Order
1. Mr K. Swami, learned counsel appearing for the appellant, submitted that the High Court Criminal OP No. 12001 of 1997 was clearly wrong in holding that the proceeding against the respondents was barred by limitation, as provided under Section 468(2)(c) of the Code of Criminal Procedure, 1973, because the order issuing summons against the accused was passed by the Magistrate after three years from the date of the occurrence, even though the complaint was admittedly filed within the period of limitation. In support of the contention, he relies upon a two-Judge Bench decision of this Court in Bharat Damodar Kale v. State of A.P (2003) 8 SCC 559 in which, on an examination of the provisions contained in Chapter XXXVI of the Code of Criminal Procedure, it was held that the Court can take cognizance of an offence, the complaint of which is filed before it, within the period of limitation prescribed and, if need be, after excluding such time which is legally excludable. It further held that the limitation prescribed is not for taking cognizance within the period of limitation, but for taking cognizance of an offence in regard to which a complaint is filed or prosecution is initiated beyond the period of limitation prescribed under the Code of Criminal Procedure. The decision in Bharat Damodar Kale (2003) 8 SCC 559 is followed in another two-Judge Bench decision of this Court in Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394. In para 52 of the decision in Japani Sahoo (2007) 7 SCC 394, it was reiterated that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court.
2. Mr K.V Viswanathan, learned Senior Counsel appearing on behalf of Respondent 1, submits that in both the decisions, an earlier three-Judge Bench decision in Krishna Pillai v. T.A Rajendran 1990 Supp SCC 121 was not taken note of. The decision in Krishna Pillai 1990 Supp SCC 121, though arising under the Child Marriage Restraint Act, 1929, also dealt with the period of limitation prescribed for taking cognizance, as provided under Section 9 of that Act.
3. In Krishna Pillai 1990 Supp SCC 121, the Court after referring to the Constitution Bench decision in A.R Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 made the following observations: (Krishna Pillai case 1990 Supp SCC 121)
“4. … The extract from the Constitution Bench judgment (1984) 2 SCC 500 clearly indicates that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Since the magisterial action in this case was beyond the period of one year from the date of the commission of the offence the Magistrate was not competent to take cognizance when he did in view of the bar under Section 9 of the Act. We accordingly allow the appeal and quash the prosecution. The writ petition is permitted to be withdrawn as not pressed.”
4. Mr Viswanathan contends that in terms of Section 4(2) of the Code of Criminal Procedure, all the provisions to Chapter XXXVI i.e Sections 469, 473, etc. would equally apply to a proceeding under the Child Marriage Restraint Act, 1929. According to Mr Viswanathan, the latter two-Judge Bench decisions (2003) 8 SCC 559, (2007) 7 SCC 394 are directly in conflict with the view taken by the three-Judge Bench decision in Krishna Pillai 1990 Supp SCC 121.
5. In view of the aforesaid position, put up this case before a three-Judge Bench for an authoritative pronouncement on the issue.