JUDGMENT
B.M. Thulasidas, J.
1. The order on C. M. P. No. 4432 of 1993 of the Judicial First Class Magistrate, Kozhikode, filed under Section 473 of the Criminal Procedure Code, is under challenge in this revision. By the said petition, the petitioner sought to condone the delay of 15 days to file the complaint against the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short “the Act”). It was submitted that he was hospitalised at the relevant time and could not file the complaint within the period prescribed. He produced a certificate from the doctor who treated him and prayed that the delay may be condoned. The court below by the impugned order refused to condone the delay and dismissed the petition.
2. Heard counsel for the petitioner. Under Section 142 of the Act :
“Notwithstanding anything contained in the Criminal Procedure Code,–
(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing, made by the payee or, as the case may be, the holder in due course of the cheques ;
(b) such complaint is made within one month -of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 ;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First’ Class shall try any offence punishable under Section 138,”
3. There was no limitation for initiating criminal proceedings before trial courts under the Criminal Procedure Code, 1898. But a period was prescribed under Section 417(4) of that Code, in regard to appeals against acquittals. Provisions as to limitation for taking cognizance of offences have now been provided for the first time in Chapter XXXVI of the Code. But in view of the non obstante clause in Section 142 of the Act, provisions in Chapter XXXVI, and particularly Section 473 would not apply to a complaint under the Act, which, however, in terms has not excluded the applicability of the provisions of the Limitation Act, wherein in Section 29(2) (which alone is relevant for the purpose of this case) it is provided that:
“Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule-
(i) Section 3 shall apply, as if such period was the period prescribed by the Schedule ;
(ii) Sections 4 to 24 shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. But this will only be to the extent to which they are not expressly excluded by such special or local laws.”
4. It was held in Mangu Ram v. Municipal Corporation of Delhi [1976] 1 SCC 392 ; AIR 1976 SC 105, while dealing with the question whether Section 5 of the Limitation Act applied to an application for special leave made under Section 417(4) of the Criminal Procedure Code, 1898, which corresponds to Section 378 of the new Code, that (page 108) :
“There is an important departure made by the Limitation Act, 1963, in so far as the provision contained in Section 29, Sub-section (2) is concerned. Whereas, under the Indian Limitation Act, 1908, Section 29, sub-sSection (2), Clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29, Sub-section (2) of the Limitation Act, 1963, enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Section 29, Sub-section (2), Clause (b) of the Indian Limitation Act, 1908, specifically excluded the applicability of Section 5, while Section 29, Sub-section (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani’s case, AIR 1964 SC 260, can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, Sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced ….
Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case, where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in Sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time-limit of sixty days, the High Court would have the power to entertain it.”
5. It was indeed in relation to an application which is expressly brought within the scope of Section 5 of the Limitation Act. The point for consideration in this petition is whether a complaint is also an application or a petition in respect of which the benefit of Section 5 of the Limitation Act can be claimed in appropriate cases.
6. A complaint, as defined in Section 2(d) of the Criminal Procedure Code, means :
“any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.–A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint ; and the police officer by whom such report is made shall be deemed to be the complainant.”
7. By definition, it is not an application which includes a petition within Clause (b) of Section 2 of the Limitation Act, but “an allegation as to an offence made orally or in writing to a Magistrate with a view to his taking action.” The Code also provides for conditions for taking cognizance of an offence on a complaint and the procedure to be followed therefor. Indeed distinction is also seen made in the Code between complaint-complainant (see Sections 170(2), 171 and the provisions in Chapter XV, Sections 249, 250, 256, 257 and 312).
8. Under Section 98 of the Criminal Procedure Code :
“Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.”
9. Under Section 195 of the Code :
(1) No court shall take cognizance-
(a) (i) . . . (ii) . . . .(iii) …. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate ;
(b) (i) of any offence punishable under any of the following Sections of the Indian Penal Code, (45 of 1860), namely, …..
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, ….
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-Clause (i) or sub-Clause (ii),
except on the complaint in writing of that court, or of some other court to which that court is subordinate.”
10. Under Section 198 :
“No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.”
11. Under Section 199 :
“No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.”
12. And under Sub-section (2) of the above Section :
“(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.”
13. There are provisions in the Code which deal with applications as in Chapter IX (sic) of the Criminal Procedure Code. Under Section 96 of the Criminal Procedure Code :
“Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under Section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspapers, or the book or other document, in respect of which the declaration was made did not contain any such matter as is referred to in Sub-section (1) of Section 95.”
14. Under Section 167(6) :
“Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the-offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”
15. Under the proviso to Section 218 :
“Where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number, of the charges framed against such person.”
16. Again, under the proviso to Section 223 :
“Where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.”
17. Section 243(2) also provides for making an application by the accused to issue process for attendance of any witness for the purpose of examination or cross-examination or for the production of any document or other thing.
18. Again; under Section 244(2) :
“The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.”
19. Under Section 254(2) :
“The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.”
20. Under Section 291(2) :
“The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition.”
21. Under Section 296(2) ;
“The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such persons as to the facts contained in his affidavit.”
22. Under Section 306(3) :
“Every Magistrate who tenders a pardon under Sub-section (1) shall record–
(a) his reasons for so doing ;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.”
23. Under Section 335(3):
“No order for the delivery of the accused to a relative or friend shall be made under Clause (b) of Sub-section (1), except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or court that the person delivered shall–
(a) be properly taken care of and prevented from doing injury to himself or to any other person,
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct.”
24. Under Section 339 :
“(!) Whenever any relative or friend of any person detained under the provisions of Section 330 or Section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of such State Government, that the person delivered shall-
(a) be properly taken care of and prevented from doing injury to himself or to any other person ;
(b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct ;
(c) in the case of a person detained under Sub-section (2) of Section 330, be produced when required before such Magistrate or Court,
order such person to be delivered to such relative or friend.”
25. Section .340 also provides for making application for taking action in regard to offences affecting the administration of justice. Under Section 397(3) where an application under Section 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
26. Section 402 enables the High Court to withdraw to itself or transfer applications for revision. It provides :
“(1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and a.ny other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the questions involved, which of the two courts should finally dispose of the applications for revision and when the High Court decides that all the applications for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.
(2) Whenever any application for revision is transferred to the High Court, that court shall deal with the same as if it were an application duly made before itself.
(3) Whenever any application for revision is transferred to the Sessions Judge, that judge shall deal with the same as if it were, an application duly made before himself.
(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to any other court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge.”
27. Under Section 406 :
“1. Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.
2. The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
3. Where any application for the exercise of the power conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.”
28. Orders under Section 407 can be passed by the High Court either on the report of the lower court or on the application of the party interested or on its own initiative. Power is also given to the Sessions Judge under Section 408 to transfer cases and appeals from one criminal court to another in his sessions division on an application by the party interested or on his own initiative.
29. Under Section 415(2) :
“Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under sub-Clause (c) of Clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court, or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired.”
30. Under Section 382, every appeal filed under Chapter XXIX of the Criminal Procedure Code, “shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.” Under Section 383, “If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper appellate court”. Section 384 provides for summary dismissal of the petition of appeal. Under Section 415(3) :
“Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave -to appeal under 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition,”
31. The above provisions are not exhaustive. Generally every motion before a criminal court has to be in the form of a complaint, application or petition. It seems to be clear that the words “application, complaint and petition” are neither inter-changeable nor have the same meaning or import. A complaint under Section 142 of the Negotiable Instruments Act is not the same as an application. It is neither a petition nor is the person making it a petitioner. The period prescribed for filing a complaint under the Act is a period of limitation within which it has to be filed and can neither be extended under Section 473 of the Criminal Procedure Code, nor the delay condoned under Section 5 of the Limitation Act, Even otherwise in regard to original proceedings by way of a complaint the period prescribed therefor has to be adhered to. A complaint made beyond one month of the date on which the cause of action had arisen under Clause (c) of the proviso to Section 138 will, in my view, be barred and the Magistrate will get no jurisdiction to take cognizance of the offence alleged in the complaint. With respect, I am unable to agree with the correctness of the decision of the Orissa High Court in Janardhan Moha-patra v. Saroj Kumar Choudhury [1993] Crl. LJ 1751 ; [1994] 79 Comp Cas 821, where it was held that a complaint is also an application and in view of Section 29(2) of the Limitation Act, Section 5 thereof would apply and the court has jurisdiction to condone the delay in making the complaint beyond the period prescribed under Section 142(b) of the Act.
32. In my view, the impugned order does not merit interference.
33. The revision fails and is dismissed.