# Rajitram Shukla & Ors v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 335
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-29
- **Case number:** Application U/S 482 Cr.P.C. No. 8723 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajitram-shukla-ors-v-state-of-u-p-anr-46325
- **Pages:** 16

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 468 - Bar to taking
cognizance after lapse of the period of
limitation - Indian Penal Code, 1860 -
Section 323, 504, 506 - The Schedule
Castes

And
The
Schedule
Tribes
336 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention of Atrocities ) Act , 1989 -
Section 3(1)10 - nullum tempus aut locus
occurrit
regi
-
vigilantibus
et
non
dormientibus - jura subveniunt - actus
curiae neminem gravabit
- computation
of period of limitation under Section 468
CrPC - 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.
(Para
-
20)

Incident occurred on 13.05.2015 - FIR lodged
on 13.05.2015 - police report submitted on
31.12.2015 - whereupon cognizance was taken
- order passed by the Magistrate summoning
the
applicant-accused
is
18.11.2020
-
preliminary point and contention - bar under
Section
468
would
become
operative
-
proceedings would be barred by limitation.

HELD:-The challenge therefore sought to be
raised to the criminal proceedings, including the
challenge to the charge-sheet and summoning
order, on the point of limitation, by seeking to
urge that the proceedings would be barred by
limitation under Section 468 Cr.P.C. thus cannot
be accepted and is therefore rejected. (Para -
21 )

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

List of Cases cited:-

## Text

_Characters 0–39,941 of 53,437. This is a partial read: ask again with offset=39941 for what follows._

10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
335
person about to commit or in the course of
committing an act infringing upon that
right, stands by in such a manner as really
to induce the person committing the act,
and who might otherwise have abstained
from it, to believe that he assents to its
being committed; a person so standing by
cannot afterwards be heard to complaint of
the act".

22. Thus, Om Prakash Mittal and
Gaurav Mittal after consented to abide by
the Will are estopped from taking a plea
that under provisions of Section 169,
U.P.Z.A. & L.R. Act, Will, could not have
been acted upon. This plea prima facie
reflects their guilty mind and dis-honest
intention, which has been rightly inferred
by the court below while taking cognizance
of the charge-sheet.

23. However, I would like to add that
case of Anjana Agarwal is on a different
footing
than
that
of
applicants
in
Application under Section 482 No.7572 of
2021, inasmuch as, Anjana Agarwal is only
a marginal witness to the sale deed and,
therefore, it cannot be said that she
understood the import and meaning of the
transaction and had constructive knowledge
of cheating and forgery being committed
by the beneficiaries of the transaction,
namely, Om Prakash and Gaurav Mittal
and, therefore, her case being different on
facts
deserves
to
be
allowed
and
proceedings qua her deserves to be quashed
and are hereby quashed.

24.. However, case of Om Prakash
Mittal and Gaurav Mittal are on different
footing. Om Prakash Mittal is a signatory
to the family settlement, which accepted
execution of the Will. Once, execution of
Will was accepted on the date of 'Uthavana'
of Sri Ramji Das Mittal and it is mentioned
that partition will be made in terms of the
Will of Shri Ramji Das Mittal, subsequent
contention of Om Prakash that he was not
having any knowledge of the execution
deed drawn on the advice of their chartered
accountant and auditor, prima facie, depicts
that revenue documents were prepared in a
fraudulent manner so to corner extra share
in the property of Ramji Das Mittal, then
what was admissible to Om Prakash Mittal
and, therefore, in the light of the law laid
down in case of Priti Saraf (supra) and
Kamal Shivaji Pokarnekar (supra), since
prima facie offence appears to have been
made out, no indulgence is required for
quashing the proceedings, qua Om Prakash
Mittal and Gaurav Mittal, Application fails
and is dismissed.
----------
(2021)10ILR A335
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 8723 of 2021

Rajitram Shukla & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Pradeep Kumar Mishra

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 468 - Bar to taking
cognizance after lapse of the period of
limitation - Indian Penal Code, 1860 -
Section 323, 504, 506 - The Schedule
Castes

And
The
Schedule
Tribes
336 INDIAN LAW REPORTS ALLAHABAD SERIES
(Prevention of Atrocities ) Act , 1989 -
Section 3(1)10 - nullum tempus aut locus
occurrit
regi
-
vigilantibus
et
non
dormientibus - jura subveniunt - actus
curiae neminem gravabit
- computation
of period of limitation under Section 468
CrPC - 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.
(Para
-
20)

Incident occurred on 13.05.2015 - FIR lodged
on 13.05.2015 - police report submitted on
31.12.2015 - whereupon cognizance was taken
- order passed by the Magistrate summoning
the
applicant-accused
is
18.11.2020
-
preliminary point and contention - bar under
Section
468
would
become
operative
-
proceedings would be barred by limitation.

HELD:-The challenge therefore sought to be
raised to the criminal proceedings, including the
challenge to the charge-sheet and summoning
order, on the point of limitation, by seeking to
urge that the proceedings would be barred by
limitation under Section 468 Cr.P.C. thus cannot
be accepted and is therefore rejected. (Para -
21 )

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

List of Cases cited:-

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

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

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

4. Krishna Pillai Vs T.A.Rajendran, 1990 (Supp)
SCC 121

5. Jamuna Singh Vs Bhadai Shah, AIR 1964 SC
1541

6. R.R.Chari Vs St. of U.P., AIR 1951 SC 207

7. Gopal Das Sindhi Vs St. of Assam, AIR 1961
SC 986
8. Chief Enforcement Officer Vs Videocon
International Ltd., (2008) 2 SCC 492
9. Darshan Singh Saini Vs Sohan Singh & anr.,
(2015) 14 SCC 570

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

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Pradeep Mishra, learned
counsel for the applicants and Sri Pankaj
Saxena, learned Additional Government
Advocate-I appearing for the State-opposite
party.

2. The present application under
Section 482 of the Code of Criminal
Procedure1 has been filed seeking to quash
the charge sheet dated 31.12.2015 as well
as summoning order dated 18.11.2020
passed by Special Judge S.C./S.T. Act,
Jaunpur as well as entire proceedings of
S.S.T. No. 284/2020, arising out of Case
Crime No. 249/2015, under Section 323,
504, 506 I.P.C. and 3 (1) 10 S.C./S.T. Act,
Police Station Barsathi District Jaunpur.

3. A challenge is sought to be raised
to the proceedings of S.S.T. No. 284/2020,
arising out of Case Crime No. 249/2015,
and
also
to
the
charge-sheet
dated
31.12.2015 as well as summoning order
dated 18.11.2020, by raising a preliminary
point and contending that the proceedings
would be barred by limitation in view of
the provisions contained under Section 468
CrPC.

4. Learned counsel for the applicants
has submitted that in the instant case, the
incident in question is stated to have
occurred on 13.05.2015 regarding which an
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
337
FIR was lodged on the same day i.e.
13.05.2015, and after investigation the
police report was submitted on 31.12.2015
whereupon
cognizance
was
taken.
However, since the order passed by the
Magistrate
summoning
the
applicantaccused is dated 18.11.2020, the bar under
Section 468 would become operative and
the proceedings would be barred by
limitation.

5. In response to the aforesaid
contention, learned Additional Government
Advocate-I points out that the question as
to what would be the relevant date for the
purposes of computing the period of
limitation under Section 468 CrPC is no
longer res integra. He has placed reliance
upon the Constitution Bench judgment in
the case of Sarah Mathew Vs. The
Institute of Cardio Vascular Diseases
and Ors.2, wherein noticing a conflict
between a two Judge Bench decision of the
Supreme Court in the case of Bharat
Damodar Kale Vs. State of A.P.3, which
had been followed in another two Judge
Bench decision in Japani Sahoo Vs.
Chandra Sekhar Mohanty4, and a three
Judge Bench decision in Krishna Pillai Vs.
T.A.Rajendran5, the case was placed
before a three Judge Bench for an
authoritative pronouncement and thereafter
it was referred to a five Judge Constitution
Bench to examine the issue.

6. The questions which were
considered by the Constitution Bench in the
case of Sarah Mathew (supra) 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?"

7. Referring to the legislative history
of Chapter XXXVI of the Code, it was
observed as follows :-

"19. To address the questions
which arise in this reference, it is necessary
to have a look at the legislative history of
Chapter XXXVI CrPC. The Criminal
Procedure Code, 1898 contained no general
provision for limitation. Though under
certain special laws like the Negotiable
Instruments Act, 1881, the Trade and
Merchandise Marks Act, 1958, the Police
Act, 1861, The Factories Act, 1948 and the
Army Act, 1950, there are provisions
prescribing
period
of
limitation
for
prosecution of offences, there was no
general law of limitation for prosecution of
other offences. The approach of this Court
while dealing with the argument that there
was delay in launching prosecution, when
in the Criminal Procedure Code (1898),
there was no general provision prescribing
limitation, could be ascertained from its
judgment in Collector of Customs v. L.R.
Melwani. It was urged before the High
Court in that case that there was delay in
launching prosecution. The High Court
held that the delay was satisfactorily
explained.
While
dealing
with
this
question, this Court held that in any case
prosecution could not have been quashed
on the ground of delay because it was not
the case of the accused that any period of
limitation was prescribed for filing the
complaint. Hence the complaint could not
have been thrown out on the sole ground
338 INDIAN LAW REPORTS ALLAHABAD SERIES
that there was delay in filing the same. This
Court further observed that the question of
delay in filing complaint may be a
circumstance to be taken into consideration
in arriving at the final verdict and by itself
it affords no ground for dismissing the
complaint. This position underwent a
change to some extent when Chapter
XXXVI was introduced in the Criminal
Procedure Code as we shall soon see.

20. It is pertinent to note that the
Limitation Act, 1963 does not apply to
criminal proceedings except for appeals or
revisions for which express provision is made
in Articles 114, 115, 131 and 132 thereof.
After conducting extensive study of criminal
laws
of
various
countries,
the
Law
Commission of India appears to have realized
that providing provision of limitation for
prosecution of criminal offences of certain
type in general law would, in fact, be good
for the criminal justice system. The Law
Commission noted that the reasons to justify
introduction
of
provisions
prescribing
limitation in general law for criminal cases
are similar to those which justify such
provisions in civil law such as likelihood of
evidence being curtailed, failing memories of
witnesses and disappearance of witnesses.
Such a provision, in the opinion of the Law
Commission, will quicken diligence, prevent
oppression and in the general public interest
would bring an end to litigation. The Law
Commission also felt that the court would be
relieved of the burden of adjudicating
inconsequential claims."

8. The recommendations made by
Forty-second Law Commission Report,
and in particular those in respect of
extending
the
provision
relating
to
limitation to original prosecutions, and
also the report of the Joint Parliamentary
Committee
accepting
the
recommendations of the Law Commission,
were taken note of, and it was stated as
follows :-

"21. Paragraph 24.3 of the Fortysecond
Law
Commission
Report
is
material. It reads thus:

"24.3. Reasons for time-limits in
civil cases- In civil cases, the law of
limitation in almost all countries where the
rule of law prevails, jurists have given
several convincing reasons to justify the
provision of such a law; some of those
which are equally applicable to criminal
prosecutions may be referred to here:

(1) The defendant ought not to
be called on to resist a claim when
'evidence has been lost, memories have
faded, and witnesses have disappeared.'

(2) The law of limitation is also
a means of suppressing fraud, and perjury,
and quickening diligence and preventing
oppression.

(3) It is in the general public
interest that there should be an end to
litigation. The statute of limitation is a
statute of repose.

(4) 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 require the aid of
the State in enforcing it.

(5) The court should be relieved of
the burden of adjudicating inconsequential or
tenuous claims."

The Law Commission stated its
case for extending limitation to original
prosecutions as under:
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
339

"24.11-
Case
for
extending
limitation to original prosecutions.- It
seems to us that there is a strong case for
having a period of limitation for offences
which are not very serious. For 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.
Moreover, 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. The
deterrent effect of punishment which is one
of the most important objectives 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."

22. Paragraphs 24.13, 24.14,
24.20, 24.22, 24.23, 24.24, 24.25 and 24.26
of the Forty-second Law Commission
Report could also be advantageously
quoted:

"24.13.- Delay by itself no
ground for dismissing complaint- At
present no court can throw out a complaint
solely on the ground of delay, because, as
pointed out by the Supreme Court, 'the
question 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 no grounds
for dismissing the complaint.'

It 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. But it would
be illegal for a court to dismiss a complaint
merely because there was inordinate delay.

24.14.-
Recommendation
to
introduce principle of limitation.- We,
therefore, recommend that the principle of
limitation should be introduced for less
serious offences under the Code. We
suggest that, for the present, offences
punishable
with
fine
only
or
with
imprisonment upto three years should be
made subject to the law of limitation. The
question of extending the law to graver
offences may be taken up later on in the
light of the experience actually gained.

xxx

24.20.- Prosecution commences
when
court
takes
cognizance.-The
question 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 Supreme
Court with reference to Section 15 of the
Merchandise Marks Act, 1889. Where 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. The
complainant is required by Section 15 of
the Act to 'commence prosecution' within
this period, which means that if the
complaint is presented within one year of
such discovery, the requirements of Section
15 are satisfied. The 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. It will defeat the object of the
enactment, deprive traders of the protection
which the law intended to give them, to
hold that unless process is issued on their
340 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint within one year of the discovery
of the offence, it should be thrown out.

xxx

24.22- Infructuous proceedings.-
Secondly, 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 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 jurisdiction or other cause of
a like nature, is unable to entertain it.

24.23-
Continuing
offences.-
Thirdly, 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 continues; and we
recommend the insertion of a provision to
that effect.

24.24-
Impediments
to
prosecution.-
Impediments
to
the
institution of a prosecution have also to be
provided for. Such impediments could be
(a) legal, or (b) due to conduct of the
accused, or (c) 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 required, or notice has to be
given, under legal provision. Both are
appropriate cases for a special provision for
extending the period of limitation. We
recommend that, where the institution of
the prosecution in respect of an offence has
been stayed by an injunction or order, then,
in computing the period of limitation for
taking cognizance of that offence, the time
of the continuance of the injunction or
order, the day on which it was issued or
made, and the day on which it was
withdrawn, shall be excluded.

24.25- Notice of prosecution.-
We 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
Government or any other authority is
required,
in
accordance
with
the
requirements 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 required for
obtaining such consent or sanction, shall be
excluded.

24.26- Absence of accused and
absconding-
As
illustrations
of
impediments caused by the conduct of the
accused, we may refer to his being out of
India, and his absconding or concealing
himself. Running of the period of limitation
should be excluded in both cases."

23. The Joint Parliamentary
Committee ("the JPC") accepted the
recommendations of the Law Commission
for prescribing period of limitation for
certain offences. The relevant paragraphs
of its report dated 30-11-1972 read as
under:

"Clauses 467 to 473 (new
clauses).-
These
are
new
clauses
prescribing periods of limitation on a
graded scale for launching a criminal
prosecution in certain cases. At present,
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
341
there is no period of limitation for criminal
prosecution and 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. Periods 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 Law Commission.

Among the grounds in favour of
prescribing
the
limitation
may
be
mentioned as the following:

1. As time passes the testimony
of witnesses becomes 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.

2. For 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. People
will have no peace of mind if there is no
period of limitation even for petty offences.

3.
The
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.

4. The sense of social retribution
which is one of the purposes of criminal
law loses its edge after the expiry of a long
period.

5. The 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
quickly.

The 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 (sic the same and) 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. Further,
when 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.

The 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. This provision would be
particularly useful because limitation for
criminal prosecution is being prescribed for
the first time in this country."
342 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Read in the background of
the Law Commission's Report and the
Report of the JPC, it is clear that the object
of Chapter XXXVI inserted in the Criminal
Procedure Code was to quicken the
prosecutions of complaints and to rid the
criminal justice system of inconsequential
cases displaying extreme lethargy, inertia
or indolence. The effort was to make the
criminal justice system more orderly,
efficient and just by providing period of
limitation for certain offences. In Sarwan
Singh, this Court stated the object of the
Criminal Procedure Code in putting a bar
of limitation as follows: (SCC p.36,para 3)

"3...The object of the Criminal
Procedure 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. The object
which the statutes seek to sub-serve is
clearly in consonance with the concept of
fairness of trial as enshrined in Article 21
of the Constitution of India. It is, therefore,
of
the
utmost
importance
that
any
prosecution, whether by the State or a
private complainant must abide by the
letter of law or take the risk of the
prosecution failing on the ground of
limitation."

25. It is equally clear however
that the law-makers did not want cause of
justice to suffer in genuine cases. The Law
Commission recommended provisions for
exclusion of time and those provisions
were made part of Chapter XXXVI. We,
therefore,
find
in
Chapter
XXXVI
provisions for exclusion of time in certain
cases (Section 470), for exclusion of date
on which the court is closed (Section 471),
for continuing offences (Section 472) and
for extension of period of limitation in
certain cases (Section 473). Section 473 is
crucial. It empowers the court to 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 to do so in
the interest of justice. Therefore, Chapter
XXXVI
is
not
loaded
against
the
complainant. It is true that the accused has
a right to have a speedy trial and this right
is a facet of Article 21 of the Constitution.
Chapter XXXVI CrPC does not undermine
this right of the accused. While it
encourages diligence by providing for
limitation it does not want all prosecutions
to be thrown overboard on the ground of
delay. It strikes a balance between the
interest of the complainant and the interest
of the accused. It must be mentioned here
that where the legislature wanted to treat
certain offences differently, it provided for
limitation in the section itself, for instance,
Section 198(6) and 199(5) CrPC. However,
it chose to make general provisions for
limitation for certain types of offences for
the first time and incorporated them in
Chapter XXXVI CrPC."

9. The scheme under Chapter XXXVI
of the Code was adverted to by referring to
Sections 467, 468, 469, 470, 471 and 473
and it was observed as follows :-

"30.1 Section 467 defines the
phrase "period of limitation" to mean the
period specified in Section 468 for taking
cognizance of certain offences.

30.2 Section 468 stipulates the
bar of limitation. Sub-section (1) of Section
468 makes it clear that a fetter is put on the
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
343
court's power to take cognizance of an
offence of the category mentioned in subsection (2) after the expiry of period of
limitation. Sub-section (2) lays down the
period of limitation for certain offences.

30.3 Section 469 states when the
period of limitation commences. It is
dexterously drafted so as to prevent
advantage of bar of limitation being taken
by the accused. It states that period of
limitation in relation to an offence shall
commence either from the date of offence
or from the date when the offence is
detected.

30.4 Section 470 provides for
exclusion of time in certain cases. It inter
alia states that while computing the period
of limitation in relation to an offence, time
taken during which the case was being
diligently prosecuted in another court or in
appeal or in revision against the offender,
should be excluded. The Explanation to this
section states that in computing limitation,
the time required for obtaining the consent
or sanction of the Government or any other
authority should be excluded. Similarly
time
during
which
the
accused
is
absconding or is absent from India shall
also be excluded.

30.5 Section 471 provides for
exclusion of date on which court is closed
and Section 472 provides for continuing
offence.

30.6 Section 473 is an overriding
provision which enables courts to condone
delay where such delay has been properly
explained or where the interest of justice
demands extension of period of limitation.

30.7
An
analysis
of
these
provisions indicates that Chapter XXXVI is
a Code by itself so far as limitation is
concerned. All the provisions of this
Chapter will have to be read cumulatively.
Sections 468 and 469 will have to be read
with Section 473."

10. The term 'cognizance' in the
context of the provisions of the Code and
the earlier decisions in the case of Jamuna
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
344 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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)."
10 All. Rajitram Shukla & Ors. Vs. State of U.P. & Anr.
345

 (emphasis supplied)

11. 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)

12. 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, 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)

13. It would also be apposite 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.

14. 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 as follows :-

"10. On facts of this case and
based on the arguments advanced before
346 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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)

15. The aforementioned view in the
case of Bharat Kale was affirmed and
followed in the case of Japani Sahoo and it
was held that the date relevant for
computation of period of limitation under
10 All. Rajitram Shukla & Ors. Vs. State of U.P.