The period of limitation in case of Criminal complaint is to be determined on the date of presentation of the complaint to the magistrate

After referring to several decisions, the  Supreme Court held that the limitation prescribed under Section 468 of the Code should be related to the filing of complaint and not to the date of cognizance by the Magistrate or issuance of process by the Court.

In Basavantappa Basappa Bannihalli and Anr. v. Shankarappa Marigallappa Bannihalli, 1990 Cri LJ 360 (Kant), a complaint was filed within ten days of the occurrence, but cognizance was taken by the Magistrate after the period of limitation prescribed by the Code. Following Kamal Javeri, the Court held that the relevant date would be date of filing complaint and not of taking cognizance by the Magistrate for deciding the bar of limitation.

In Anand R. Nerkar v. Smt. Rahimbi Shaikh Madar and Ors., 1991 Cri LJ 557 (Bom), the High Court held that the relevant date for deciding the period of limitation is the date of prosecution of complaint by the complainant in the Court and not the date on which process is issued. It was observed that various sections of the Code make it clear that before taking cognizance of a complaint, the Magistrate has to consider certain preliminary issues, such as, jurisdiction of court, inquiry by police, securing appearance of accused, etc. It, therefore, necessarily follows, observed the Court, that the material date is not the date of issuance of process, but the date of filing of complaint. Subsequent steps after the filing of the complaint, such as, examination of witnesses, consideration of case on merits, etc. are by the court. Moreover, taking cognizance or issuance of process depends on the time available to the court over which the complainant has no control. It would, therefore, be wholly unreasonable to hold that a complaint even if presented within the period of limitation would be held barred by limitation merely because the Court took time in taking cognizance or in issuing process.

In Zain Sait v. Intex-Painter, etc., 1993 Cri LJ 2213 (Ker), the Court held that the crucial date for computing period of limitation would be date of filing of complaint. Limitation under Section 468 of the Code has to be reckoned with reference to date of complaint and not with reference to date of taking cognizance. It was also observed that there could be a case where a complaint is filed on the last day of limitation and on account of inconvenience or otherwise of the court, the sworn statement of the complainant could be recorded on a later date and the Magistrate takes cognizance after the expiry of limitation. If the date of cognizance is taken as the date for determining the period of limitation, it would be penalizing the party for no fault of his. Such a construction cannot be placed on Section 468 of the Code. [See also Malabar Market Committee v. Nirmala, (1988) 2 Ker LT 420].

In Labour Enforcement Officer (Central) Cochin, v. Avarachan and Ors., 2004 Cri LJ 2582 (Ker), the same High Court held that starting point of limitation is the date when the complaint is presented in the Court and not the date on which cognizance is taken. If the initial presentation of the complaint is within the period of limitation prescribed by the Code, it cannot be dismissed as barred by limitation and proceedings cannot be dropped.

In Hari Jai Singh and Anr. v. Suresh Kumar Gupta, 2004 Cri LJ 3768 (HP), it was held that the period of limitation should be counted from the date of presentation of complaint and not from the date of issuance of process by the Magistrate. In that case, defamatory news was published on May 31, 1995 and a complaint was presented on May 14, 1998, well within three years prescribed for the purpose. Process was, however, issued by the trial Magistrate on November 12, 1998, i.e. after three years. It was held by the Court that the complaint could not be dismissed on the ground of limitation.

Again the Court said :

The words “A Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant and the witnesses present” evidently provides the manner in which the Magistrate taking cognizance on the complaint is to proceed to take preliminary evidence of the complainant on the basis of which he is to determine whether process against the accused is to be issued or not. Therefore, with reference to the context it cannot be held for the purpose of Section 468 of the Code that the Magistrate invariably takes cognizance of offences only when he decides to issues process against the accused under Section 204 of the Code. Therefore, for all intents and purposes of Section 468 of the Code, a Court must be deemed to have taken cognizance on a criminal complaint at the stage of presentation of the complaint to the Court and its proceedings therewith as provided under Section 200 of the Code. To hold contrary, will lead to injustice and defeat the provisions of the Code intended to promote the administration of criminal justice. It cannot be disputed that after the presentation of the complaint the Magistrate has to examine the complainant and his witnesses or postpone the issue of process and inquire into the case himself or direct an investigation to be made by the police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. These processes in a given case are likely to take time and are dependent on the time available with the Magistrate or the person who has been directed to investigate the allegations made in the complaint and early conclusion of these processes is not within the power and control of the complainant. Therefore, it would be unreasonable to hold that a complaint even if presented within the period of limitation but the process against the accused is not issued by the Magistrate within the period of limitation, the Court shall be debarred from taking cognizance of an offence. Therefore, it will be rational and reasonable to hold that the period of limitation is to be determined in view of the date of presentation of the complaint and not with regard to the date when the process is ordered to be issued by the Magistrate against the accused under Section 204 of the Code.

We may now refer to some of the decisions of this Court. The first in point of time was Surinder Mohan Vikal v. Ascharaj Lal Chopra, (1978) 2 SCC 403. In that case a complaint under Section 500, IPC was filed on February 11, 1976. It was alleged that the accused had committed an offence of defamation on March 15, 1972. A petition was, therefore, filed by the accused in the High Court under Section 482 of the Code for quashing proceedings on the ground that the complaint was barred by limitation. Upholding the contention and observing that the complaint was time-barred, the Court observed :

“But, as has been stated, the complaint under Section 500, IPC was filed on February 11, 1977, much after the expiry of that period. It was therefore not permissible for the Court of the Magistrate to take cognizance of the offence after the expiry of the period of limitation.” (Emphasis supplied)

It is thus clear in that case the complaint itself was filed after the expiry of period of limitation which was held barred under Section 468 of the Code.

In Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada, (1997) 2 SCC 397 : JT 1996 (11) SC 175, a complaint was filed by the wife against her husband on September 10, 1990 for an offence punishable under Section 406, IPC. It was alleged in the complaint that she demanded from the respondent-husband return of jewellery and household articles on December 5, 1987, but the respondent refused to return stridhana to the complainant-wife and she was forced to leave matrimonial home. The complaint was admittedly within the period of three years from the date of demand and refusal of stridhana by the respondent-husband. The complaint was held to be within time and the matter was decided on merits.

 In State of H.P. v. Tara Dutt and Anr., (2000) 1 SCC 230 : JT 1999 (9) SC 215, this Court held that in computing the period of limitation where the accused is charged with major offences, but convicted only for minor offences, the period of limitation would be determined with reference to major offences.

Special reference may be made to Bharat Damodar Kale and Anr. v. State of A.P., (2003) 8 SCC 559 : JT 2003 Supp (2) SC 569. This Court there considered the scheme of the Code and particularly Section 468 thereof and held that the crucial date for computing the period of limitation is the date of filing of complaint and not the date when the Magistrate takes cognizance of an offence. In Bharat Damodar, a complaint was filed by Drugs Inspector against the accused for offences punishable under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The complaint was lodged in the Court on March 3, 2000 in respect of offence detected on March 5, 1999. The period of limitation was one year. The Magistrate took cognizance of the offence on March 25, 2000. Now, if the date of complaint was to be taken into consideration, it was within time, but if the date of cognizance by the Magistrate was the material date, admittedly it was barred by time. The Court considered the relevant provisions of the Code, referred to Rashmi Kumar and held the complaint within time observing that the material date for deciding the period of limitation was the date of filing of complaint and not the date of taking cognizance by the Magistrate.