In criminal cases, Period of Limitation starts from the date of Complaint, not from date of Cognizance: Constitution Bench

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.