REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.

829 OF 2005
Mrs. Sarah Mathew

Appellant

Versus The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian !rs. WITH Special #ea$e %etition &Crl.' (os.)*+,-)*++ of ./01
M2s. 3T Media #td. !rs.

"espondents

%etitioners

Versus State &4o$t. of (CT of Delhi' WITH Special #ea$e %etition &Crl.' (o.),*5 of ./01 M2s. 3industan Media Venture #td. !rs. %etitioners Versus "espondent

Page 1

State &4o$t. of (CT of Delhi'

"espondent

JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 0. 6hile dealin7 with Cri8inal Appeal (o. +.9 of .//) a

two-:ud7e ;ench of this Court noticed a conflict between a two-:ud7e ;ench decision of this Court in Bharat Damodar Kale & Anr. v. State of Andhra Pradesh 1 which is followed in another two-:ud7e ;ench decision in Japani

Sahoo v. Chandra Sekhar Mohanty. and a three-:ud7e ;ench decision of this Court in Krishna Pillai v. T.A. a!endran & Anr." . In Bharat Kale it was held that for the purpose of co8putin7 the period of li8itation< the rele$ant date is the date of filin7 of co8plaint or initiatin7 cri8inal proceedin7s and not the date of ta=in7 co7ni>ance by a Ma7istrate or issuance of a process by court. In Krishna

Pillai this Court was concerned with Section 9 of the Child Marria7e "estraint Act< 09.9 which stated that no court shall ta=e co7ni>ance of any offence under the Child Marria7e
1 2

(2003) 8 SCC 559 (2007) 7 SCC 394 3 (1990) supp. SCC 121

Page 2

"estraint Act< 09.9 after the e?piry of one year fro8 the date on which the offence is alle7ed to ha$e been co88itted. The three-:ud7e ;ench held that since

8a7isterial action in the case before it was beyond the period of one year fro8 the date of co88ission of the offence< the Ma7istrate was not co8petent to ta=e

co7ni>ance when he did in $iew of bar under Section 9 of the Child Marria7e "estraint Act< 09.9. Thus< there was

apparent conflict on the @uestion whether for the purpose of co8putin7 the period of li8itation under Section 5*+ of the Code of Cri8inal %rocedure< 09,1 &for short A !" C#.P.C.B' in respect of a cri8inal co8plaint the rele$ant date is the date of filin7 of the co8plaint or the date of institution of prosecution or whether the rele$ant date is the date on which a Ma7istrate ta=es co7ni>ance. The two-:ud7e ;ench< therefore< directed that this case 8ay be put up before a three-:ud7e ;ench for an authoritati$e pronounce8ent. 6hen the 8atter was placed before the three-:ud7e ;ench< the three-:ud7e ;ench doubted the correctness of Krishna Pillai and obser$ed that as a co-ordinate ;ench< it cannot

Page 3

declare that Krishna Pillai does not lay down the correct law and< therefore< the 8atter needs to be referred to a fi$e:ud7e ;ench to e?a8ine the correctness of the $iew ta=en in Krishna Pillai. Accordin7ly< this appeal alon7 with other

8atters where si8ilar issue is in$ol$ed is placed before this Constitution ;ench.

.. our

(o specific @uestions ha$e been referred to us. ;ut< in opinion< the followin7 @uestions arise for our

considerationC A. 6hether for the purposes of co8putin7 the period of li8itation under Section 5*+ of the Cr.%.C the rele$ant date is the date of filin7 of the co8plaint or the date of institution of prosecution or whether the rele$ant date is the date on which a Ma7istrate ta=es

co7ni>ance of the offenceD

Page 4

;.

6hich of the two cases i.e. Krishna Pillai or Bharat Kale &which is followed in Japani Sahoo) lays down the correct law.

1.

6e ha$e heard learned counsel for the parties at 7reat

len7th and carefully read their written sub8issions. 6e 8ay 7i$e 7ist of their sub8issions and then proceed to answer the @uestions which fall for our consideration. 5. 4ist of sub8issions of Mr. Krishna8urthi Swa8i<

learned counsel for the appellant in Cri8inal Appeal (o. +.9 of .//).

a.

Krishna Pillai was rendered in the conte?t of Section 9 of the Child Marria7e "estraint Act< 09.9. There is no reference to either

Section 5*+ or Section 5,1 of the Cr.%.C. in this Eud78ent. This Eud78ent 8erely focuses on the 8eanin7 of the ter8 Ata=in7

co7ni>anceB and has accordin7ly interpreted

Page 5

Section 9 without reference to any pro$isions of the Cr.%.C. 3ence< this Eud78ent cannot

be considered authority for the purposes of interpretation of pro$isions of Chapter FFFVI. !n the other hand Bharat Kale considers $arious pro$isions of Chapter FFFVI. All the pro$isions ha$e been cu8ulati$ely read to conclude that the li8itation prescribed is not for ta=in7 co7ni>ance within the period of li8itation< but for ta=in7 co7ni>ance of an offence in re7ard to which a co8plaint is filed or prosecution is initiated within the period of the li8itation prescribed under the Cr.%.C. This Eud78ent lays down the correct law. b. Section 5*+ of the Cr.%.C. has to be read =eepin7 in $iew other pro$isions particularly Section 5,1 of the Cr.%.C. A person filin7 a co8plaint within ti8e cannot be penali>ed because the Ma7istrate did not ta=e

Page 6

co7ni>ance. A person filin7 a co8plaint after the period of li8itation can file an application for condonation of delay and the Ma7istrate could condone delay if the e?planation is reasonable. 8ean that If Section 5*+ is interpreted to a Ma7istrate cannot ta=e

co7ni>ance of an offence after the period of li8itation without any reference to the date of filin7 of the co8plaint or the institution of the prosecution it would be rendered

unconstitutional. interpret a

A court of law would which would help

pro$ision

sustainin7 the $alidity of the law by applyin7 the doctrine of reasonable construction

rather than acceptin7 an interpretation which 8ay 8a=e such pro$ision unsustainable and ultra vires the Constitution. G#.P. Po$er Corpon. %td. v. Ayodhya Prasad Mishra & Anr5H.
4

(2008) 10 SCC 139

Page 7

c.

Chapter FFFVI re@uires to be har8oniously interpreted =eepin7 the interests of both the co8plainant as well as the accused in 8ind.

d.

The law of li8itation should be interpreted fro8 the standpoint of the person who e?ercises the ri7ht and whose re8edy would be barred. The laws of li8itation do not

e?tin7uish the ri7ht but only bar the re8edy. GMela am v. The Commissioner of

&n'ome Ta( P)n!a*+,.

e.

If delay in filin7 a co8plaint can be condoned in ter8s of Section 5,1 of the Cr.%.C. then< Section 5*+ of the Cr.%.C cannot be

interpreted to 8ean that a co8plaint or prosecution instituted within ti8e cannot be proceeded
5

with<

8erely

because

the

1956 SCR 166

Page 8

Ma7istrate too= co7ni>ance after the period of li8itation.

f.

The @uestion of delay in launchin7 a cri8inal prosecution 8ay be a circu8stance to be ta=en into consideration while arri$in7 at a final decision. 3owe$er< the sa8e 8ay not

by itself be a 7round for dis8issin7 the co8plaint at the threshold. G#dai Shankar A$asthi v. State of #.P. & Anr.-H. In certain e?ceptional circu8stances delay 8ay ha$e to be condoned considerin7 the 7ra$ity of the char7e.

7.

The contention that Section 5*+ should be interpreted to 8ean that where the

Ma7istrate does not ta=e co7ni>ance within the period of li8itation it 8ust be treated as ha$in7 the obEect of 7i$in7 @uietus to petty
6

(2013) 2 SCC 435

Page 9

10

offences untenable.

in

the

Indian

%enal

Code

is

So8e offences which fall within

the periods of li8itation specified in Section 5*+ of the Cr.%.C are serious. It could ne$er ha$e been the intention of the le7islature to accord @uietus to such offences.

h.

%rocedure is 8eant to sub-ser$e and not rule the cause of Eustice. %rocedural laws 8ust

be liberally construed to really ser$e as hand8aid. Technical obEections which tend

to defeat and deny substantial Eustice should be strictly discoura7ed. GS)shil K)mar Jain v. State of Bihar./ Sardar Amar!eet

Sin0h Kalra 1dead2 *y % s. & 3rs. v. Promod 4)pta 1dead2 *y % s. & 3rs.5/ Kailash v. 6anhk) & 3rs.7,

7 8

1975 (3) SCR 944 (2003) 3 SCC 272 9 (2005) 4 SCC 480]

Page 10

11

).

4ist of sub8issions of Mr. S. 4uru Krishna=u8ar<

learned senior counsel and Mrs. V. Mohana< learned counsel for respondent 0 in Cri8inal Appeal (o. +.9 of .//).

a.

Bharat Kale and Japani Sahoo do not represent the correct position in law.

Krishna Pillai ri7htly holds that the rele$ant date for considerin7 period of li8itation is the date of ta=in7 co7ni>ance. b. The settled principles re@uire that of the statutory e?pression

construction

Aco7ni>anceB occurrin7 in Chapter FFFVI of the Cr.%.C. has to be 7i$en its le7al sense< since it has ac@uired a special connotation in cri8inal law. It is a settled position in law

that ta=in7 co7ni>ance is Eudicial application of 8ind to the contents of a co8plaint2police report for the first ti8e. 8 . . Chari v. The State
10

of

#ttar

Pradesh19/

Bh)shan

AIR 1951 SC 207

Page 11

12

K)mar & Anr. v. State 16CT of Delhi2 & Anr.11,. If an e?pression has ac@uired a special connotation in law< dictionary or 7eneral 8eanin7 ceases to be helpful in interpretin7 such a word. Such an e?pression 8ust be 7i$en its le7al 8eanin7 and no other. 8State of Madras v. 4annon

D)kerley & Co. 1Madras2 %td.1:,.

c.

The headin7 of Chapter FFFVI pro$idin7 for li8itation for ta=in7 co7ni>ance of certain offences is clearly reflecti$e of the le7islati$e intent to treat the date of ta=in7 co7ni>ance as the rele$ant date in co8putin7 li8itation. %ertinently< Section 5*, defines the

e?pression Aperiod of li8itationB as the period specified in Section 5*+ for ta=in7 co7ni>ance of an offence. Section
11 12

The e?press lan7ua7e of 8a=es it clear that the

5*+

&./0.' ) SCC 5.5

1959 SCR 379

Page 12

13

le7islature considers the rele$ant date for co8putin7 the date of li8itation to be the date of ta=in7 co7ni>ance and not the date of filin7 of a co8plaint. Iurther< the situations in Section 5,/ of the Cr.%.C. pro$idin7 for e?clusion li8itation in are co8putin7 a7ain the period to of

relatable

ta=in7

co7ni>ance and institution of prosecution. So also< e?clusion under Section 5,0 of the Cr.%.C. relates only to ta=in7 co7ni>ance and Section 5,1 of the Cr.%.C. also pro$ides for e?tension of period of li8itation in ta=in7 co7ni>ance.

d.

The

sche8e

of

the

Cr.%.C.

en$isa7es

co7ni>ance to be the point of initiation of proceedin7s. Chapter FIV of the Cr.%.C. which contains pro$isions of ta=in7 co7ni>ance is titled JConditions re@uisite for initiation of proceedin7sK. All pro$isions contained

Page 13

14

therein

use

the

e?pression

Aco7ni>anceB.

They do not refer to filin7 of co8plaint at all.

e.

6here the words of a statute are absolutely clear and una8bi7uous< recourse cannot be had to the principles of interpretation other than the literal rule. interpretation incon$enience & a0h)nath results it has L$en if the literal in to hardship be or

followed v. !n a

ai Bare!a and Anr.

P)n!a* 6ational Bank and 3rs.21".

plain and literal interpretation of Section 5*+ of the Cr.%.C. read in the bac=7round of obEect of Chapter FFFVI the intention of the le7islature is clearly e$ident that bar of li8itation is only for ta=in7 co7ni>ance of an offence after the e?piry of the period

specified therein.

13

(2007) 2 SCC 230

Page 14

15

f.

Chapter FV of the Cr.%.C. sets out procedure to be followed in respect of co8plaints filed directly to a Ma7istrate. It reflects a well laid out sche8e which en$isa7es Eudicial

application of 8ind to be a pre-re@uisite for initiation of proceedin7s. The definition of

the ter8 Aco8plaintB contained in Section .&d' also 8a=es this e$ident. Thus< initiation of proceedin7s in cri8inal law can only be upon ta=in7 co7ni>ance. It is clear< therefore< that under Section 5*+ of the Cr.%.C.

le7islature has barred ta=in7 of co7ni>ance as en$isa7ed by Chapters FIV and FV after e?piry of period of li8itation. 3ence< the date for purpose of li8itation would be the date of ta=in7 co7ni>ance. Mere filin7 of a co8plaint does not result in co7ni>ance bein7 ta=en< for the law re@uires the court to apply its 8ind Eudicially process. e$en before decidin7 to issue

Page 15

16

7.

There was no period of li8itation under the old Cr.%.C. A lon7 delay led to serious ne7li7ence on the part of the prosecutin7 a7encies< for7etfulness on the part of the prosecution and defence witness and 8ental an7uish to the accused. Infliction of punish8ent lon7

after the co88ission of offence i8pairs its utility as social retribution to the offender. To ob$iate these lacunae Chapter FFFVI was introduced in the Cr.%.C.

h.

Bharat Kale and Japani Sahoo ha$e 8issed the obEect of introduction of Chapter FFFVI in the Cr.%.C. na8ely to ser$e lar7er interest of ad8inistration of cri8inal Eustice =eepin7 in $iew the interest of the accused and the interest of prosecutin7 a7encies. These

Eud78ents fail to ad$ert to the preEudice that will be caused to the accused if benefit of

Page 16

17

delay in ta=in7 co7ni>ance is not 7i$en to the8. The li=elihood of preEudice bein7

caused to the co8plainant which wei7hed with this court in the abo$e two decisions can be ta=en care of by Section 5,1 which pro$ides for condonation of delay. 8State of P)n!a* v. Sar$an Sin0h1;/ <anka

adhamanohari 1Smt.2 v. <anka <enkata eddy and others0) and State of =.P. v. Tara D)tt & Anr.0*,

i.

!bEect of Section 5,1 of the Cr.%.C. has not been considered in Bharat Kale and Japani Sahoo. They are sub-silentio in this re7ard. &M)ni'ipal Corporation of Delhi <.

4)rnam Ka)r0,). They ha$e also not ta=en note of difference of lan7ua7e in Sections 5*+ and 5*9 of the Cr.%.C.
14 15

AIR 1981 SC 1054 (1993) 3 SCC 4 16 (2000) 1 SCC 230 17 (1989) 1 SCC 101

Page 17

18

E.

There are se$en e?ceptions in the Cr.%.C. to Section 5*+ na8ely Sections +5&0'< 9*&0'< 09+&*'< 099&)'< 1,+&)'< 5),&.' and the

pro$iso to Section 0.)&1'.

In all these

pro$isions period of li8itation has been e?pressly pro$ided by the le7islature. The

lan7ua7e of each of these pro$isions is different fro8 lan7ua7e of Section 5*+. A

perusal of these se$en e?ceptions show that what is intended in Section 5*+ of the Cr.%.C. is li8itation for ta=in7 co7ni>ance and not for filin7 co8plaints.

*.

4ist of sub8issions of Mr. %ad8anabhan< learned respondent . in Cri8inal Appeal (o. +.9 of

counsel for .//).

a.

The

le7islature

has

been

$ery

specific

where$er ti8e li8it has to be fi?ed for

Page 18

19

initiation of prosecution.

In certain special

le7islations li=e the (e7otiable Instru8ents Act bar of li8itation is not co-related to ta=in7 co7ni>ance of an offence by a court< but it is co-related to filin7 of a co8plaint within a specific period. It is apparent that

the bar under Chapter FFFVI of the Cr.%.C. 8ust be co-related to ta=in7 co7ni>ance of an offence by the court in $iew of specific lan7ua7e used by the rele$ant sections contained therein. b. Chapter FFFVI of the Cr.%.C. is captioned as A#i8itation for Ta=in7 Co7ni>ance of Certain !ffencesB. Therefore< this Chapter has to be understood as a Chapter placin7 li8itation upon the court for the purposes of ta=in7 co7ni>ance within the ti8efra8e prescribed and not for filin7 of a co8plaint. Chapter the word In this or

Aco8plaintB

Page 19

20

Aco8plainantB

are

conspicuously

absent.

L8phasis is on AoffencesB. c. Section 5,1 of the Cr.%.C enEoins a duty on the court to e?a8ine not only whether the delay has been e?plained or not but whether it is necessary to do so in the interest of Eustice.

d.

If the char7e-sheet is hit by Section 5*+< the Court 8ay then resort to Section 5,1 in e?ceptional cases in the interest of Eustice. The sa8e consideration 8ay not arise if a pri$ate co8plaint is filed. Section 5,1 is

desi7ned to cater to situations when for 7enuine reasons in$esti7ation is delayed. It is not intended to 7i$e lon7 rope to liti7ants who ta=e lon7 ti8e to approach the court.

Page 20

21

e.

Mar7inal 3eadin7 or (ote can be usefully referred to< to deter8ine the sense of any doubtful e?pression in a section ran7ed under that headin7 thou7h it cannot be referred to for 7i$in7 a different effect to clear words in the section.

,.

4ist of sub8issions of Mr. A8rendra Sharan< learned

senior counsel appearin7 for the petitioner in S#% &Crl.' (os. )*+,-)*++ of ./01 and S#% &Crl.' (o. ),*5 of ./01. a. Chapter FFFVI of the Cr.%.C. is a co8plete code in itself which deals with issue of bar of li8itation for ta=in7 co7ni>ance of an offence.

b.

A bare readin7 of Section 5*+ of the Cr.%.C lea$es no 8anner of doubt that the bar of li8itation applies as on the date of

co7ni>ance. It specifically tar7ets co7ni>ance and it debars ta=in7 co7ni>ance of an offence after e?piration of the statutory period of

Page 21

22

li8itation.

!ne cannot 8a=e funda8ental

alteration in the words of the statute. Ta=in7 co7ni>ance cannot be altered to filin7

co8plaint within statutory period.

c.

Ta=in7 co7ni>ance is distinct fro8 filin7 co8plaint. The ter8 co7ni>ance has been . . Chari and

defined by this Court in Darshan Sin0h Maharashtra0+.

am Kishan v. State of Co7ni>ance ta=es place

when a Ma7istrate first ta=es Eudicial notice of an offence on a co8plaint< or on a police report or upon infor8ation of a person other than a police officer. d. !peration of le7al 8a?i8s can be e?cluded by statutes but operation of statutes cannot be e?cluded by le7al 8a?i8s. "eliance on a 8a?i8 by this Court in Japani Sahoo for car$in7 out an e?ception and supplyin7
18

(1971) 2 SCC 654

Page 22

23

words to the co8plete Code of li8itation is erroneous. e. %enal statutes ha$e to be interpreted strictly. 8Tolaram Bom*ayH09. el)mal & Anr. v. The State of It is the cardinal rule of

interpretation that where a statute pro$ides a particular thin7 should be done< it should be done in the 8anner prescribed and not in any other way. 1State of Jharkhand & Anr. v. Am*ay Cements & Anr.:92 f. The rule of Casus Omissus stipulates that a 8atter which should ha$e been< but has not been pro$ided for in the statute cannot be supplied by the courts as< to do so< will be le7islation by court and not construction. The le7islati$e casus omissus cannot be supplied by Eudicial interpretati$e process. There is no scope for supplyin72 supplantin7 any word<
19 20

AIR 1954 SC 496 (2005) 1 SCC 368

Page 23

24

phrase or sentence or creatin7 any e?ception in Chapter FFFVI which is a co8plete Code in itself. 8Shiv Shakti Co>operative =o)sin0 So'iety/ 6a0p)r v. S$ara! Developers & 3rs:1./ Kaiser et'.::/ Bharat Al)min)m Co. et'. v.

Al)min)m Assistant

Te'hni'al

Servi'es

Commissioner/ & 3rs. v.

Assessment>&&/

Ban0alore

<elliappa Te(tiles %td. & Anr.:",. 7. Japani Sahoo does not lay down the correct law because by stipulatin7 that the date of li8itation is to be calculated fro8 the date of filin7 of co8plaint rather than fro8 the date on which the co7ni>ance is ta=en< it has created a casus omissus< where the lan7ua7e of the statute was plain and no casus omissus e?isted.

21 22

(2003) 6 SCC 659 (2012) 9 SCC 552 23 (2003) 11 SCC 405

Page 24

25

h.

The 4olden "ule of Interpretation pro$ides that a statute has to be interpreted by 7ra88atical or literal 8eanin7 un8indful of the conse@uences if the lan7ua7e of the statute is plain and si8ple. GMa)lavi

=)ssein =a!i A*raham #mar!i v. State of 4)!arat & Anr:;H.

i.

The

#aw

Co88issionBs

5.nd

"eport

de8onstrates the rational for introduction of li8itation in Cr.%.C. The le7islature wanted to ensure that prosecution should not result in persecution especially in cases of 8inor offences which could be tried and disposed of speedily. E. The accused has a funda8ental ri7ht to speedy trial which is a facet of Article .0. GA. . Ant)lay v. .S. 6ayak :+ 1?Ant)lay

24 25

(2004) 6 SCC 672 (1992) 1 SCC 225

Page 25

26

@177:A CaseB2H Therefore< it is the duty of the courts to ta=e co7ni>ance within a prescribed ti8efra8e. If the court fails to do so< it is not open to it to ta=e co7ni>ance of such offence as it 8i7ht preEudice the ri7ht of the accused. Therefore< no co7ni>ance can be ta=en after the period of li8itation. 8 a! Deo Sharma 1&&2 v. State of Bihar :and

Sar$an Sin0h.,

=.

The accused has a ri7ht to be heard at the ti8e of condonation of delay in ta=in7

co7ni>ance by the courts.

Delay cannot be

condoned without notice to the accused. GState of Maharashtra v. Sharad'handra <inayak Cho)dhary Don0re v. & 3rs.:./ ;5 P.K. B TC/

Commander/

26 27

(1999) 7 SCC 604 (1995) 1 SCC 42

Page 26

27

14 DC2:5/ Krishna San0hai v. State of M.P.:7,

l.

The accused ha$e to be heard when an application under Section 5,1 of the Cr.%.C. is 8o$ed by the prosecution before co7ni>ance is ta=en. Section 5*+ of the Cr.%.C. is clear and una8bi7uous and it bars ta=in7

co7ni>ance of an offence< if on the date of ta=in7 co7ni>ance the period prescribed

under Section 5*+&.' of the Cr.%.C. has e?pired. Japani Sahoo< therefore< does not lay down the correct law. +. 4ist of sub8issions of Mr. Sidharth #uthra< learned

Additional Solicitor 4eneral< appearin7 for the respondent State &(CT of Delhi' in S#% &Crl.' (os. )*+,-)*++ of ./01 and S#% &Crl.' (o. ),*5 of ./01.

28 29

(2008) 13 SCC 229 1997 Cr.L.J 90 (MP)

Page 27

28

a.

Bharat Kale lays down the correct law and not Krishna Pillai.

b.

#e7islati$e history of Chapter FFFVI indicates its obEect.

c.

Sta7e of process is not to be 8ista=en for co7ni>ance. Co7ni>ance indicates the point

when a court ta=es Eudicial notice of an offence with a $iew to initiatin7 process in respect of the offence GS.K. Sinha/ Chief Dnfor'ement 3ffi'er v. <ideo'on

&nternational %td. & 3rs."9,. Co7ni>ance is entirely a different thin7 fro8 initiation of proceedin7s< rather it is the condition

precedent to the initiation of proceedin7s by the court. Co7ni>ance is ta=en of the case and not of persons. Mnder Section 09/ of the Cr.%.C. it is the application of 8ind to the a$er8ents in the co8plaint that constitutes
30

(2008) 2 SCC 492

Page 28

29

co7ni>ance (Bh)shan K)mar2. process

Sta7e of

is not rele$ant for the purpose of

co8putin7 li8itation under Section 5*+ of the Cr.%.C. d. Chapter FFFVI has to be read as a whole. To understand reference the 8ay sche8e be of this to Chapter <anka

8ade

adhamanohari. e. !n interpretation of Section 5,1 of the Cr.%.C particularly the disEuncti$e AorB used therein reference 8ay of be 8ade v. to M)ni'ipal Chand

Corporation

Delhi

Tek

Bhatia"1. !nce the co8plainant has acted with due dili7ence and there are delays on the part of the Court< it would be in the interest of Eustice to condone such delay and not call for e?planation fro8 the co8plainant which in any case he cannot possibly 7i$e.
31

(1980) 1 SCC 158

Page 29

30

!n condonation of delay reference 8ay be 8ade to Sharad'handra Don0re. f. Ta=in7 co7ni>ance is not dictated by the prosecution of the co8plaint or police report but is predicated upon application of Eudicial 8ind by the Ma7istrate which is not in the control of the indi$idual institutin7 the

prosecution. If date of ta=in7 co7ni>ance is considered to be rele$ant in co8putin7 li8itation< the act of the court can preEudice the co8plainant which will be a7ainst the 8a?i8 Athe acts of courts should not

preEudice anyoneB. G od0er v. Comptoir DADs'ompte De Paris":,.

7.

Krishna Pillai relates to Section 9 of the Child Marria7e "estraint Act< 09.9 which is a special law and which pro$ides for a

li8itation for ta=in7 co7ni>ance and could

32

(1870-71) VII Moor !.S. 314

Page 30

31

e?clude the application of Chapter FFFVI and< hence< Section 5,1 of the Cr.%.C. and perhaps in such facts there was no reference to Section 5,1 of the Cr.%.C. Si8ilar is the

$iew in P.P. #nnikrishnan & Anr. v. P)ttiyottil Alik)tty & Anr."". h. It is settled law that Sections 5 and ) of the Cr.%.C. create an e?ception for special laws with special procedures. Krishna Pillai was in the conte?t of specific li8itation period where Section 5,1 of the Cr.%.C. had no application. Thus< it cannot be considered or applied to interpret Sections 5*+ and 5,1 of the Cr.%.C. as they stand. !n the contrary< and Japani

$iew ta=en in Bharat Kale Sahoo relyin7 upon

ashmi K)mar 1Smt.2

v. Mahesh K)mar Bhada<15 reach the sa8e

33 34

(2000) 8 SCC 131 (1997) 2 SCC 397

Page 31

32

conclusion as contended herein i.e. the acts of the court should not preEudice anyone.

9.

3a$in7 7i$en the 7ist of the sub8issions< we shall now

ad$ert to Krishna Pillai< Bharat Kale and Japani Sahoo which ha$e led to this reference. In Krishna Pillai this

Court was concerned with Section 9 of the Child Marria7e "estraint Act< 09.9 which reads as underC JNo court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. It was not disputed that co7ni>ance of the offence had been ta=en by the court 8ore than a year after the offence was co88itted. The appellant challen7ed the continuance of prosecution by filin7 an application under Section 5+. of the Cr.%.C. before the 3i7h Court contendin7 that the co7ni>ance was barred under Section 9 of the Child Marria7e "estraint Act< 09.9. It was contended by the respondent

that since the co8plaint had been filed within a year fro8

Page 32

33

the co88ission of the offence it 8ust be ta=en that the court has ta=en co7ni>ance on the date when the co8plaint was filed. Therefore< the co8plaint cannot be said to be This Court @uoted the followin7

barred by li8itation.

obser$ations of the Eud78ent of the Constitution ;ench in A. . Ant)lay v. @175;A CaseB"+E !hen a private complaint is filed" the court has to examine the complainant on oath save in the cases set out in the proviso to #ection $%% Cr&C After examining the complainant on oath and examining the witnesses present" if any" meaning thereby that the witnesses not present need not be examined" it would be open to the court to 'udicially determine whether a case is made out for issuing process. !hen it is said that court issued process" it means the court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court. amdas Srini$as 6ayak 1?Ant)lay

This Court obser$ed that co7ni>ance has assu8ed a special 8eanin7 in our cri8inal Eurisprudence and the abo$e e?tract fro8 Ant)lay @175;A Case indicates that filin7 of a
35

(1984) 2 SCC 500

Page 33

34

co8plaint is not ta=in7 co7ni>ance and what e?actly constitutes ta=in7 co7ni>ance is different fro8 filin7 a co8plaint. This Court obser$ed that since the 8a7isterial

action in the case before it was beyond the period of one year fro8 the date of co88ission of the offence< the Ma7istrate was not co8petent to ta=e co7ni>ance when he did in $iew of the bar under Section 9 of the Child Marria7e "estraint Act< 09.9.

0/. ;efore discussin7 Bharat Kale< it is necessary to 7o to ashmi K)mar 1Smt.2 on which reliance is placed in Bharat Kale. In that case< the @uestion was whether the co8plaint filed by the co8plainant-wife a7ainst the husband under Section 5/* of the I%C in Septe8ber< 099/ was ti8e barred. The offence under Section 5/* of the I%C is

punishable with i8prison8ent which could e?tend to three years or with fine or with both. Therefore< under Section

5*+&1' of the Cr.%.C.< the li8itation period for the said offence is three years. It was ur7ed by the counsel for the husband that the e$idence of the co8plainant-wife recorded

Page 34

35

under Section .// of the Cr.%.C. establishes that in !ctober< 09+* the co8plainant-wife de8anded return of Eewelry and the husband refused to return the Eewelry. Therefore< the

period of li8itation be7an to run fro8 !ctober< 09+* and the co8plaint filed in Septe8ber< 099/ was ti8e barred< it ha$in7 been filed beyond the period of three years. A three:ud7e ;ench of this Court ne7ati$ed this contention and held that it was clearly a$erred in the co8plaint that on )20.209+,< the co8plainant-wife had de8anded Eewelry fro8 the husband and the husband had refused to do so and< therefore< the co8plaint filed on 0/292099/ was within three years fro8 the date of de8and of Eewelry and refusal to return it by the husband. Thus< for the purpose of

co8putation of period of li8itation< the date of filin7 of the co8plaint was held to be rele$ant.

00. In

Bharat

Kale/ the

offence under the Dru7s and

Ma7ic "e8edies &!bEectionable Ad$ertise8ents' Act< 09)5 was detected on )2120999. The co8plaint was filed on

1212./// which was within the period of li8itation of one

Page 35

36

year.

3owe$er<

the

Ma7istrate

too=

co7ni>ance

on

.)212./// i.e. beyond the period of one year. It was ar7ued that since co7ni>ance was ta=en beyond the period of one year< the bar of li8itation applies. After considerin7 the

pro$isions of Chapter FFFVI of the Cr.%.C. this Court obser$ed that they indicate that the li8itation prescribed therein is only for the filin7 of the co8plaint or initiation of the prosecution and not for ta=in7 co7ni>ance. It< of course< prohibits the court fro8 ta=in7 co7ni>ance of an offence where the co8plaint is filed before the court after the e?piry of the period 8entioned in the said Chapter. This Court

further obser$ed that ta=in7 co7ni>ance is an act of the court o$er which the prosecutin7 a7ency or the co8plainant has no control. A co8plaint filed within the period of

li8itation cannot be 8ade infructuous by an act of the court which will cause preEudice to the co8plainant. Such a

construction will be a7ainst the 8a?i8 A actus curiae neminem gravabit(" which 8eans the act of court shall preEudice no 8an. It was also obser$ed relyin7 on ashmi

K)mar 1Smt.2 that the le7islature could not ha$e intended

Page 36

37

to put a period of li8itation on the act of the court for ta=in7 co7ni>ance of an offence so as to defeat the case of the co8plainant. 0.. In Japani Sahoo< the co8plainant therein filed a

co8plaint in the court of the concerned Ma7istrate alle7in7 co88ission of offences punishable under Sections 0*0< .95< 1.1 and )/* of the I%C. !n +2+2099, learned Ma7istrate on the basis of state8ents of witnesses issued su88ons for appearance of the accused. The accused surrendered on

.12002099+ and thereafter filed a petition under Section 5+. of the Cr.%.C. in the 3i7h Court for @uashin7 cri8inal proceedin7s contendin7 inter alia that no co7ni>ance could ha$e been ta=en by the court after the period of one year of li8itation prescribed for the offences punishable under Sections .95 and 1.1 of the I%C. The 3i7h Court held that the rele$ant date for decidin7 the bar of li8itation was the date of ta=in7 co7ni>ance by the court and since co7ni>ance was ta=en after the period of one year and the delay was not condoned by the court by e?ercisin7 power under Section

Page 37

38

5,1 of the Code< the co8plaint is liable to be dis8issed. !n appeal< this Court referred to another well =nown 8a?i8 Anullum tempus aut locus occurrit regi( which 8eans that a cri8e ne$er dies. This Court elaborately discussed the

sche8e of Chapter FFFVI of the Cr.%.C. and after followin7 Bharat Kale held that it is the date of filin7 of co8plaint or the date on which cri8inal proceedin7s are initiated which is 8aterial.

01. At the outset< we 8ust deal with the criticis8 le$eled a7ainst Bharat Kale and Japani Sahoo that they place It was ar7ued that le7al

undue reliance on le7al 8a?i8s.

8a?i8s can neither e?pand nor delete any part of an e?press statutory pro$ision< nor can they 7i$e an

interpretation which is directly contrary to what the pro$ision stipulated. Their operation can be e?cluded by statutes but operation of statutes cannot be e?cluded by le7al 8a?i8s.

05. It is true that in Bharat Kale and Japani Sahoo this Court has referred to two i8portant le7al 8a?i8s. 6e 8ay

Page 38

39

add that in <anka

adhamanohari/ to which our attention

has been drawn by the counsel< it is stated that the 7eneral rule of li8itation is based on #atin 8a?i8 A vigilantibus et non dormientibus" 'ura subveniunt(" which 8eans the $i7ilant and not the sleepy< are assisted by laws. 6e are< howe$er<

unable to accept the sub8ission that reliance placed on le7al 8a?i8s was i8proper. 6e are 8indful of the fact

that le7al 8a?i8s are not 8andatory rules but their i8portance as 7uidin7 principles can hardly be

underesti8ated. =er*ert Broom in the preface to the Iirst Ldition of his classical wor= J%e0al Ma(imsK &as seen in ;roo8Bs #e7al Ma?i8s< Tenth Ldition< 0919' statedC )n the *egal #cience" perhaps more fre+uently than in any other" reference must be made to the first principles. )ndeed" a very limited ac+uaintance with the earlier ,eports will show the importance which was attached to the acknowledged -axims of the *aw" in periods when civilization and refinement had made comparatively little progress. )n the ruder ages" without doubt" the great ma'ority of +uestions respecting the rights" remedies" and liabilities of private individuals were determined by an immediate reference to such maxims" many of which obtained in the ,oman law" and are so manifestly founded in reason" public convenience"

Page 39

40

and necessity" as to find a place in the code of every civilized nation. )n more modern times" the increase of commerce" and of national and social intercourse" has occasioned a corresponding increase in the sources of litigation" and has introduced many subtleties and nice distinctions" both in legal reason and in the application of legal principles" which were formerly unknown. .his change" however" so far from diminishing the value of simple fundamental rules" has rendered an accurate ac+uaintance with them the more necessary" in order that they may be either directly applied" or +ualified" or limited" according to the exigencies of the particular case" and the novelty of the circumstances which present themselves. In our opinion< therefore< use of le7al 8a?i8s as 7uidin7 principles in Bharat Kale and Japani Sahoo is perfectly Eustified.

0). To address the @uestions which arise in this reference< it is necessary to ha$e a loo= at the le7islati$e history of Chapter FFFVI of the Cr.%.C. The Cri8inal %rocedure Code< 0+9+ contained no 7eneral pro$ision for li8itation. Thou7h under certain special laws li=e the (e7otiable Instru8ents Act< 0++0< Trade and Merchandise Mar=s Act< 09)+< the %olice Act< 0+*0< The Iactories Act< 095+ and the Ar8y Act<

Page 40

41

09)/< there are pro$isions prescribin7 period of li8itation for prosecution of offences< there was no 7eneral law of li8itation for prosecution of other offences. The approach

of this Court while dealin7 with the ar7u8ent that there was delay in launchin7 prosecution< when in the Cri8inal %rocedure Code &0+9+'< there was no 7eneral pro$ision prescribin7 li8itation< could be ascertained fro8 its

Eud78ent in The Assistant Colle'tor of C)stoms / Bom*ay & Anr. v. %. . Mel$ani & Anr. 1*. It was ur7ed before the 3i7h Court in that case that there was delay in launchin7 prosecution. The 3i7h Court held that the delay was satisfactorily e?plained. 6hile dealin7 with this

@uestion< this Court held that in any case prosecution could not ha$e been @uashed on the 7round of delay because it was not the case of the accused that any period of li8itation was prescribed for filin7 the co8plaint. 3ence the co8plaint could not ha$e been thrown out on the sole 7round that there was delay in filin7 the sa8e. This Court further

obser$ed that the @uestion of delay in filin7 co8plaint 8ay

36

AIR 1970 SC 962

Page 41

42

be a circu8stance to be ta=en into consideration in arri$in7 at the final $erdict and by itself it affords no 7round for dis8issin7 the co8plaint. This position underwent a chan7e to so8e e?tent when Chapter FFFVI was introduced in the Cr.%.C. as we shall soon see.

0*. It is pertinent to note that the #i8itation Act< 09*1 does not apply to cri8inal proceedin7s e?cept for appeals or re$isions for which e?press pro$ision is 8ade in Articles 005< 00)< 010 and 01. thereof. After conductin7 e?tensi$e study of cri8inal laws of $arious countries< the #aw Co88ission of India appears to ha$e reali>ed that pro$idin7 pro$ision of li8itation for prosecution of cri8inal offences of certain type in 7eneral law would< in fact< be 7ood for the cri8inal Eustice syste8. The #aw Co88ission noted that the reasons to

Eustify introduction of pro$isions prescribin7 li8itation in 7eneral law for cri8inal cases are si8ilar to those which Eustify such pro$isions in ci$il law such as li=elihood of e$idence bein7 curtailed< failin7 8e8ories of witnesses and disappearance of witnesses. Such a pro$ision< in the opinion

Page 42

43

of the #aw Co88ission< will @uic=en dili7ence< pre$ent oppression and in the 7eneral public interest would brin7 an end to liti7ation. The #aw Co88ission also felt that the

court would be relie$ed of the burden of adEudicatin7 inconse@uential clai8s. %ara7raph .5.1 is 8aterial. It reads thusC

$/.0 1 )n civil cases" the law of limitation in almost all countries where the rule of law prevails" 2urists have given several convincing reasons to 'ustify the provision of such a law3 some of those which are e+ually applicable to criminal prosecutions may be referred to here45 678 .he defendant ought not to be called on to resist a claim when evidence has been lost" memories have faded" and witnesses have disappeared. 6$8 .he law of limitation is also a means of suppressing fraud" and per'ury" and +uickening diligence and preventing oppression. 608 )t is in the general public interest that there should be an end to litigation. .he statute of limitation is a statute of repose. 6/8 A party who is insensible to the value of civil remedies and who does not assert his own claim with promptitude has little or no right to re+uire the aid of the state in enforcing it.

Page 43

44

698 .he court should be relieved of the burden of ad'udicating inconse+uential or tenuous claims.

The #aw Co88ission stated

its case for e?tendin7

li8itation to ori7inal prosecutions as underC $/.77 5 )t seems to us that there is a strong case for having a period of limitation for offences which are not very serious. :or such offences" considerations of fairness to the accused and the need for ensuring freedom from prosecution after a lapse of time should outweigh other considerations. -oreover" after the expiry of a certain period the sense of social retribution loses its edge and the punishment does not serve the purpose of social retribution. .he deterrent effect of punishment which is one of the most important ob'ectives of penal law is very much impaired if the punishment is not inflicted promptly and if it is inflicted at a time when it has been wiped off the memory of the offender and of other persons who had knowledge of the crime. %ara7raphs .5.01< .5.05< .5../< .5...< .5..1< .5..5< .5..)< and .5..* could also be ad$anta7eously @uoted. $/.70 1 At present no court can throw out a complaint solely on the ground of delay" because" as pointed out by the #upreme Court" the +uestion of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict" but by itself" it affords

Page 44

45

no grounds for dismissing the complaint. )t is true that unconscionable delay is a good ground for entertaining grave doubts about the truth of the complainant(s story unless he can explain it to the satisfaction of the court. ;ut it would be illegal for a court to dismiss a complaint merely because there was inordinate delay. $/.7/. 5 !e" therefore" recommend that the principle of limitation should be introduced for less serious offences under the Code. !e suggest that" for the present" offences punishable with fine only or with imprisonment upto three years should be made sub'ect to the law of limitation. .he +uestion of extending the law to graver offences may be taken up later on in the light of the experience actually gained. $/.$%. 5 .he +uestion whether prosecution commences on the date on which the court takes cognizance of the offence or only on the date on which process is issued against the accused" has been settled by the #upreme Court with reference to #ection 79 of the -erchandise -arks Act" 7<<=. !here the complaint was filed within one year of the discovery of offence" it cannot be thrown out merely because process was not issued within one year of such discovery. .he complainant is re+uired by section 79 of the Act to commence prosecution within this period" which means that if the complaint is presented within one year of such discovery" the re+uirements of section 79 are satisfied. .he period of limitation is intended to operate against complainant and to ensure diligence on his part in prosecuting his rights" and not against the Court. )t will defeat the ob'ect to the enactment deprive traders of the protection which the law intended to give them" to hold that unless process is issued on their complaint within

Page 45

46

one year of the discovery of the offence" it should be thrown out. $/.$$ 5 #econdly" as in civil cases" in computing the period of limitation for taking cognizance of offence" the time during which any person has been prosecuting with the due diligence another prosecution whether in a court of first instance or in a court of appeal or revision" against the offender" should be excluded" where the prosecution relates to the same facts and is prosecuted in good faith in a court which" from defect of 'urisdiction or other cause of a like nature" is unable to entertain it. $/.$0 5 .hirdly" in the case of a continuing offence" a fresh period of limitation should begin to run at every moment of the time during which the offence continues3 and we recommend the insertion of a provision to that effect. $/.$/ 5 )mpediments to the institution of a prosecution have also to be provided for. #uch impediments could be 6a8 legal" or 6b8 due to conduct of the accused" or 6c8 due to the court being closed on the last day. As regards legal impediments" two aspects may be considered" first" the time for which institution of prosecution is stayed under a legal provision" and secondly" prosecutions for which previous sanction is re+uired" or notice has to be given" under legal provision. ;oth are appropriate cases for a special provision for extending the period of limitation. !e recommend that" where the institution of the prosecution in respect of an offence has been stayed by an in'unction or order" than" in computing the period of limitation for taking cognizance of that offence" the time of the

Page 46

47

continuance of the in'unction or order" the day on which it was issued or made" and the day on which it was withdrawn" shall be excluded. $/.$9 5 !e also recommend that where notice of prosecution for an offence has been given" or where for prosecution for an offence the previous consent or sanction of the >overnment or any other authority is re+uired" in accordance with the re+uirements of any law for the time being in force" then in computing the period of limitation for taking cognizance of the offence" the period of such notice or" as the case may be" the time re+uired for obtaining such consent or sanction" shall be excluded. $/.$? 5 As illustrations of impediments caused by the conduct of the accused" we may refer to his being out of )ndia" and his absconding or concealing himself. ,unning of the period of limitation should be excluded in both cases.

0,. The :oint %arlia8ent Co88ittee &J !" JPCK' accepted the reco88endations of the #aw Co88ission for prescribin7 period of li8itation for certain offences. The rele$ant para7raphs of its report dated 1/200209,. read as underC

Cla)ses ;-. to ;." 1ne$ 'la)ses2 F .hese are new clauses prescribing periods of limitation on a graded scale for launching a criminal prosecution in certain cases. At present" there is no period of limitation for criminal prosecution and

Page 47

48

a Court cannot throw out complaint or a police report solely on the ground of delay although inordinate delay may be a good ground for entertaining doubts about the truth of the prosecution story. &eriods of limitation have been prescribed for criminal prosecution in the laws of many countries and the Committee feels that it will be desirable to prescribe such periods in the Code as recommended by the *aw Commission. Among the grounds in favour of prescribing the limitation may be mentioned the following4 7. As time passes the testimony of witnesses become weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater. $. :or the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some time or the other commit some crime or the other. &eople will have no peace of mind if there is no period of limitation even for petty offences. 0. .he deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of the persons concerned. /. .he sense of social retribution which is one of the purposes of criminal law looses its edge after the expiry of a long period.

Page 48

49

9. .he period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime +uickly. .he actual periods of limitation provided for in the new clauses would" in the Committee(s opinion be appropriate having regard to the gravity of the offences and other relevant factors. As regards the date from which the period is to be counted the Committee considered has fixed the date as the date of the offence. As" however this may create practical difficulties and may also facilitate an accused person to escape punishment by simply absconding himself for the prescribed period" the Committee has also provided that when the commission of the offence was not known to the person aggrieved by the offence or to any police officer" the period of limitation would commence from the day on which the participation of the offender in the offence first comes to the knowledge of a person aggrieved by the offence or of any police officer" whichever is earlier. :urther" when it is not known by whom the offence has 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. .he Committee has considered it necessary to make a specific provision for extension of time whenever the court is satisfied on the materials that the delay has been properly explained or that the accused had absconded. .his provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country.

Page 49

50

0+. "ead in the bac=7round of the #aw Co88issionBs "eport and the "eport of the :%C< it is clear that the obEect of Chapter FFFVI inserted in the Cr.%.C. was to @uic=en the prosecutions of co8plaints and to rid the cri8inal Eustice syste8 of inconse@uential cases displayin7 e?tre8e

lethar7y< inertia or indolence. The effort was to 8a=e the cri8inal Eustice syste8 8ore orderly< efficient and Eust by pro$idin7 period of li8itation for certain offences. In

Sar$an Sin0h< this Court stated the obEect of Cr.%.C in puttin7 a bar of li8itation as followsC .he ob'ect of the Criminal &rocedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time" as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. .he ob'ect which the statutes seek to sub5serve is clearly in consonance with the concept of fairness of trial as enshrined in Article $7 of the Constitution of )ndia. )t is" therefore" of the utmost importance that any prosecution" whether by the #tate or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.

Page 50

51

09. It is e@ually clear howe$er that the law 8a=ers did not want cause of Eustice to suffer in 7enuine cases. #aw

Co88ission reco88ended pro$isions for e?clusion of ti8e and those pro$isions were 8ade part of Chapter FFFVI. 6e< therefore< find in Chapter FFFVI pro$isions for e?clusion of ti8e in certain cases &Section 5,/'< for e?clusion of date on which the Court is closed &Section 5,0'< for continuin7 offences &Section 5,.' and for e?tension of period of li8itation in certain cases &Section 5,1'. crucial. Section 5,1 is

It e8powers the court to ta=e co7ni>ance of an

offence after the e?piry of the period of li8itation< if it is satisfied on the facts and in the circu8stances of the case that the delay has been properly e?plained or that it is necessary to do so in the interest of Eustice. Therefore<

Chapter FFFVI is not loaded a7ainst the co8plainant. It is true that the accused has a ri7ht to ha$e a speedy trial and this ri7ht is a facet of Article .0 of the Constitution. Chapter FFFVI of the Cr.%.C. does not under8ine this ri7ht of the accused. 6hile it encoura7es dili7ence by pro$idin7 for li8itation it does not want all prosecutions to be thrown

Page 51

52

o$erboard on the 7round of delay.

It stri=es a balance

between the interest of the co8plainant and the interest of the accused. It 8ust be 8entioned here that where the

le7islature wanted to treat certain offences differently< it pro$ided for li8itation in the section itself< for instance< Section 09+&*' and 099&)' of the Cr.%.C. 3owe$er< it chose to 8a=e 7eneral pro$isions for li8itation for certain types of offences for the first ti8e and incorporated the8 in Chapter FFFVI of the Cr.%.C.

./. To understand the sche8e of Chapter FFFVI it would be ad$anta7eous to @uote Sections 5*,< 5*+< 5*9 and 5,1 of the Cr.%.C. Section 5*, reads as underC /?@. Definitions. F :or the purposes of this Chapter" unless the context otherwise re+uires" period of limitation means the period specified in section /?< for taking cognizance of an offence Section 5*+ reads as underC /?<. Bar to takin0 'o0niGan'e after lapse of the period of limitation. 1678 Axcept as otherwise provided elsewhere in this Code" no Court" shall take cognizance of an offence of the

Page 52

53

category specified in sub5section6$8" after the expiry of the period of limitation. 6$8 .he period of limitation shall be5 6a8 six months" if the punishable with fine only3 offence is

6b8 one year" if the offence is punishable with imprisonment for a term not exceeding one year3 6c8 three years" if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 608 :or 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 5*9 reads as underC /?=. Commen'ement of the period of limitation. 5 678 .he period of limitation" in relation to an offender" shall commence" 5 6a8 on the date of the offence3 or

6b8 where the commission of the offence was not known to the person aggrieved by he offence or to any police officer" the first day on which such offence comes to the knowledge of such

Page 53

54

person or to any whichever is earlier3 or

police

officer"

6c8 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. 6$8 )n computing the said period" the day from which such period is to be computed shall be excluded. Section 5,1 reads as underC /@0. D(tension of period of limitation in 'ertain 'ases. F Notwithstanding anything contained in the foregoing provisions of this Chapter" any Court may take cognizance of an offence after the expiry of the period of limitation" if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of 'ustice.

.0. 4ist of these pro$isions could now be stated. Section 5*, defines the phrase Aperiod of li8itationB to 8ean the period specified in Section 5*+ for ta=in7 co7ni>ance of certain offences. Section 5*+ stipulates the bar of li8itation.

Page 54

55

Sub-section &0' of Section 5*+ 8a=es it clear that a fetter is put on the courtBs power to ta=e co7ni>ance of an offence of the cate7ory 8entioned in sub-section &.' after the e?piry of period of li8itation. Sub-section &.' lays down the period of li8itation for certain offences. Section 5*9 states when the period of li8itation co88ences. It is de?terously drafted so as to pre$ent ad$anta7e of bar of li8itation bein7 ta=en by the accused. It states that period of li8itation in relation to an offence shall co88ence either fro8 the date of offence or fro8 the date when the offence is detected. Section 5,/ pro$ides for e?clusion of ti8e in certain cases. It inter alia states that while co8putin7 the period of li8itation in relation to an offence< ti8e ta=en durin7 which the case was bein7 dili7ently prosecuted in another court or in appeal or in re$ision a7ainst the offender< should be e?cluded. e?planation to this section states that in The

co8putin7

li8itation< the ti8e re@uired for obtainin7 the consent or sanction of the 7o$ern8ent or any other authority should be e?cluded. Si8ilarly ti8e durin7 which the accused is abscondin7 or is absent fro8 India shall also be e?cluded.

Page 55

56

Section 5,0 pro$ides for e?clusion of date on which court is closed and Section 5,. pro$ides for continuin7 offence. Section 5,1 is an o$erridin7 pro$ision which enables courts to condone delay where such delay has been properly e?plained or where the interest of Eustice de8ands e?tension of period of li8itation. Analysis of these pro$isions indicates that Chapter FFFVI is a Code by itself so far as li8itation is concerned. All the pro$isions of this Chapter will ha$e to be read cu8ulati$ely. Sections 5*+ and 5*9 will ha$e to be

read with Section 5,1.

... It is now necessary to see what the words Ata=in7 co7ni>anceB 8ean. Co7ni>ance is an act of the court. The ter8 Aco7ni>anceB has not been defined in the Cr.%.C. To

understand what this ter8 8eans we will ha$e to ha$e a loo= at certain pro$isions of the Cr.%.C. Chapter FIV of the Code deals with AConditions re@uisite for initiation of proceedin7sB. Section 09/ thereof e8powers a Ma7istrate to ta=e co7ni>ance upon &a' recei$in7 a co8plaint of facts which constitute such offenceN &b' upon a police report of

Page 56

57

such factsN &c' upon infor8ation recei$ed fro8 any person other than a police officer< or upon his own =nowled7e< that such offence has been co88itted. Chapter FV relates to

ACo8plaints to Ma7istratesB. Section .// thereof pro$ides for e?a8ination of the co8plainant and the witnesses on oath. Section ./0 pro$ides for the procedure which a Ma7istrate who is not co8petent to ta=e co7ni>ance has to follow. Section ./. pro$ides for postpone8ent of issue of process. 3e 8ay< if he thin=s fit< and shall in a case where the accused is residin7 at a place beyond the area in which he e?ercises his Eurisdiction< postpone the issue of process a7ainst the accused and either in@uire into the case hi8self or direct an in$esti7ation to be 8ade by a police officer for the purpose of decidin7 whether there is sufficient 7round for proceedin7. Chapter FVI relates to co88ence8ent of

proceedin7s before the Ma7istrate. Section ./5 pro$ides for issue of process. Mnder this section if the Ma7istrate is of the opinion that there is sufficient 7round for proceedin7 and the case appears to be a su88ons case< he shall issue su88ons for the attendance of the accused. In a warrant

Page 57

58

case< he 8ay issue a warrant.

Thus< after initiation of

proceedin7s detailed in Chapter FIV< co8es the sta7e of co88ence8ent of proceedin7s co$ered by Chapter FVI.

.1. In Jam)na Sin0h & 3rs. v. on

Bhadai Shah ".< relyin7

. . Chari and 4opal Das Sindhi & 3rs. v. State of

Assam & Anr."5< this Court held that it is well settled that when on a petition or co8plaint bein7 filed before hi8< a Ma7istrate applies his 8ind for proceedin7 under the $arious pro$isions of Chapter FVI of the Cr.%.C.< he 8ust be held to ha$e ta=en co7ni>ance of the offences 8entioned in the co8plaint. .5. After referrin7 to the pro$isions of the Cr.%.C. @uoted by us hereinabo$e< in S.K. Sinha/ Chief Dnfor'ement

3ffi'er< this Court e?plained what is 8eant by the ter8 Ata=in7 co7ni>anceB. The rele$ant obser$ations of this Court could be @uotedC

37 38

AIR 1964 SC 1541 AIR 1961 SC 986

Page 58

59

7=. .he expression cognizance has not been defined in the Code. ;ut the word 6cognizance8 is of indefinite import. )t has no esoteric or mystic significance in criminal law. )t merely means become aware of and when used with reference to a court or a 2udge" it connotes to take notice of 'udicially. )t indicates the point when a court or a -agistrate takes 'udicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. $%. .aking cognizance does not involve any formal action of any kind. )t occurs as soon as a -agistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. .aking of cognizance is thus a sine +ua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. !hether or not a -agistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a -agistrate can be said to have taken cognizance.

In se$eral Eud78ents< this $iew has been reiterated. It is not necessary to refer to all of the8.

.). Thus< a Ma7istrate ta=es co7ni>ance when he applies his 8ind or ta=es Eudicial notice of an offence with a $iew to initiatin7 proceedin7s in respect of offence which is said to

Page 59

60

ha$e been co88itted.

This is the special connotation

ac@uired by the ter8 Aco7ni>anceB and it has to be 7i$en the sa8e 8eanin7 where$er it appears in Chapter FFFVI. It

bears repetition to state that ta=in7 co7ni>ance is entirely an act of the Ma7istrate. Ta=in7 co7ni>ance 8ay be delayed

because of se$eral reasons. It 8ay be delayed because of syste8ic reasons. It 8ay be delayed because of the

Ma7istrateBs personal reasons.

.*. In this connection< our attention is drawn to the Eud78ent of this Court in Sharad'handra Don0re. It is

ur7ed on the basis of this Eud78ent that by condonin7 the delay< the Court ta=es away a $aluable ri7ht which accrues to the accused. 3ence< the accused has a ri7ht to be heard when an application for condonation of delay under Section 5,1 of the Cr.%.C. is presented before the Court. Keepin7

this ar7u8ent in 8ind< let us e?a8ine both the $iew points i.e. whether the date of ta=in7 co7ni>ance or the date of filin7 co8plaint is 8aterial for co8putin7 li8itation. If the date on which co8plaint is filed is ta=en to be 8aterial< then

Page 60

61

if the co8plaint is filed within the period of li8itation< there is no @uestion of it bein7 ti8e barred. If it is filed after the period of li8itation< the co8plainant can 8a=e an

application for condonation of delay under Section 5,1 of the Cr.%.C. The Court will ha$e to issue notice to the accused and after hearin7 the accused and the co8plainant decide whether to condone the delay or not. If the date of ta=in7 co7ni>ance is considered to be rele$ant then< if the Court ta=es co7ni>ance within the period of li8itation< there is no @uestion of the co8plaint bein7 ti8e barred. If the Court ta=es co7ni>ance after the period of li8itation then< the @uestion is how will Section 5,1 of the Cr.%.C. wor=. The

co8plainant will be interested in ha$in7 the delay condoned. If the delay is caused by the Ma7istrate by not ta=in7 co7ni>ance in ti8e< it is absurd to e?pect the co8plainant to 8a=e an application for condonation of delay. The

co8plainant surely cannot e?plain that delay. Then in such a situation< the @uestion is whether the Ma7istrate has to issue notice to the accused< e?plain to the accused the reason why delay was caused and then hear the accused

Page 61

62

and decide whether to condone the delay or not. This would also 8ean that the Ma7istrate can decide whether to condone delay or not< caused by hi8. Such a situation will

be ano8alous and such a procedure is not =nown to law. Mr. #uthra< learned A.S.4. sub8itted that use of disEuncti$e AorB in Section 5,1 of the Cr.%.C. su77ests that for the first part i.e. to find out whether the delay has been e?plained or not< notice will ha$e to be issued to the accused and for the later part i.e. to decide whether it is necessary to do so in the interest of Eustice< no notice will ha$e to be issued. This

@uestion has not directly arisen before us. Therefore< we do not want to e?press any opinion whether for the purpose of notice< Section 5,1 of the Cr.%.C. has to be bifurcated or not. ;ut< we do find this situation absurd. It is absurd to hold that the Court should issue notice to the accused for condonation of delay< e?plain the delay caused at its end and then pass order condonin7 or not condonin7 the delay. #aw cannot be reduced to such absurdity. Therefore< the only har8onious construction which can be placed on Sections 5*+< 5*9 and 5,/ of the Cr.%.C. is that the Ma7istrate can ta=e co7ni>ance

Page 62

63

of an offence only if the co8plaint in respect of it is filed within the prescribed li8itation period. 3e would< howe$er< be entitled to e?clude such ti8e as is le7ally e?cludable.

.,. The role of the court actin7 under Section 5,1 was aptly described by this Court in <anka adhamanohari 1Smt.2

where this Court e?pressed that this Section has a nonobstante clause< which 8eans that it has an o$erridin7 effect on Section 5*+. This Court further obser$ed that there is a basic difference between Section ) of the #i8itation Act and Section 5,1 of the Cr.%.C. Ior e?ercise of power under

Section ) of the #i8itation Act< the onus is on the applicant to satisfy the court that there was sufficient cause for condonation of delay< whereas< Section 5,1 enEoins a duty on the court to e?a8ine not only whether such delay has been e?plained but as to whether< it is the re@uire8ent of Eustice to i7nore such delay. These obser$ations indicate the scope of Section 5,1 of the Cr.%.C. le7islati$e intent and 8eanin7 L?a8ined in li7ht of to the ter8

ascribed

Aco7ni>anceB by this Court< it is clear that Section 5,1 of the

Page 63

64

Cr.%.C. postulates condonation of delay caused by the co8plainant in filin7 the co8plaint. It is the date of filin7 of the co8plaint which is 8aterial.

.+. 6e are inclined to ta=e this $iew also because there has to be so8e a8ount of certainty or definiteness in 8atters of li8itation relatin7 to cri8inal offences. If< as

stated by this Court< ta=in7 co7ni>ance is application of 8ind by the Ma7istrate to the suspected offence< the subEecti$e ele8ent co8es in. 6hether a Ma7istrate has ta=en

co7ni>ance or not will depend on facts and circu8stances of each case. A dili7ent co8plainant or the prosecutin7 a7ency which pro8ptly files the co8plaint or initiates prosecution would be se$erely preEudiced if it is held that the rele$ant point for co8putin7 li8itation would be the date on which the Ma7istrate ta=es co7ni>ance. The co8plainant or the

prosecutin7 a7ency would be entirely left at the 8ercy of the Ma7istrate< who 8ay ta=e co7ni>ance after the li8itation period because of se$eral reasonsN syste8ic or otherwise. It cannot be the intention of the le7islature to throw a dili7ent

Page 64

65

co8plainant out of the court in this 8anner. ;esides it 8ust be noted that the co8plainant approaches the court for redressal of his 7rie$ance. 3e wants action to be ta=en The courts functionin7

a7ainst the perpetrators of cri8e.

under the cri8inal Eustice syste8 are created for this purpose. It would be unreasonable to ta=e a $iew that delay caused by the court in ta=in7 co7ni>ance of a case would deny Eustice to a dili7ent co8plainant. Such an

interpretation of Section 5*+ of the Cr.%.C. would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a pro$ision which would help sustainin7 the $alidity of the law by applyin7 the doctrine of reasonable construction rather than applyin7 a doctrine which would 8a=e the pro$ision unsustainable and ultra vires the Constitution. &#.P. Po$er Corporation %td. v. Ayodhaya Prasad Mishra'.

.9. The conclusion reached by us is reinforced by the fact that the #aw Co88ission in clause .5../ of its "eport< which

Page 65

66

we ha$e @uoted hereinabo$e< referred to Da) Dayal"7 where the three-:ud7e ;ench of this Court was dealin7 with a Special Act i.e. the Merchandise Mar=s Act< 0++9. Section 0) of the Merchandise Mar=s Act< 0++9 stated that no prosecution shall be co88enced after e?piration of one year after the disco$ery of the offence by the prosecution. The contention of the appellant was that the offence was disco$ered on .*25209)5 when he was arrested< and that< in conse@uence< the issue of process on ..2,209))< was beyond the period of one year pro$ided under Section 0) of the Merchandise Mar=s Act< 0++9 and that the proceedin7s should therefore be @uashed as barred by li8itation. 6hile repellin7 this contention< the three-:ud7e ;ench of this Court obser$ed as underC ?-. )t will be noticed that the complainant is re+uired to resort to the court within one year of the discovery of the offence if he is to have the benefit of proceeding under the Act. .hat means that if the complaint is presented within one year of such discovery" the re+uirements of #ection 79 are satisfied. .he period of limitation" it should be remembered" is intended to operate against the complainant and to ensure diligence on his part in
39

AIR 1959 SC 433

Page 66

67

prosecuting his rights" and not against the court. Now" it will defeat the ob'ect of the enactment and deprive traders of the protection which the law intended to give them" if we were to hold that unless process is issued on their complaint within one year of the discovery of the offence" it should be thrown out. )t will be an unfortunate state of the law if the trader whose rights had been infringed and who takes up the matter promptly before the criminal court is" nevertheless" denied redress owing to the delay in the issue of process which occurs in court. Thou7h< this Court was not concerned with the 8eanin7 of the ter8 Ata=in7 co7ni>anceB< it did not accept the sub8ission that li8itation could be 8ade dependent on the act of the Ma7istrate of issuin7 process. It held that if the co8plaint was filed within the stipulated period of one year< that satisfied the re@uire8ent. The co8plaint could not be thrown out because of the Ma7istrateBs act of issuin7 process after one year.

1/. As we ha$e already noted in reachin7 this conclusion< li7ht can be drawn fro8 le7al 8a?i8s. #e7al 8a?i8s are

referred to in Bharat Kale< Japani Sahoo and <anka adhamanohari 1Smt.2. The obEect of the cri8inal law is

Page 67

68

to punish perpetrators of cri8e. This is in tune with the well =nown le7al 8a?i8 Anullum tempus aut locus occurrit regi(" which 8eans that a cri8e ne$er dies. At the sa8e ti8e< it is also the policy of law to assist the $i7ilant and not the sleepy. This is e?pressed in the #atin 8a?i8 A vigilantibus et non dormientibus" 'ura subveniunt(. Chapter FFFVI of the

Cr.%.C. which pro$ides li8itation period for certain types of offences for which lesser sentence is pro$ided draws support fro8 this 8a?i8. ;ut< e$en certain offences such as Section 1+5 or 5*) of the I%C< which ha$e lesser punish8ent 8ay ha$e serious social conse@uences. 8ade for condonation of delay. %ro$ision is< therefore<

Treatin7 date of filin7 of

co8plaint or date of initiation of proceedin7s as the rele$ant date for co8putin7 li8itation under Section 5*+ of the Code is supported by the le7al 8a?i8 A actus curiae neminem gravabit( which 8eans that the act of court shall preEudice no 8an. It bears repetition to state that the courtBs inaction in ta=in7 co7ni>ance i.e. courtBs inaction in applyin7 8ind to the suspected offence should not be allowed to cause Chapter FFFVI thus

preEudice to a dili7ent co8plainant.

Page 68

69

presents the

interplay

of

these

three are

le7al 8a?i8s. not interpreted

%ro$isions of this Chapter< howe$er<

solely on the basis of these 8a?i8s. They only ser$e as 7uidin7 principles.

10. It is sub8itted that the settled principles of statutory construction re@uire that the e?pression Aco7ni>anceB

occurrin7 in Chapter FFFVI should be 7i$en its le7al sense. It is further sub8itted that if an e?pression ac@uires a special connotation in law< dictionary or 7eneral 8eanin7 ceases to be helpful in interpretin7 such a word. "eliance is also placed on the headin7 of Chapter FFFVI pro$idin7 for J*imitation for taking cognizance of certain offences K. "eliance is placed on obser$ations of the three-:ud7e ;ench of this Court in Sar$an Sin0h/ where in the conte?t of li8itation on prosecution it is obser$ed that it is of ut8ost i8portance that any prosecution< whether by the State or by the pri$ate co8plainant< 8ust abide by the letter of law. "elyin7 on a0h)nath ai Bare!a/ it is ur7ed that the first

principle of interpretation of the statute in e$ery syste8 is

Page 69

70

the literal rule of interpretation. %urposi$e interpretation can only be resorted to when the plain words of statute are a8bi7uous. It is sub8itted that there is no a8bi7uity here and< therefore< literal interpretation 8ust be resorted to.

1.. There

can

be

no

dispute

about

the

rules

of

interpretation cited by the counsel. It is true that there is no a8bi7uity in the rele$ant pro$isions. ;ut< it 8ust be borne in 8ind that the word Aco7ni>anceB has not been defined in the Cr.%.C. This Court had to therefore interpret this word.

6e ha$e ad$erted to that interpretation. In fact< we ha$e proceeded to answer this reference on the basis of that interpretation and =eepin7 in 8ind that special connotation ac@uired by the word Aco7ni>anceB. !nce that interpretation is accepted< Chapter FFFVI alon7 with the headin7 has to be understood in that li7ht. The rule of purposi$e construction can be applied in such a situation. A purposi$e construction of an enact8ent is one which 7i$es effect to the le7islati$e purpose by followin7 the literal 8eanin7 of the enact8ent where that 8eanin7 is in accordance with the le7islati$e

Page 70

71

purpose or by applyin7 a strained 8eanin7 where the literal 8eanin7 is not in accordance with the le7islati$e purpose &SeeC Cran'is Bennion on Stat)tory &nterpretation '. After noticin7 this definition 7i$en by Cran'is Bennion in 6ational &ns)ran'e Co. %td. this Court noted that 8ore v. %a(mi 6arain Dh)t ;9/ often than not< literal

interpretation of a statute or a pro$ision of a statute results in absurdity. Therefore< while interpretin7 statutory

pro$isions< the courts should =eep in 8ind the obEecti$es or purpose for which statute has been enacted. In li7ht of this obser$ation< we are of the opinion that if in the instant case literal interpretation appears to be in any way in conflict with the le7islati$e intent or is leadin7 to absurdity< purposi$e interpretation will ha$e to be adopted. 11. In 6e$ &ndia Ass)ran'e Company %td. v. 6)sli

6eville Hadia and another et'.;1 while dealin7 with e$iction proceedin7s initiated under the %ublic %re8ises &L$iction of Mnauthorised !ccupants' Act< 09,0 this Court was concerned with interpretation of Sections 5 and )
40 41

(2007) 3 SCC 700 (2008) 3 SCC 279

Page 71

72

thereof.

This Court was of the $iew that literal 8eanin7

thereof would place undue burden on the noticee and would lead to conclusion that the landlord i.e. the State would not be re@uired to adduce any e$idence at all. This Court

obser$ed that such a construction would lead to an ano8alous situation. In the conte?t of fairness in State

action this Court obser$ed that with a $iew to readin7 the pro$isions of the said Act< in a proper and effecti$e 8anner< literal interpretation which 8ay 7i$e rise to an ano8aly or absurdity will ha$e to be a$oided. This Court further

obser$ed that so as to enable a superior court to interpret a statute in a reasonable 8anner< the court 8ust place itself in the chair of a reasonable le7islator. So done< the rules of

purposi$e construction will ha$e to be resorted to which would re@uire the construction of the statute in such a 8anner so as to see that itBs obEect is fulfilled.

15.

In this connection< we 8ay also usefully refer to the

followin7 para7raph fro8 :ustice 4.%. Sin7hBs A Prin'iples of Stat)tory &nterpretationA 81"th edition F :91:,.

Page 72

73

J!ith the widening of the idea of context and importance being given to the rule that the statute has to be read as a whole in its context it is nowadays misleading to draw a rigid distinction between literal and purposive approaches. .he difference between purposive and literal constructions is in truth one of degree only. .he real distinction lies in the balance to be struck in the particular case between literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. !hen there is a potential clash" the conventional Anglish approach has been to give decisive weight to the literal meaning but this tradition is now weakening in favour of the purposive approach for the pendulum has swung towards purposive methods of constructions.

1). 6e 8ust also bear in 8ind that we are construin7 rules of li8itation. !ur approach should< therefore< be in am that

consonance with this CourtBs obser$ation in Mela

Jit is well established that rules of limitation pertain to domain of ad'ectival law and that they operate only to bar the remedy but not to extinguish the right.

1*. It is ar7ued that le7islati$e Casus Omissus cannot be supplied by Eudicial interpretation. It is sub8itted that to

Page 73

74

read Section 5*+ of the Cr.%.C. to 8ean that the period of li8itation as period within which a co8plaint2char7e-sheet is to be filed< would a8ount to addin7 words to Sections 5*, and 5*+. It is further sub8itted that if the le7islature has left a lacuna< it is not open to the Court to fill it on so8e presu8ed intention of the le7islature. "eliance is placed on Shiv Shakti Co>operative =o)sin0 So'iety/ Bharat Al)min)m< and se$eral other Eud78ents of this Court where doctrine of Casus Omissus is discussed. In our opinion< there is no scope for application of doctrine of Casus Omissus to this case. It is not possible to hold that the le7islature has o8itted to incorporate so8ethin7 which this Court is tryin7 to supply. The pri8ary purpose of construction of the

statute is to ascertain the intention of the le7islature and then 7i$e effect to that intention. After ascertainin7 the

le7islati$e intention as reflected in the 5.nd "eport of the #aw Co88ission and the "eport of the :%C< this Court is only har8oniously construin7 the pro$isions of Chapter FFFVI alon7 with other rele$ant pro$isions of the Cr.%.C. to 7i$e effect to the le7islati$e intent and to ensure that its

Page 74

75

interpretation does not lead to any absurdity.

It is not

possible to say that the le7islature has =ept a lacuna which we are tryin7 to fill up by Eudicial interpretati$e process so as to encroach upon the do8ain of the le7islature. authorities cited on doctrine of Casus Omissus The are<

therefore< not rele$ant for the present case.

1,. 6e also concur with the obser$ations in Japani Sahoo< where this Court has e?a8ined this issue in the conte?t of Article 05 of the Constitution and opted for reasonable construction rather than literal construction. para7raph reads thusC The rele$ant

.he matter can be looked at from different angle

also. Once it is accepted 6and there is no dispute about it8 that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law" if that action of initiation of proceedings has been taken within the period of limitation" the complainant is not responsible for any delay on the part of the court or -agistrate in issuing process or taking cognizance of an offence. Now" if he is sought to be penalised because of the

Page 75

76

omission" default or inaction on the part of the court or -agistrate" the provision of law may have to be tested on the touchstone of Article 7/ of the Constitution. )t can possibly be urged that such a provision is totally arbitrary" irrational and unreasonable. )t is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in #ection /?< of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 7/ of the Constitution.

1+. So far Aheadin7B of the chapter is concerned< it is well settled that Aheadin7B or AtitleB prefi?ed to sections or 7roup of sections ha$e a li8ited role to play in the construction of statutes. They 8ay be ta=en as $ery broad and 7eneral

indicators or the nature of the subEect 8atter dealt with thereunder but they do not control the 8eanin7 of the sections if the 8eanin7 is otherwise ascertainable by readin7 the section in proper perspecti$e alon7 with other pro$isions. In MIs. Cri'k &ndia %td. v. #nion of &ndia & 3rs. ;:< this Court has obser$ed as underC
42

(1990) 1 SCC 400

Page 76

77

)t is well settled that the headings prefixed to sections or entries cannot control the plain words of the provisions3 they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous3 nor can they be used for cutting down the plain meaning of the words in the provision. Only" in the case of ambiguity or doubt the heading or sub5heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision. Therefore< the sub8ission that headin7 of Chapter FFFVI is an indicator that the date of ta=in7 co7ni>ance is 8aterial 8ust be reEected.

19. It is true that the penal statutes 8ust be strictly construed. There are< howe$er< cases where this Court has ha$in7 re7ard to the nature of the cri8es in$ol$ed< refused to adopt any narrow and pedantic< literal and le?ical construction of penal statutes. GSee M)ralidhar Me0hra! %oya & Anr. v. Kisan
43

State of Maharashtra & 3rs. ;" and Koth)la & 3rs. v. State of

Trim*ak

(1976) 3 SCC 684

Page 77

78

Maharashtra;;H.

In this case< loo=in7 to the le7islati$e

intent< we ha$e har8oniously construed the pro$isions of Chapter FFFVI so as to stri=e a balance between the ri7ht of the co8plainant and the ri7ht of the accused. ;esides< we 8ust bear in 8ind that Chapter FFFVI is part of the Cr.%.C.< which is a procedural law and it is well settled that procedural laws 8ust be liberally construed to ser$e as hand8aid of Eustice and not as its 8istress. Amar!eet Sin0h Kalra/ 6. Bala!i v. 3rs.;+ and Kailash,. GSee Sardar

<irendra Sin0h &

5/. 3a$in7 considered the @uestions which arise in this reference in li7ht of of this le7islati$e Court intent< authoritati$e le7al

pronounce8ents

and

established

principles< we are of the opinion that Krishna Pillai will ha$e to be restricted to its own facts and it is not the authority for decidin7 the @uestion as to what is the rele$ant date for the purpose of co8putin7 the period of li8itation under Section 5*+ of the Cr.%.C.< pri8arily because in that
44 45

(1977) 1 SCC 300 (2004) 8 SCC 312

Page 78

79

case< this Court was dealin7 with Section 9 of the Child Marria7e "estraint Act< 09.9 which is a special Act. It

specifically stated that no court shall ta=e co7ni>ance of any offence under the said Act after the e?piry of one year fro8 the date on which offence is alle7ed to ha$e been co88itted. There is no reference either to Section 5*+ or Section 5,1 of the Cr.%.C. in that Eud78ent. It does not refer to Sections 5 and ) of the Cr.%.C. which car$e out e?ceptions for Special Acts. This Court has not ad$erted to di$erse

aspects includin7 the aspect that inaction on the part of the court in ta=in7 co7ni>ance within li8itation< thou7h the co8plaint is filed within ti8e 8ay wor= 7reat inEustice on the co8plainant. Moreo$er< reliance placed on Ant)lay @175;A Case/ in our opinion< was not apt. In Ant)lay @175;A Case< this Court was dealin7 inter alia with the contention that a pri$ate co8plaint is not 8aintainable in the court of Special :ud7e set-up under Section * of the Cri8inal #aw

A8end8ent Act< 09). &A !" $952 A% &'. It was ur7ed that the obEect underlyin7 the 09). Act was to pro$ide for a 8ore speedy trial of offences of corruption by a public ser$ant. It

Page 79

80

was ar7ued that if it is assu8ed that a pri$ate co8plaint is 8aintainable then before ta=in7 co7ni>ance< a Special :ud7e will ha$e to e?a8ine the co8plainant and all the witnesses as per Section .// of the Cr.%.C. 3e will ha$e to postpone issue of process a7ainst the accused and either in@uire into the case hi8self or direct an in$esti7ation to be 8ade by a police officer and in cases under the %re$ention of Corruption Act< 095, by police officers of desi7nated ran= for the purpose of decidin7 whether or not there is sufficient 7round for proceedin7. It was sub8itted that this would thwart the obEect of the 09). Act which is to pro$ide for a speedy trial. This contention was reEected by this Court holdin7 that it is not a condition precedent to the issue of process that the court of necessity 8ust hold the in@uiry as en$isa7ed by Section ./. of the Cr.%.C. or direct in$esti7ation as therein conte8plated. That is 8atter of discretion of the court. Thus< the @uestions which arise in this reference were not in$ol$ed in Ant)lay @175;A CaseC Since there< this Court was not

dealin7 with the @uestion of bar of li8itation reflected in Section 5*+ of the Cr.%.C. at all< in our opinion< the said

Page 80

81

Eud78ent could not ha$e been usefully referred to in Krishna Pillai while construin7 pro$isions of Chapter

FFFVI of the Cr.%.C. Ior all these< we are unable to endorse the $iew ta=en in Krishna Pillai.

50. In $iew of the abo$e< we hold that for the purpose of co8putin7 the period of li8itation under Section 5*+ of the Cr.%.C. the rele$ant date is the date of filin7 of the co8plaint or the date of institution of prosecution and not the date on which the Ma7istrate ta=es co7ni>ance. 6e further hold that Bharat Kale which is followed in Japani Sahoo lays

down the correct law.

Krishna Pillai will ha$e to be

restricted to its own facts and it is not the authority for decidin7 the @uestion as to what is the rele$ant date for the purpose of co8putin7 the period of li8itation under Section 5*+ of the Cr.%.C.

Page 81

82

5.. The "eference is answered accordin7ly.

The "e7istry

8ay list the 8atters before the appropriate courts for disposal.

..C:I &P. SATHASI'AM' ..:. &B.S. CHAUHAN' ..:. &RANJANA PRAKASH DESAI' ..:. &RANJAN GOGOI' ..:. &S.A. BOBDE' (L6 DL#3I< (!VLM;L" .*< ./01.

Page 82