In criminal cases, Period of Limitation starts from the date of Complaint, not from date of Cognizance: Constitution Bench
A Constitution Bench of the Supreme Court in Mrs. Sarah Mathew Vs The Institute of Cardio Vascular Diseases [Criminal Appeal 829/2005] held that for the purpose of computing the period of limitation in Criminal Cases 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
The Bench was constituted by the Supreme Court to resolve the conflict between two-Judge Bench decision in Bharat Damodar Kale & Anr. v. State of Andhra Pradesh and a three-Judge Bench decision of this Court in Krishna Pillai v. T.A. Rajendran & Anr. ((1990) supp. SCC 121)
The following questions arise for our consideration:
A. Whether for the purposes of computing the period of limitation under Section 468 of the Cr.P.C 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?
B. Which of the two cases i.e. Krishna Pillai or Bharat Kale (which is followed in Japani Sahoo) lays down the correct law?
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.
While in Krishna Pillai, 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 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, as there is a statutory bar of one year by virtue of section 9 of the Child Marriage Restraint Act, 1929, for the magistrate to take cognizance of the offence.
The two-Judge Bench had referred the case for the consideration of a three-Judge Bench for an authoritative pronouncement. 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, the case was placed before the Constitution Bench. The Constitution Bench held that for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. 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. It is further held 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 of the Cr.P.C.
Section 467 of Cr.P.C defines the phrase ‘period of limitation’ to mean the period specified in Section 468 for taking cognizance of certain offences. Section 468 stipulates the bar of limitation. Sub-section (1) of Section 468 makes it clear that a fetter is put on the court’s power to take cognizance of an offence of the category mentioned in sub-section (2) after the expiry of period of limitation. Sub-section (2) lays down the period of limitation for certain offences. 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. 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.
Section 471 provides for exclusion of date on which court is closed and Section 472 provides for continuing offence. 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. Analysis of these provisions indicates that Chapter XXXVI is a Code by itself so far as limitation is concerned.