# Jwala Prasad Maurya v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-26
- **Case number:** Application U/S 482 No. 6781 of 2022
- **Bench:** Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jwala-prasad-maurya-v-state-of-u-p-ors-47740
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
323 and 504 - for the purpose of
computing the period of limitation under
Section 468 CrPC, the relevant date is the
date of filing of the complaint or the date
of institution of prosecution and not the
date on which the Magistrate takes
cognizance of the offence.(Para - 18)

(B) Criminal Law - Limitation for taking
cognizance of certain offences -The Code
of criminal procedure, 1973 - Section 467
- period of limitation , Section 468 - Bar to
taking cognizance after lapse of the period
of
limitation
,
Section
469
-
Commencement of the period of limitation
- 'institution of prosecution' - refer to the
date
of
filing
of
the
complaint
or
registering of the FIR - in a case where
the same is within the period of limitation
- proceedings cannot be held to be barred
by Section 468 - merely for the reason
that the order of cognizance or issuance of
process
is
made
on
a
subsequent
date.(Para -16)

(B) Words/phrases/Legal maxim - 'nullum
tempus aut locus occurrit regi' - a crime
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
499
never
dies
-
'vigilantibus
et
non
dormientibus, jura subveniunt' - policy of
law to assist the vigilant and not the
sleepy - actus curiae neminem gravabit' -
act of court shall prejudice no man.(Para -
8)

NCR registered against applicant - under
Section 155 (2) Cr.P.C - charge sheet - N.C.R.
lodged on same day - charge sheet filed after a
lapse of five years, three months and fourteen
days from the date of registration of NCR -
barred by limitation - no cognizance could have
been taken - trial court incompetent to take
cognizance of the offence after lapse of period
of limitation provided under 468 Cr.P.C. - utter
violation of provision contained under Sections
467, 468, 469 Cr.P.C. - passed in flagrant
violation of statutory bar - gross abuse of
process of Court.(Para -3,19)

HELD:-Court does not find any illegality,
impropriety
and
incorrectness
in
the
proceedings under challenge. No abuse of
court's process either.(Para - 21)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:-

## Text

498 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of hearing is patently illegal
being in flagrant violation of whatever has
been held by the Hon'ble Supreme Court in
Samarendra Nath Bhattacharjee's case
(supra), Mehboob Dawood Shaikh's case
(supra), Gurdev Singh's case (supra) and
in P.K. Shaji alias Thammanam Shaji's
case
(supra).
it
has,
thus,
caused
miscarriage of justice to the applicants.

17. The upshot of aforesaid discussion
is that the instant application under Section
482 Cr.P.C. deserves to be allowed and the
impugned order dated 01.09.2022 passed by
the learned Sessions Judge, Raebareli in
Sessions Trial No.812 of 2021 (State vs. Ram
Bachan and others) also deserves to be set
aside to the extent it concerns cancellation of
bail granted to the applicants and taking them
into custody as a consequence thereof only.

18. Accordingly, the instant application
under Section 482 Cr.P.C. is allowed. The
impugned order dated 01.09.2022 passed by
the learned Sessions Judge, Raebareli in
Sessions Trial No.812 of 2021 (State vs. Ram
Bachan and others) is hereby set aside as
indicated above.

19. The learned trial court is directed to
release the applicants after obtaining the fresh
personal bonds and two sureties each in the
like amount to the satisfaction of the court
concerned.

20. It is also made clear that the learned
trial court shall be at liberty to issue notice to
the applicants stating therein the grounds
which are to be considered by it for
cancellation of bail granted to the applicants.
It
shall
thereafter
decide
the
same
expeditiously in accordance with law after
affording reasonable opportunity of hearing
to the parties.
----------
(2022) 10 ILRA 498
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2022

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application U/S 482 No. 6781 of 2022

Jwala Prasad Maurya ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Saurabh Yadava, Poonam Maurya

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Section
323 and 504 - for the purpose of
computing the period of limitation under
Section 468 CrPC, the relevant date is the
date of filing of the complaint or the date
of institution of prosecution and not the
date on which the Magistrate takes
cognizance of the offence.(Para - 18)

(B) Criminal Law - Limitation for taking
cognizance of certain offences -The Code
of criminal procedure, 1973 - Section 467
- period of limitation , Section 468 - Bar to
taking cognizance after lapse of the period
of
limitation
,
Section
469
-
Commencement of the period of limitation
- 'institution of prosecution' - refer to the
date
of
filing
of
the
complaint
or
registering of the FIR - in a case where
the same is within the period of limitation
- proceedings cannot be held to be barred
by Section 468 - merely for the reason
that the order of cognizance or issuance of
process
is
made
on
a
subsequent
date.(Para -16)

(B) Words/phrases/Legal maxim - 'nullum
tempus aut locus occurrit regi' - a crime
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
499
never
dies
-
'vigilantibus
et
non
dormientibus, jura subveniunt' - policy of
law to assist the vigilant and not the
sleepy - actus curiae neminem gravabit' -
act of court shall prejudice no man.(Para -
8)

NCR registered against applicant - under
Section 155 (2) Cr.P.C - charge sheet - N.C.R.
lodged on same day - charge sheet filed after a
lapse of five years, three months and fourteen
days from the date of registration of NCR -
barred by limitation - no cognizance could have
been taken - trial court incompetent to take
cognizance of the offence after lapse of period
of limitation provided under 468 Cr.P.C. - utter
violation of provision contained under Sections
467, 468, 469 Cr.P.C. - passed in flagrant
violation of statutory bar - gross abuse of
process of Court.(Para -3,19)

HELD:-Court does not find any illegality,
impropriety
and
incorrectness
in
the
proceedings under challenge. No abuse of
court's process either.(Para - 21)

Application u/s 482 Cr.P.C. dismissed. (E-7)

List of Cases cited:-
1. Bharat Damodar Kale & anr. Vs St. of A.P.,
(2003) 8 SCC 559

2. Sarah Mathew Vs The Institute of Cardio
Vascular Diseases & ors., (2014) 2 SCC 62

3. Bharat Damodar Kale Vs St. of A.P.,(2003) 8
SCC 559

4.
Japani
Sahoo
Vs
Chandra
Sekhar
Mohanty,(2007)7 SCC 394

5. Darshan Singh Saini Vs Sohan Singh &
anr.,(2015) 14 SCC 570

6. Johnson Alexander Vs St. by C.B.I., 2015 0
Supreme (SC) 567

7. Amritlal Vs Shantilal Soni,2022 SCC On Line
SC 266

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. Heard Sri Saurabh Yadava, learned
counsel for the applicant and learned
A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed by the
applicant inter alia praying for following
relief:-

(i) Quash the impugned order
dated 28.02.2022 passed by the Additional
Session Judge Fast Track Court (ADJ FTC
1), Ambedkar Nagar in Criminal Revision
No.53/2018, CNR No.UPAN010032102018
"Jwala Prasad Maurya Versus Kasha
Prasad Tivari HCP Thana Maharua,
District Ambedkar Nagar.

(ii) Quash the impugned order
dated 23.06.2018 passed by Civil Judge
(J.D.)/Judicial
Magistrate,
Ambedkar
Nagar in the matter of charge sheet no.
NIL/2015 dated 30.10.2015 in "State Vs.
Jwala Prasad Maurya" in respect of
Criminal Case No.239/2018 arising out of
NCR No.19/2013, U/s 323, 504 I.P.C.,
dated 09.03.2013, Police Station Mahrua,
District Ambedkar Nagar.

(iii) Quash the impugned charge
sheet no. NIL/2015 dated 30.10.2015 in
"State Vs. Jwala Prasad Maurya" in
respect of Criminal Case No.239/2018
arising out of NCR No.19/2013, U/s 323,
504 I.P.C. dated 09.03.2013, Police Station
Mahrua, District Ambedkar Nagar.

3. Learned counsel for the applicant
submitted that an NCR No.19/2013 came to
be registered against the present applicant
on 09.03.2013 under Section 323 and 504
I.P.C. only. The matter was investigated
vide order dated 05.04.2013 by means of an
application filed by the opposite party no.2
under Section 155 (2) Cr.P.C. The charge
500 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet was submitted in the court on
30.10.2015, therefore, his submission is
that the learned trial court was incompetent
to take cognizance of the offence after
lapse of period of limitation provided under
468 Cr.P.C. specially when the complaint /
charge sheet came to be filed after a lapse
of three years, three months and twenty
days and thereafter cognizance of the case
was taken after a lapse of five years, three
months and fourteen days. His further
submission is that while passing impugned
order, learned trial court did so in utter
violation of provision contained under
Sections 467, 468, 469 Cr.P.C. which are
part of Chapter XXXVI. Learned trial court
could not have taken cognizance of the
matter as the same was barred by
limitation. He, thus, submits that such
order, which has been passed in flagrant
violation of statutory bar, is nothing but a
gross abuse of process of this Court, which
deserves to be quashed.

4. Per contra learned A.G.A. has
controverted the aforesaid submissions and
has also submitted that in the fact of this case,
the impugned order rightly came to be passed
by placing reliance on the law laid down by
Hon'ble the Supreme Court in Bharat
Damodar Kale & another vs. State of
Andhra Pradesh1.

5. Having heard learned counsel for the
applicant at length, learned A.G.A. for the
State and upon perusal of record, it requires
to be clarified at the outset that there is no
dispute regarding the fact that the alleged
incident, in respect of which, an NCR bearing
no.19/2013, Police Station Mahrua, District
Ambedkar Nagar came to be registered at the
behest of opposite party no.3 on 09.03.2013.
This is also not in dispute that thereafter the
opposite party no.3 moved an application
dated 05.04.2013 seeking permission of
investigation of this case under Section 155
(2) Cr.P.C. which came to be allowed and the
matter was investigated by the Investigating
Officer. Thereafter, a charge sheet came to be
filed which was actually prepared on
30.10.2015 and the same was forwarded to
C.O., Bheeti on 15.06.2016 and charge sheet
no.19/2013 was submitted to the court of
Civil Judge (J.D.) / Judicial Magistrate-First
Class, Ambedkar Nagar on 29.06.2016 i.e.
after a period of three years, three months and
twenty days from the date of occurrence.

6. At this stage, it deserves to be
mentioned that the learned trial court
consciously took cognizance of this case vide
its order dated 23.06.2018 and since the
charge sheet was filed under Section 323 and
504 I.P.C. only, accordingly, the same was
directed to be registered as a complaint case
keeping in view the provisions contained in
Section 2(d) Cr.P.C.

7. The questions which fell for
consideration by the Constitution Bench in
the case of Sarah Mathew vs. The
Institute of Cardio Vascular Diseases and
others2 are as follows :-

"3.1.(i) Whether for the purposes
of computing the period of limitation under
Section 468 CrPC the relevant date is the
date of filing of the complaint or the date of
institution of the prosecution or whether the
relevant date is the date on which a
Magistrate takes cognizance of the offence?

3.2.(ii) Which of the two cases i.e.
Krishna Pillai or Bharat Kale (which is
followed in Japani Sahoo) lays down the
correct law?"

10. The term 'cognizance' in the
context of the provisions of the Code and
the earlier decisions in the case of Jamuna
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
501
Singh Vs. Bhadai Shah6, R.R.Chari Vs.
State of U.P.7, Gopal Das Sindhi Vs. State
of Assam8, and Chief Enforcement Officer
Vs. Videocon International Ltd.9, was
discussed and it was observed that 'taking
cognizance' is entirely an act of the
Magistrate and that the same may be
delayed
because
of
several
reasons
including
systematic
reasons.
The
conflicting view points as to whether the
date of taking cognizance or the date of
filing complaint is material for computing
limitation was considered and it was
observed as follows:-

"34. Thus, a Magistrate takes
cognizance when he applies his mind or
takes judicial notice of an offence with a
view to initiating proceedings in respect of
offence which is said to have been
committed. This is the special connotation
acquired by the term "cognizance" and it
has to be given the same meaning wherever
it appears in Chapter XXXVI. It bears
repetition to state that taking cognizance is
entirely an act of the Magistrate. Taking
cognizance may be delayed because of
several reasons. It may be delayed because
of systemic reasons. It may be delayed
because of the Magistrate's personal
reasons.

35. In this connection, our
attention is drawn to the judgment of this
Court in Sharadchandra Dongre. It is
urged on the basis of this judgment that by
condoning the delay, the court takes away a
valuable right which accrues to the
accused. Hence, the accused has a right to
be
heard
when
an
application
for
condonation of delay under Section 473
CrPC is presented before the court.
Keeping this argument in mind, let us
examine both the view points i.e. whether
the date of taking cognizance or the date of
filing complaint is material for computing
limitation. If the date on which complaint is
filed is taken to be material, then if the
complaint is filed within the period of
limitation, there is no question of it being
time-barred. If it is filed after the period of
limitation, the complainant can make an
application for condonation of delay under
Section 473 CrPC. The court will have to
issue notice to the accused and after
hearing the accused and the complainant
decide whether to condone the delay or not.
If the date of taking cognizance is
considered to be relevant then, if the court
takes cognizance within the period of
limitation, there is no question of the
complaint being time barred. If the Court
takes cognizance after the period of
limitation then, the question is how will
Section 473 CrPC work. The complainant
will be interested in having the delay
condoned. If the delay is caused by the
Magistrate by not taking cognizance in
time, it is absurd to expect the complainant
to make an application for condonation of
delay. The complainant surely cannot
explain that delay. Then in such a situation,
the question is whether the Magistrate has
to issue notice to the accused, explain to
the accused the reason why delay was
caused and then hear the accused and
decide whether to condone the delay or not.
This would also mean that the Magistrate
can decide whether to condone delay or
not, caused by him. Such a situation will be
anomalous and such a procedure is not
known to law...

xxx

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
502 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Corporation Ltd.
v. Ayodhaya Prasad Mishra)."
 (emphasis supplied)

8. Referring to the legal maxim
'nullum tempus aut locus occurrit regi',
'vigilantibus et non dormientibus, jura
subveniunt' and actus curiae neminem
gravabit', it was observed as follows :-

"39. As we have already noted in
reaching this conclusion, light can be
drawn from legal maxims. Legal maxims
are referred to in Bharat Kale, Japani
Sahoo and Vanka Radhamanohari. The
object of the criminal law is to punish
perpetrators of crime. This is in tune with
the well- known legal maxim 'nullum
tempus aut locus occurrit regi', which
means that a crime never dies. At the same
time, it is also the policy of law to assist the
vigilant and not the sleepy. This is
expressed in the Latin maxim 'vigilantibus
et non dormientibus, jura subveniunt'.
Chapter XXXVI CrPC which provides
limitation period for certain types of
offences for which lesser sentence is
provided draws support from this maxim.
But, even certain offences such as Section
384 or 465 IPC, which have lesser
punishment may have serious social
consequences. The provision is, therefore,
made for condonation of delay.Treating
date of filing of complaint or date of
initiation of proceedings as the relevant
date for computing limitation under
Section 468 of the Code is supported by
the legal maxim 'actus curiae neminem
gravabit' which means that the act of
court shall prejudice no man. It bears
repetition to state that the court's inaction
in taking cognizance i.e. court's inaction
in applying mind to the suspected offence
should not be allowed to cause prejudice
to a diligent complainant. Chapter XXXVI
thus presents the interplay of these three
legal maxims. The provisions of this
Chapter, however, are not interpreted solely
on the basis of these maxims. They only
serve as guiding principles."

(emphasis supplied)
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
503

9. The question as to what would be
the relevant date for the purpose of
computing the period of limitation under
Section
468
was
answered
by
the
Constitution Bench judgment in the case of
Sarah Mathew (supra), as follows:-

"51. In view of the above, we hold
that for the purpose of computing the
period of limitation under Section 468
CrPC the relevant date is the date of filing
of the complaint or the date of institution
of prosecution and not the date on which
the Magistrate takes cognizance. We
further hold that Bharat Kale which is
followed in Japani Sahoo lays down the
correct law. Krishna Pillai will have to be
restricted to its own facts and it is not the
authority for deciding the question as to
what is the relevant date for the purpose of
computing the period of limitation under
Section 468 CrPC."
 (emphasis supplied)

10. It would also be relevant to refer
to the decisions in the case of Bharat
Damodar Kale Vs. State of A.P.3, and also
in the case of Japani Sahoo Vs. Chandra
Sekhar Mohanty4, which were held to
have laid down the correct law in the
aforementioned
decision
of
the
Constitution Bench in the case of Sarah
Mathew (supra).

11. The observations made in the case
of Bharat Damodar Kale, (supra) that the
limitation
prescribed
under
Chapter
XXXVI of the Code is only for filing of the
complaint or initiation of prosecution and
not for taking cognizance, are quoted
hereinbelow :-

"10. On facts of this case and
based on the arguments advanced before
us, we consider it appropriate to decide the
question whether the provisions of Chapter
XXXVI of the Code apply to the delay in
instituting the prosecution or to the delay in
taking
cognizance.
As
noted
above,
according to the learned counsel for the
appellants, the limitation prescribed under
the above Chapter applies to taking of
cognizance
by
the
court
concerned,
therefore even if a complaint is filed within
the period of limitation mentioned in the
said Chapter of the Code, if the cognizance
is not taken within the period of limitation
the same gets barred by limitation. This
argument seems to be inspired by the
chapter-heading of Chapter XXXVI of the
Code which reads thus: "Limitation for
taking cognizance of certain offences". It is
primarily based on the above language of
the heading of the Chapter, the argument is
addressed on behalf of the appellants that
the limitation prescribed by the said
Chapter applies to taking of cognizance
and not filing of complaint or initiation of
the prosecution. We cannot accept such
argument because a cumulative reading of
various provisions of the said Chapter
clearly
indicates
that
the
limitation
prescribed therein is only for the filing of
the
complaint
or
initiation
of
the
prosecution and not for taking cognizance.
It of course prohibits the court from taking
cognizance of an offence where the
complaint is filed before the court after the
expiry of the period mentioned in the said
Chapter. This is clear from Section 469 of
the Code found in the said Chapter which
specifically
says that the period of
limitation in relation to an offence shall
commence either from the date of the
offence or from the date when the offence is
detected. Section 470 indicates that while
computing the period of limitation, time
taken during which the case was being
diligently prosecuted in another court or in
appeal or in revision against the offender
504 INDIAN LAW REPORTS ALLAHABAD SERIES
should be excluded. The said section also
provides in the Explanation that in
computing the time required for obtaining
the consent or sanction of the Government
or any other authority should be excluded.
Similarly, the period during which the court
was closed will also have to be excluded.
All these provisions indicate that the court
taking cognizance can take cognizance of
an offence the complaint of which is filed
before it within the period of limitation
prescribed and if need be after excluding
such time which is legally excludable. This
in our opinion clearly indicates that the
limitation prescribed is not for taking
cognizance within the period of limitation,
but for taking cognizance of an offence in
regard to which a complaint is filed or
prosecution is initiated beyond the period
of limitation prescribed under the Code.
Apart from the statutory indication of this
view of ours, we find support for this view
from the fact that taking of cognizance is
an act of the court over which the
prosecuting agency or the complainant
has no control. Therefore, a complaint
filed within the period of limitation under
the Code cannot be made infructuous by
an act of court. The legal phrase "actus
curiae neminem gravabit" which means
an act of the court shall prejudice no man,
or by a delay on the part of the court
neither party should suffer, also supports
the view that the legislature could not
have intended to put a period of limitation
on the act of the court of taking
cognizance of an offence so as to defeat
the case of the complainant..."

 (emphasis supplied)

12. The aforementioned view in the
case of Bharat Kale (supra) was affirmed
and followed in the case of Japani Sahoo
(supra) and it was held that the date
relevant for computation of period of
limitation under Section 468 is the date
when the complaint is filed or criminal
proceedings are initiated and not the date
when
the
Court/Magistrate
takes
cognizance or issues process. Applying the
doctrine
of
"actus
curiae
neminem
gravabit", it was held that taking a contrary
view would lead to injustice and defeat the
primary object of procedural law. The
observations made in the judgment in this
regard are as follows :-

"47. We are in agreement with the
law laid down in Bharat Damodar. In our
judgment, the High Court of Bombay was
also right in taking into account certain
circumstances, such as, filing of complaint
by the complainant on the last date of
limitation, non availability of Magistrate,
or he being busy with other work, paucity
of time on the part of the Magistrate/court
in applying mind to the allegations levelled
in the complaint, postponement of issuance
of process by ordering investigation under
sub-section (3) of Section 156 or Section
202 of the Code, no control of complainant
or
prosecuting
agency
on
taking
cognizance or issuing process, etc. To us,
two things, namely, (1) filing of complaint
or initiation of criminal proceedings; and
(2) taking cognizance or issuing process
are
totally
different,
distinct
and
independent.

48. So far as 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.
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
505

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
penalized 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.) 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
penalized 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.

52. In view of the above, we hold
that for the purpose of computing the
period of limitation, the relevant date must
be considered as the date of filing of
complaint
or
initiating
criminal
proceedings and not the date of taking
cognizance by a Magistrate or issuance of
process by a court. We, therefore, overrule
all decisions in which it has been held that
the crucial date for computing the period of
limitation is taking of cognizance by the
Magistrate/court and not of filing of
complaint
or
initiation
of
criminal
proceedings."

(emphasis supplied)

13. Learned counsel for the applicant
though not disputing the law laid down in
the aforesaid authoritative pronouncements
506 INDIAN LAW REPORTS ALLAHABAD SERIES
on the question of limitation has tried to
carve out a distinction by pointing out that
in the case at hand the proceedings have
been initiated with the lodging of an FIR
and not by way of a criminal complaint.
The
aforesaid
contention
cannot
be
accepted for the reason that the view taken
in the Constitution Bench decision is that
for the purpose of computing the period of
limitation under Section 468 Cr.PC. the
relevant date is the date of filing of the
complaint or the date of institution of
prosecution. The expression 'institution of
prosecution' would be wide enough to
include within its ambit institution of
prosecution - either by filing of a complaint
or by lodging of an FIR.

14. The 'institution of prosecution'
under the Code can be by giving of
information relating to commission of a
cognizable offence under Section 154, or
by lodging a written complaint before the
Magistrate. In this regard reference may be
had to the decision in the case of Darshan
Singh Saini Vs. Sohan Singh and
another5, wherein following the law laid
down in the case of Sarah Mathew, and
noticing the fact that the complainant after
repeatedly visiting the police station to
lodge his complaint, when the police did
not interfere, lodged a written complaint
before the Magistrate, within the period of
limitation under Section 468, it was held
that the bar under the said section would
not apply on the basis of cognizance having
been taken on a date beyond the prescribed
period. The observations made in the
judgment, in this regard are as follows :-

"4. It is also apparent from the
pleadings of this case, that according to the
respondent, the police did not interfere,
when the respondent repeatedly visited the
police station, to lodge his complaint. It is
therefore, that the respondent-Sohan Singh
lodged a written complaint on 24-01-2008,
before the Learned Additional Chief
Judicial Magistrate, Nalagarh, District
Solan, Himachal Pradesh.

5. The appellant-Darshan Singh
Saini, approached the High Court under
Section 482 of the Criminal Procedure
Code, when he was summoned by the
Judicial Magistrate, First Class, Nalagarh,
District Solan, Himachal Pradesh through
an order dated 06-02-2009. A perusal of
the order dated 06-02-2009 reveals, that
the
appellant
was
summoned
under
Sections 341 and 506, read with Section 34
of the Penal Code, 1860.

6. The High Court, by the
impugned order dated 08-04-2010, while
partly
accepting
the
prayer
of
the
appellant,
quashed
the
proceedings
initiated against the appellant under
Sections 341 and 506 of the Penal Code,
but arrived at the conclusion, that there
was reasonable ground to proceed against
the appellant under Section 323 of the
Penal Code.

7. It was the vehement contention
of the learned counsel for the appellant,
that the impugned order passed by the High
Court is not acceptable in law, on account
of the fact, that cognizance in the matter
could not have been taken against the
appellant, on account of the period of
limitation depicted under Section 468 of the
Code of Criminal Procedure. In this behalf,
it was the pointed contention of the learned
counsel for the appellant, that whilst the
instant
incident
was
of
15-01-2008,
cognizance
thereof
was
taken
on
06.02.2009. This contention of the learned
counsel for the appellant was premised on
the fact, that though the complaint had
10 All. Jwala Prasad Maurya Vs. State of U.P. & Ors.
507
been made on 24-01-2008, cognizance
thereof was taken beyond a period of
limitation of one year(on 06-02-2009).

8.
We
have
considered
the
aforesaid contention advanced at the hands
of the learned counsel for the appellant. It
is apparent from the submissions advanced
by the learned counsel for the appellant,
that he is calculating limitation by
extending the same to the order passed by
the Judicial Magistrate, First Class,
Nalagarh, on 06.02.2009. The instant
contention is wholly misconceived on
account of the legal position declared by a
Constitution Bench of this Court in Sarah
Mathew vs. Institute of Cardio Vascular
Diseases, wherein in para 51, this Court
has held as under : (SCC p.102)

"51. In view of the above, we hold
that for the purpose of computing the
period of limitation under Section 468
CrPC the relevant date is the date of filing
of the complaint or the date of institution of
prosecution and not the date on which the
Magistrate takes cognizance. We further
hold that Bharat Kale which is followed in
Japani Sahoo lays down the correct law.
Krishna Pillai will have to be restricted to
its own facts and it is not the authority for
deciding the question as to what is the
relevant date for the purpose of computing
the period of limitation under Section 468
CrPC."

9. In the above view of the matter,
we are satisfied, that keeping in mind the
allegations levelled against the appellant
by the respondent, the date of limitation
had to be determined with reference to the
date of incident and the date when the
complaint was filed by the respondent.
Since the complaint was filed by the
respondent on 24-01-2008, with reference
to an incident of 15.01.2008, we are of the
view, that Section 468 of the Criminal
Procedure Code would not stand in the way
of the respondent, in prosecuting the
complaint filed by him."

15. Reference may also be had to the
case of Johnson Alexander Vs. State by
C.B.I.6 where the proceedings were held to
be vitiated, in view of the bar under Section
468 for the reason that there was no
application by the prosecution explaining
the delay from the date of the alleged
occurrence till the date of filing the
complaint and registering the FIR.

16. The aforementioned authorities in
the case of Darshan Singh Saini (supra)
and Johnson Alexander (supra), would go
to show that 'institution of prosecution'
would refer to the date of filing of the
complaint or registering of the FIR, and in
a case where the same is within the period
of limitation, proceedings cannot be held to
be barred by Section 468 merely for the
reason that the order of cognizance or
issuance of process is made on a
subsequent date.

17. Thus, the view taken in the
judgments in the case of Bharat Damodar
Kale (supra), Japani Sahoo (supra) and
Sarah Mathew (supra) to the effect that
for the purpose of computing the period of
limitation under Section 468 of the Code
the relevant date is the date of 'institution of
prosecution' and not the date on which the
Magistrate takes cognizance, is primarily
for the reason that so far as the
complainant/informant is concerned, as
soon as he files a complaint, he has done
everything which is required to be done by
him and thereafter he has no control over
the proceedings or the delay in taking
cognizance which may be for reasons
508 INDIAN LAW REPORTS ALLAHABAD SERIES
which are systemic or otherwise cannot be
a ground to non-suit a diligent complainant.
The aforesaid reason, would also be
applicable where the case is instituted with
the
lodging
of
an
FIR
by
the
informant/complainant
diligently
and
within the period of limitation. In this
situation also the complainant/informant
cannot be non-suited for any subsequent
delay in taking cognizance, issuing process
or any other action contemplated under law,
for which the informant/complainant has no
control.

18. Recently Hon'ble Supreme Court in
the case of Amritlal v. Shantilal Soni7 has
held as under :-

Therefore, the enunciations and
declaration of law by the Constitution Bench
do not admit of any doubt that for the
purpose of computing the period of limitation
under Section 468 CrPC, the relevant date is
the date of filing of the complaint or the date
of institution of prosecution and not the date
on which the Magistrate takes cognizance of
the offence. The High Court has made a
fundamental error in assuming that the date
of taking cognizance i.e., 04.12.2012 is
decisive of the matter, while ignoring the fact
that the written complaint was indeed filed by
the appellant on 10.07.2012, well within the
period of limitation of 3 years with reference
to the date of commission of offence i.e.,
04.10.2009.

19. Adverting to the facts of the present
case, it is not disputed that the date of alleged
incident mentioned in the N.C.R. bearing
No.19/2013 is 09.03.2013 at 17:30 Hours.
The said N.C.R. was lodged on the same day
i.e. on 09.03.2013 itself. Therefore, in the
aforesaid view of the matter, this Court does
not find any substance in the argument of
learned counsel for the applicant that since
the charge sheet came to be filed after a lapse
of five years, three months and fourteen days
from the date of registration of NCR and the
same was barred by limitation and no
cognizance on the basis thereof could have
been taken.

20. As referred above, the charge sheet
under Sections 323 and 504 I.P.C. was
submitted by the Investigating Officer upon
conclusion of investigation after collecting
the credible evidence, therefore, the learned
trial Court has rightly taken cognizance of
this case and directed the same to be treated
as a complaint case keeping in view the
provisions contained in Section 2(d) Cr.P.C.

21 . In view of the aforesaid discussion,
this Court does not find any illegality,
impropriety
and
incorrectness
in
the
proceedings under challenge. There is no
abuse of court's process either.

22. The instant application under
Section 482 Cr.P.C. lacks merit, which
deserves to dismissed and the same is hereby,
dismissed, accordingly.
----------
(2022) 10 ILRA 508
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No. 6935 of 2022

Vijay Kumar Banka ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Paavan Awasthi

Counsel for the Opposite Parties: