A Flawed Interpretation Of Section 468 Cr.P.C. By The Apex Court In Roma Ahuja's Case And An Equally Flawed Provision In The “Explanation” To Section 514(3) BNSS

A FLAWED INTERPRETATION OF SECTION 468 Cr.P.C BY THE APEX COURT IN ROMA AHUJA'S CASE (2026 LiveLaw (SC) 351) AND AN EQUALLY FLAWED PROVISION IN THE “EXPLANATION” TO SECTION 514 (3) BNSS

C O N T E N T S

A FLAWED INTERPRETATION OF SECTION 468 Cr.P.C BY THE APEX COURT IN ROMA AHUJA'S CASE (AIR 2026 SC 1793 = 2026 SCC OnLine SC 557) AND AN EQUALLY FLAWED PROVISION IN THE “EXPLANATION” TO SECTION 514 (3) BNSS

I will first take up for discussion the above verdict of the Supreme Court of India.

Facts leading to the above verdict

There were two cross-cases (a case and a counter-case) registered as Crime Nos. 120/2011 and 121/2011 at the Moti Nagar Police Station in Delhi. We are concerned with the counter-case registered as Crime No.121/2011 in which the offences involved were Sections 323 IPC (voluntarily causing hurt) and Section 341 IPC (causing wrongful restraint) read with Section 34 IPC. The offence under Section 323 IPC was punishable with imprisonment which could extend to 1 year or fine or both. The offence under Section 341 IPC was punishable with simple imprisonment for a term which could extend to 1 month or fine or both. The question involved in the case before the Supreme Court in Roma Ahuja's case was one of limitation in taking cognizance of the offences and covered by Section 468 Cr.P.C. Since both the offences were being tried together, the period of limitation had to be determined with reference to that offence which was punishable with the more severe punishment in view of Section 468 (3) Cr.P.C. In the case before the Supreme Court, Section 323 IPC prescribed the more severe punishment of imprisonment upto 1 year. Hence, the period of limitation for that case was 1 year.

2. The following dates discernible from the reported verdict itself, are relevant –

1. 09-05-2011 - Date of occurrence
2. 09-05-2011 - Date of FIR and the date of registration of Crime No.121/2011.
3. 29-05-2012 - Date on which the charge-sheet was field before the Metropolitan Magistrate (West) Delhi-4 (Trial Court)
4. ……….. - Cognizance of the offences taken by the trial Court which issued process against the accused. (The date of taking cognizance is not available from the reported verdict).
5. 07-05-2015 - The Advocate who appeared for the accused filed an application for discharge under Section 258 Cr.P.C on the ground that cognizance of the offence was taken beyond the period of limitation.
6. 04-04-2016 - The trial Court dismissed the above application holding that the order taking cognizance had become final without it being challenged before a superior forum.
7. 28-04-2016 - Writ Petition (Crl) 1407/2016 filed before the Delhi High Court by the accused seeking to quash FIR No.121/2011.
8. 30-01-2025 - The Delhi High Court allowed the case filed by the accused and held that the charge-sheet was filed beyond the period of limitation of 1 year.
9. 12-07-2025 - SLP (Crl) Nos. 9971 and 9972/2025 for special leave to appeal filed by the First Informant challenging the order of the High Court, was allowed and appeals were registered as Criminal Appeal Nos. 1831 and 1832/2026.
10. 09-04-2026 - The above appeals were allowed holding that the High Court went wrong in quashing the FIR on the ground of limitation. (Vide paras 10 and 11 of AIR 2026 SC 1793 = 2026 KHC 6261 (SC)

3. In the course of the judgment the Supreme Court has observed as follows –

“5.2.4 In the present case, the FIR in question, which was held barred by limitation by the High Court, was in respect of offences under Sections 323 and 341 read with Section 34 IPC. The offence under Section 323 is the offence of voluntarily causing hurt. It provides punishment of imprisonment for a term extending to one year which is the severest punishment amongst the offences charged in the FIR. In that view, it attracts Section 468(2)(b), Cr.P.C, for which the period of limitation is provided to be one year”.

NOTES BY THE AUTHOR – Nobody had a case and the High Court also did not hold that the FIR was barred by the limitation.

“5.2.5 Whether the limitation period as above would be reckoned from the date of filing of the complaint or from the date of taking cognizance, is no longer res integra in view of the Constitution Bench judgment of this Court in Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and Others 5”. (AIR 2014 SC 448 = (2014) 2 SCC 62).

“7.1 It was submitted that in view of the difference in working of the provisions, especially under the provisions of S.173 onwards, and having regard to the distinction between 'complaint' defined in S.2(d) and the 'police report' defined in S.2(r), Cr.P.C, and when the 'complaint' in S.2(d) does not include the police report, the Constitution Bench judgment is distinguishable and the instant being the complaint case, the principle laid down in Sarah Mathew (supra) will not apply.

7.2 The above submission is stated to be rejected. The computing point of limitation for the purpose of S.468, Cr.P.C is held to be the date of filing complaint - the date of initiation of criminal proceedings. Whether the case belongs to one instituted before the Magistrate under S.173 or it is upon a complaint filed before the police, what matters is the date of initiation of criminal proceedings”.

(Emphasis supplied by me)

NOTES BY THE AUTHOR – What exactly is the “date of initiation of criminal proceedings” is not explained by the Bench.

“10. As a consequence of all the foregoing reasons and discussion, it is to be held that the High Court committed a patent error in quashing the FIR No. 121 of 2011 on the ground of limitation, taking an erroneous view that the date of taking cognizance by the Magistrate is relevant. As held by the Constitution Bench in Sarah Mathew (supra), the relevant date for the purpose of reckoning the limitation under S.468, Cr.P.C is the date of filing of complaint or the date of initiation of criminal proceedings”.

(Emphasis supplied by me)

NOTES BY THE AUTHOR – Here also the Bench did not explain what exactly is the “date of initiation of criminal proceedings”.

11. The impugned order dated 30.01.2025 in Crl. M.C. No. 1170 of 2017 and Crl.M.A. No. 7270 of 2016 by the High Court are hereby set aside. The Appeals stand allowed. The trial shall expeditiously proceed in accordance with law.

Interlocutory application, if any pending, shall not survive”.

The fallacy behind the above conclusion of the Apex Court

4. With due respect, in my humble opinion, the reasoning and conclusion reached by the Apex Court is fallacious and unsustainable. “Date of filing the complaint” mentioned in paragraph 5.2.5 of the verdict in question, has no application at all in this case where it was the Police which after conducting investigation, submitted a charge-sheet before the Court under Section 173 (2) Cr.P.C. In a case instituted on a “Police Report” there is no question of any “complaint” being filed before the Magistrate or the Magistrate taking cognizance of the offence on a complaint the date of which is relevant in the context of limitation is the “date of institution of complaint”. The Bench was, however, perfectly right in holding that the “date of taking cognizance of the offence” is irrelevant while considering the question of limitation. After the institution of the case before the Court by either filing a “complaint” or “police report”, as the case may be, the act of taking cognizance of the offence may be delayed due to various occupational vicissitudes or priorities at the hands of the Magistrate. Such delays cannot defeat the limitation with regard to cases already initiated within the time stipulated by law.

THE MECHANICS OF THE CURIAL ACT OF TAKING COGNIZANCE OF AN OFFENCE

5. The most common sources for taking cognizance of offences by a Magistrate or by a criminal court are –

1. a “complaint” (as defined under Section 2 (d) Cr.P.C. and enabled under Section 190 (1) (a) Cr.P.C).

AND

1. a “Police Report” (as defined under Section 2 (r) Cr.P.C. and enabled under Section 190 (1) (b) Cr.P.C).

The “conditions requisite for the initiation” of the above two sources, are different although the “mode of institution” of the two cases before a Court may be similar. We shall presently examine the distinction between a “police case” and a “complaint case”.

POLICE CASE

6. In a case “instituted” on a “Police Report”, the condition precedent for “initiation of proceedings” is the registration of a crime by the Police either on the basis of an “information” (FIR) given by a person under Section 154 (1) Cr.P.C or on the basis of a suo motu report by the Police under Section 157 (1) Cr.P.C. The “information” under Section 154 (1) Cr.P.C. is given by a person not to the Magistrate but to an SHO. It is very often loosely, but illegally, referred to as a “complaint” to the Police. In the strict legal sense, a “complaint” is one which is given to the Magistrate. In common parlance, a “complaint” is also called a “private complaint”. It is, therefore, inappropriate to call the “information” given to the Police under Section 154 (1) Cr.P.C as a “complaint” and to call the person as a “de facto complainant”. (Vide Ganesha v. Sharanappa AIR 2014 SC 1198 = (2014) 1 SCC 57 – C. K. Prasad, Kurian Joseph – JJ.). Whether it is on an “information” given under Section 154 (1) Cr.P.C. or on a suo moto report given under Section 157 (1) Cr.P.C., the Police after registering the FIR and conducting investigation under Chapter XII Cr.P.C., will submit a “Police Report” which can either be a “charge-sheet” for placing the accused on trial or a “refer report” (closure report) for discharging the accused.

The law is well settled by the various judicial pronouncements by the Supreme Court, that whether it is a “charge-sheet” or a “closure report”, the Magistrate has the jurisdiction to take cognizance of the offence or refuse to take cognizance of the offence if the materials produced along with the “Police Report” discloses or do not disclose an offence. This power of the Magistrate is irrespective of the conclusion reached by the Police officer whose opinion in the Police Report is not the last word and is, therefore, not binding on the Magistrate. Where a Magistrate takes cognizance of an offence on a “Police Report” filed under Section 173 (2) Cr.P.C., he is doing so under Section 190 (1) (b) Cr.P.C. In cases where the Magistrate takes cognizance of an offence on a “closure report” by relying on the 161 statement of a witness produced along with the “Closure Report”, he can be said to have taken cognizance of the offence under the first part of Section 190 (1) (c) Cr.P.C. (Vide paras 17 and 19 of Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 – Hidayatullah, Vaidialingam – JJ).

COMPLAINT CASE (Private complaint)

7. In a case “instituted” on a private complaint, if the Magistrate after perusing the averments in the complaint and the materials, if any, produced along with it, applies his mind for the purpose of proceeding under Chapter XV Cr.P.C., he can be said to have taken cognizance of the offence. The recording of the sworn statement of the complainant and his witnesses under Section 200 Cr.P.C. is only for the purpose of ascertaining whether there is any “sufficient ground for proceeding” by issuing process to the accused. If, even after the Magistrate records the sworn statement, he entertains some doubt as to whether there is any “sufficient ground for proceeding”, he can conduct an inquiry under Section 202 Cr.P.C. If after such inquiry, the Magistrate is of opinion that there is “sufficient ground for proceeding”, he will issue process to the accused under Section 204 (1) Cr.P.C. If the Magistrate is of opinion that there is no “sufficient ground for proceeding”, he has to dismiss the “complaint” under Section 203 Cr.P.C.

Whether it is the “recording of the sworn statement” under Section 200 Cr.P.C. or the conducting of an “inquiry” under Section 202 Cr.P.C. or the “dismissal” of the complaint under Section 203 Cr.P.C. or the “issue of process” under Section 204 Cr.P.C., all these curial acts take place at the “post-cognizance stage”.

THE AREA WHERE THE SUPREME COURT BUNGLED

8. In Roma Ahuja's Case the question of “date of filing the complaint” was foreign to its scope since it was a Police case which could end only in a “Police Report”. “Date of filing the complaint” will be relevant only in a “complaint case”. In a Police case, it is the “date of filing the Police report” which is relevant and which was missed by the Bench. The offence in the case before the Supreme Court was committed on 09-05-2011. The period of limitation was one year. The charge sheet ought to have been filed before the Magistrate on or before 09-05-2012. But it was actually filed only on 29-05-2012 which was beyond the period of limitation. The High Court of Delhi was, therefore, perfectly right in holding that the Police Report was belatedly filed. The divergent view taken by the Apex Court by relying on the “date of recording the FIR” to hold that there was no delay, cannot be supported. It is relevant to note that an FIR is neither recorded nor registered before a Magistrate. Both the recording and the registration of the FIR takes place before the Station House Officer. The only legal course open to the Supreme Court was to concur with the High Court and hold that the charge-sheet was filed beyond the period of limitation and then invoke Section 473 Cr.P.C. to hold that in the facts and circumstances of the case, the delay had been properly explained or that it was necessary to take cognizance of the offence in the interests of justice, especially when the main case was pending trial before the Magistrate.

SOME INSIGHT INTO THE MECHANICS OF LIMITATION

9. It was for the first time that the 1973 Code introduced the concept of limitation for certain offences punishable with imprisonment not exceeding 3 years. The various periods of limitation depending on the punishment of imprisonment is enumerated in Section 468 Cr.P.C.

COMMENCEMENT OF THE PERIOD OF LIMITATION

10. The period of limitation always starts running from the date and time of the offence. Therefore, time will start running –

1. from the date of offence (S. 469 (1) (a) Cr.P.C.)., or
2. from the date of knowledge of the offence to the person aggrieved or to any police officer, whichever is earlier. (S.469 (1) (b) Cr.P.C.),
3. from the date of knowledge of the identity of the offender to the person aggrieved or to the Police Officer conducting investigation, whichever is earlier. (S.469 (1) (c) Cr.P.C.)

While computing the period of limitation the first day from which the period is to be counted, should be excluded. (S.469 (2) Cr.P.C).

EXCLUSION OF TIME IN CERTAIN CASES

[A] 11. The following period shall be excluded from the period of limitation –

1. Time during which the person aggrieved has been bona fide prosecuting with due diligence another prosecution relating to the same facts. (S.470 (1) Cr.P.C.)
2. Time during which the “institution” or “continuance” of the prosecution had been stayed or injuncted. (S.470 (2) Cr.P.C).
3. Time during which notice of prosecution had been given or consent or sanction for prosecution was obtained.
   (S.470 (3) Cr.P.C).
4. (a) Time during which the offender was absent from India or from any territory outside India. (S.470 (4) (a) Cr.P.C).

(b) Time during which the offender avoided his arrest by absconding or concealing himself. (S.470 (4) (b) Cr.P.C).

[B] 12. The following period also shall be excluded –

• where the period of limitation expires on a day when the court is closed. (S.471 Cr.P.C).

EXTENSION OF THE PERIOD OF LIMITAITONS

13. The Court may take cognizance of the offence after the period of limitations if the Court is satisfied on the facts and in the circumstances of the case that –

• the delay has been properly explained, or
• it is necessary to do so in the interests of justice.

14. I now proceed to take up for discussion the illegality in the explanation to Section 514 (3) BNSS.

THE FLAWED PROVISION IN THE “EXPLANATION” TO SECTION 514 (3) OF BNSS

An Explanation has been inserted in Section 514 (3) of BNSS as follows –

“Explanation.—For the purpose of computing the period of limitation, the relevant date shall be the date of filing complaint under section 223 or the date of recording of information under section 173.”

The above “Explanation” is a deviation made from Section 468 Cr.P.C. The first limb of the Explanation is evidently applicable to “complaint cases” and there cannot be any disagreement with the same. But, the second limb of the said Explanation is atrocious. The “information” given under Section 173 BNSS (S.154 Cr.P.C) is only an unconfirmed allegation about the commission of an offence and that too given to an SHO and not to a Magistrate. The said allegation can ripen into a “Police Report” filed under Section 193 BNSS (S.173 Cr.P.C.) only after the conclusion of investigation. It is the Police Report on which the Magistrate can take cognizance of the offence under Section 210 (1) (b) BNSS (S.190 (1) (b) Cr.P.C.). The Magistrate cannot take cognizance on any other previous reports like the First Information Report or Remand Report etc. (Vide State of Karnataka v. Pastor P. Raju AIR 2006 SC 2825 = (2006) 6 SCC 728 = (2006) KHC 1390 (SC) – G. P. Mathur, Dalveer Bhandari – JJ.). Even if an Explanation was necessary for Section 514 BNSS, it should have been properly worded. Surprisingly, the verdict of the Apex Court in Roma Ahuja appears to be in consonance with the latter limb of the above Explanation.

Author is Former Judge, High Court of Kerala