Full Text
HIGH COURT OF DELHI
SIVANKUTTY & ORS. .....Petitioners
Through: Mr. Ruchir Batra and Mr. Prasanth K., Advocates
Through: Mr. Shiv Chopra, Ms. Aadhyaa Khanna and Mr. Siddharth Arora, Advocates
JUDGMENT
1. By way of present petition, the petitioners seek quashing of the proceedings in Complaint Case. No.13176/2018, which was filed by the respondent under Section 200 Cr.P.C. before Metropolitan Magistrate (Mahila Court), Saket Courts, New Delhi alleging that the petitioners and other accused persons had committed offences under Sections 323/324/341/452/506/34 IPC.
2. Learned counsel for the petitioners submits that the Trial Court erred in not considering that the complaint could not have been proceeded with since it is barred by limitation. It is submitted that the alleged incident took place on 05.09.2015, whereas the present complaint came to be filed belatedly on 05.09.2018. Learned counsel further submits that the petitioners were summoned only for the offence under Section 323 IPC for which the maximum punishment which may be awarded is imprisonment for one year and thus in light of Section 468(2)(b) Cr.P.C., the limitation period for filing the said complaint is one year, and hence the impugned complaint is time barred. On merits, learned counsel for the petitioner submits that the respondent didn’t name the petitioners in his earlier complaint filed in the year 2015 and that now they have been roped in maliciously as an afterthought, only for the purpose of harassing them since they are related to Mrs Shobha Raveendran, Nanu Raveendran, and Akash Raveendran, who are arrayed as accused No. 1 to 3 in the complaint made by the respondent. Lastly, It is contended that insofar as the petitioners are concerned, no specific allegations have been levelled qua them in the complaint and mere mentioning of their name would not be sufficient for initiation of a criminal investigation against them.
3. Per contra, learned counsel for the respondent has vehemently opposed the present petition and submits that the complaint is not barred by limitation. Learned counsel further submits that the limitation would have to be calculated with reference to the offences which were alleged in the complaint, and not by the offences with respect to which the accused petitioners were summoned. One of the offence alleged in the complaint is under Section 452 IPC, which is punishable with imprisonment up to seven years. Hence, it is submitted that the impugned complaint would not be barred under Section 468 Cr.P.C.
4. I have heard learned counsels for the parties and have gone through the records.
5. As per the impugned complaint, the accused No. 1 to 3, who are the neighbours of the respondent, on 05.09.2015, barged into the house of the respondent and gave beatings to him and his wife because of some dispute regarding the spillage of water from the overhead tank. When the respondent came back from the police station after lodging a complaint vide DD NO. 59-B regarding this incident, the present petitioners, who have been arrayed as accused Nos. 4 to 6 in the impugned complaint and who are the relatives of the accused Nos. 1 to 3, allegedly gave beatings to the respondent. A cross FIR No. 1701/2015 has also been registered under Sections 354(B)/323/427/354 IPC at PS Malviya Nagar, Delhi on 05.09.2015 at the behest of the accused No.1 against the respondent in relation to the same incident.
6. The respondent filed Complaint Case No.13176/2018 on 05.09.2018 under Sections 323/324/341/452/506/34 IPC against 7 accused persons, in which the petitioners have been arrayed as accused Nos. 4-6. All the accused persons were summoned vide summoning order dated 20.07.2019. Thereafter, vide order dated 27.09.2019, it was clarified that summons were issued for the offence under Section 323 IPC only.
7. The short issue which arises in the present case is whether the period of limitation would be calculated with respect to the offences alleged in the complaint or the offences for which the accused have been finally summoned. It would be beneficial to analyse Section 468 of the CrPC which deals with the aspect of limitation, and the same is being reproduced below for convenience:-
468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. [(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.] The bar which is provided for in Section 468 is for the purpose of taking cognizance after the provided period of limitation has expired. Different periods of limitation have been provided in Section 468(2), depending on the severity of punishment provided for in the concerned offence. It is worth noting that no period of limitation has been prescribed for offences punishable with more than 3 years of punishment. Section 468(3) of the Cr.P.C. lays down the manner of computing the period of limitation in case the allegations reveal the occurrence of more than one offence. The limitation period in such a scenario has to be calculated with reference to the offence which is punishable with the more or the most severe punishment. It is pertinent to note that this sub-section refers to the offences which may be tried together. It does not require that the offences which have to be considered must actually have been tried together. Section 220(1) CrPC allows the offences to be tried together which were committed in a series of acts connected together as to form part of the same transaction. Thus, the mention of multiple offences in the complaint which were alleged to have been committed in the same transaction would be sufficient to comply with the requirement of Section 468(3).
8. The purpose of introducing a period of limitation for certain offences in the Cr.P.C. was to hasten the prosecution of complaints and to weed out cases exhibiting extreme lethargy and indolence and thus making the criminal justice system more orderly, efficient and agile. Limitation seeks to prevent abuse of process by filing vexatious and belated prosecutions. However, at the same time, the Code is not blind to the problems faced by litigants and provides for extension of the period of limitation in certain cases in Section 473 of the Cr.P.C. The Code, thus, while encouraging diligence from the litigants at the same time seeks to ensure that interests of bona fide complainants are also not affected. The Supreme Court in the Constitution Bench judgement of Sarah Mathew v. Institute of Cardio Vascular Diseases, reported as (2014) 2 SCC 62 has held that the period of limitation has to be followed from the date of offence to the date of filing of the complaint and not the date of the Court taking cognizance of the offences. The natural corollary of the above interpretation is that the offences which would have to be taken in account while computing limitation would be the ones which are in knowledge of the complainant at the time of filing the complaint. To interpret Section 468(3) of the Cr.P.C. in a manner which considers the relevant offences to be the ones in respect of which summons have been issued would lead to absurdity as on the one hand, the complainant would be expected to be diligent and adhere to the limitation period while filing the complaint, but if the Court subsequently was to drop one of the more serious offences as a consequence of which the limitation period would get reduced, the complaint which was within the limitation period as per the offences alleged in the complaint would now suddenly be rendered time-barred. That, in the opinion of this Court, is not the correct interpretation which flows from the said Section and thus the contention raised is meritless.
9. The reason for the Court to take the date of filing of the complaint as the relevant date for computing period of limitation rather than date of taking cognizance by the Magistrate is that in the latter case an otherwise diligent complainant would be left at the mercy of efficiency and quickness of the Court in taking cognizance and delay or inaction on the part of the Court would end up deciding whether the complaint was time-barred or not. The same dilemma is also present herein. A magistrate may take cognizance of all the offences, or some of the offences or none of the offences which are mentioned in the complaint. The complainant obviously cannot be expected to predict what the Magistrate will or will not do with his complaint. Since the complainant would only have the offences they allege at the time of filing the complaint for calculating limitation, the same offences would also have to be considered by the Court when deciding if a complaint is time barred or not. In this regard Reference may be made to the Judgement of the Supreme Court in Sarah Mathew (Supra) which held as follows:
37. We are inclined to take this view also because there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, as stated by this Court, taking cognizance is application of mind by the Magistrate to the suspected offence, the subjective element comes in. Whether a Magistrate has taken cognizance or not will depend on facts and circumstances of each case. A diligent complainant or the prosecuting agency which promptly files the complaint or initiates prosecution would be severely prejudiced if it is held that the relevant point for computing limitation would be the date on which the Magistrate takes cognizance. The complainant or the prosecuting agency would be entirely left at the mercy of the Magistrate, who may take cognizance after the limitation period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides, it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 CrPC would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra [(2008) 10 SCC 139: (2008) 2 SCC (L&S) 1000].
10. Once a litigant has been diligent in approaching the Court, he cannot be held responsible for any subsequent delay which occurs on part of the Court. Similarly, the act of Court of deciding not to take cognizance of a more serious offence later in time cannot retrospectively affect the rights of the complainant as they stood on the date he filed the complaint. The doctrine ‘actus curiae neminem gravabit‟ (an act of court shall prejudice none) shall find full applicability in such a case. A reference in this regard may be made to the decision of Supreme Court in Japani Sahoo v. Chandra Sekhar Mohanty, reported as (2007) 7 SCC 394 wherein it was held that- “48. So far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter, to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates. The complainant has no control over those proceedings.
49. Because of several reasons (some of them have been referred to in the aforesaid decisions, which are merely illustrative cases and not exhaustive in nature), it may not be possible for the court or the Magistrate to issue process or take cognizance. But a complainant cannot be penalised for such delay on the part of the court nor can he be non-suited because of failure or omission by the Magistrate in taking appropriate action under the Code. No criminal proceeding can be abruptly terminated when a complainant approaches the court well within the time prescribed by law. In such cases, the doctrine „actus curiae neminem gravabit‟ (an act of court shall prejudice none) would indeed apply. (Vide Alexander Rodger v. Comptoir D' Escompte [(1871) LR 3 PC 465: 17 ER 120].) One of the first and highest duties of all courts is to take care that an act of court does no harm to suitors.
50. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.
51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) 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 Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalised because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It 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 Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution.”
11. It is also worth considering that the method of using the more serious offence as a reference when multiple offences are alleged to have occurred is not restricted to only Section 468. For example, Section 155(4) CrPC says that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. The reason is that it would be unreasonable to expect the complainant to approach the Court and police simultaneously for the same incident just because some of the offences he alleges are non-cognizable in nature. In a case where the FIR originally contains cognizable and noncognizable offences, and subsequently, the Court upon application of mind comes to the conclusion that the cognizable offences mentioned in the FIR are not made out, it would not vitiate the proceedings qua the noncognizable offences as well just because no permission to investigate them as mandated under Section 155(2) Cr.P.C. was taken. A Co-ordinate bench of this Court in State v. Lal Singh, reported as 2012 SCC OnLine Del 2863 held as follows:-
5. In the present case the FIR was registered under Section 186/353/34 IPC. Charge-sheet was filed for offences under Section 186/353/34 IPC and the cognizance was taken thereon for the said offences. Thus, prima facie Learned Metropolitan Magistrate was of the view that offences under Section 186/353/34 IPC are made out. It is eventually at the time of charge that the Learned Metropolitan Magistrate came to the conclusion that only offences under Section 323/34 IPC are made out. In view of the fact that no permission to investigate the same under Section 155(2) Cr. P.C. was taken from the Learned Metropolitan Magistrate the entire investigation cannot be said to have vitiated as held by the Hon'ble Supreme Court in H.N. Rishbud (supra) nor the Respondents can claim discharge on that basis. In such a situation the charge-sheet has to be treated as a complaint in view of the explanation to Section 2(d) Cr. P.C. and the Police officer filing the charge-sheet as complainant. Thus, the order of the Learned Additional Sessions Judge setting aside the order of the Learned Metropolitan Magistrate is illegal.
12. Gainful reference can also be made to the decision of a Co-ordinate Bench of this Court in the case of Balbir Singh v. State, reported as 2009 SCC OnLine Del 1513 where after discussing the import of Section 468 Cr.P.C., the following conclusions were drawn:-
Magistrate or the ASJ this would not make the filing of the complaint/challan barred by limitation even if the remaining offence had a lesser limitation.
(iv) Question of limitation is both a question of fact as well as the question of law.
(v) If prima facie the Court is satisfied that the challan/complaint has been filed within the period of limitation as per the provisions contained under Section 468(3) Cr. P.C. then cognizance of the challan/complaint can be taken.
(vi) Even if there is a delay in filing of the complaint/challan beyond limitation then also the Court has a power to condone the delay by applying the principals laid down under Section 473 Cr. P.C.
(vii) If prima facie the complaint/challan appears to be within limitation taking into consideration the offences alleged, the challan/complaint cannot be thrown out at the threshold on the plea of limitation and the question of limitation can be determined at the time of considering the merits of the charge or at the stage of trial on the basis of evidence which may come on record.
(viii) The language of Section 468(3) makes it imperative that the limitation provided for taking cognizance is in respect of the offence charged and not in respect of offence finally proved.”
13. Coming to the facts of the present case, the complaint has been filed by the respondent under Sections 323/324/341/452/506/34 IPC. The offence which has the most severe punishment amongst the aforesaid offences is the one under Section 452, which provides for imprisonment up to seven years. Since no limitation period has been provided for offences which are punishable with more than 3 years of imprisonment in Section 468 Cr.P.C., hence the impugned complaint cannot be stated to be barred by limitation. The rest of the contentions of the parties are a matter of trial and cannot be gone into by this Court at the present stage.
14. In view of the above, the petition is dismissed alongwith the pending application.
MANOJ KUMAR OHRI (JUDGE) DECEMBER 05, 2024