Kamla Yadav And 3 Others vs State Of U.P. And Another
2023 Latest Caselaw 20098 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:155626
 
Court No. - 92
 
Case :- APPLICATION U/S 482 No. - 5568 of 2023
 
Applicant :- Kamla Yadav And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Atmaram Nadiwal,Dinesh Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Hemant Kumar
 

 
Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Dinesh Kumar Yadav, learned counsel for the applicant and Sri Pankaj Srivastava, learned AGA appearing for the State and Sri Hemant Kumar, learned counsel for opposite party no.2,

2. In the instant application filed under Section 482 Cr.P.C. the applicants have challenged and prayed for quashing of the order dated 05.05.2022 passed by the Civil Judge (J.D.)/Judicial Magistrate, Gazipur and also praying for quashing of Criminal Case No. 114 of 2011, under Section 427 IPC, arising out of N.C.R. No. 65 of 2006 dated 11.03.2010, P.S. Kasimabad, District Ghazipur.

3. Learned counsel for the applicants submits that on the basis of the said complaint/NCR, the matter was investigated in terms of the order dated 12.10.2006 passed by the learned Magistrate. Subsequently, the charge sheet under Section 427 IPC was submitted. Learned counsel for the applicants submits that in terms of Section 468(2)(C) of Cr.P.C., cognizance for the offence under Section 427 IPC could have been taken only within a period of three years, Therefore, learned counsel for applicants further submits that with respect to the said NCR and the subsequent charge sheet filed, cognizance of the matter has been taken by the learned Magistrate on 19.02.2011. The said order dated 19.02.2011 was challenged by the applicants by filing an application under Section 482 No. 24004 of 2012, Kamla Yadav and others vs. State of U.P. and others. The said application was disposed of vide order dated 01.08.2012 passed by this Court in following terms:

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

This Criminal Misc. Application under section 482 Cr.P.C. has been filed with the prayer to allow this application and to quash the further proceeding of the Criminal Case No.114 of 2011 under section 427 I.P.C PS. Kasimabad, District Ghazipur pending before learned Judicial Magistrate Court No.1, Mohammadabad, Ghazipur.

Learned counsel for the applicant submitted that in present case charge sheet was submitted in the year 2006 under section 427 I.P.C. which is non cognizable. The cognizance was taken on 19.2.2011, hence the cognizance order as well as the proceeding is without jurisdiction as the same is barred by time and the court cannot proceed in the instance case in view of the provision of section 2(d) Cr.P.C., hence the proceeding is liable to be quashed.

Learned A.G.A. opposed the prayer and submitted that there was power to condone the delay and court is expected to proceed as complaint case.

Considering the submissions of learned counsel for the parties, nature of allegation if the court has condoned the delay, then no interference is required.

So for as the proceeding of the court is concerned, the learned Magistrate concerned is expected to proceed in the present case in accordance with law considering the explanation of section 2(d) Cr.P.C.

With the above observation this application is finally disposed off.

4. In pursuance of the said order dated 01.08.2012, the matter was remanded back to the concerned Magistrate for taking fresh cognizance in accordance with the provisions of Explanation under Section 2(d) Cr.P.C. Thereafter, after about ten years, the learned magistrate has passed a fresh cognizance order dated 05.05.2022 in compliance of the order dated 01.08.2012 passed by this Court. The said order dated 05.05.2022 was challenged by the applicants by filing the Application under Section 482 No. 1086 of 2023, Kamla Yadav and 3 others vs. State of U.P. and another. The said application under Section 482 Cr.P.C. was dismissed as withdrawn vide order dated 17.01.2023. Theafter, the applicants herein, have filed the instant application under Section 482 Cr.P.C. challenging the said order dated 05.05.2022. Learned counsel for the applicants submits that even after the remand order passed on 01.08.2012, the cognizance has been taken by the learned Magistrate after expiry of about ten years. Relying of the provisions of Section 468 Cr.P.C., learned counsel submits that the learned Magistrate cannot take cognizance in the matter after expiry of three years. In support of his arguments, learned counsel for the applicants has relied upon the judgment of the Apex Court in Zandu Pharmaceutical Works Ltd. and others vs. Md. Sharaful Haque and others, reported in (2005) 1 SCC 122. Learned counsel for the applicants has also relied upon the judgment of Hon'ble Apex Court in State of Punjab vs. Sarwan Singh, reported in (1981) 3 SCC 34.

5. Learned counsel for opposite party no.2 submits that so far as issue of limitation is concerned that has already been determined vide order dated 01.08.2012 passed by this Court in Application under Section 482 No. 24004 of 2012 in the following terms:

"Considering the submissions of learned counsel for the parties, nature of allegation, if the Court had condoned the delay, then no interference is required."

Therefore, the issue of limitation has been finally settled by this Court against the applicants.

6. Learned counsel for the opposite party no.2 further submits that the provisions of Section 468 are attracted only for the purpose of lodging complaint or the FIR. The limitation provided under Section 468 is from the date of incident and till the report of the case to the police officer or to the lodging of the complaint to the learned Magistrate as the case may be. He has relied upon the judgment of the Apex Court in Amritlal vs. Shantilal Soni and others, reported in (2022) 1 SCR 721.

7. Learned counsel for opposite party no. 2 has also placed reliance upon the judgment dated 05.07.2022 of this Court passed in Application under Section 482 No. 11167 of 2022 (Jai Krishna Dubey and others vs. State of U.P. and others).

8. Sri Pankaj Srivastava, the learned AGA appearing for the State submits that in the earlier cognizance order dasted 19.02.2011, the learned Magistrate has categorically condoned the delay in filing the charge sheet under Section 473 of Cr.P.C. and the said order has been affirmed by this Court vide order dated 01.08.2012. Therefore, the applicants are not permitted to raise the issue of limitation again.

9. This Court has considered the rival submissions made by learned counsel for the parties and carefully perused the record.

10. For the purposes of determination of the controversy involved in the instant case, it is relevant to note the provisions of Section 2(d), Section 190, Section 468 and Section 473 of Cr.P.C., which are as under:

"2(d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

Explanation- A report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

"190. Cognizance of offences by Magistrates- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

"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."

"473. Extension of period of limitation in certain cases- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make 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 so to do in the interest of justice."

11. Section 468(2)(c), which is attracted in the instant case as the offence is under Section 427 IPC, the maximum sentence is two years or with fine or both. Section 473 of Cr.P.C. provides for the condonation of delay by the Magistrate on its satisfaction on the basis of facts and circumstances of the case. In the instant case, undoubtedly the offence was reported immediately after the date of incident. Therefore, there was no delay on the part of the complainant in reporting the case to the police officials.

12. The investigation of the case was begun upon the order dated 12.10.2006 passed by the learned Magistrate and the charge sheet was filed before the Magistrate. The charge sheet was filed in the year 2007 itself, however the same was misplaced and could not be traced out and the same was again filed by the police officers on 19.02.2011, whereupon the cognizance was taken by the learned Magistrate on 19.02.2011. So far as the judgment relied upon by the learned counsel for the applicants is concerned, that was based on the facts that the cause of action in that case arose on 12.07.1995 and the complaint was filed on 09.08.2002. Therefore, based on the said facts, the Hon'ble Apex Court in the case of Zandu Pharmaceutical Works Ltd. (Supra) has held as under:

"14. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468(2)(c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court 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. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly shows that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singh's case (supra), thereby rendering the judgment indefensible. The judgment of the High Court is set aside, the proceedings initiated by the complaint lodged are quashed. The appeal is allowed."

13. Similarly, the judgment in State of Punjab vs. Sarwan Singh (supra), has relied that the cause of action was of 22.08.1972 and the said judgment has held as under:

"....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 subserve 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....."

14. The Apex Court in the case of Amritlal (supra) relying upon the Constitution Bench judgment in Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian and others. MANU / SC / 1210 / 2013: (2014) 2 SCC 62, has held as under:

"8. In Sarah Mathew, the Constitution Bench of this Court examined two questions thus: -

3. No specific questions have been referred to us. But, in our opinion, the following questions arise for our consideration:

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 [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121] or Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] (which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]), lays down the correct law?

9. The Constitution Bench answered the aforesaid questions 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 [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] 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.

10. Therefore, the enunciations and declaration of law by the Constitution Bench do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 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 of the offence. The High Court has made a fundamental error in assuming that the date of taking cognizance i.e., 04.12.2012 is decisive of the matter, while ignoring the fact that the written complaint was indeed filed by the appellant on 10.07.2012, well within the period of limitation of 3 years with reference to the date of commission of offence i.e., 04.10.2009."

15. The Co-ordinate Bench of this Court in the case of Jai Krishna Dubey (supra) has held as under:

"12. The law is settled that period of limitation shall be computed from the date of commission of offence, which is in this case 10.06.2017.

13. The matter of computing the period of limitation under Section 468 Cr.P.C. was referred to Constitution Bench of the Apex Court in case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases (2014) 2SCC 62. The Constitution Bench of the Apex Court after discussing the matter in detail observed in Paragraph No.51 as:

51. " In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 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. ........... "

14. Therefore, as per the law laid down by the Constitution Bench of the Supreme Court in case of Sarah Mathew (Supra), the relevant date for the purpose of computing the period of limitation under Section 468 Cr.P.C. 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."

16. In view of the aforesaid judgments of the Apex Court, it is settled position of law that the limitation for taking cognizance under Section 468 are applicable for first reporting the offence to the concerned police or to the concerned Magistrate by the complainant. The same will not be applicable after the complaint / first information was lodged by the complainant within the period of limitation as provided u/S 468 of Cr.P.C.

17. In the instant case, there was no delay on the part of the complainant in reporting the incident to the concerned police. Therefore, the cognizance of the said offence cannot be said to be taken by the Magistrate after the period of limitation as prescribed under Section 468 Cr.P.C., otherwise also the delay in filing the charge sheet was already condoned by the learned Magistrate while taking the first cognizance in order dated 19.02.2011 and the same was affirmed by this Court vide order dated 01.08.2012, the Court cannot consider the issue of limitation again raised by the applicants.

18. This Court has carefully gone through the earlier cognizance order and the order dated 01.08.2012 passed by this Court and the impugned cognizance order dated 05.05.2022 and this Court is of the opinion that the impugned order dated 05.05.2022 has been passed by the learned Magistrate in accordance with the provisions of Section 2(d) of Cr.P.C. as was directed by this Court in its order dated 01.08.2012.

19. Therefore, this Court is of the considered opinion that there is no infirmity in the impugned order. Accordingly, there is no merit in the instant application and the same is accordingly dismissed.

Order Date :- 2.8.2023/Ashish Pd.