Limitation: Court cannot use the judgment decided on the complaint case for police cases

Prayer

Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to transfer the investigation in Crime No.24 of 2019 dated 14.2.2019 from the respondent police to any other investigation agent for further investigation and to file the final report afresh.

Issue raised

An important issue was raised in these petitions and hence the issue is being dealt with in common in these criminal original petitions. After answering the issue, the facts of each will be considered and separate orders will be passed in each petition.

Judicial Magistrate issued notice to the prosecution under section 473 cr.p.c (want of limitation)

3) When the matter had come up on 12.01.2024, the learned Additional Public Prosecutor had submitted, on instructions, that the final report was filed before the Judicial Magistrate, Thittakudi. However, as the offence involved was punishable with imprisonment of two years, the final report ought to have been filed within the period prescribed under Section 468 Cr.PC. As the same was done only after four years, which is admittedly beyond the period of limitation, the Court below has not taken cognizance. Hence, notice has been issued to the accused in Crl.M.P.No.1767 of 2023 as the Court wanted to exercise its power under Section 473 Cr.PC.

Kishore vs. State

4) The attention of this Court was drawn to the decision of a learned single judge of this Court in Kishore v. State reported in (2023) 2 LW (Cri) 285, and a contention was raised that there was no requirement for condoning the delay since the complaint was lodged with the police within the period of limitation.

5) In Kishore v State reported in (2023) 2 LW (Cri) 285 an FIR was registered on 02.04.2018 for offences under Sections 279 and 337 IPC on the basis of information received on the same day from one Muthu Krishnan. As the victim subsequently succumbed, the case was altered to Section 279 & 304(A) IPC. A final report dated 30.06.2018 was filed before the Magistrate on 02.03.2023 along with an application for condonation of delay under Section 473 Cr.P.C. The Magistrate allowed the application and took cognizance of the offences. The accused challenged the order passed under Section 473 Cr.PC condoning the delay before K. Murali Shankar, J. The learned judge after referring to the decision of the Hon’ble Supreme Court in Sarah Mathew v Institute of Cardio Vascular Diseases reported in (2014) 2 SCC 62 & Amritlal v ShantilalSoni, reported in (2022) 13 SCC 128 opined that relevant date for the purposes of Section 468 Cr.P.C is the date of filing of the complaint or the date of institution of the prosecution. Applying this test, the learned judge concluded as under:

“16. In the case on hand, as already pointed out, the accident was allegedly occurred on 02.04.2018 and the complaint came to be lodged on the same day i.e., on 02.04.2018. Hence, this Court has no hesitation to hold that since the complaint was lodged on the date of occurrence itself, the question of invoking Section 468 Cr.P.C. does not arise at all.”

Information to the police is akin to a complaint under section 2(d) crpc

6) In the previous hearing, this Court had, prima facie, expressed its reservations on the aforesaid observations as it appeared to have equated the information given to the police under Section 154 Cr.PC as being akin to a complaint under Section 2(d) of the Code. As the matter required deliberation, this Court requested the assistance of the Bar to examine the issue threadbare.

General principle of criminal law

9) A general principle of criminal law is that a crime never dies. This is expressed in the maxim “nullum tempus qut locus occurritregi” meaning that the lapse of time is no bar to the Crown for the purpose of initiating proceedings against offenders. The maxim is a reflection of the principle of common law that a criminal offence is considered a wrong against the State and also the society as a whole, even though the same may have been committed against an individual.

Old code, 1898 Cr.P.C: Prosecution need not be quashed based on delay in instituting the complaint

10) When the Code of Criminal Procedure, 1898 was in vogue the legal position was that a Court could not dismiss a complaint on the ground that it was belated. Dealing with a complaint under the Customs Act, 1962, a Constitution Bench of the Hon’ble Supreme Court in Asstt. Collector of Customs v. L.R. Melwani, reported in AIR 1970 SC 962, had observed as follows:

“The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint.”

Law commission recommendation to introduce limitation in prosecution

Taking note of the aforesaid position, the Law Commission of India in its 42nd Report proposed the introduction of limitation for less serious offences. The following was the recommendation made by the Commission:

“24.14. Recommendation to introduce principle of limitation – We, therefore, recommend that the principle of limitation should be introduced for less serious offences under the Code. We suggest that, for the present, offences punishable with fine only or with imprisonment up to three years should be made subject to the law of limitation. The question of extending the law to graver offences may be taken up later on in the light of the experience actually gained.”

Introduction of limitation for prosecution in new Code, 1973

11) It is in the light of the aforesaid recommendation that Chapter XXXVI of the Code comprising Sections 467-473 Cr.P.C was introduced in the Code of Criminal Procedure, 1973. The period of limitation, like a relay race, has a start and a finish point. Sections 467 states that the “period of limitation” is the period prescribed in Section 468 for taking cognizance of an offence. Clause (2) of Section 468 Cr.P.C prescribes a graded period of limitation ranging from six months to three years for offences ranging from punishments of fine up to punishment for a period not exceeding three years.

Difference between information and complaint

14) Before proceeding, it is necessary to clear the prevailing confusion on the meaning of the expression “complaint” under the Cr.P.C. As is well known, where the commission of a cognizable offence is alleged, the police is under an obligation under Chapter XII of the Code to register an FIR and investigate. A close reading of Section 154 Cr.P.C would show that the basis of an FIR is the receipt by the police officer of “information relating to the commission of a cognizable offence”. In other words, Section 154 Cr.P.C contemplates the giving of “information” and not a “complaint”. That apart, a complaint under Section 2(d) is made to a Court and not to a police officer.

Cognizance

In a case emanating out of an FIR, the police file a final report under Section 173(2) Cr.P.C which the Court takes cognizance of under Section 190(1)(b) of the Code. On the other hand, a complaint under Section 2(d) is presented to a Court under Section 190(1)(a). This dichotomy is fundamental to the scheme of the Code, and the Court cannot brook a lack of conceptual clarity on these aspects.

Sarah Mathew’s case deals with the complaint and not with the police report

22) It must also be pointed out that the Constitution Bench has used the expression “date of filing of the complaint or the date of institution of prosecution”. The expression “date of institution of prosecution” was used in Japani Sahoo’s case (affirmed by the Constitution Bench) which, as discussed above, was a prosecution under the Drugs and Cosmetics Act, 1940. Section 32 of the said Act states that “no prosecution under this Chapter shall be instituted except by…..”. Thus, the expression “institution of prosecution” was used in Sarah Mathew’s case to denote cases where authorities under the Drugs and Cosmetics Act, 1940 and other similar enactments commence prosecution by filing complaints under Section 190(1)(a) before the Magistrate. This expression should not be confused with the lodging of an FIR since the decision in Sarah Mathew’s case had nothing to do with prosecutions under Chapter XII of the Cr.P.C.

In Kishore vs. State Hon’ble Madras High court mixed up the word information as complaint

23) In Kishore v State reported in (2023) 2 LW (Cri) 285, it was not brought to the notice of the learned single judge that the decision in Sarah Mathew, supra, arose out of a prosecution under Section 304-A IPC by way of a private complaint under Section 190(1)(a) Cr.P.C whereas the facts in Kishore were exactly the opposite as the prosecution under Section 304-A IPC was by way of a final report filed under Section 190(1)(b) Cr.P.C. The learned single judge, in Kishore, had concluded as under:

“16. In the case on hand, as already pointed out, the accident was allegedly occurred on 02.04.2018 and the complaint came to be lodged on the same day i.e., on 02.04.2018. Hence, this Court has no hesitation to hold that since the complaint was lodged on the date of occurrence itself, the question of invoking Section 468 Cr.P.C. does not arise at all.”

It appears that this Court had overlooked the fact that a “complaint” under the Cr.P.C can be lodged only before the Court and not before the police. Thus, what was lodged on 02.04.2018 was actually information relating to the commission of the offence which led to the registration of an FIR on the same day.

24) The decision in Sarah Mathew, supra, has no doubt held that the relevant date is the date of filing of the complaint. However, as pointed out above, those observations were made in the context of a case arising out of a complaint under Section 190(1)(a). An FIR is lodged under Section 154 Cr.PC upon receipt of “information” and is not a “complaint”. The term “complaint” under the Cr.PC has a definitive meaning and the relaying of information to the police to set the criminal law in motion under Section 154 Cr.PC does not amount to giving a “complaint” within the meaning of Section 2(d) of the Code.

How to use judgments? Courts should place reliance on decisions as to how the factual situation fits

25) While construing precedents the following caution by the Constitution Bench in Padma Sundara Rao v. State of T.N., reported in (2002) 3 SCC 533, must be observed:

“Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”

This decision [Arun Vyas v Anita Vyas reported in (1999) 4 SCC 690] makes it clear that the relevant date for reckoning the cut-off is the date on which the final report was filed and not the date on which the FIR was registered. The aforesaid conclusion was referred to and affirmed by a three judge bench in State of H.P. v. Tara Dutt, (2000) 1 SCC 230, and followed by another two-judge bench in Ramesh v. State of T.N., reported in (2005) 3 SCC 507. In Ramesh, the facts were that an FIR was registered on 23.06.1999 for an offence under Section 498-A IPC. The informant had exited the matrimonial home on 02.02.1997 and applying the decision in Arun Vyas v Anita Vyas reported in (1999) 4 SCC 690, the last act of cruelty was taken to be the point for the commencement of limitation under Section 469 Cr.PC. The Court found that the process of investigation and filing of the charge-sheet took its own time and was completed when the final report was filed on 28.12.2001 which was beyond the period of three years. The Hon’ble Supreme Court held that the Magistrate was barred from taking cognizance unless the delay was properly explained under Section 473 Cr.PC. A serious flaw in Kishore v State reported in (2023) 2 LW (Cri) 285 is evident when one applies the law therein to the facts of Ramesh v. State of T.N., reported in (2005) 3 SCC 507. The limitation in Ramesh having commenced on 02.02.1997 and the FIR having been lodged on 23.06.1999, applying Kishore v State reported in (2023) 2 LW (Cri) 285 the issue of limitation would not arise. However, the conclusion of the Hon’ble Supreme Court is precisely the opposite which is on account of the fact that Kishore v State reported in (2023) 2 LW (Cri) 285 unfortunately applies the ratio of a complaint case to a case instituted on a police report.

FIR quashed

33) The offence under Section 294(b) IPC is punishable with six months imprisonment. The offence under Section 323 IPC is punishable with maximum imprisonment of one year and the offence under Section 506(i) IPC is punishable with maximum imprisonment of two years. In view of the same, the final report ought to have been filed within three years as provided under Section 468(2)(c) of Cr.P.C. Till date, the final report has not been filed. Considering the allegations made in the FIR, no useful purpose will be served in keeping the FIR pending. This is not a fit case to exercise jurisdiction under Section 473 Cr.PC.

34) In the light of the above discussion, the FIR in Crime No.749 of 2015, pending investigation on the file of the 1st respondent is hereby quashed and this criminal original petition stands allowed. Consequently, connected miscellaneous petition is closed.

Party

A.Kaliyaperumal … Petitioner vs. 1.The Superintendent of Police Cuddalore Cuddalore District. 2.The Inspector of Police Ramanatham, Thittakudi Cuddalore District. … Respondent – Criminal Original Petition Nos.433 and 543 of 2024 and Crl.MP.No.372 of 2024 – 24.01.2024 Coram : The Honourable Mr.Justice N.ANAND VENKATESH – 2024:MHC:5924

https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1097878

kaliyaperumal

Notes for students to understand the concept of limitation and its calculation

1) Limitation for taking cognizance is for both complaint and final report.

2) Limitation can be decided only for the purpose of taking cognizance or not. For which a ‘final report’ or complaint is necessary.

3) The word ‘offence’ used in the section denotes ‘crime’. In other words, the fact involved on the date of incident happened (crime) shall be reckoned for the word ‘offence’ under section 468(2) Cr.P.C.

4) In simple words, whenever a Final report or complaint was filed for an offence (crime) it is to be calculated “from the date of offence till the date of filing of final report or complaint” for the purpose of limitation. [Suppose the “date of offence or date of occurrence” found in the FIR or in the complaint is 1.1.2023 (forget about the date of registering the FIR or filing of the complaint) but the Final report is filed on 1.1.2024. Now the Magistrate must see the following in that order:

1) what is the offence?

2) If the offence shown in the FIR or in the complaint is section 294(b) IPC, now the Magistrate must check the years of punishment (may extend to 3 months in this case).

3) The Magistrate must note the date of the offence or occurrence ex.1.1.2023.

4) The magistrate now checks the date of submitting the final report or complaint. Ex. 1.1.2024. Then the magistrate must note the date.

5) Now the Magistrate must straightaway go to section 468(2) cr.p.c and check the period of limitation for taking cognizance for s.294(b) IPC.

6) It is shown that the period of limitation to take cognizance of the offence under section 294(b) IPC is within six months from the date of offence.

7) Now since the final report or complaint has been already filed in the present case for the offence u/s 294(b) IPC, the Magistrate must calculate the dates already noted and see whether the date of filing the final report or complaint was filed within six months from the date of offence as per section 468(2)(a) Cr.P.C.

8) In the case on hand the final report or complaint was filed after one year from the date of occurrence, now, the Magistrate will see for any petition for condonation delay filed along with the final report (as affidavit) or in the complaint itself.

9) If a petition for condonation delay was filed, then the Magistrate, if satisfied, may condone the delay of filing the final report or complaint and further proceed to take cognizance. If the I.O or complainant fails to convince the Magistrate, then the Magistrate may refuse to take cognizance.

10) This is the method of calculation of dates. Also see AMRITLAL VERSUS SHANTILAL SONI & ORS – CRIMINAL APPEAL NO. 301 OF 2022 (Arising out of SLP (Crl. No.) 5122 of 2019) – FEBRUARY 28,2022

“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”.

5) The Magistrate is barred from taking cognizance unless the delay in filing complaint or final report was properly explained as per Section 473 Cr.P.C.

6) The court cannot decide limitation based on First Information Report but only after the Final report is filed [because the question of cognizance could be taken or not shall be based only on the Final report or complaint] since the entire Chapter XXXVI deals with Bar to take COGNIZANCE.

7) Again, complaint or information (FIR) in both cases while deciding limitation the court has to see the date of crime and the filing of complaint or final report.

8) Hon’ble Madras High court in this case quashed the FIR registered for the offences 294(b), 323 and 506(i) IPC based on Section 468(2)(c) of Cr.P.C.

Author’s note

It is not necessary that the same offence(s) reported in the First Information Report shall be charged in the final report. For instance, if the FIR was registered under section 417 IPC for the misconception of fact (having a physical relationship on the promise of marrying the victim) and the investigation kept pending for more than one year the Hon’ble High Court has all the powers within its jurisdiction under section 482 Cr.P.C to quash the case on the facts and circumstances. However, the Hon’ble High Court cannot quash the case based on the limitation on the presumption that the final report would be filed under section 417 IPC (as is in the FIR) which is premature on procedural aspects. There may be many reasons and possibilities for the investigation officer to file a Final report (charge sheet) under section 376 IPC also for which the limitation does not apply (The argument regarding alteration of the report is a matter of fact and not law). Suppose if the case is on complaint, the averments in the complaint filed, seem to be under section 417 IPC, but the offence (crime) happened before 4 years then it is not the only ground to quash the complaint for limitation. If after the sworn statements and other evidence taken there might be chances to proceed to summon the accused under section 376 IPC. Hence, it is just and necessary to provide every opportunity for the Investigation Officer to submit the Final report and in complaint cases to give the opportunity to take evidence for the complainant and further allow the Trial court to decide the case following Chapter XXXVI.

In the case on hand, there may be chances for the I.O. to file the final report under section 326 IPC too. But as I already said if this case was quashed on the facts and circumstances then this is immaterial.

Further, the case on hand is a ‘summons case’ and it seems that the Hon’ble High Court did not consider section 167(5) Cr.P.C which is entirely the domain of the court taking custody of the accused.

Ramprakash Rajagopal
Advocate, Tamil Nadu.