JUDGMENT
R.P. Sinha, J.
1. This application was first placed before a learned single Judge of the Court who by his order dated 14-8-1978, directed that since the question involved in this case related to the interpretation of Sections 468 and 469 of the Code of Criminal Procedure, 1973, (hereinafter referred to as ‘the new Code’), it should be heard by a Division Bench. Accordingly, the case was placed before a Division Bench which, after hearing learned counsel for the parties, passed an order on 16-3-1979, stating the facts and circumstances leading to the filing of the application and after framing the following question referred it to the Full Bench for consideration:–
“Whether only the cognizance of an offence should be taken within the period prescribed under Sub-section (2) of Section 468 or even the order for issuance of processes should be passed within that period”?
Thereafter this case was placed for hearing before us.
2. The application was filed on behalf of the petitioners for quashing the order passed on 17-2-1976, by which processes were ordered to be issued against the petitioners for standing trial for offences under Sections 379, 323 and 342, of the Indian Penal Code. The alleged occurrence had taken place on 2-12-1972, and a petition of complaint was filed against the petitioners on 5-12-1972. The complainant was examined on solemn affirmation on that very date and the petition of complaint was sent to another Magistrate for inquiry and report. The Inquiring Magistrate after examining some witnesses returned the papers as, according to him, the complainant was not taking any interest. That report was placed before the Chief Judicial Magistrate on 17-2-1976, and after perusing the statement of witnesses examined during the inquiry he passed an order taking cognizance under Sections 379, 323 and 342 of the Indian Penal Code and directed to issue processes against tha petitioners,
3. It was submitted on behalf of the petitioners before the Division Bench that in view of the provisions of Sections 468 and 469 of the new Code, no cognizance for the said offences could have been taken after the expiry of the period of limitation prescribed under Section 468, of the new Code. However, it was conceded that the order of the Chief Judicial Magistrate dated 17-2-1976 purporting to take cognizance was merely an order for issue of processes against the petitioners on the Chief Judicial Magistrate having been satisfied that there was sufficient ground for proceeding against them.
4. There cannot be any doubt that under Chapter XIV of the new Code the conditions requisite for initiation of the proceeding are stated. Section 190 deals with the cognizance of offences by the Magistrate and lays down that subject to the provision of that Chapter any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence, (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Then, under the provision of Section 200 of the new Code, the Magistrate taking cognizance of an offence on the complaint has to examine on oath the complainant and the witnesses present if any, and thereafter he may issue processes or postpone the issue of processes against the accused. If the processes are not issued by the Magistrate outright after taking cognizance and examination of witnesses, then in that case the Magistrate has to proceed under the provision of Section 202 of the new Code. In this case, as will be evident, the occurrence is said to have taken place on 2-12-1972, and the petition of complaint was filed on 5-12-1972 and on that very date the complainant was examined on solemn affirmation. So there cannot be any doubt that the Magistrate had already taken cognizance of the offences alleged in the petition of complaint on 5-12-72, and not on 17-2-76, on which date although the expression ‘taking cognizance’ has been used, yet that has to be treated as redundant when cognizance had already been taken on 5-12-72. Therefore, in any view of the matter, it cannot be said that the cognizance taken in this case is barred by limitation under the provision of Section 468 of the new Code for two reasons, viz., that the cognizance had already been taken on 5-12-1972, under the old Code when there was no question of limitation and also because cognizance was taken on 5-12-1972, only a few days after the occurrence which is alleged to have taken place on 2-12-1972. Actually by the impugned order dated 17-2-1976, the learned Chief Judicial Magistrate had passed an order for issue of processes against the petitioners and the term “taking cognizance” was redundant.
5. The argument advanced on behalf of the petitioners has been that even though cognizance might have been taken on 5-12-1972, since the processes were issued against the petitioners on 17-2-1976, the order of the Chief Judicial Magistrate is vitiated as, according to him, in view of the Bench decision of this Court in Sahdeo Das v. Lila Dai Kisku, (1978 BLJR 791), the order for issuance of processes should also be passed within the period prescribed under Section 468 of the new Code. The said Bench decision of this Court has given rise to this reference by another Bench of this Court. In Sahdeo Das’s case (supra), the occurrence had taken place in Sept. 1970 for which the complainant filed a complaint before the Sub-Divisional Magistrate on 6-5-1971 alleging theft of her jute and maize crops worth Rs. 1,500/-. On 7-5-1971 the Sub-divisional Magistrate took cognizance and on that very date the matter was referred for inquiry and report. No report was received by the Sub-divisional Magistrate and the questions relating to issuance of processes was kept pending. In the meantime, in April, 1974, the new Code came into force and the file was placed before the Chief Judicial Magistrate on 13-8-1976 who issued processes against the petitioner on that date. On the facts and circumstances of that case it was held that cognizance in that case had already been taken in May, 1971 itself and the impugned order dated 13-8-1976 taking cognizance was redundant. It was, therefore, held that since cognizance had already been taken in time there was no question of application of Section 468 of the new Code. The Bench, however, observed as follows:–
“It will be seen that Sub-section (1) of Section 469 of the new Code provides that the period of limitation in relation to an offender shall commence at a particular point of time as laid down in Clauses (a), (b) and (c). The placing of limitation for issuance of processes appears jarring to well established rules and procedure in this country, but the command of the Legislature has to be respected. Giving the ordinary grammatical meaning to the expression used in Section 469, there can be no escape from the position that processes to accused cannot be issued after the expiry of period of limitation.”
Consequently it was held that issuance of processes against the petitioner was in derogation of the provisions of Section 469 of the new Code and the impugned order was, therefore, quashed.
6. The question to be answered is-
“Whether only the cognizance of an offence should be taken within the period prescribed under Sub-section (2) of Section 468 or even the order for issuance of processes should be passed within that period?”
To answer this question, I think, it will be necessary to refer to Chapter XXXVI of the new Code. This Chapter contains certain provisions regarding limitation for taking cognizance of certain offences. No such provisions were in the old Code. This Chapter of the new Code begins thus:–
“Limitation for taking cognizance of certain offences”.
Section 467 of that Chapter defines ‘period of limitation’ and lays down that ‘period of limitation’ means the period specified in Section 468 for taking cognizance of an offence. Section 468 runs thus:–
“468. Bar to taking cognizance after lapse of the period of limitation — (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognisance of an offence of the category specified 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 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.”
As already stated above, Section 467 defines the period of limitation and Section 468 (1) debars court from taking cognizance whereas Section 468 (2) prescribes the period of limitation in respect of three categories of offences enumerated under Clauses (a), (b) and (c) of that sub-section. Section 469 lays down the starting point of limitation in relation to an offender and this is the most important section for purpose of answering the question referred to this Bench. Just as there are three categories of offences in which different periods of limitation are prescribed under Section 468 (2) (a), (b) and (c), there are three categories of offenders in relation to whom the period of limitation is to commence as laid down under Section 469 (1) (a), (b) and (c). Section 469 reads as follows:–
“469. Commencement of the period of limitation. — (1) The period of limitation, in relation to an offender, shall commence –
(a) on the date of the offence, or
(b) 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
(c) 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 persons aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.”
Sections 470 to 473 in this Chapter contain provision for exclusion of time in certain cases, such as exclusion of date on which court is closed or in respect of continuing offence and extension of period of limitation in certain cases.
7. Section 468 (1) lays down 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. Sub-section (2) of that section prescribes the period of limitation for three categories of offences. The first category is the offence which is punishable with fine only. For such offences, the period of limitation is six months under Section 468 (2) (a) of the new Code. I may state by way of illustration that if an offence punishable with fine only has been committed, the complaint has to be made within six months from the date of the offence if the offender is known under Section 469 (1) (a), but if such an offence and the offender are not known on the date of the offence itself but come to be known on a subsequent date, then in that case the period of limitation of six months has to run from the date the person aggrieved or any police officer comes to know of that fact whichever is earlier under Clause (b) of Section 469 (1). Where such an offence is committed on a certain date but it is not known by whom the offence has been committed, then the limitation of six months will commence from the date on which the offender is known to the person aggrieved or to any police officer making an investigation into an offence whichever is earlier. Similarly in second and third categories of offences also the period of limitation of one year and three years (respectively) will commence as illustrated with regard to the first category. In short, Section 468, gives three categories of gases of petty nature in which the graded period of limitation of six months, one year and three years are prescribed and Section 469 prescribes the period for the commencement of limitation in relation to an offender. As already stated, under Clause (a) of Section 469 (1) the period will commence from the date of the offence if the offender is known, under Clause (b) from the date when the offence and offender are known to the person aggrieved or to any police officer whichever is earlier and under Clause (c) from the date when the identity of the offender is known to the person aggrieved or to the police officer making investigation into the case, I am partly fortified in my view by the decision of the Supreme Court in the case of Surinder Mohan Vikal v. Ascharj Lal Chopra (AIR 1978 SC 986). In that case their Lordships were deciding as to what was the starting point of limitation in a case of complaint filed under Section 500 of the Indian Penal Code. That complaint was filed by a person who was acquitted in a case in which the complaint petition itself contained defamatory matter. The question was whether the period of limitation will commence from the date when the complaint under Section 500 of the Indian Penal Code was filed by the acquitted persons or from the date when the complaint containing defamatory allegations was filed against him. Their Lordships of the Supreme Court held that since the defamatory matter was contained in the complaint itself, the period of limitation would be calculated with reference to the date of the filing of that complaint which contained defamatory matter. There it has been observed that Section 468 not only raises a bar of limitation but also prescribed the period thereof. The question in that case was when the period of limitation could be said to have commenced. It was held in that case that under the provision of Section 469 (1) (a), the period of limitation in relation to an offender shall commence “(a) on the date of the offence”.
8. In view of the provisions made under Chapter XXXVI of the new Code, the relevant portion of which has been discussed above, it appears that bar of limitation has been imposed in respect of certain categories of offences and not in respect of all kinds of offences. Only such offences which are punishable with fine only or where the term of imprisonment is one year or less or where the term of imprisonment is over one year but below three years, the graded period of limitation has been provided under Section 468 (2) and Section 468 (1) has imposed a bar on the courts from taking cognizance of the offences of different categories mentioned in Sub-section (2) of that section. The bar of limitation is not in respect of offences of all descriptions but in respect of the criminal offences of petty nature punishable with fine only to the maximum sentence of imprisonment of three years or less. Besides that, this Chapter actually provides for limitation for taking cognizance of offences only. There is no limitation provided under Chapter XXXVI for issuance of processes against the accused persons. There cannot be any doubt that taking of cognizance of an offence is altogether a different and distinct step taken by court when a complaint is filed before a Magistrate and issuance of processes is another step which is taken subsequent to the taking of cognizance. What has been barred under Chapter XXXVI of the new Code is taking of cognizance in respect of certain categories of offences and not the issue of processes in respect of such cases of which cognizance has been taken within the period of limitation.
9. It is well settled now that cognizance is taken of an offence and not of offenders. The word “cognizance” occurs very often in the Code, but this word has not been defined anywhere in the Code. However, it has come to connote certain processes by which the act of taking cognizance is reflected by the Magistrate on the filing of complaint. There are numerous decisions on what amounts to taking cognizance and in one of the recent decisions of the Supreme Court in the case of Tula Ram v. Kishore Singh (AIR 1977 SC 2401) it has been observed at para 7 as follows:–
“The question as to what is meant by taking cognizance is no longer res integra as it has been decided by several decisions of this Court”.
In the case of R.R. Chari v. State of Uttar Pradesh (AIR 1951 SC 297) the Supreme Court had observed:–
“Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence”.
Further this has been elaborated and observed by the Supreme Court –
“It seems to us that there is no special charm or any magical formula in the expression ‘taking cognizance’ which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.”
Once cognizance is taken by a Magistrate under Section 190 of the Code it is open to him to issue summons to the accused persons or to postpone the issuance of processes and inquire the case himself or direct an investigation to be made by a police officer or by another person. So taking of cognizance, as already stated above, is a different and distinct act on the part of the Magistrate in respect of an offence alleged in the petition of complaint and after the cognizance is taken and the complainant and his witnesses are examined under the provision of Section 200, the Magistrate is competent either to issue processes outright or to postpone the issue of processes and hold inquiry or direct an investigation. It is taking of cognizance which is barred under the provision of Section 468 and not the issuance of processes as there are no expressions in the whole of Chapter XXXVI to lead us to the conclusion that not only the cognizance should be taken within the period of limitation but even processes should also be issued against the accused within the period of limitation prescribed for taking cognizance. In short, no limitation is prescribed for issuance of processes when cognizance has already been taken within the time prescribed.
10. A learned single Judge of this Court in Sidheshwar Prasad v. State of Bihar (1978 BBCJ (HC) 382) had to decide a similar question although not identical. That was a case where the petitioners had filed an application under Section 482 of the Code for quashing the order passed by the Magistrate on 11-8-1977 by which the petitioners were summoned to stand their trial for offences under Sections 323 and 324 read with Section 34 of the Indian Penal Code. The fact in brief was that the complainant had filed a complaint on 29-6-1974 against six persons including the petitioners alleging offences under Sections 323 and 324 of the Indian Penal Code. The police after investigation submitted chargesheet against three persons and not against the petitioners on 25-7-1974 and on 27-9-1974 the learned Magistrate took cognizance against those persons against whom police had submitted chargesheet and discharged the petitioners. The trying Magistrate framed charges on 8-9-1975 against those accused persons against whom cognizance had been taken under Sections 232 and 324 of the Indian Penal Code. After three witnesses were examined in course of the trial the complainant filed an application for summoning the petitioners also for trial because allegation was made against them also by those three witnesses. The learned Magistrate by his impugned order dated 11-8-1977, summoned the petitioners for trial along with the other accused persons. It was against this order of the Magistrate that the petitioners had preferred the application under Section 482 of the new Code. One of the points raised in that case was that since the occurrence had taken place on 29-6-1974 and the petitioners were summoned on 11-8-1977, i.e., beyond the period of three years, the prosecution of the petitioners was barred under Section 468 of the new Code. Since the petitioners were summoned to stand their trial under Sections 323 and 324 of the Indian Penal Code and as the maximum sentence under those sections is three years, so relying on Clause (c) of Sub-section (2) of Section 468 of the new Code, it was submitted on behalf of the petitioners that cognizance against the petitioners having been taken beyond the period of limitation it was barred. Learned counsel for the complainant, on the other hand, had submitted that cognizance of the offence had already been taken by the Magistrate on 27-9-1974 and there was no occasion for taking cognizance afresh and so the provisions of Section 468 (2) (c) were not attracted. The oft-quoted expression that cognizance is taken of the offence and not of the offender was emphasised and reliance was placed on the decision in the case of Raghubans Dubey v. State of Bihar (AIR 1967 SC 1167) where it has been held by the Supreme Court that taking of cognizance means cognizance of offence and not of the offenders and the Magistrate has to proceed against those offenders not sent up by the police and summoning of additional accused is part of the proceeding initiated by taking cognizance of an offence. The learned Judge accepted the contention on behalf of the complainant that cognizance had already been taken of the offences on 27-9-1974 and the order of the learned Magistrate summoning the petitioners for trial on 11-8-1977 did not amount to taking cognizance afresh. The learned Judge has observed: “I am of the opinion that it is only the cognizance which is barred and not the summoning of the accused persons subsequently after some materials are found in course of trial.” The petitioners in the said case, as already said above, were summon ed to stand their trial under the provision of Section 319 (1) of the new Code which reads as follows :–
“319 (1). Where, in the course of any inquiry into, or trial of, an offence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.”
It would thus appear that under the provision of Section 319 (1) of the new Code, the Magistrate can put a person on trial even though he was not summoned to stand trial after taking of cognizance of the offence and under the provision of Section 319 (4) (b), such person shall be deemed to have been accused when the court took cognizance of the offence. In view of Section 319 (4) (b) of the new Code it can safely be said that taking of cognizance is one thing and putting a person for trial at a subsequent date after the cognizance is taken is altogether different. Chapter XXXVI of the new Code prescribed limitation for taking cognizance of offences enumerated under Section 468 (2) and Section 469 actually prescribed the period from when the limitation is to commence, i.e., the starting point of limitation. I do not find any provision under which any period of limitation is prescribed for issuance of processes after cognizance of an offence is taken.
11. The following decisions were also cited at the bar; Gopal Das Sindhi v. State of Assam (AIR 1961 SC 986); Mahanth Harihar Das v. the State (1975 BBCJ (HC) 364); Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi (AIR 1976 SC 1947); Jagat Narain Singh v. The State of Bihar (1976 BBCJ (HC) 152): and Vasudeo Agarwal v. State of Bihar (1977 BBCJ (HC) 330). Since none of the decisions referred to above is of any help in deciding the question raised in this case, I do not think any useful purpose will be served by discussing the points involved and decided in those cases.
12. Reliance has also been placed on a decision of the Privy Council in the case of Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) wherein it has been observed:–
“When the meaning of words is plain, it is not the duty of the Courts to busy themselves with supposed intentions.”
In the case of Thakur Amar Singh v. State of Rajasthan (AIR 1955 SC 504) it was observed thus:
“Recourse to rules of construction would be necessary only when a statute is capable of two interpretations. But where the language is clear and the meaning plain, effect must be given to it.'”
In Avtar Singh v. State of Punjab (AIR 1065 SC 666) the Supreme Court laid down the principle in the following words :-
“The interpretation that the language in certain sections of a statute cannot be regarded as strictly accurate, is not permitted for the words of an Act of Parliament must be construed so as to give them sensible meaning. The words ought to be construed ut res magis valeat quam pareat.”
Similar view has been expressed by the Supreme Court in the case of Umed v Raj Singh (AIR 1975 SC 43) and it has been observed as follows –
“It was a well-settled rule of interpretation that the Court should, as far as possible construe a statute so as to avoid tautology or superfluity.”
The aforesaid decisions, therefore, amply support the view that I have taken in the instant case inasmuch as the language of Sections 468 and 469 of the new Code is quite plain and, in my opinion, there is no ambiguity in them.
13-14. Having given my anxious-consideration to all the aspects of the matter, I am of the opinion that it is the cognizance of an offence which should be taken within the period prescribed under Sub-section (2) of Section 468 and not even the order for issuance of processes should be passed within that period. Since in the instant case the cognizance has been taken within the period of limitation, this application is devoid of any merit which must be dismissed and it is accordingly dismissed.
L.M. Sharma, J.
I agree.
S. Shamsul Hasan, J.
15. While agreeing with R.P. Sinha J. I wish to add my own reasons.
16. The following question was formulated for determination by N.P. Singh and P.S. Sahay, JJ.:–
“Whether only the cognizance of an offence should be taken within the period prescribed under Sub-section (2) of Section 468 or even the order for issuance of processes should be passed within that period?”
This question had already been dealt with by Uday Sinha and P.S. Sahay, JJ, in the case of Sahdeo Das v. Lila Dai Kisku (1978 BLJR 791), who had held that not only cognizance must be taken within the period of limitation prescribed by Sections 468 and 469 of the Code of Criminal Procedure (hereinafter to be referred to as ‘the Code’) but processes must also be issued within that period. The sections of the Code, which have to be examined in determining the aforesaid question, are Sections 190 to 203, 204, 468 and 469 of the Code.
17. The present application is directed against an order passed by the Chief Judicial Magistrate, Muzaffarpur, dated 17-2-1976 in C. Case 1284/72, in which he states as follows –
“Complainant files hazri and is present with his lawyer. The E.O. has returned the papers without submitting any report saying that the complainant is not taking any interest. Heard complainant’s lawyer and perused the record. Order In this case two witnesses, including the complainant have been examined during enquiry stage. Both of them have supported the case of the complainant at least so far as the offences are concerned. Hence cognizance taken under those sections and case transferred to the court of Sri U.C. Jha, Judicial Magistrate, Second Class, for favour of disposal. Issue processes. Fix 30-3-1976. Steps to be taken.”
18. A complaint was filed on 5-12-1972 and on that very date the complainant was examined on solemn affirmation by the Subdivisional Magistrate. The occurrence is said to have taken place on 2-12-1972. After examining the complainant on solemn affirmation the case was sent for inquiry u/s 202 of the Code to Shri K.K. Sharma, Magistrate, 1st Class. The complainant alone was examined before the Enquiry Magistrate, who returned the case to the Chief Judicial Magistrate. In the meantime the Code of Criminal Procedure, 1973, had come in force with effect from 1-4-1974. The matter was dealt with by the Chief Judicial Magistrate, who, on 25-11-1974, again sent the case for enquiry to N.K. N. Sinha, Magistrate. Only one witness was examined before the 2nd Enquiry Magistrate, who on 5-12-1975, passed the following order –
“Complainant takes no step. Let it return to the Court concerned for further order. The complainant is not taking interest. To 2-11-1976 for order.”
The Chief Judicial Magistrate on receipt of the record from the Enquiry Magistrate, after hearing the complainant’s lawyer, passed the aforesaid impugned order. The dates relevant for the determination of the question involved may be stated succinctly. The date of occurrence was 2-12-1972, the complaint was filed on 5-12-1972, the complainant was examined on solemn affirmation on 5-12-1972 and the processes were issued on 17-2-1976; while issuing process the Chief Judicial Magistrate has used the expression ; “Hence, cognizance taken under those sections………” Obviously, the use of the words “hence cognizance taken” in the impugned order is redundant use of expression ‘Cognizance’ and this order obviously amounts to an order under Section 204 of the Code under which process has been issued. It is high time, the
Magistrate apprise themselves (of) the real meaning of the word and its ‘import’ and avoid the using of the word ‘cognizance’, as synonymous with the issuing of process.
19. Under Section 190 a Court is empowered to take cognizance under the circumstances stated therein. This is an enabling section and it provides conditions necessary for initiation of a criminal proceeding. Section 192 thereafter provides for the transfer of a case for enquiry or trial by a Magistrate who has taken cognizance if it is done so by the Chief Judicial Magistrate to any competent Magistrate subordinate to him or if by any Magistrate of the 1st Class empowered in this behalf by the Chief Judicial Magistrate, to any other competent Magistrate as the Chief Judicial Magistrate may by general or special order specify. The word ‘inquiry’, in my view, here clearly means an inquiry under Section 209 and not an inquiry under Section 202. Thereafter the procedure to be followed in complaint cases has been laid down in Chapter XV of the case. Section 200 of this Chapter enjoins upon the Court to examine the complainant and the witnesses present, it any, on path and then reduce the substance of such examination in writing, subject of course, to what is laid down in the proviso which is not material for our purpose. This is followed bv the procedure laid down in Section 202 under which the Magistrate can postpone issue of process either on receipt of the complaint or on transfer to him under Section 192 and either hold inquiry into the case himself or direct investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. This also is subject to various provisos to the section itself and finally Section 203 provides for dismissal of the complaint, if, in the opinion of the Magistrate, there is no sufficient ground for proceeding after considering the materials mentioned in the section. Chapter XV therefore is restricted to the examination on oath of the complainant and inquiry or investigation under Section 202 and dismissal of the complaint. Issuance of process is under Chapter XVI, section being 204. From this, it is absolutely clear that cognizance and issuance of processes are two distinct and entirely different steps covered by two different Chapters. In a police case a report under Section 173 empowers the Magistrate to proceed Under Section 190 and thereafter it is open to the Magistrate to take recourse to Section 204 if he wishes to issue process.
20. The point for determination in this case, therefore, is whether Chapter XXXVI which prescribes limitation for taking cognizance of certain offences, will apply only when the Court is proceeding Under Section 190 or will also apply to any action of the Court Under Section 204. The heading of Chapter XXXVI clearly states as follows ;–
“Limitation for taking cognizance of certain offences.”
The emphasis on the word “cognizance” is mine. Section 467 defines the period of limitation. Section 468 fetters the power of the Court by applying limitation for taking cognizance and also prescribes the period of limitation and Section 469 lays down the point of commencement of the period of limitation. Sections 470 and 471 provide for the period that may be excluded in computing the limitation and Section 473 empowers the Court to extend the period of limitation under the circumstances stated therein.
21. On a plain reading of the heading of the Chapter and these sections it is clear that the bar of limitation applies only to the taking of cognizance. Section 468, which creates bar of limitation, specifically states as follows:–
“Bar to taking cognizance after lapse of the period of limitation.”
Section 473 also states that “…..any Court may take cognizance of an offence after the expiry of the period of limitation…..” Section 471 also lays down that if the Court is closed on the day the limitation expires, cognizance may be taken on the day on which the Court reopens. The only inference, therefore, can be that it is only when the court is acting under Section 190 that the sections of Chapter XXXVl come into operation in specified cases.
22. The argument is that a difficulty in arriving at the aforesaid interpretation has been created, however, by the use of the words “in relation to offender” in Section 469 (1) “against the offender” in Section 470 and Sub-section (4) of Section 470 which lays down that the period of limitation during which the offender is absent from India or is avoiding arrest by absconding or concealing himself shall be excluded.
23. It was submitted by learned counsel for the petitioners that these expressions mean, apart from taking cognizance within the period of limitation, action under Section 204, that is, issue of process must also be done within that period and if that interpretation is not given, then the words, “in relation to an offender” etc. must be treated as surplusage which cannot be the intention of the legislature. It is well settled rule of interpretation of statute that a section should be so construed that a harmony is achieved and there is no discordant note. While interpreting the sections of Chapter XXXVI of the Code, in my view, there is neither disharmony nor a surplusage in coming to the conclusion that we have arrived at due to the expression “in relation to an offender” etc. Since the Chapter on the face of it deals only with the cognizance (and so do the sections) and does not specifically mention the procedure covered by Section 204, it would be reading something that is not there, if we are to hold that the procedure Under Section 204 is also covered by this Chapter. The legislature has1 obviously not brought within the ambit of Chapter XXXVI the issuance of process under Section 204, which, if that was the intention of the legislature, could have been expressly laid down in this Chapter. The words “in relation to an offender”, however, have to be reconciled with the scheme of Chapter XXXVI. Section 469 lays down three categories of points of commencement of limitation. Clauses (a) and (b) of Sub-section (1) of Section 469 relate to the date of offence and Clause (c) thereof relates to the offender. It lays down that the date of commencement will be the date of offence itself or it will be the date on which commission of offence comes to the knowledge of the person aggrieved or to the police officer and if it is not known by whom offence has been committed, then the period of limitation in regard to that person will run from the date when the identity of the offender is known and not from the date of offence. There may be cases in which the date of offence is known but the name of the offender transpires in course of investigation or trial as covered by Section 319. In that event the period of limitation has been extended to start from the date identity of the offender is discovered. In my view, therefore, the expression “in relation to an offender” has been particularly used to cover Section 469 (1) (c). It does not mean that by this section a proceeding under Section 204 is brought within the ambit of Section 468. If that were the interpretation, then there would be an obvious conflict. Similarly, in Section 470 the words “against the offender” mean that if that person is being prosecuted in another proceeding, that period will be excluded for purposes of limitation.
24. Another difficulty that stands in the way of the interpretation suggested by learned counsel for the petitioners is that if process has to be issued under Section 204 also within the period of limitation, then after taking of cognizance, if the Magistrate holds an inquiry or investigation is held under Section 202, the delay in that inquiry will act as a bar to the prosecution of the accused without Section 473 coming to the aid of the prosecution, because, extension of the period of limitation is only possible at the stage of taking of cognizance. The legislature could not have intended to allow extension of period of cognizance but make no provision for extending the period of issue of process, unless the legislature did not desire the applicability of Chapter XXXVI at all to a proceeding under Section 204. Similar situation will prevail when the procedure under Section 319 is adopted by a Court.
25. Section 470 (3) of the Code also throws some light in support of my interpretation. The period required for obtaining consent or sanction in cases that are necessary for taking of congnizance has been excluded. This also shows the bar is only to taking of cognizance. Sub-section (2) of Section 470 also relates to an order of injunction or stay in regard to the institution of a proceeding in respect of an offence and the period that elapses in that connection has also been excluded. This also shows that Chapter XXXVI does not apply to a proceeding under Section 204. Sub-section (4) of Section 470 is of no avail to the petitioner even though it relates to the exclusion of the period during which an offender is absent or is absconding or concealing himself. Ordinarily in complaint cases once cognizance is taken and process is issued, the question of extension of period of limitation on the ground that the accused person is absconding or concealing himself or is outside India will not arise. This is the position in regard to the cases arising out of complaint. In cases that are started on police report, if a person is declared to be an absconder in the charge-sheet, usually cognizance on that report under Section 173, of the Code is delayed. Section 470 (4) has been enacted to obviate any difficulty created by the limitation clause in such a situation. It means that if in the report under Section 173 an accused is declared absconder, the period of limitation for taking of cognizance on the basis of police report is extended. This does not mean anything more than that. I may also state that Sections 467, 468 and 469, should be read together, one defining the period of limitation, the other prescribing the period of limitation and the last prescribing the point of commencement thereof. This, in my view, is similar to columns of the schedule in the Limitation Act. The other sections also are incorporating similar provisions of that Act.
26. In view of what I have said above the bar of limitation applies only to the stage of cognizance, that is, when a Magistrate is proceeding under Section 190 of the Code and does not come into play when the Magistrate is proceeding under, Section 204 of the Code.