Japani Sahoo vs Chandra Sekhar Mohanty

3. Brief facts of the case are that the appellant is a complainant who is inhabitant of village Damana under Chandrasekharpur Police Station. He had constructed many shops on his land on the side of the main road of Chandrasekharpur Bazar from which he was earning substantial amount by way of rent. It is alleged by the complainant that the accused was, at the relevant time, Inspector of Police at Chandrasekharpur Police Station and was aware that the complainant was receiving good amount of income from shop rooms erected by him.

4. According to the complainant, on February 2, 1996, a Constable of Chandrasekharpur Police Station came to his house and informed him that he was wanted by Officer-in-charge of the Police Station (Bada Babu) at 9 p.m. with monthly bounty. It was alleged by the complainant that even prior to the above incident, he was repeatedly asked by the accused to pay an amount of Rs.5,000/- per month as illegal gratification, but he did not oblige the accused. At about 9.30 p.m. on February 2, 1996, the complainant went to Chandrasekharpur Police Station where the accused was waiting for him anxiously to extract money. As soon as the complainant entered the Police Station, the accused abused him by using filthy language. The complainant was shocked. The accused pushed him as a result of which he fell down and sustained bodily pain. The accused also threatened the complainant that if the latter would not pay an amount of Rs.5,000/- by next morning, the former would book him in serious cases like 'NDPS' and dacoity. The complainant silently returned home. On the next day, he went to his lawyer and narrated the incident. His lawyer advised him to lodge a complaint before a competent Court instead of lodging FIR against the accused. Accordingly, on February 5, 1996, the appellant filed a complaint being ICC Case No.45 of 1996 in the Court of Sub Divisional Judicial Magistrate (SDJM), Bhubaneswar against the respondent-accused for commission of offences punishable under Sections 161, 294, 323 and 506, IPC.

5. As stated by the appellant, the SDJM examined witnesses produced by the appellant-complainant between March 29, 1996 and July 24, 1996. The matter was adjourned from time to time. Ultimately, on August 8, 1997, the learned Magistrate on the basis of statement of witnesses, took cognizance of the complaint filed by the complainant and issued summons fixing December 19, 1997 for appearance of accused observing inter alia that on the basis of the statements recorded, prima facie case had been made out for commission of offences punishable under Sections 294 and 323, IPC.

6. According to the appellant, the summons was served on the respondent-accused but he did not remain present. After more than one year of issuance of summons, non-bailable warrant was issued by the learned Magistrate on September 23, 1998. The accused thereafter surrendered on November 23, 1998. He, however, filed a petition in the High Court of Orissa on November 20, 1998 under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for quashing criminal proceedings contending, inter alia, that no cognizance could have been taken by the Court after the period of one year of limitation prescribed for the offences under Sections 294 and 323, IPC and the complaint was barred by limitation. A prayer was, therefore, made by the accused to set aside order dated August 8, 1997 as also order of issuance of non- bailable warrant dated September 23, 1998 by quashing criminal proceedings.

7. A counter was filed by the complainant asserting that admittedly, the complaint was filed by him in the Court of SDJM within three days of the incident i.e. the incident took place on February 2, 1996 and the complaint was filed on February 5, 1996. There was, therefore, no question of the complaint being barred by limitation. According to the complainant, the question of limitation should be considered on the basis of an act of filing complaint; and not an act of taking cognizance by the Court. It was submitted that two acts, viz. (i) act of filing complaint and (ii) act of taking cognizance are separate, distinct and different. Whereas the former was within the domain of the complainant, the latter was in the exclusive control of the Court. The accused, according to the complainant, was labouring under the misconception that the 'countdown' begins from the date of taking cognizance by the Court and not from the date of instituting a complaint by the complainant. It was, therefore, submitted that the complaint was within time and should be decided on merits.

8. The High Court, in the order impugned in the present appeal, held that the date relevant and material for deciding the bar of limitation under the Code was the date of taking cognizance by the Court. Since the offences under Sections 294 and 323 were punishable for six months and one year respectively, cognizance thereof ought to have been taken within one year of the commission of offences. Cognizance was admittedly taken on August 8, 1997, i.e. after more than one year of the commission of offences and as such, it was barred by limitation under Section 468 of the Code. The learned Magistrate had not condoned delay by exercising power under Section 473 of the Code and hence, the complaint was liable to be dismissed on the ground of limitation. The proceedings were accordingly quashed. The complainant has questioned the legality of the order passed by the High Court.

45. In Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, (1997) 2 SCC 397 : JT 1996 (11) SC 175, a complaint was filed by the wife against her husband on September 10, 1990 for an offence punishable under Section 406, IPC. It was alleged in the complaint that she demanded from the respondent-husband return of jewellery and household articles on December 5, 1987, but the respondent refused to return stridhana to the complainant-wife and she was forced to leave matrimonial home. The complaint was admittedly within the period of three years from the date of demand and refusal of stridhana by the respondent-husband. The complaint was held to be within time and the matter was decided on merits.

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.

(emphasis supplied)

53. In view of the above, we hold 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. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/Court and not of filing of complaint or initiation of criminal proceedings.

54. In the instant case, the complaint was filed within a period of three days from the date of alleged offence. The complaint, therefore, must be held to be filed within the period of limitation even though cognizance was taken by the learned Magistrate after a period of one year. Since the criminal proceedings have been quashed by the High Court, the order deserves to be set aside and is accordingly set aside by directing the Magistrate to proceed with the case and pass an appropriate order in accordance with law, as expeditiously as possible.

55. Appeal is accordingly allowed.