AMRITLAL versus SHANTILAL SONI & ORS.

AMRITLAL

SHANTILAL SONI & ORS.

(Criminal Appeal No. 301 of 2022)

FEBRUARY 28, 2022

[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Code of Criminal Procedure, 1973: s. 468 – Bar to cognizanceafter lapse of period of limitation – Relevant date for computationof limitation period u/s. 468 – Held: Is the date of filing of thecomplaint or the date of institution of prosecution and not the dateon which the magistrate takes the cognizance of the offence – Onfacts, the High Court erred in assuming that the date of takingcognizance is decisive of the matter, while ignoring the fact that thewritten complaint was indeed filed by the complainant well withinthe period of limitation of 3 years with reference to the date ofcommission of offence – Thus, the order passed by the High Courtis set aside.

Precedent – Binding effect of – Held: Decision of theConstitution Bench of this Court cannot be questioned on certainsuggestions about different interpretation of the provisions underconsideration – Binding effect of decision of this Court does notdepend upon whether particular argument was considered or not,provided the point with reference to which the argument is advanced,was actually decided therein.

Allowing the appeal, the Court

HELD: 1.1 For the purpose of computing the period oflimitation under Section 468 CrPC, the relevant date is the dateof filing of the complaint or the date of institution of prosecutionand not the date on which the Magistrate takes cognizance of theoffence. The High Court has made fundamental error inassuming that the date of taking cognizance i.e., 04.12.2012 isdecisive of the matter, while ignoring the fact that the writtencomplaint was indeed filed by the appellant well within the period

Aof limitation of 3 years with reference to the date of commissionof offence i.e., 04.10.2009. Thus, the impugned order is set aside.[Paras 7, 10][726-C-E; 727-B]

1.2 The counsel for the respondents submitted that SarahMathew’s case requires reconsideration on the ground that someBof the factors related with Chapter XXXVI CrPC have not beenconsidered by this Court. decision of the Constitution Benchof this Court cannot be questioned on certain suggestions aboutdifferent interpretation of the provisions under consideration. Itremains trite that the binding effect of decision of this Courtdoes not depend upon whether particular argument wasCconsidered or not, provided the point with reference to whichthe argument is advanced, was actually decided therein. This isapart from the fact that bare reading of the decision in SarahMathew’s case would make it clear that every relevant aspectconcerning Chapter XXXVI CrPC has been dilated upon by theDConstitution Bench in necessary details. As necessary corollary,the submissions made with reference to other decision of thisCourt, which proceeded on its own facts, are of no avail to therespondents. The submissions of the respondents are rejected.[Paras 8, 9][726-E-F; 726-F-H; 727-A]

ESarah Mathew v. Institute of Cardio Vascular Diseasesby its director Dr. K.M. Cherian & Ors. (2014) 2 SCC62 : [2013] 12 SCR 674 – followed.

State of Punjab v. Sarwan Singh (1981) 3 SCC 34 :[1981] 3 SCR 349; Somawanti & Ors. v. The State ofFPunjab & Ors. AIR 1963 SC 151 : [1963] SCR 774– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.301 of 2022.

From the Judgment and Order dated 06.03.2019 of the High Courtof Madhya Pradesh at Indore in Misc. Criminal Case No.26287 of 2018

Arjun Garg, Aakash Nandolia, Advs. for the Appellant.

Mukul Singh, DAG, Divyakant Lahoti, Parikshit Ahuja, Ms.Praveena Bisht, Ms. Madhur Jhavar, Ms. Vindhya Mehra, Kartik Lahoti,Ms. Shivangi Malhotra, Sunny Choudhary, Ramesh Thakur, HarshParashar, Advs. for the Respondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

Leave granted.

The order under challenge in the present appeal is dated06.03.2019, as passed by the High Court of Madhya Pradesh, Bench atIndore in Miscellaneous Criminal Case No. 26287 of 2018.

By the order impugned, the High Court has, in exercise of itspowers under Sections 482 of the Criminal Procedure Code, 1973[1], setaside the order dated 20.02.2018 passed by the Court of AdditionalSessions Judge, Khachrod, District Ujjain in Criminal Revision No. 181of 2017 as also the order dated 17.08.2017 passed by the JudicialMagistrate First Class, Khachrod, District Ujjain in Criminal Case No.619 of 2012; and has quashed the proceedings in the said Criminal CaseNo. 619 of 2012 for the offences punishable under Section 406 readwith Section 34 and Section 120-B of the Indian Penal Code, 1860[2].

Shorn of unnecessary details, the relevant background aspects ofthe matter are that on 10.07.2012, the present appellant filed writtencomplaint to the Superintendent of Police, Khachrod while claiming thathe had entrusted 33.139 Kg of silver to the respondent; and on 04.10.2009,on the demand being made, the respondent refused to return the same.On the complaint so filed by the appellant, FIR bearing No. 289 of 2012came to be registered and, after investigation, the police filed charge-sheet dated 13.11.2012 for the offences aforesaid against the accusedpersons, respondent Nos. 1 and 2 herein. Thereupon, the JudicialMagistrate, First Class, Khachrod took cognizance on 04.12.2012.

1 ‘CrPC’ for short.

2 ‘IPC’ for short.

AOn 12.09.2013, the Magistrate passed the order framing charges.This order was challenged by the accused-respondents in revisionpetition (No. 288 of 2013) under Section 397 CrPC, inter alia, on theground that taking cognizance in this matter was barred by limitation.The Additional Sessions Judge, Khachrod dismissed the revision petitionso filed by the accused-respondents on 27.07.2015 while holding, interBalia, that the bar of limitation was not applicable in the matter. Thereafter,the accused-respondents filed an application under Section 468 CrPCbefore the Trial Court, again raising the question of limitation. Thisapplication was rejected by the Trial Court on 17.08.2017. The order sopassed by the Trial Court was affirmed by the Additional Sessions Judge,CKhachrod in revision petition (No. 181 of 2017) on 20.02.2018. However,on such orders being challenged, the High Court has, in the impugnedorder dated 06.03.2019, formed the opinion that taking cognizance ofthis matter on 04.12.2012 was barred by limitation. The High Court has,thus, in exercise of its powers under Section 482 CrPC, quashed theproceedings. The sum and substance of the reasoning of the High CourtDcould be noticed in the following: -

“19. On cumulative consideration of the aforesaid discussion, thisCourt is of the view that the date of offence is very well known tothe complainant i.e. 04.10.2009 and he lodged FIR on 19.07.2012i.e. after 2 years 9½ months of the alleged incident and the PoliceEhas filed charge sheet on 04.12.2012 after period of three yearsof the alleged incident, on which basis, the Magistrate has takencognizance of the offence against the petitioners on 04.12.2012which was barred by limitation, therefore, the trial Court as wellas Revisional Court have committed error of law in rejecting theFplea taken by the petitioners regarding maintainability of theprosecution on the ground of limitation.”In challenge to the order aforesaid, it has been argued that theproposition of the High Court, in proceeding on the basis of date oftaking cognizance for the purpose of limitation, is not in conformity withGlaw and runs directly contrary to the principles laid down by theConstitution Bench of this Court in the case of Sarah Mathew v. Instituteof Cardio Vascular Diseases by its director Dr. K.M. Cherian &Ors.: (2014) 2 SCC 62. In counter, it has been argued on behalf of therespondent that the High Court has rightly held that the prosecution wasnot maintainable when the Magistrate took cognizance of the allegedH

incident on 04.12.2012 inasmuch as the date of offence was alleged bythe complainant to be 04.10.2009. decision of this Court in the case ofState of Punjab v. Sarwan Singh (1981) 3 SCC 34 is relied upon. Ithas also been attempted to be argued that the decision in the case ofSarah Mathew (supra) requires reconsideration because several aspectsrelating to the purpose of Chapter XXXVI CrPC have not been takeninto consideration and this Court has not comprehensively dealt with theprovisions relating to the bar of limitation.

Having heard learned counsel for the parties and having perusedthe material placed on record, we have not an iota of doubt that theimpugned order of the High Court deserves to be set aside, for it proceedssquarely contrary to the law declared by the Constitution Bench of thisCourt in Sarah Mathew’s case (supra).

In Sarah Mathew, the Constitution Bench of this Court examinedtwo questions thus: -

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

3.1. (i) Whether for the purposes of computing the period oflimitation under Section 468 CrPC the relevant date is the date offiling of the complaint or the date of institution of the prosecutionor whether the relevant date is the date on which Magistratetakes cognizance of the offence?

3.2. (ii) Which of the two cases i.e. Krishna Pillai [KrishnaPillai v. T.A. Rajendran, 1990 Supp SCC 121] or BharatKale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559](which is followed in Japani Sahoo [Japani Sahoo v. ChandraSekhar Mohanty, (2007) 7 SCC 394]), lays down the correctlaw?

The Constitution Bench answered the aforesaid questions asfollows: -

51. In view of the above, we hold that for the purpose of computingthe period of limitation under Section 468 CrPC the relevant dateis the date of filing of the complaint or the date of institution ofprosecution and not the date on which the Magistrate takescognizance. We further hold that Bharat Kale [Bharat DamodarKale v. State of A.P., (2003) 8 SCC 559] which is followed in

AJapani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty,(2007) 7 SCC 394] lays down the correct law. KrishnaPillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 :1990 SCC (Cri) 646] will have to be restricted to its own factsand it is not the authority for deciding the question as to what isthe relevant date for the purpose of computing the period ofBlimitation under Section 468 CrPC.

(emphasis supplied)

Therefore, the enunciations and declaration of law by theConstitution Bench do not admit of any doubt that for the purpose ofCcomputing the period of limitation under Section 468 CrPC, the relevantdate is the date of filing of the complaint or the date of institution ofprosecution and not the date on which the Magistrate takes cognizanceof the offence. The High Court has made fundamental error in assumingthat the date of taking cognizance i.e., 04.12.2012 is decisive of thematter, while ignoring the fact that the written complaint was indeedDfiled by the appellant on 10.07.2012, well within the period of limitationof 3 years with reference to the date of commission of offence i.e.,04.10.2009.In rather over-zealous, if not over-adventurous, attempt to supportthe order of the High Court, learned counsel for the contesting respondentsEhas attempted to submit that Sarah Mathew’s case requiresreconsideration on the ground that some of the factors related withChapter XXXVI CrPC have not been considered by this Court. Such anattempt has only been noted to be rejected.

decision of the Constitution Bench of this Court cannot beFquestioned on certain suggestions about different interpretation of theprovisions under consideration. It remains trite that the binding effect ofa decision of this Court does not depend upon whether particularargument was considered or not, provided the point with reference towhich the argument is advanced, was actually decided therein[3]. This isGapart from the fact that bare reading of the decision in Sarah Mathew(supra) would make it clear that every relevant aspect concerning ChapterXXXVI CrPC has been dilated upon by the Constitution Bench innecessary details. As necessary corollary, the submissions made with

H3 Vide Somawanti & Ors. v. The State of Punjab & Ors.: AIR 1963 SC 151 (para 22).

reference to other decision of this Court, which proceeded on its ownfacts, are of no avail to the respondents. Thus, the submissions made onbehalf of the contesting respondents stand rejected in absolute terms.

For what has been observed and discussed hereinabove, thisappeal is allowed. The impugned order dated 06.03.2019 is set aside andthe petition filed before the High Court, being Miscellaneous CriminalCase No. 26287 of 2018, is dismissed.

The Trial Magistrate shall now proceed with the trial expeditiouslyand for that matter, it is also provided that if any other attempt is madeon part of the accused-respondents to delay or obstruct the trial, theMagistrate would be free to adopt such coercive proceedings as may benecessary, including cancellation of bail granted to the accused-respondents or putting monetary conditions on them, equivalent to thepresent value of the property involved in the matter.

The parties through their respective counsel shall stand at noticeto appear before the Judicial Magistrate, First Class, Khachrod, DistrictDUjjain on 01.04.2022.

Nidhi Jain

Appeal allowed.