HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY Crl.P. No. 1347 of 2009 DATED: 02.12.2011 Between: K. Chenchu Rama Rao .. Petitioner-A2 And 1. K. Naga Ratnamma 2. The State of Andhra Pradesh .. Respondents O R D E R:- 1) This Criminal Petition is filed under Section 482 Cr.P.C. to quash proceedings in C.C. No. 328 of 2001 on the file of the Court of Judicial Magistrate of First Class, Giddalur, registered for offences punishable under Sections 352, 447, 506, 509, 342 and 384 IPC on the ground of limitation to take cognizance of the case so far as the petitioner herein (A2 in the criminal case) (for short “A2”) is concerned. The 1st respondent is the complainant in the case (for short “complainant”). 2) The case was registered on the basis of complaint filed by the complainant. 3) The point for consideration is whether there are sufficient grounds to quash the proceedings on the said ground. 4) Brief facts of the complaint are as follows: On 24.07.1997, at about 10.00 A.M., while the complainant was cooking in their house at Gadikota village, Giddalur Mandal while her husband was away for his personal work, A1 along with A3 and A4 in police dress entered the house and A1 told the de facto complainant that her husband took an amount of Rs.20,000/-and the same was to be settled before A2 and asked the whereabouts of her husband. When she asked them to come when her husband was available at home, they forcibly took her away to Giddaluru. She also alleged in her complaint that A2 threatened her and put in a cell. She filed the complaint on 29.07.1997 and the case was taken cognizance of on 08.08.2001 against A1 to A4 in the case for the offences punishable under Sections 352, 506, 509, 342 and 384 IPC. 5) It is the contention of learned counsel for A2 that by virtue of Section 468 Cr.P.C., the cognizance of the case had to be taken within three years from the date of the alleged offences in view of Section 384 IPC for which the punishment prescribed is 3 years whereas the punishments prescribed for the other offences are less than three years but it was not done within that period, and hence the cognizance of the case is barred by limitation relying upon decision reported in Kimberly Clark Liver Limited, Maharashtra vs. State[1]. 6) On the other hand, the learned Additional Public Prosecutor has opposed the claim of A2 on the ground that sworn statement of the complainant was recorded on 21.04.1998 and that date has to be taken into consideration for the purpose of counting the limitation to take cognizance of the complaint. 7) Therefore, it is to be seen as to whether there are grounds to quash the proceedings as prayed. 8) It is pertinent to notice here that emphatically the alleged incident took place on 24.07.1997 and the cognizance of the case was taken on 08.08.2001 after recording the sworn statements of the complainant and others. Therefore, it is very clear that the cognizance of the case was taken after more than three years from the date of incident. 9) Section 468 Cr.P.C. reads as follows: 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 determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Section 469 Cr.P.C. reads Commencement of the period of limitation-- (1) The period of limitation, in relation to an offence, 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. It is to be mainly examined as to what is meant by taking cognizance of the case. Section 200 Cr.P.C. deals with examination of complainant and his or her witnesses. Section 201 deals with procedure to be followed by Magistrate not competent to take cognizance of the case. Section 202 deals with postponement of the issue of process. Section 203 Cr.P.C. reads as under: Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 204 reads- Issue of process-- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87 10) In Kimberly Clark Liver Limited, Maharasthra v. State, this Court held as follows: “As noted above in Krishna Pillai (1990(Supp.) SCC 121), the Supreme Court held that filing of a complaint in the Court did not amount to taking cognizance, that taking cognizance was different from filing of a complaint and since the magisterial action of taking cognizance was beyond the period of limitation calculated from the date of commission of the offence, the Magistrate was not competent to take cognizance of the offence after the period of limitation. I n Bharat Damodar Kale (2003(8) SCC 559), a two Judge Bench of the Supreme Court, took a contrary view, and held that a cumulative reading of various provisions of Chapter XXXVI of the Cr.P.C. clearly indicated that the limitation prescribed therein was only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. The law laid down by the Supreme Court in Bharat Damodar Kale case is in conflict with the law laid down in Krishna Pillai case and since the earlier three Judge Bench Judgment in Krishna Pillai was not noticed by the subsequent two Judge bench of the Apex Court in Bharat Damodar Kale case, the law laid down in Krishna Pillai case is binding on this High Court, and as a result, cognizance taken by the Magistrate beyond the prescribed period of limitation i.e. the period commencing from the date on which the offence is said to have been committed till the date on which the learned Magistrate had taken cognizance, must be held as beyond limitation and in view of the bar under Section 468(2)(a) Cr.P.C. the proceedings in STC No. 114 of 2003 is required to be quashed on this ground.” In Krishna Pillai v. T.A. Rajendran[2] the Apex Court referred in this context the view taken by a five Judge bench of this Court in A.R. Antulay v. Ramdar Srinivas Nayak (1984) 2 SCC 500). At page 530, (Paragraph 31) of the judgment in A.R. Antulay’s case, the Supreme Court observed: “When a private complaint is filed, the Court has to examine the complainant on oath save in the case set out in the proviso to Section 200 Cr.P.C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the Court.” On that basis it is observed in Krishna Pillai’s case; “The extract from the Constitution Bench judgment 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.” 11) Therefore, it is categorical that the question of taking cognizance of the case arose after recording the statements of witnesses and the learned Magistrate finding that sufficient grounds were made out to take cognizance of it and accordingly taking cognizance of it before issuing necessary process to the accused making necessary endorsement therein. Therefore, when the date of offence and the date of taking cognizance of the matter subject to the provisions of Sections 200 to 204 Cr.P.C. are the criterias for the purpose of examining the question of limitation in the matter and the cognizance of the case was taken beyond the period of three years such cognizance is barred by limitation by virtue of Section 468 Cr.P.C. 12) The principle laid by the Apex Court as cited supra is well applicable to the facts of the case on hand. 13) Hence, the Criminal Petition is allowed and the proceedings in C.C. No. 328 of 2001 on the file of the Judicial Magistrate of First Class, Giddalur are hereby quashed. __________________________ G. KRISHNA MOHAN REDDY, J 02.12.2011 bcj [1] 2008(2) ALT (Crl.) 261 (A.P.) [2] 1990(Supp) Supreme Court Cases 121