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K. Hanumantha Rao Vs. K. Narasimha Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 762 of 1979
Judge
Reported in1982CriLJ734
ActsIndian Penal Code (IPC), 1860 - Sections 41, 323, 324, 406, 408, 417, 419 and 420; Code of Criminal Procedure (CrPC) , 1973 - Sections 222(4), 313, 468, 468(2), 469, 473 and 478
AppellantK. Hanumantha Rao
RespondentK. Narasimha Rao and ors.
Appellant AdvocateC. Susheela Devi, Adv.
Respondent AdvocateB.S.A. Swamy, Adv. and ;Addl. Public Prosecutor
Excerpt:
criminal - cognizance of offence - sections 41, 323, 324, 406, 408, 417, 419 and 420 of indian penal code, 1860 and sections 222 (4), 313, 468, 468 (2), 469, 473 and 478 of criminal procedure code, 1973 - appeal filed against order of acquittal of respondents of offence punishable under section 323 of code - acquittal based on ground that prosecution of accused is barred by time as enacted under section 468 of code - case instituted against an accused for a major offence - court took cognizance of offence issued summons to accused - court found him guilty of a minor or lesser offence after following prescribed procedure - whether plea of limitation enacted under section 468 (2) of code in relation to minor of lesser offence is not available to accused - no formal application for.....ramanujulu naidu, j. 1. the above appeal is preferred against the judgment rendered by the judicial magistrate of the first class, avanigadda in c.c. no. 36 of 1977 on his file acquitting the accused therein, respondents 1 to 3 herein, of the offence punishable under s. 323 of the i.p.c. on the ground that the prosecution of the accused is barred by time as enacted under s. 468, criminal p.c. when the appeal came up for hearing before one of us, smt. susheela devi, learned counsel for the appellant contended that the learned magistrate having taken cognizance of the complaint instituted by the appellant under s. 324, i.p.c. should not have entertained and upheld the plea of limitation put forward by the accused notwithstanding the conclusion reached by him that the accused were guilty of.....
Judgment:

Ramanujulu Naidu, J.

1. The above appeal is preferred against the judgment rendered by the Judicial Magistrate of the First Class, Avanigadda in C.C. No. 36 of 1977 on his file acquitting the accused therein, respondents 1 to 3 herein, of the offence punishable under S. 323 of the I.P.C. on the ground that the prosecution of the accused is barred by time as enacted under S. 468, Criminal P.C. When the appeal came up for hearing before one of us, Smt. Susheela Devi, learned counsel for the appellant contended that the learned Magistrate having taken cognizance of the complaint instituted by the appellant under S. 324, I.P.C. should not have entertained and upheld the plea of limitation put forward by the accused notwithstanding the conclusion reached by him that the accused were guilty of the offence punishable under S. 323, I.P.C. As the question raised is of general importance, an authoritative pronouncement on the question by a Division Bench of this Court was considered necessary and a reference was accordingly made for posting the appeal before a Division Bench. The appeal was thus listed before us for answering the reference.

2. The material facts giving rise to the above appeal may be briefly stated :

On 24-3-1977 the appellant instituted a complaint against the three accused before the learned Magistrate alleging that on 19-1-1976 at about 8 a.m. while he was returning from Machilipatnam to his house situate at Salempalem in the company of two others, at a distance of hundred yards away from the flood bank of Krishna River, the three accused attacked him suddenly, that A-1 and A-2 armed with stout sticks and A-3 armed with a spear inflicted multiple injuries on his body and ran away, that the accused thereby committed the offence punishable under S. 324, I.P.C. that he was immediately taken to the Police Station, Koduru with which he lodged the information of commission of the cognizable offence by the accused, that the information was reduced into writing, that he was also referred to the Government Hospital, Avanigadda by the Police, that no action was taken by the police till 23-3-1977, that he was therefore, constrained to institute the complaint and that in the interest of justice the delay in filing the complaint might be condoned.

3. After recording the sworn statement of the appellant on 24-3-1977 itself, it was taken on file by the learned Magistrate against the accused under S. 324, I.P.C. and summonses were issued to the accused following the procedure prescribed for trial of cases instituted otherwise than on a police report. The learned Magistrate examined the appellant as P.W. 1 and another witness produced by him as P.W. 2 and a charge was framed against the accused under S. 324, I.P.C. The accused having pleaded not guilty to the charge, P.Ws. 1 and 2 were recalled at their instance and cross-examined. Later, four more witnesses including the S.H.O., Koduru Police Station, who reduced into writing the first information lodged by the appellant on the date of commission of the offence and the Woman Assistant Surgeon, Government Hospital Avanigadda who examined the appellant and treated him for the injuries sustained by him, were examined by the learned Magistrate.

4. On a closure of the evidence of the prosecution the accused were examined under S. 313, Cr.P.C. The plea of the accused was one of total denial of commission of the offence. The accused did not choose to examine any witnesses on his behalf. Relying upon the testimony of P.W. 1 and the Woman Assistant Surgeon, Government Hospital, Avanigadda, the learned Magistrate found the accused guilty of the offence punishable under S. 323, I.P.C. In other words, the learned Magistrate acquitted the accused of the charge framed against them under S. 324, I.P.C. and instead found them guilty of the lesser offence punishable under Section 323, I.P.C. No conviction of the accused was however, recorded by the learned Magistrate and the learned Magistrate acquitted the accused of the minor offence punishable under S. 323, I.P.C. upholding the plea put forward on behalf of the accused that the complaint instituted by the appellant seeking their conviction under S. 323, I.P.C. was barred by time as enacted in S. 468, Cr.P.C. The learned Magistrate also recorded a finding that as he was not satisfied on the facts and in the circumstances of the case that the delay in the institution of the complaint was properly explained to enable him to take cognizance of the lesser offence, he did not either consider it necessary to condone the delay in the interests of justice. In the result, the learned Magistrate acquitted the accused of the lesser or the minor offence punishable under S. 323, I.P.C. notwithstanding his finding that they were guilty of the offence.

5. To answer the reference it is necessary to notice the relevant provisions of the Cr.P.C. Chapter XXXVI of the code deals with limitation for taking cognizance of certain offences.

6. Section 468(1) enacts that no Court shall take cognizance of an offence of the category specified in sub-section (2) thereof after the expiry of the period of limitation, except as otherwise provided elsewhere in the Code. Sub-section (2) of S. 468 enacts that 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. Sub-s. (3) of S. 468 reads that 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. Section 469 enacts that the period of limitation, in relation to an offender, shall commence, on the date of the offence; or where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. S. 473 which deals with extension of period of limitation in certain cases, enacts that notwithstanding anything contained in the foregoing provisions of the Chapter, any Court may take 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 cases that the delay has been properly explained or that it is necessary so to do in the interest of justice.

7. The provisions of Chapter XXXVI of the Code incorporating therein the rules of limitation for taking cognizance of certain offences are new and were not contained in the repealed Code. The rules of limitation are not meant to destroy the rights of parties, but are meant to see that parties do not resort to dilatory tactics, but seek their remedy within the time fixed by the Legislature. We may also profitably set out the reasons which prompted the Joint Committee of both the Houses of Parliament for insertion of the new Chapter. The reasons are as follows :-

(1) As time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and uncertain with the result that the danger of error becomes greater.

(2) For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some time or the other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.

(3) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of the persons concerned.

(4) The sense of social retribution which is one of the purposes of criminal law loses its edge after the expiry of a long period.

(5) The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly.

8. Section 468 places a statutory obligation on the Courts not to take cognizance of the offences of the category specified in sub-section (2) thereof after the lapse of the period of limitation. The period of limitation commences either on the date of the offence or on the date of knowledge of the commission of the offence or the identity of the offender. Section 473 confers a discretion upon a Court to take cognizance of an offence after the expiry of the period of limitation in certain cases. All that the section requires in express terms as a condition for the exercise of the discretionary powers of taking cognizance after the expiry of the period of limitation is that the Court shall be satisfied on the facts and in the circumstances of the case that the delay in institution of the prosecution has been properly explained or that it is necessary to do so in the interest of justice. The discretion given to the Court is very wide though it has to be exercised judicially and on well recognised principles. No hard and fast rules can be laid down as to how the discretion has to be exercised in a given case. We must, however, observe that the law of limitation operates equally for or against a private individual as also the State.

9. The two crucial questions which fall for our consideration and determination are (i) whether the plea of limitation enacted in S. 468(2), Cr.P.C. cannot be raised by a person accused of any one of the offences covered thereunder after cognizance of the offence was taken by the Court and (ii) whether in a case instituted against an accused for a major offence and the Court takes cognizance of the said offence, issues summons to the accused, and finds him guilty of a minor or a lesser offence after following the prescribed procedure the plea of limitation enacted in S. 468(2), Cr.P.C. in relation to the minor of the lesser offence is not available to the accused

10. In Krishna v. State of M.P. (1977 Cri LJ 90) a single Judge of the Madhya Pradesh High Court R. K. Tankha, J. held :

'Whenever a complaint or a challan is filed at the instance of any person or any Police Officer, the Court must first see that S. 468 of the Code of 1973 is attracted or not. If it does, it should not register the case but give an opportunity to the person or the police officer filing the complaint or challan to satisfy it on the point of limitation for purposes of condonation of delay. As regards the condonation of delay it should not be done as a matter of course. The delay has to be condoned with exercise of judicial discretion. Section 473 of the Code empowers the Court to condone such delay if sufficient cause has been shown or if the interest of justice make it necessary to do so. But the application of the section would always depend upon the facts and circumstances of each case of which the Court would be required to exercise its judicial discretion in the matter, like an application under S. 5, Limitation Act, 1963. At this stage I would also like to point out that the provisions of S. 473 of the Code should also be liberally construed like Section 5, Limitation Act so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the prosecutor but cannot be construed too liberally because the Government is the prosecutor or prosecution is upon police report. After the delay is condoned by the Court on its being satisfied by he process referred to above, then alone it would register the case and proceed with the same in accordance with law. Before condoning the delay, although I do not find any provision of giving of notice to the accused person in Chapter XXXVI of the Code, but natural justice demands that the accused persons must be heard before passing an order in that regard as such an order is bound to affect a valuable right which accrues to the accused and which cannot be allowed to be taken away lightly. As such they have to be heard when an application under S. 473 of the Code is moved by the prosecution before cognizance is taken.'

11. In the aforesaid case the plea of limitation enacted in S. 468(2), Cr.P.C. was raised by the accused therein before the trial Court after it took cognizance of the offence imputed to them. Even before the objection raised was heard the accused moved the Madhya Pradesh High Court for quashing the proceedings instituted against them and taken cognizance of by the trial Court. The learned single Judge upheld the objection and quashed all the proceedings instituted against the accused.

12. In C. R. Irani v. State (1977 Cri LJ 160) a single Judge of the Calcutta High Court A. N. Banerjee, J. held :

'In my view the scheme in the Criminal Procedure Code does not provide for such an opportunity to an accused of being heard before consideration of the question of limitation in accordance with the provisions of Chapter XXXVI of the Code. It is only at the time of taking cognizance bar of limitation is imposed upon the Court and it is said that no court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation vide S. 468. At that time the accused is nowhere on the scene. It is also to be noticed that the bar is with regard to taking of the cognizance of the offences and not of the offender. It is only after cognizance of an offence is taken Magistrate is required to proceed in accordance with the provisions of Sections 202 to 204 of the Code for the purpose of either dismissing the petition of complaint or for issue of processes against an offender. Therefore, at the time the Magistrate takes cognizance of the offence the accused cannot be heard nor can he raise any grievance of his not being given an opportunity of being heard at that time. After the process is issued and the accused appears before the Magistrate it is open to him to raise the question regarding the bar of limitation and it is for the learned Magistrate to consider at the proper stage of the proceeding whether the accused can avail of the bar of limitation as imposed upon the Court.'

13. In Bharat Hybrid Seeds & Agro Enterprises v. State (1978 Cri LJ 61) Sambasiva Rao, J. as he then was of our High Court held :

'The Cr.P.C. does not contain any procedure for condoning the delay in filing the complaint and extending time of the period of limitation. S. 468 and other provisions prescribe the period of limitation for taking cognizance. In fact, Section 468 imposes a bar on the Court in taking cognizance of offences which are brought to its notice after the prescribed period of limitation. However, S. 473 enables the Court to extend that period if it is satisfied that the delay has been properly explained. It must be noted that once the period of limitation prescribed under the Code or any other law for launching a prosecution has expired certain rights would accrue to the accused to the effect that there would be no prosecution thereafter. It is true that the Court is clothed with power to extend time if it so thinks fit on the basis of the evidence adduced by the complainant. When the Court extends that time, it means it is interfering with the rights of the accused which have vested in him by virtue of the expiry of the period of limitation. Therefore, even though there is no rule of law requiring the Court to issue notice to the proposed accused and to give him an opportunity for meeting the case of the complainant in regard to the extension of time, interests of justice and principles of natural justice require that the condonation of the delay and extension of time can be done only after giving a reasonable opportunity to the proposed accused. It would be violating the very principles of natural justice and in fact, the very spirit of the administration of justice, if a party is prosecuted in a Court of law after the period prescribed for the launching of the prosecution has been over and without giving him an opportunity to explain his case as to why the delay should not be condoned. Absence of a rule of law shall not enable the Courts to extend time for filing prosecution without hearing the proposed accused. This rule of practice which is necessarily a rule of justice, must always be followed. I am supported in this view by a decision of the Madhya Pradesh High Court in Krishna v. State of M.P. (1977 Cri LJ 90).

However, the decision of the Calcutta High Court in C. R. Irani v. State 1977 Cri LJ 160 (Cal) lays down that reasons for the extension of time can be given by the Court even in a later stage when the accused enter their appearance and object to the prosecution having been barred by limitation. As I have said it is not only desirable but also essential in the interests of justice that even before cognizance of the offence is taken by the Court after the period of limitation, it should give notice and opportunity to the proposed accused and satisfy itself as to the adequacy of the reason for the delay. This rule of practice should always be followed by Courts.'

It may be noted that both the decisions cited supra were by the learned Judge and while approving the decision of the single Judge, Madhya Pradesh High Court, dissented from the decision of a single Judge of the Calcutta High Court.

14. In Sulochana v. State Registrar of Chits, Madras (1978 Cri LJ 116) Natarajan, J. of the Madras High Court adverting to the first question formulated by us observed :

'.......... the point for determination is whether there is any statutory bar to a Magistrate taking on file a complaint filed out of time and applying his mind to the question of limitation at a subsequent point of time. As support for his argument, Mr. Venkataraman cited Krishna v. State of M.P., 1977 Cri LJ 90 (supra). It was held in that case that in view of the mandatory bar contained in Section 468 to a court taking cognizance of offences after the lapse of the period of limitation, the overriding powers granted under S. 473 of the Code can be brought into play only before cognizance of an offence is taken and not subsequently. It was further held that if the Court acts otherwise it would be clearly acting without jurisdiction. With respect to the learned Judge who decided that case, I am unable to share his view. There is nothing in S. 473 of the Code, which is an overriding provision, to show that the Court's powers to extend the period of limitation are limited in any manner with reference to time factor. Section 473 beings with the words, 'Notwithstanding anything contained in the foregoing provisions of the Chapter ........' Correspondingly, S. 468 also makes the provisions of limitation in the Section subject to the other Section in the Code. I do not, therefore, find any basis either in S. 468 or in S. 473 to sustain the contention that the powers of a court to condone the delay in the filing of a complaint, where such condonation is called for in the interests of justice or on account of proper explanation for the delay are exercisable only before a complaint is taken on file and not thereafter. As a matter of fact, in the case cited by the petitioner's counsel itself, the learned Judge has observed that on grounds of natural justice the accused persons also must be heard before passing an order of condonation of delay under Section 473. If the accused is to be heard, notice has to be issued to him, and I fail to see how notice can be issued to him unless the Court takes the complaint on file. A safe and harmonious interpretation of Sections 468 and 473 of the Code, in my opinion, will be that, when a complaint is preferred by anyone, whether it be by an aggrieved person or otherwise, the Court can take the complaint on file and incidentally take cognizance of the offence or offences complained therein, subject to deviousness of the complaint and the cognizance on the ground of limitation. After a notice is issued to the accused and he appears in Court, the Court can hear him also on the question of limitation and then pass an order in accordance with the facts of the case and the needs of the situation.' It may be noted that the view expressed by Natarajan, J. is sound and accords with that expressed in C. R. Irani v. State (1977 Cri LJ 160) (Cal).

15. In State of Karnataka v. Vedavati (1978 Cri LJ 1375), a single Judge of the Karnataka High Court C. Honniah, J., held that where no application was filed under S. 473, Cr.P.C. to condone the delay in a prosecution filed by the Forest Officer, Puttur after expiry of the period of limitation the delay could not be condoned. In our view, no formal application for condonation of delay in launching the prosecution after expiry of the period of limitation prescribed under S. 468(2), Cr.P.C. is necessary and it is open to the prosecuting agency to explain the delay to the satisfaction of the Court without a formal application.

16. In G. D. Iyer v. State (1978 Cri LJ 1180) a Division Bench of the Delhi High Court, adverting to the plea of condonation of delay of seven days in launching the prosecution against the accused therein and the scope of S. 473, Cr.P.C., observed :

'Before we can answer this question we have to ask ourselves; Has the prosecution properly explained the delay Or alternatively, is it necessary in the interests of justice to take cognizance of the offence after the expiry of the period of limitation These are two distinct heads under which the Code has invested a residual discretion in the Court to take cognizance of an offence after the expiry of the period of limitation .......... As we have observed S. 473 vests a residual discretion in the Court. Whenever a Court or authority is endowed with discretion it has to make a choice. The legal concept of discretion implies power to make a choice between alternative courses of action. It is impossible to encase judicial discretion in a strait-jacket. Situations calling for the exercise of discretion are infinite. It is not possible to catalogue them. 'On the facts and circumstances' of each case the Court has to see whether it would exercise discretion in favour of the complainant and waive the bar of limitation for the institution of a criminal case'.

17. In Khasim Beg v. State of A.P. (1979 (2) APLJ 398) the scope of S. 468(2), Cr.P.C. was also considered by a Division Bench of this Court. In the said case, a private complaint was filed against an accused person in the Court of the Judicial First Class Magistrate. Hindupur for offences punishable under Sections 419 and 420, I.P.C. alleging that the accused misrepresented to the complainant that he was a bachelor though, in fact, he was already married to another woman and that believing the representation the father of the complainant parted with valuable properties in favour of the accused. The learned Magistrate took cognizance of both the offences and framed charges thereunder. At the conclusion of trial, the learned Magistrate found that the offences under Sections 419 and 420, I.P.C. were not made out. He, however, found that the complainant proved her case beyond reasonable doubt warranting conviction of the accused under S. 417, I.P.C. The accused was accordingly convicted of the minor offence punishable under Section 417, I.P.C. and sentenced to suffer rigorous imprisonment for term of three months. On appeal preferred by the accused, the Additional Sessions Judge, Ananthapur, while agreeing with the learned Magistrate that there was sufficient evidence to warrant conviction of the accused under S. 417, I.P.C. remanded the case to the learned Magistrate on the ground that no charge was framed against the accused under S. 417, I.P.C. and directed a fresh trial after framing a fresh charge against the accused under S. 417, I.P.C. The order of remand was questioned by the accused and it was urged on behalf of the accused that in view of the provision contained in S. 222(4), Cr.P.C., the accused could not be convicted of the minor offence as the conditions requisite for the initiation of the proceedings in respect of the minor offence were not satisfied, in that the complaint was filed beyond the period of limitation enacted in S. 468(2), Cr.P.C. The Division Bench observed :

'Section 473, Cr.P.C. provides for the discretion of the Court to take cognizance of an offence after the expiry of the period of limitation on satisfaction of the Magistrate that either the delay has been properly explained or that it is necessary to condone the delay in the interests of justice. The question will have to be considered as to at what point of time the Magistrate should exercise his discretion under S. 478, Cr.P.C. whether before he took cognizance of the offence or even during the trial. Different High Courts have expressed conflicting views, some holding that the discretion should be exercised before the case is taken on file, while some others have held that the discretion under Section 473, Cr.P.C. can be exercised even after the complaint was taken on file. Difficulties do arise when parties, with a view to get over the limitation allege facts and quote sections involving serious offence and are unable to prove the serious offence and seek a conviction of the accused for a lesser offence. The question will naturally arise in such cases whether by resorting to such ingenuous methods, the complainant can be permitted to avoid the plea of limitation being raised by the accused against whom a minor offence only is made out and when the cognizance of such minor offence is taken beyond the period of limitation. There cannot be any hard and fast rule in deciding whether in any given case where the accused is to be convicted for a minor offence, the complainant should be required to give proper explanation for the delay in filing the complaint. Just to illustrate this point offences under Sections 324 to 326 or 307 can be alleged in respect of a mere simple hurt caused to the complainant. Can it then be said that merely because the magistrate has taken the cases on file under one or the other of the more serious offences he can convict the accused for the offence under S. 323, I.P.C., ignoring the bar of limitation prescribed under S. 468, Cr.P.C. In our view, the accused should in such cases, be given an opportunity to raise the bar of limitation before the conviction against him is recorded for a minor offence when cognizance in respect of that minor offence was sought to be taken by the Magistrate beyond the period of limitation. It will be open to the complainant to satisfy the court that on the facts and in the circumstances of the case, the delay has been properly explained or the court must also satisfy itself that it is necessary to take cognizance of the minor offence after the expiry of the period of limitation in the interests of justice.'

After adverting to the decided cases referred to supra, the Division Bench pointed out :-

'A proper analysis of S. 473, Cr.P.C. therefore reveals that where there is delay, the delay should be properly explained by the prosecution agency or the court should satisfy itself that the interests of justice require that cognizance of the offence should be taken despite the delay ........

It is thus to be seen that the exercise of discretion of the Magistrate under S. 473, Cr.P.C. is not a condition prerequisite for the initiation of proceedings in respect of a minor offence under Section 222(4), Cr.P.C. Section 222(4), Cr.P.C. does not come into play at all in cases of this type which are to be governed by the proper exercise of jurisdiction by the Magistrate under S. 473, Cr.P.C. We accordingly, answer the reference and hold that the conviction for the minor offence will be considered bad, if the cognizance of the minor offence is taken beyond the period of limitation and the accused is convicted for the minor offence without the Court exercising its judicial discretion under S. 473. Cr.P.C. whether in a given case a proper explanation for the delay was given by the complainant or that it was necessary to condone the delay in the interests of justice.'

18. In State of Punjab v. Sarwan Singh ( : 1981CriLJ722 , one Sarwan Singh was tried under S. 408, I.P.C. The charge sheet was filed against him on 13-10-1976. Though the trial Court acquitted him of the charge under S. 408, I.P.C., the trial court convicted him of the lesser offence punishable under S. 406, I.P.C. and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 1,000/-. On appeal preferred by him, the Punjab and Haryana High Court allowed the appeal and acquitted him on the ground that the prosecution launched against him was clearly barred by limitation under Sections 468 and 469, Cr.P.C. The High Court was of the view that the charge-sheet laid against him clearly showed that the embezzlement was said to have been committed on 22-8-1972 and the audit report through which the offence was detected was dated 5-1-1973. The High Court concluded that taking any of these dates the prosecution was barred by limitation under S. 468(2)(c). Cr.P.C. The State of Punjab having preferred an appeal to the Supreme Court, their Lordships affirmed the decision of the High Court and observed :-

'The object of the Cr.P.C. 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 statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art. 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.'

19. It may be noted that the offence punishable under S. 408, I.P.C. is punishable with imprisonment which may extend to seven years. No period of limitation is prescribed under S. 468, Cr.P.C. for prosecution of offences punishable with imprisonment for a term exceeding three years. In the case decided by the Supreme Court, though the trial Court took cognizance of the case against the accused under S. 408, I.P.C. and framed a charge against him thereunder, the trial Court ultimately found him guilty and convicted him of the lesser offence punishable under S. 406, I.P.C. The offence punishable under S. 406, I.P.C. is punishable with imprisonment for a term which may extend to three years. The period of limitation enacted under S. 468(2), Cr.P.C. is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Their Lordships of the Supreme Court, agreeing with the Punjab and Haryana High Court, held that the prosecution, though initiated against the accused under S. 408, I.P.C., was barred by limitation under S. 468(2)(c) of the Code as the accused was ultimately found guilty and convicted under Section 406, I.P.C.

20. To sum up, a statutory obligation is placed upon the Court under S. 468, Cr.P.C. not to take cognizance of the offences of the categories specified in sub-section (2) thereof after lapse of the period of limitation. The Code does not provide an opportunity to the accused of being heard on the bar of limitation enacted under S. 468 of the Code before taking cognizance of offences of the categories specified in sub-section (2) thereof. The Code does not also envisage issue of any process against the accused before taking cognizance of the offence. Any cognizance of the offence taken by the Court is subject to deviousness of the cognizance on the ground of limitation and it is open to the accused to plead before the Court in response to the process issued to him that the complaint or the challan filed against him and taken cog-nizance of by the Court is barred by limitation. Such a plea can be raised by the accused at any time during the trial. Section 473 confers a discretion upon the Court to take cognizance of the offences of the categories specified in sub-section (2) of S. 468 after expiry of the period of limitation if the Court is satisfied, on the facts and in the circumstances of the case, that the delay in the institution of the prosecution has been properly explained or that it is necessary to do so in the interests of justice. The discretion given to the Court is very wide though it must be exercised judiciously on well recognized principles. No hard and fact rules can be laid down as to how the discretion can be exercised in a given case. Even when the Court takes cognizance of any of the offences of the categories specified in sub-section (2) of S. 468 after applying its mind to the provisions of S. 473, of the Code, it is open to the offender to plead before the Court after conclusion of the trial that the provisions of S. 473 are not attracted or complied with. Where the Court takes cognizance of a major offence against an accused person, but finds him guilty of a minor offence, it is open to the accused to plead that conviction for the minor offence is bad if the complaint or the challan is filed against him beyond the period of limitation prescribed for the minor offence subject to the residual power offence subject to the residual power of the Court to exercise its discretion under S. 473, Cr.P.C.

21. In the result, the reference is answered against the appellant. The complaint instituted by the appellant and taken cognizance of by the Court under S. 324, I.P.C. against the accused, ultimately found guilty by the Court under S. 323, I.P.C. is barred by time. The learned Magistrate did not choose to exercise his discretion conferred upon him under S. 473 of the Code to condone the delay in lodging the complaint for sound and cogent reasons recorded by him. The exercise of discretion by the learned Magistrate does not, therefore, call for any interference by this Court.

22. Before parting with the case, we may also dispose of yet another plea raised by the learned counsel for the appellant. It is urged by her that on the material placed before the learned Magistrate he should have recorded a finding that the accused were guilty of the offence punishable under S. 324, I.P.C. There is no substance in the plea put forward. On a careful perusal of the evidence adduced by the appellant before the learned Magistrate, we are convinced that the reasons assigned by the learned Magistrate for finding the accused guilty of the lesser offence punishable under S. 323, I.P.C. are absolutely sound.

23. In the result, the appeal fails and is dismissed.

24. Appeal dismissed.


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