SURINDER MOHAN VIKAL versus ASCHARAJ LAL CHOPRA

SURINDER MOHAN VIKAL

'ASCHARAJ LAL CHOPRA

February 28, 1978

[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.]

Linlitation for taking cognizance of certain ofjences--Cri111inal Procedu.re Code (Act 2 of 1974), 1973,-S. 468 r/w. Sections 469(a), 470 & 473-Legislative policy behind the statute of limitation.

Section 468 of Criminal Procedure Code (Act 2 of 1974), 1973 bars taking_ cognizance after lapse of the period of limitation. Under sub"6. (2) of s. 468 the period of limitatiO'Il shall be (a) six months, if the offence is punlshable \Vith fine only; (b) one year, if the offence is pu'llishable with imprisonment for term not exceeding one year and (c) three years, if the offooce is punishable \'\»ith i111prisonment for term exceeding one year but not exceeding three years. The appel1ant, while working as General Secretary of the Celfltral B1•1nk ot' India Ernployees Union, Ludhiana, filed crimi~al complaint on 15.3-1972 against 1espondents Ascharaj Lal Chopra, who \Vas his predecessor in otticc· rutd also again~t one Amreek Singh treasurer for the commission of a•n offence under ss. 406/420 IPC usjng the words viz., "criminal intention" und "fraur!u-lently and with u dishonest intention'' etc. The trial Court convicted them oo 11-2-1975 but the First Appellate Court by its order dated 1-4-1975 acquitted them, which was affirmed by the 'High Court by its judgment dated 15-5-1975. Respondent Ascharaj Lal, therefore, filed complaint under s. 500 I.P .C. against the <11ppellant on l 1-2-1976. The l\fagistrate examined the plaintiff and issued summons to the appeila'flt on 15-9-1976. The appellant moved the High Conrt under s. 482 of th_e Criminal Procedure Code for quashing the l\.fagistrate's order taking cognizance of the offence against him, and the High Conrt rejected it.

Allo\ving the appeal by special leave, the Court

liELD : 1. The statutes of limita.tion have legislative policy behind them. They shut out belated and dormant claims in order to save the accused from unnecessary hanissment and from the risk of facing trial at time \Vhen his evidence might have been lost because of the delay on the part of the· pro&ccu-tor. [438 B-C]

2. Section 468 of the Criminal Procedure Code not only r&ises bar of limita~ tion but also pre-scribes the period thereof. The question when the period of I.imitation could be said to commence lies within the purview of s. 469. Sub-s. (1) of s. 469 specifically provides that the period of limitation prescribed in s. 468, in rela'tion to an offence, shall commence inter alia "on the date of the offence". [436 F-G]

3. It is an essential requirement of sub-s. (1) of s. 470 Criminal Procedure Code, 1973 that the person who seeks its benefit should be able to establish that he was "prosecuting" another prosecution in one Court or the other referred to in the sub-section. [437 Gl

4. Jn the instant case, (a) the date of thei offence was Jvlarch 15, 1972 \Vhen defamatory complaint was filed in the Court oe the Magistrate and that was the starting point for the purposes of calculating the three years' limitation provided bys. 468; (b) the complaint under s. 500 I.P.C. was filed on 11-2-1976 much after the expiry of three years limitation prescribed for that offence. It was therefore, not possible for the Court of the Magistrate to take cognizance of ihe offence after the expiry of the period of limitation : (c) the question of

"'cause of action., contemplated in s. 469 ( 1) (c) could not arise as the co•ntro-versy iel,;,ted to '·the commission of' an offence" and (d) the provision of sub-s. ( 1) of s. 470 cannot avail the responde•nt as his case, was not so. He did not claim the benefit of s. 473 either. [436 H, 437 A-C, JJ8 A]

CRIWNAL APPELLATE JURISDICTION : Criminal Appeal No. 246 of 1972.

(Appeal by Special Leave from the Judgment and Order dt. 2-3-77 of the Punjab & Haryana High Court in Cr!. Misc. No. 5979-M of 1977).

S. C. Agarual, Swaraj Kaushal & S. C. Patel for th~ Appellant.

D. Mookerjee, B. M. Srivastva and Sarwa Mitter for the Respon-dent.

The Judgment of the Court was delivered by

SmNGHAL, J.-This appeal by Special leave has been filed by accused Surindcr Mohan Vikal against the judgment of the Punjab and Haryana High Court dated March 2, 1977, rejecting bis appli-cation for revision of the Magistrate's order dated September 15, 1976 summoning him as an accused for the trial of an offence under section 500 I.P.C. at the instance of respondent Ascharaj Lal Chopra.

The appellant challenged the Magistrate's order for two reasons, but the controversy before us refers to his claim that the Magistrate could r,ot take cognizance of the offence under section 500 I.P.C. as the period of limitation prescribed by section 468 of the Code of Cri-minal Procedure had expired. The controversy thus relates to short point of law and can well be examined on the basis of the admitted facts.

The appellant was working as General 'Secretary of the Central Bank of India Employees Union, Punjab Ludhiana, which was :iregis-tered body. The respondent was employed as Special Assistant in that Bank, and one Amreek Singh was employed there as clerk. The respondent worked as the General Secretary of the Union while Amre.,k Singh worked as its Treasurer before the appellant took over as General Secretary. The appellant filed complaint in the Court of Judicial '.lfagistrate First Class, Ambala Cantt. 011 March 15, 1972, for the commission of an offence under section 406/420 J.P.C. alleging that the respondent and Amreek Singh with "a common intention and collusion with each other, transferred donation entry of Rs. 1100/-in the personal account of accused No. 1 (A. L. Chopra) by adjust-ment vide voucher dated 19-2-71 at Ambala Cantt." It was also alleg-ed that the accused misappropriated sum of Rs. 1100/- of the Union with "criminal intention" and "fraudulently and with dishonest in-tention." By his judgment dated February 11, 1975, the Magistrate convicted the respondent and Amreek Singh .of the o!'fence under sec-tion 408/34 I.P.C. and sentenced them to ngorous 1mpmonment for

one year and fine of Rs. 1000/-. The additional Sessions Judge of Ambala however acquitted both of them by his judgment dated April 1, 1975, and that judgment was upheld by the High Court on May 15,. 1975. Respondent Ascharaj Lal Chopra then filed complaint agamst the present appellant Surinder Mohan Vikal in the Court oL Judicial Magistrate First Class, Ambala, dated February 11, 1976, for the commission of the offence under section 500 I.P.C. The Magis-trate examined the complainant and his witnesse,, and made the order dated September 15, 1976 for the issue of summons for the appearance of the present appellant in that case. That was why the present appel-lant applied to the High Court under section 482 Cr!. P. C. for q~h­ing the Magistrate's order taking cognizance of the offence against him. As his application has been rejected by the High Court, accused Surinder Mohan Vikal has preferred the present appeal as aforesaid.

Chapter XXXVI of the Code of Criminal Procedure, 1973, deals with limitaiion for taking cognizance of certain offences. For pur-poses of that chapter, section 467 defines the exprnssion "period of limitation" to mean the period specified in section 468 for taking cog-nizance of an offence. In its turn, section 468, which bars the taking of cognizance of an offence after the expiry of period of limitation, rettds as follows,-

"468 (1) Except as otherwise provided elsewhere in the Code, PO Court shall take cognizance of an offence of the category specifi.ed 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 term not exceeding one year;

( c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years."

The section thus not only raises the bar of limitation, but also prescribes the period thereci. It is not in controversy before us that the period of limitation in the present case would be three years as prescribed in clause (c) of sub-section (2). The qnestion is when the period of limitation could be said to commence for purposes of the present case ? That is matter which falls within the purview of section 469. Cla-G use (a) of sub-section (1) of that section provides that the period of limitation, in relation to an offender. shall commence,-

"( a) on the date of the offence;"

It is not urged before us that clause (b) o.r ( c) of the sub-section, or Sub-section (2), have any bearing on the present controversy. It has therefore to be examined on what date the offence under secti-on 500 l.P.C. could be said to have been committed.

It will be recalled that the complaint for the commission of the offence under section 406/420 1.P.C. was filed on March 15, 1972,

It has specially been stated in the respondent's complaint under section 500 I.P.C. that the defamatory matter was contained in that complaint. So, according to the complaint, the offence under section 500 I.P.C. was committed on March 15, 1972, which was the date of the offence within the meaning of section 469 (1) (a) of the Code, and the period of three vears' limitation would be calculated with reference to that ,date for purposes of the bar provided by section 468. But, as has been stated, the complaint under section 500 I.P.C. was filed on February 11, 1976, much after the expiry of that period. It was .therefore not permissible for the Court of the Magistrate to take cogmzance of the offence after the expiry of the period of limitation.

The High Court ignored the bar of limitation on the ground that the "cause of action for proceeding for defamation could not arise before he (respondent) was acquitte'd by the Court of Session." As the respondent was acquitted on April 1, 1975, it appearsl that the High Court took the view that the "protection of section 468 ( c)" was not available to the appellant. We are constrained to say that the question of "cause of action" could not really arise in this case as the controversy relates to the cqmmission of an offence. It has been stated, sub-section (1) of section 469 of the Code specifically provides that the period of limitation prescribed in section 468, in relation to an offender, shall commence (inter alia) on the date of the offence. It would therefore follow that the date of the offence was March 15, 1972, when the defamatory complaint was filect in the Court of the Magistrate, and that was the starting point for the purpose of calculating the three years' period of limitation. The High Court clearly erred in taking contrary view.

An attempt was made to argue before us that the respondent was, at any rate, entitled to the exclusion of time under sub-secticill (1) of section 4 70 of the Code in computing the period of limitation. ·Tue sub-section reads as follows,-

"470 fl) In computing the period of limitation, the time during which any person has been prosecutin_g with due diligence another prosecution, whether in Conrt of first instance or in Conrt of appeal or revision, against the offender, shall be excluded :

Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in Court which from defect of jurisdiction or other cause of like nature, is nnable to entertain it."

1t is an essential requirement of the sub-section that the person who seeks its benefi~ should be able to establish that he was "prosecu-ting" another prosecution in one Court or the other referred to in the sub-section. But it is not the case of the respondent that he was prosecuting the appellant in any other prosecntion. It is also not his case that that prosecution related to the "same facts" Within the meaning of the provi'so to the sub-section. The provision of

the respondent that he It is also Within The provision of

sub-section (1) of section 470 cannot therefore avail the respon-dent, and he is not entitled to the exclusion of any time thereunder. It may: be mentioned that the respondent has not sought the bene-fit of sub-section ( 1) of section 4 73 which permits the extension of the period of limitation in certain cases.

It would thus appear that the appellant was entitled to the bene-B fit of sub-section (1) of section 468 which prohibits every Court from taking cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. for instance, they shnt out belated and dor-mant claims in order to save the accused from unnecessary harass-ment. They also save the accused from the risk of having to face trial at time when his evidence might have been lost because of the delay on the part of the prosecutor. ~s has been stated, bar to the taking of cognizance has been prescribed under section 468 of the Code of Criminal Procedure and there is no reason why the appellant should not be entitled to it in the facts and circums-tances of this case.

The appeal is allowed, the impugned judgment of the High Court dated March 2, 1977 is set aside and the order of the Magis-trate dated September 15, 1976 taking cognizance of the offence against the appellant is quashed.

judgment of the High

Appeal allowed.