments
- The petitioners contended that Section 468 Cr.P.C. bars Courts from taking cognizance of specified offences after the expiry of the period of limitation; therefore, if cognizance (in their view) was taken after the prescribed period, the court is barred from proceeding.
- They argued that although the complaint had been filed before the expiry of the limitation period, the trial Court in fact took cognizance after the period had expired (because process was issued after that period), and therefore the trial Magistrate correctly dropped the proceedings; the Additional Sessions Judge erred in setting aside that order.
The opinion records that no one appeared for the complainant, so the complainant's arguments are not presented in the text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy ((1976) 3 SCC 252 : AIR 1976 SC 1672) | Explains meaning of "taking cognizance" under Section 190 and that whether cognizance has been taken depends on circumstances; broadly, when on receiving a complaint the Magistrate applies his mind for purposes of proceeding under Section 200 he is said to have taken cognizance. | The court relied on this passage to support the view that cognizance may be taken at the stage of presentation and initial consideration under Section 200 and that the date of presentation is material for Section 468 purposes. |
| Kamal H. Javeri v. Chandulal Gulabchand Kothari (1985 Cri LJ 1215) | Held that the limitation prescribed under Section 468 Cr.P.C. is to be read with reference to the filing of the complaint and not with reference to the date of cognizance or issuance of process. | The court cited this authority to reject the submission that limitation must be computed from the date of issuing process; it reinforced the court's conclusion that the filing date governs limitation under Section 468. |
| Dr. Anand R. Nerkar v. Smt. Rahimbi Shaikh Madar (1991 Cri LJ 557) | Held that a Magistrate takes cognizance of a complaint when it is received and that for computing limitation the relevant date is presentation of the complaint and not the date on which process is issued. | The court used this authority to corroborate the view that subsequent procedural steps (examination, preliminary inquiry, issuance of process) do not affect the date from which limitation is computed. |
| Appu Ramani v. The State (1993 Cri LJ 1974) | Holds that if the complaint/charge-sheet is filed within the period of limitation the Court must take into account the original date of filing even if defects are cured later and re-presentation date falls beyond the period. | The court relied on this decision to further support the proposition that the original filing date governs computation of limitation under Section 468 and that procedural delays under the control of the Court should not bar cognizance where initial filing was within time. |
Court's Reasoning and Analysis
The court began by setting out Section 468 Cr.P.C., which bars a Court from taking cognizance of certain offences after the prescribed period of limitation. The court observed that Section 468 creates a statutory obligation and that an accused may plead bar by limitation when he appears before the Court.
The central question addressed was when a Magistrate must be deemed to have "taken cognizance" of an offence for the purposes of Section 468: at the time the complaint is presented or at a later stage when the Magistrate issues process under Section 204 after preliminary consideration.
The court reviewed the Code's relevant provisions, particularly Sections 190 and 200. Section 190 identifies the modes by which a Magistrate may take cognizance (including upon receiving a complaint), and Section 200 prescribes the procedure to be followed when a Magistrate takes cognizance on complaint (examination of complainant and witnesses, reduction of substance to writing, etc.). The court explained that Section 200 shows the magistrate's procedural duties upon taking cognizance of a complaint.
The court noted that while, in ordinary judicial parlance, a Court "takes cognizance" when it applies its mind and decides to issue process, it concluded that for the purpose of Section 468 the period of limitation must be reckoned from the date of presentation/filing of the complaint or charge-sheet. The court reasoned that:
- It would be unjust and defeat the administration of criminal justice to treat the issuance of process as the starting or determinative point for limitation where the complainant had already filed within time.
- Post-presentation procedures (examination, preliminary inquiry, referral for investigation, issuance of process) can take time and are often not within the complainant's control; to compute limitation from the date of issuance of process would unfairly penalize complainants for Court or investigatory delays.
- The scheme and language of Sections 190 and 200 support that a Magistrate takes cognizance on receipt and initial consideration of the complaint under Section 200.
The court then examined and relied upon the precedents cited in the opinion (Devarapalli, Kamal H. Javeri, Dr. Anand R. Nerkar and Appu Ramani), which, as summarized above, support the proposition that limitation under Section 468 must be read with reference to the date of filing/presentation of the complaint and not the later date of issuance of process.
Applying this legal analysis to the facts, the court noted that the alleged defamatory publication occurred on 31-5-1995 and the complaint was presented on 14-5-1998, which was within the three-year limitation period applicable to the alleged offence. On that basis, the court concluded that the Additional Sessions Judge's order setting aside the trial Magistrate's dropping of the proceedings could not be characterized as illegal or unwarranted.
Holding and Implications
Holding: The petition is dismissed. The court upheld the Additional Sessions Judge's order (the impugned order) confirming that limitation under Section 468 Cr.P.C. is to be reckoned with reference to the date of presentation/filing of the complaint and not the date when process is issued; consequently, where a complaint was presented within the statutory period (14-5-1998 in the present case), the Sessions Judge was correct in setting aside the Magistrate's order dropping proceedings and directing the trial Magistrate to proceed.
Implications:
- The direct effect is that this petition by the accused is dismissed and the trial Magistrate was directed to proceed with the trial in accordance with law pursuant to the Sessions Judge's order.
- The opinion applies and follows earlier judicial decisions on the point that, for Section 468 purposes, the relevant date is the date of filing/presentation of the complaint; the court treated those authorities as controlling and consistent with its analysis. The opinion does not assert that it is creating a new precedent beyond the application of existing case law.
Note: This summary contains only information expressly stated in the provided opinion. Where the opinion did not supply particular party submissions (for example, the complainant's arguments), those items are noted as unavailable in the opinion.
1. This petition under Sections 397/401 read with Section 482 of the Criminal Procedure Code (here-after referred to as ‘the Code’) is directed against the order dated 31-8-2000 passed by the learned Additional Sessions Judge, Nahan whereby the order dated 1-5-1999 passed by the learned Additional Chief Judicial Magistrate, Court No. (I), Paonta Sahib dropping the proceeding in complaint under Section 500 of the Indian Penal Code instituted by the complainant/respondent (hereinafter referred to as ‘the complainant’) has been ordered to be dropped, has been set aside.
2. Brief and relevant facts leading to the presentation of this petition are that the complainant filed a complaint under Section 500 of the Indian Penal Code against the accused/petitioners (hereinafter referred to as ‘the accused’) on the allegations that a news defaming the complainant was published in the Tribune Chandigarh on 31-5-1995 and the said newspaper is run by the accused. It was claimed that the said news defamed complainant and lowered down his reputation in general public. After recording the preliminary evidence, the trial Magistrate directed issue of process against the accused vide order dated 12-11-1998. On appearance, the accused filed an application for dropping the proceedings against them on the ground that the trial Court had taken cognizance of the offence allegedly committed by them after expiry of the period of limitation as prescribed under Section 468 of the Code. The learned trial Magistrate accepted the plea of the accused and the proceedings against the accused were dropped. The complainant preferred a revision-petition which was decided by the learned Additional Sessions Judge, Sirmaur by the impugned judgment and the order of the trial Magistrate dropping the proceedings against the accused was set aside on the ground that the bar created by Section 468 of the Code would not apply as the com plaint had been presented in the Court within the period of limitation and the trial Magistrate was directed to proceed with the trial of the case in accordance with law. Being aggrieved, the accused have preferred the present petition.
3. I have heard the learned counsel for the petitioners but could not have the ad-Vantage of hearing anyone for the complainant as no appearance was entered for him.
4. It was contended by the learned counsel for the petitioners that the provisions of Section 468 of the Code bars the Courts from taking cognizance of a case after expiry of the prescribed period of limitation. Therefore, in the event of the Court not taking cognizance within the prescribed period, it cannot take cognizance beyond the prescribed period. It was further contended that in the case in hand though the complaint had been filed before the expiry of the prescribed period but the cognizance was taken by the trial Magistrate after expiry of such period, therefore, the proceedings were rightly dropped in view of the bar created by Section 468 of the Code and the learned Additional Sessions Judge has wrongly interfered with such order.
5. Section 468 of the Code reads as under:
“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 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 deter mined with reference to the offence which is punishable with the more severe punish ment or, as the case may be, the most se vere punishment.”
6. A reading of Section 468 supra makes it clear that it places a statutory obligation upon the Court not to take cognizance of the offences of the categories specified in sub-section (2) after the expiry of period of limitation as prescribed therein. It is, there fore, open to the accused when he appears or is brought before the Court to plead that the complaint or the challan filed against him and taken cognizance of by the Court Is barred by limitation and if the plea is found substantiated and the case does not fall under Section 470 or 471 or 472 of the Code, the Court is under obligation to drop the proceedings. It is further clear from the aforesaid provisions that it is taking of the cognizance after the lapse of the period of limitation which has been barred by the statute. The question, therefore, arises as to when a Magistrate (Court) must be deemed to take cognizance of an offence for the purpose of Section 468 of the Code?
7. In the ordinary course and as per the preponderance of the judicial pronouncements, a Court takes cognizance of offence when it applies its mind to the material before it and decides to issue process against the accused to secure his presence. In my view, however, the period of limitation for the purpose of Section 468 of the Code shall have to be reckoned from the starting point till the date of filing of the complaint/charge sheet against the accused. The Court must be deemed to have taken cognizance of the offence when the complaint/charge sheet is presented to it.
8. The expression “taking cognizance of an offence” has not been defined in the Code. The most material provisions to find out the meaning of the expression “taking cognizance of an offence” are contained, in Sections 190 and 200 of the Code.
9. Sub-section (1) of Section 190, which provides for taking of cognizance of offences by the Magistrate, reads as follows:—
“190. Cognizance of offences by Magistrates, (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”
10. Evidently, the aforesaid provisions empowers the Magistrate to take cognizance of offences on receipt of a complaint/police report or information received from any per son or upon his own knowledge.
11. Section 200 of the Code provides for the manner in which on receipt of a com plaint the Magistrate is to proceed with the case and it reads as under:—
“200. Examination of complainant,— A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry of trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.”
12. The words “A Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present” evidently provides the manner in which the Magistrate taking cognizance on the complaint is to proceed to take preliminary evidence of the complainant on the basis of which he is to determine whether process against the accused is to be issued or not. Therefore, with reference to the context it cannot be held for the purpose of Section 468 of the Code that the Magistrate invariably takes cognizance of offences only when he decides to issues process against the accused under Section 204 of the Code. Therefore, for all intents and purposes of Section 468 of the Code, a Court must be deemed to have taken cognizance on a criminal complaint at the stage of presentation of the complaint to the Court and its proceedings therewith as provided under Section 200 of the Code. To hold contrary, will lead to injustice and defeat the provisions of the Code intended to promote the administration of criminal justice. It cannot be disputed that after the presentation of the complaint the Magistrate has to examine the complainant and his witnesses or postpone the issue of process and inquire into the case himself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. These processes in a given case are likely to take time and are dependent on the time available with the Magistrate or the person who has been directed to investigate the allegations made in the complaint and early conclusion of these processes is not within the power and control of the complainant. Therefore, it would be unreasonable to hold that a complaint even if presented within the period of limitation but the process against the accused is not issued by the Magistrate within the period of limitation, the Court shall be debarred from taking cognizance of an offence. Therefore, it will be rational and reasonable to hold that the period of limitation is to be determined in view of the date of presentation of the complaint and not with regard to the date when the process is ordered to be issued by the Magistrate against the accused under Section 204 of the Code.
13. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976 Cri LJ 1361 : ((1976) 3 SCC 252 : AIR 1976 SC 1672) while examining the meaning of the expression “taking cognizance of an offence” the Hon'ble Supreme Court held as under:—
“14. This raises the incidental question: What is meant by “taking cognizance of an offence” by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular cases including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a)……”
14. In Kamal H. Javeri v. Chandulal Gulabchand Kothari (1985 Cri LJ 1215), a similar question arose before Bombay High Court and it was held as under:—
“28. Thus having taken resume of these several authorities and after considering the provisions of Ss. 47 to 473, Cr.P.C, I am of the opinion that the limitation prescribed under S. 468 is to be read with reference to the filing of the complaint and not with reference to the date of cognizance or issuance of process, for determination of period of limitation prescribed in S. 468, Cr.P.C The first submission of Shri Vashi has, therefore, no force and has got to be rejected.”
15. In Dr. Anand R. Nerkar v. Smt. Rahimbi Shaikh Madar, 1991 Cri LJ 557, while dealing with a question as in hand, Bombay High Court held as under:—
“12. It is very clear from these sections of the Code of Criminal Procedure that the Magistrate takes cognizance of the complaint when it is received, that he is required at that point of time to consider the preliminary issues, such as jurisdiction, that he is required to hold a preliminary inquiry into the matter or direct such inquiry through the Police and thereafter dispose of the complaint or take steps for securing the appearance of the accused and proceed with the case. It stands to reason, therefore, that the point of time when the Court takes cognizance of a criminal complaint is the stage at which the complaint is presented to the Court or filed in the Court. It follows by necessary implication that for the purpose of computing limitation, it is this date that is material and not the date on which the process is issued. The subsequent stages, such is the examination of the complainant and witnesses, the consideration of the case on merits, the preliminary enquiry, etc., would all take considerable time and it would, therefore, be unreasonable and irrational to compute the period of limitation from the date when the process is issued. Furthermore, these processes are dependent on the time available to the Court which is something over which the complainant has no control and it would, therefore, be wholly untenable to hold that a complaint, even if presented within the period of limitation, would be barred merely because a certain amount of time elapsed until the order of process was passed. The submission of Mr. Sawant, will, therefore, have to be rejected, since the date on which the complaint in the present case was presented before the learned Magistrate was well within the period of limitation.”
16. In Appu Ramani v. The State, (1993 Cri LJ 1974), while dealing almost a similar question, a Division Bench of the Andhra Pradesh High Court held as under:
“11………………………If the complaint/charge-sheet is filed within the period of limitation, the Court has got powers to return the same for complying with the defects pointed out by it. Even if the complaint/charge-sheet is represented after complying with the defects/objections pointed out by the Court within the time granted by the Court and if that date falls beyond the period of limitation, still the Court has to take cognizance of the case by duly taking into account the original date of filing of the complaint/charge-sheet filed in the first instance as the limitation prescribed under S. 468, Cr.P.C is to be reckoned with reference to the date of filing of the complaint/charge-sheet in the Court in the first instance but not with reference to the date of taking cognizance.”
17. In the case in hand, the alleged defamatory news item was published on 31-5-1995 and the complaint was presented before the learned trial Magistrate on 14-5-1998, i.e well within the period of limitation of three years from the date of publication of the alleged defamatory news item.
18. In view of the above discussion, the impugned order cannot be said to be illegal or unwarranted and, therefore, does not call for any interference by this Court.
19. As a result, this petition merits dismissal and is accordingly dismissed.
20. Petition dismissed.
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