Judges: P. Sathasivam, C.J.I., B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi and S.A. Bobde, JJ.

Facts:

While dealing with present case, a two-Judge Bench of this Court noticed a conflict between a two-Judge Bench decision of this Court in Bharat Damodar Kale and Anr. v. State of Andhra Pradesh MANU/SC/0794/2003 which is followed in another two-Judge Bench decision in Japani Sahoo v. Chandra Sekhar Mohanty MANU/SC/3080/2007 and a three-Judge Bench decision of this Court in Krishna Pillai v. T.A. Rajendran and Anr. In Bharat Kale it was held that for the purpose of computing the period of limitation, the relevant date is the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of a process by court. In Krishna Pillai this Court was concerned with Section 9 of the Child Marriage Restraint Act, 1929 which stated that no court shall take cognizance of any offence under the Child Marriage Restraint Act, 1929 after the expiry of one year from the date on which the offence is alleged to have been committed. The three-Judge Bench held that since magisterial action in the case before it was beyond the period of one year from the date of commission of the offence, the Magistrate was not competent to take cognizance when he did in view of bar under Section 9 of the Child Marriage Restraint Act, 1929.

Thus, there was apparent conflict on the question whether for the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure, 1973 in respect of a criminal complaint the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance. The two-Judge Bench, therefore, directed that this case may be put up before a three-Judge Bench for an authoritative pronouncement. When the matter was placed before the three-Judge Bench, the three-Judge Bench doubted the correctness of Krishna Pillai and observed that as a co-ordinate Bench, it cannot declare that Krishna Pillai does not lay down the correct law and, therefore, the matter needs to be referred to a five-Judge Bench to examine the correctness of the view taken in Krishna Pillai. Accordingly, this appeal along with other matters where similar issue is involved is placed before this Constitution Bench.

Issues:

I. Whether for the purposes of computing the period of limitation under Section 468 of the Code of Criminal Procedure the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence?

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

Law:

Child Marriage Restraint Act, 1929 - Section 9 - No court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed.

Code of Criminal Procedure, 1973 - Section 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.

Contentions:

Appellant

I. Krishna Pillai was rendered in the context of Section 9 of the Child Marriage Restraint Act, 1929. There is no reference to either Section 468 or Section 473 of the Code of Criminal Procedure in this judgment. This judgment merely focuses on the meaning of the term 'taking cognizance' and has accordingly interpreted Section 9 without reference to any provisions of the Code of Criminal Procedure Hence, this judgment cannot be considered authority for the purposes of interpretation of provisions of Chapter XXXVI. On the other hand Bharat Kale considers various provisions of Chapter XXXVI. All the provisions have been cumulatively read to conclude 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 within the period of the limitation prescribed under the Code of Criminal Procedure This judgment lays down the correct law.

II. Section 468 of the Code of Criminal Procedure has to be read keeping in view other provisions particularly Section 473 of the Code of Criminal Procedure A person filing a complaint within time cannot be penalized because the Magistrate did not take cognizance. A person filing a complaint after the period of limitation can file an application for condonation of delay and the Magistrate could condone delay if the explanation is reasonable. If Section 468 is interpreted to mean that a Magistrate cannot take cognizance of an offence after the period of limitation without any reference to the date of filing of the complaint or the institution of the prosecution it would be rendered unconstitutional. 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 accepting an interpretation which may make such provision unsustainable and ultra vires the Constitution.

III. Chapter XXXVI requires to be harmoniously interpreted keeping the interests of both the complainant as well as the accused in mind.

IV. The law of limitation should be interpreted from the standpoint of the person who exercises the right and whose remedy would be barred. The laws of limitation do not extinguish the right but only bar the remedy.

V. If delay in filing a complaint can be condoned in terms of Section 473 of the Code of Criminal Procedure then, Section 468 of the Code of Criminal Procedure cannot be interpreted to mean that a complaint or prosecution instituted within time cannot be proceeded with, merely because the Magistrate took cognizance after the period of limitation.

VI. The question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision. However, the same may not by itself be a ground for dismissing the complaint at the threshold. In certain exceptional circumstances delay may have to be condoned considering the gravity of the charge.

VII. The contention that Section 468 should be interpreted to mean that where the Magistrate does not take cognizance within the period of limitation it must be treated as having the object of giving quietus to petty offences in the Indian Penal Code is untenable. Some offences which fall within the periods of limitation specified in Section 468 of the Code of Criminal Procedure are serious. It could never have been the intention of the legislature to accord quietus to such offences.

VIII. Procedure is meant to sub-serve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged.

Respondent No. 1

I. Bharat Kale and Japani Sahoo do not represent the correct position in law. Krishna Pillai rightly holds that the relevant date for considering period of limitation is the date of taking cognizance.

II. The settled principles of statutory construction require that the expression 'cognizance' occurring in Chapter XXXVI of the Code of Criminal Procedure has to be given its legal sense, since it has acquired a special connotation in criminal law. It is a settled position in law that taking cognizance is judicial application of mind to the contents of a complaint/police report for the first time. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal meaning and no other

III. The heading of Chapter XXXVI providing for limitation for taking cognizance of certain offences is clearly reflective of the legislative intent to treat the date of taking cognizance as the relevant date in computing limitation. Pertinently, Section 467 defines the expression 'period of limitation' as the period specified in Section 468 for taking cognizance of an offence. The express language of Section 468 makes it clear that the legislature considers the relevant date for computing the date of limitation to be the date of taking cognizance and not the date of filing of a complaint.

IV. Further, the situations in Section 470 of the Code of Criminal Procedure providing for exclusion in computing the period of limitation are again relatable to taking cognizance and institution of prosecution. So also, exclusion under Section 471 of the Code of Criminal Procedure relates only to taking cognizance and Section 473 of the Code of Criminal Procedure also provides for extension of period of limitation in taking cognizance.

V. The scheme of the Code of Criminal Procedure envisages cognizance to be the point of initiation of proceedings. Chapter XIV of the Code of Criminal Procedure which contains provisions of taking cognizance is titled "Conditions requisite for initiation of proceedings". All provisions contained therein use the expression 'cognizance'. They do not refer to filing of complaint at all.

VI. e. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Even if the literal interpretation results in hardship or inconvenience it has to be followed. On a plain and literal interpretation of Section 468 of the Code of Criminal Procedure read in the background of object of Chapter XXXVI the intention of the legislature is clearly evident that bar of limitation is only for taking cognizance of an offence after the expiry of the period specified therein.

VII. Chapter XV of the Code of Criminal Procedure sets out procedure to be followed in respect of complaints filed directly to a Magistrate. It reflects a well laid out scheme which envisages judicial application of mind to be a pre-requisite for initiation of proceedings. The definition of the term 'complaint' contained in Section 2(d) also makes this evident. Thus, initiation of proceedings in criminal law can only be upon taking cognizance. It is clear, therefore, that under Section 468 of the Code of Criminal Procedure legislature has barred taking of cognizance as envisaged by Chapters XIV and XV after expiry of period of limitation. Hence, the date for purpose of limitation would be the date of taking cognizance. Mere filing of a complaint does not result in cognizance being taken, for the law requires the court to apply its mind judicially even before deciding to issue process.

VIII. There was no period of limitation under the old Code of Criminal Procedure A long delay led to serious negligence on the part of the prosecuting agencies, forgetfulness on the part of the prosecution and defence witness and mental anguish to the accused. Infliction of punishment long after the commission of offence impairs its utility as social retribution to the offender. To obviate these lacunae Chapter XXXVI was introduced in the Code of Criminal Procedure.

IX. Bharat Kale and Japani Sahoo have missed the object of introduction of Chapter XXXVI in the Code of Criminal Procedure namely to serve larger interest of administration of criminal justice keeping in view the interest of the accused and the interest of prosecuting agencies. These judgments fail to advert to the prejudice that will be caused to the accused if benefit of delay in taking cognizance is not given to them. The likelihood of prejudice being caused to the complainant which weighed with this Court in the above two decisions can be taken care of by Section 473 which provides for condonation of delay.

X. Object of Section 473 of the Code of Criminal Procedure has not been considered in Bharat Kale and Japani Sahoo. They are sub-silentio in this regard. They have also not taken note of difference of language in Sections 468 and 469 of the Code of Criminal Procedure.

XI. There are seven exceptions in the Code of Criminal Procedure to Section 468 namely Sections 84(1), 96(1), 198(6), 199(5), 378(5), 457(2) and the proviso to Section 125(3). In all these provisions period of limitation has been expressly provided by the legislature. The language of each of these provisions is different from language of Section 468. A perusal of these seven exceptions show that what is intended in Section 468 of the Code of Criminal Procedure is limitation for taking cognizance and not for filing complaints.

Respondent No. 2

I. The legislature has been very specific wherever time limit has to be fixed for initiation of prosecution. In certain special legislations like the Negotiable Instruments Act bar of limitation is not co-related to taking cognizance of an offence by a court, but it is co-related to filing of a complaint within a specific period. It is apparent that the bar under Chapter XXXVI of the Code of Criminal Procedure must be co-related to taking cognizance of an offence by the court in view of specific language used by the relevant sections contained therein.

II. Chapter XXXVI of the Code of Criminal Procedure is captioned as 'Limitation for Taking Cognizance of Certain Offences'. Therefore, this Chapter has to be understood as a Chapter placing limitation upon the court for the purposes of taking cognizance within the timeframe prescribed and not for filing of a complaint. In this Chapter the word 'complaint' or 'complainant' are conspicuously absent. Emphasis is on 'offences'.

III. Section 473 of the Code of Criminal Procedure enjoins a duty on the court to examine not only whether the delay has been explained or not but whether it is necessary to do so in the interest of justice.

IV. If the charge-sheet is hit by Section 468, the Court may then resort to Section 473 in exceptional cases in the interest of justice. The same consideration may not arise if a private complaint is filed. Section 473 is designed to cater to situations when for genuine reasons investigation is delayed. It is not intended to give long rope to litigants who take long time to approach the court.

V. Marginal Heading or Note can be usefully referred to, to determine the sense of any doubtful expression in a section ranged under that heading though it cannot be referred to for giving a different effect to clear words in the section.

Petitioners in SLP (Crl.) Nos. 5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013

I. Chapter XXXVI of the Code of Criminal Procedure is a complete code in itself which deals with issue of bar of limitation for taking cognizance of an offence.

II. A bare reading of Section 468 of the Code of Criminal Procedure leaves no manner of doubt that the bar of limitation applies as on the date of cognizance. It specifically targets cognizance and it debars taking cognizance of an offence after expiration of the statutory period of limitation. One cannot make fundamental alteration in the words of the statute. Taking cognizance cannot be altered to filing complaint within statutory period.

III. Taking cognizance is distinct from filing complaint. Cognizance takes place when a Magistrate first takes judicial notice of an offence on a complaint, or on a police report or upon information of a person other than a police officer.

IV. Operation of legal maxims can be excluded by statutes but operation of statutes cannot be excluded by legal maxims. Reliance on a maxim by this Court in Japani Sahoo for carving out an exception and supplying words to the complete Code of limitation is erroneous.

V. Penal statutes have to be interpreted strictly. It is the cardinal rule of interpretation that where a statute provides a particular thing should be done, it should be done in the manner prescribed and not in any other way.

VI. The rule of Casus Omissus stipulates that a matter which should have been, but has not been provided for in the statute cannot be supplied by the courts as, to do so, will be legislation by court and not construction. The legislative casus omissus cannot be supplied by judicial interpretative process. There is no scope for supplying/supplanting any word, phrase or sentence or creating any exception in Chapter XXXVI which is a complete Code in itself.

VII. Japani Sahoo does not lay down the correct law because by stipulating that the date of limitation is to be calculated from the date of filing of complaint rather than from the date on which the cognizance is taken, it has created a casus omissus, where the language of the statute was plain and no casus omissus existed.

VIII. The Golden Rule of Interpretation provides that a statute has to be interpreted by grammatical or literal meaning unmindful of the consequences if the language of the statute is plain and simple.

IX. The Law Commission's 42nd Report demonstrates the rational for introduction of limitation in Code of Criminal Procedure The legislature wanted to ensure that prosecution should not result in persecution especially in cases of minor offences which could be tried and disposed of speedily.

X. The accused has a fundamental right to speedy trial which is a facet of Article 21. Therefore, it is the duty of the courts to take cognizance within a prescribed timeframe. If the court fails to do so, it is not open to it to take cognizance of such offence as it might prejudice the right of the accused. Therefore, no cognizance can be taken after the period of limitation.

XI. The accused has a right to be heard at the time of condonation of delay in taking cognizance by the courts. Delay cannot be condoned without notice to the accused.

XII. The accused have to be heard when an application under Section 473 of the Code of Criminal Procedure is moved by the prosecution before cognizance is taken. Section 468 of the Code of Criminal Procedure is clear and unambiguous and it bars taking cognizance of an offence, if on the date of taking cognizance the period prescribed under Section 468(2) of the Code of Criminal Procedure has expired. Japani Sahoo, therefore, does not lay down the correct law.

Solicitor General, appearing for the Respondent in SLP (Crl.) Nos. 5687-5688 of 2013 and SLP (Crl.) No. 5764 of 2013.

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

II. Legislative history of Chapter XXXVI indicates its object.

III. Stage of process is not to be mistaken for cognizance. Cognizance indicates the point when a court takes judicial notice of an offence with a view to initiating process in respect of the offence. Cognizance is entirely a different thing from initiation of proceedings, rather it is the condition precedent to the initiation of proceedings by the court. Cognizance is taken of the case and not of persons. Under Section 190 of the Code of Criminal Procedure it is the application of mind to the averments in the complaint that constitutes cognizance (Bhushan Kumar). Stage of process is not relevant for the purpose of computing limitation under Section 468 of the Code of Criminal Procedure.

IV. Chapter XXXVI has to be read as a whole. To understand the scheme of this Chapter reference may be made to Vanka Radhamanohari.

V. On interpretation of Section 473 of the Code of Criminal Procedure particularly the disjunctive 'or' used therein reference may be made to Municipal Corporation of Delhi v. Tek Chand Bhatia MANU/SC/0187/1979. Once the complainant has acted with due diligence and there are delays on the part of the Court, it would be in the interest of justice to condone such delay and not call for explanation from the complainant which in any case he cannot possibly give. On condonation of delay reference may be made to Sharadchandra Dongre.

VI. Taking cognizance is not dictated by the prosecution of the complaint or police report but is predicated upon application of judicial mind by the Magistrate which is not in the control of the individual instituting the prosecution. If date of taking cognizance is considered to be relevant in computing limitation, the act of the court can prejudice the complainant which will be against the maxim 'the acts of courts should not prejudice anyone'.

VII. Krishna Pillai relates to Section 9 of the Child Marriage Restraint Act, 1929 which is a special law and which provides for a limitation for taking cognizance and could exclude the application of Chapter XXXVI and, hence, Section 473 of the Code of Criminal Procedure and perhaps in such facts there was no reference to Section 473 of the Code of Criminal Procedure Similar is the view in P.P. Unnikrishnan and Anr. v. Puttiyottil Alikutty and Anr. MANU/SC/0550/2000.

VIII. It is settled law that Sections 4 and 5 of the Code of Criminal Procedure create an exception for special laws with special procedures. Krishna Pillai was in the context of specific limitation period where Section 473 of the Code of Criminal Procedure had no application. Thus, it cannot be considered or applied to interpret Sections 468 and 473 of the Code of Criminal Procedure as they stand. On the contrary, view taken in Bharat Kale and Japani Sahoo relying upon Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada MANU/SC/1052/1997 reach the same conclusion as contended herein i.e. the acts of the court should not prejudice anyone.

Analysis:

I. The object of Chapter XXXVI inserted in the Code of Criminal Procedure 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.

II. The law makers, however, did not want cause of justice to suffer in genuine cases. Thus, Law Commission recommended provisions for exclusion of time and those provisions were made part of Chapter XXXVI. 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.

III. 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 of the Code of Criminal Procedure 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) of the Code of Criminal Procedure However, it chose to make general provisions for limitation for certain types of offences for the first time and incorporated them in Chapter XXXVI of the Code of Criminal Procedure.

IV. So far as meaning of words 'taking cognizance' is concerned, 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.

V. Further, there has to be some amount of certainty or definiteness in matters of limitation relating to criminal offences. If, 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 of the Code of Criminal Procedure 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.

VI. 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 of the Code of Criminal Procedure, primarily because in that case, this Court was dealing with Section 9 of the Child Marriage Restraint Act, 1929 which is a special Act. It specifically stated that no court shall take cognizance of any offence under the said Act after the expiry of one year from the date on which offence is alleged to have been committed. There is no reference either to Section 468 or Section 473 of the Code of Criminal Procedure in that judgment. It does not refer to Sections 4 and 5 of the Code of Criminal Procedure which carve out exceptions for Special Acts. This Court has not adverted to diverse aspects including the aspect that inaction on the part of the court in taking cognizance within limitation, though the complaint is filed within time may work great injustice on the complainant.

Conclusion:

I. For the purpose of computing the period of limitation under Section 468 of the Code of Criminal Procedure 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.

II. Bharat Kale which is followed in Japani Sahoo lays down the correct law.

III. 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 of the Code of Criminal Procedure