Amritlal vs Shantilal Soni

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 301 OF 2022 (Arising out of SLP (Crl. No.) 5122 of 2019)

AMRITLAL ……. APPELLANT(S)

VERSUS

SHANTILAL SONI & ORS. …. RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

Leave granted.

The order under challenge in the present appeal is dated

06.03.2019, as passed by the High Court of Madhya Pradesh,

Bench at Indore in Miscellaneous Criminal Case No. 26287

of 2018.

By the order impugned, the High Court has, in exercise

of its powers under Sections 482 of the Criminal Procedure

Code, 19731, set aside the order dated 20.02.2018 passed by

the Court of Additional Sessions Judge, Khachrod, District

Ujjain in Criminal Revision No. 181 of 2017 as also the

order dated 17.08.2017 passed by the Judicial Magistrate Signature Not Verified Digitally signed by Rajni Mukhi Date: 2022.03.05 15:27:04 IST Reason: First Class, Khachrod, District Ujjain in Criminal Case

No. 619 of 2012; and has quashed the proceedings in the

1 ‘CrPC’ for short.

2

said Criminal Case No. 619 of 2012 for the offences

punishable under Section 406 read with Section 34 and

Section 120-B of the Indian Penal Code, 18602.

Shorn of unnecessary details, the relevant background

aspects of the matter are that on 10.07.2012, the present

appellant filed a written complaint to the Superintendent

of Police, Khachrod while claiming that he 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 2012 came to be registered and, after

investigation, the police filed charge-sheet dated

13.11.2012 for the offences aforesaid against the accused

persons, respondent Nos. 1 and 2 herein. Thereupon, the

Judicial Magistrate, First Class, Khachrod took cognizance

on 04.12.2012.

On 12.09.2013, the Magistrate passed the order framing

charges. This order was challenged by the accused-

respondents in a revision petition (No. 288 of 2013) under

Section 397 CrPC, inter alia, on the ground that taking

cognizance in this matter was barred by limitation. The

Additional Sessions Judge, Khachrod dismissed the revision

petition so filed by the accused-respondents on 27.07.2015

while holding, inter alia, that the bar of limitation was

2 ‘IPC’ for short.

3

not applicable in the matter. Thereafter, the accused-

respondents filed an application under Section 468 CrPC

before the Trial Court, again raising the question of

limitation. This application was rejected by the Trial

Court on 17.08.2017. The order so passed by the Trial

Court was affirmed by the Additional Sessions Judge,

Khachrod in revision petition (No. 181 of 2017) on

20.02.2018. However, on such orders being challenged, the

High Court has, in the impugned order dated 06.03.2019,

formed the opinion that taking cognizance of this matter

on 04.12.2012 was barred by limitation. The High Court

has, thus, in exercise of its powers under Section 482

CrPC, quashed the proceedings. The sum and substance of

the reasoning of the High Court could be noticed in the

following: -

“19. On cumulative consideration of the aforesaid discussion, this Court is of the view that the date of offence is very well known to the complainant i.e. 04.10.2009 and he lodged FIR on 19.07.2012 i.e. after 2 years 9½ months of the alleged incident and the Police has filed charge sheet on 04.12.2012 after a period of three years of the alleged incident, on which basis, the Magistrate has taken cognizance of the offence against the petitioners on 04.12.2012 which was barred by limitation, therefore, the trial Court as well as Revisional Court have committed error of law in rejecting the plea taken by the petitioners regarding maintainability of the prosecution on the ground of limitation.”

In challenge to the order aforesaid, it has been argued

that the proposition of the High Court, in proceeding on

the basis of date of taking cognizance for the purpose of 4

limitation, is not in conformity with law and runs

directly contrary to the principles laid down by the

Constitution Bench of this Court in the case of Sarah

Mathew v. Institute of Cardio Vascular Diseases by its

director Dr. K.M. Cherian & Ors.: (2014) 2 SCC 62. In

counter, it has been argued on behalf of the respondent

that the High Court has rightly held that the prosecution

was not maintainable when the Magistrate took cognizance

of the alleged incident on 04.12.2012 inasmuch as the date

of offence was alleged by the complainant to be

04.10.2009. A decision of this Court in the case of State

of Punjab v. Sarwan Singh: (1981) 3 SCC 34 is relied upon.

It has also been attempted to be argued that the decision

in the case of Sarah Mathew (supra) requires

reconsideration because several aspects relating to the

purpose of Chapter XXXVI CrPC have not been taken into

consideration and this Court has not comprehensively dealt

with the provisions relating to the bar of limitation.

Having heard learned counsel for the parties and having

perused the material placed on record, we have not an iota

of doubt that the impugned order of the High Court

deserves to be set aside, for it proceeds squarely

contrary to the law declared by the Constitution Bench of

this Court in Sarah Mathew’s case (supra). 5

In Sarah Mathew, the Constitution Bench of this Court

examined two questions thus: -

3. No specific questions have been referred to us.

But, in our opinion, the following questions arise for our consideration:

3.1. (i) Whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence? 3.2. (ii) Which of the two cases i.e. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121] or Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] (which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]), lays down the correct law?

The Constitution Bench answered the aforesaid questions

as follows: -

51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. We further hold that Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394] lays down the correct law. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121 : 1990 SCC (Cri) 646] will have to be restricted to its own facts and it is not the authority for deciding the question as to what is the relevant date for the purpose of computing the period of limitation under Section 468 CrPC.

(emphasis supplied)

Therefore, the enunciations and declaration of law by

the Constitution Bench do not admit of any doubt that for

the purpose of computing the period of limitation under 6 Section 468 CrPC, the relevant date is the date of filing

of the complaint or the date of institution of prosecution

and not the date on which the Magistrate takes cognizance

of the offence. 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.

In rather over-zealous, if not over-adventurous,

attempt to support the order of the High Court, learned

counsel for the contesting respondents has attempted to

submit that Sarah Mathew’s case requires reconsideration

on the ground that some of the factors related with

Chapter XXXVI CrPC have not been considered by this Court.

Such an attempt has only been noted to be rejected.

A decision of the Constitution Bench of this Court

cannot be questioned on certain suggestions about

different interpretation of the provisions under

consideration. It remains trite that the binding effect of

a decision of this Court does not depend upon whether a

particular argument was considered or not, provided the

point with reference to which the argument is advanced, 7

was actually decided therein3. This is apart from the fact

that a bare reading of the decision in Sarah Mathew

(supra) would make it clear that every relevant aspect

concerning Chapter XXXVI CrPC has been dilated upon by the

Constitution Bench in necessary details. As a necessary

corollary, the submissions made with reference to other

decision of this Court, which proceeded on its own facts,

are of no avail to the respondents. Thus, the submissions

made on behalf of the contesting respondents stand

rejected in absolute terms.

For what has been observed and discussed hereinabove,

this appeal is allowed. The impugned order dated

06.03.2019 is set aside and the petition filed before the

High Court, being Miscellaneous Criminal Case No. 26287 of

2018, is dismissed.

The Trial Magistrate shall now proceed with the trial

expeditiously and for that matter, it is also provided

that if any other attempt is made on part of the accused-

respondents to delay or obstruct the trial, the Magistrate

would be free to adopt such coercive proceedings as may be

necessary, including cancellation of bail granted to the

accused-respondents or putting monetary conditions on

them, equivalent to the present value of the property

involved in the matter.

3 Vide Somawanti & Ors. v. The State of Punjab & Ors.: AIR 1963 SC 151 (para 22). 8

The parties through their respective counsel shall stand

at notice to appear before the Judicial Magistrate, First

Class, Khachrod, District Ujjain on 01.04.2022.

……………………………………………….J (DINESH MAHESHWARI)

……………………………………………….J (VIKRAM NATH)

NEW DELHI, FEBRUARY 28,2022.