Labour Enforcement Officer (Central) Cochin v. C.V Avarachan & Others

1. What is the crucial date to the reckoned for considering the question of limitation in a criminal case the date of presentation of the complaint, the date of its re-presentation after curing the defects or the date of cognizance? What is the duty of a criminal court returning a complaint for curing the defects and re-presentation under Rule 68 of the Kerala Criminal Rules of Practice? These questions arise for consideration in these appeals.

2. Aggrieved by the judgments of acquittal in prosecutions under the Payment of Wage's (Mines) Rules, 1956. the complainant Labour Enforcement Officer (Central), Cochin, has preferred these appeals. Two prosecutions were initiated by the complainant against the respondent/accused alleging violation of the provisions of the Payment of Wages (Mines) Rules.

3. To comply with the mandate that only three violations can be included in one prosecution, two separate complaints were filed. The violations were detected on 12-12-1991. The offences are punishable with fine only as per the statutory provisions. The period of limitation for cognizance under Section 468 of the Code of Criminal Procedure is six months as the offences alleged are punishable with fine only.

4. The complaint was filed on 10-06-1992. The offences having been detected on 12-12-1991, the complaint on 10-06-1992 is admittedly not barred by limitation. The complaint has been preferred within the period of six months from the date of detection of offences on 12-12-1991. The accused denied the offences alleged against him. The trial was proceeded with. Ultimately, the impugned judgments of acquittal were passed on the sole ground that the prosecutions are barred by limitation in view of Chapter 36 of the Code of Criminal Procedure.

5. How are the prosecutions barred by limitation? Even though, they were filed initially on 10-06-1992, they were returned by the court as copies of document referred in the complaint were not produced along with the complaint. According to the complaint, the returned complaints were received by him through post While returning the complaint, the court had not specified any time limit for re-presentation. However, the complainant after receiving the same, re-presented the same after curing the defects on 30-06-1992. Thereafter, cognizance was taken on 30-06-1992. Thereafter, cognisance was taken on 30-06-1992 and the matter was proceeded with.

6. The learned counsel for the appellant takes up two fold contentions. First of all, he contends that the complaint had been filed within the period of limitation stipulated under Section 468 of the Crl. P.C Whatever be the date on which the court chooses to take cognizance and issue summons, the complainant having filed the complaints within the period of six months, the complaints cannot beheld to be barred by limitation, contends the learned counsel. On the question of law, there can be and there is no contention raised before me. The decisions reported in Jain Sait v. Intex Painter. Interior Decorators (1993 (1) KLT 532) and Bharat Damodar Kale v. State of A.P ((2003) 8 SCC 559) have settled the position finally. The date of filing of the complaint and not the later date on which the court may have for its own reasons, chosen to issue summons after taking cognisance, is the crucial date for the purpose of deciding limitation.

7. But, in this case there is one more differences. The complaints presented were not properly presented. The were hence returned. Obviously, return of the complaints is made by the court by invoking its powers under Rule 68 of the Criminal Rules of Practice. Kerala. The said rule stipulates that the Court has the power to direct return of a complaint to cure the defects and re-present the same within a specified time. In these cases, though return has been made under Rule 68 of the Rules of Practice, a specification of time for representation was not made. The counsel contends that representation was made within a reasonable time. The complaint was returned through post. After coming to know of the return and after promptly curing the defects, representation has been made on 30-06-1992. In these circumstances, there can be no question of the bar of limitation, contends the learned counsel for the appellant.

8. I am in agreement with the learned counsel for the appellant. The date of initial presentation has to be considered and reckoned as crucial unless there be unreasonable delay in representation in violation of the directions issued by the court. In these cases, the court obviously on account of an inadvertent oversight had returned the complaints without specifying any time limit for representation. Then the only relevant question can be whether re-presentation has been made within a reasonable time. Such re-presentation on 30-06-1992, I hold, was within reasonable time. In these circumstances, the complaints must be reckoned as complaints presented within time and re-presented after curing the defects in accordance with law without any unreasonable delaying in these circumstances, the fact that the re-presentation was made only on 30-06-1992 cannot alter the position regarding the applicability of Section 468 of Cr. P.C I may observe that it is the duty of all courts to specify time for representation when return of complaint etc. is made under Rule 68 of the Kerala Criminal Rules of Practice. All criminal courts must comply with the mandate of Rule 68 scrupulously.

9. Therefore, on both grounds the challenge raised has got to be upheld. The challenge succeeds. The learned counsel for the respondents only submits that respondent No. 1 is no more. It will be for the court below to verify that assertion and modulate further action accordingly.

10. In the result:

(a) These appeals are allowed.

(b) The impugned judgments of acquittal are set aside.

(c) It is held that the bar under section 468 Cr. PC. does not apply and the learned Magistrate is directed to pass fresh judgments after hearing the parties. The parties are directed to appear before the learned Magistrate on 03-05-2004 to continue the proceedings.

(d) The learned Magistrate shall ensure that these old cases are disposed of expeditiously at any rate within 60 days of such appearance.