SUNIL KUMAR AWASTHI, J.
1. The petitioners have preferred this petition under Section 482 of Criminal Procedure Code, 1973 for quashment of order dated 20.02.2018 (Annexure P/1) passed by the Court of Additional Sessions Judge, Khachrod, District Ujjain (MP) in Criminal Revision No.181/2017, whereby affirming order dated 17.08.2017 (Annexure P/2) passed by the Judicial Magistrate First Class, Khachrod, District Ujjain (MP) in Criminal Case No.619/2012 by which application filed by the petitioners under Section 468 of the Code of Criminal Procedure, 1973 was dismissed.
2. Briefly stated facts of the case are that complainant Amritlal entrusted 33.139 kilograms of silver with the present petitioners. This silver was handed over to the petitioners in presence of servant of complainant Amritlal. On 04.10.2009, complainant Amritlal made a demand of his silver, then the petitioners refused to return the same by saying that they were not having any silver of the complainant. Complainant Amritlal made a complaint before the Police regarding the aforesaid incident vide Annexure P/3. On the basis of which, a crime was registered against the petitioners for offence punishable under Section 406 read with Section 34 of the Indian Penal Code, 1860 on 19.07.2012 vide Crime No.619/2012 at Police Station Khachrod, District Ujjain (MP).
3. After completion of the investigation, Police Station Khachrod District Ujjain (MP) submitted charge sheet against the petitioners before the Court of Judicial Magistrate First Class, Khachrod, District Ujjain (MP) on 04.12.2012. On the basis of which, the Court has taken cognizance of the offence against the petitioners punishable under Section 406 read with Section 34 and Section of the 120-B of the Indian Penal Code, 1860. Subsequently by order dated 12.09.2013 (Annexure P/4) charges punishable under Sections 406 and 120-B of the Indian Penal Code, 1860 were also framed against the petitioners.
4. The order dated 12.09.2013 (Annexure P/4) of framing of charges against the petitioners passed by the Judicial Magistrate First Class, Khachrod, District Ujjain (MP) was challenged by present petitioners by filing a revision under Section 397 of the Code of Criminal Procedure, 1973 before the Court of Additional Sessions Judge, Khachrod, District Ujjain (MP), but the same was also dismissed by the Additional Sessions Judge, Khachrod, District Ujjain (MP) on 27.07.2015.
5. Subsequently, on 25.07.2017, the petitioners moved an application under Section 468 of the Code of Criminal Procedure, 1973 (Annexure P/5) before the trial Court stating therein that in the present case admittedly the date of commission of offence is 04.10.2009 on which date, the petitioners refused to return the silver to complainant Amritlal, whereas the learned Trial Court took cognizance of the aforesaid offence on 04.12.2012. As per the said application, offence under Section 406 of the Indian Penal Code, 1860 is punishable with three years of imprisonment, therefore, in terms of Section 469 (1) of the Code of Criminal Procedure, 1973, the cognizance taken against the petitioners is barred by time. Therefore, a prayer was made by the petitioners to drop the proceedings of the case.
6. The aforesaid prayer was opposed by respondent No.1 / State of Madhya Pradesh by submitting that the cognizance of the offence against the petitoners is well within the prescribed period of limitation. The order of framing of charge against the petitioners was challenged by the petitioners by filing revision petition before the Sessions Court on the same ground which has been dismissed by the Revisional Court. The petitioners have not challenged the said order of Revisional Court, therefore, they cannot be permitted to raise the same objection at this stage again.
7. After considering the arguments advanced by the learned counsel for the parties, trial Court dismissed the application filed by the petitoners under Section 468 of the Code of Criminal Procedure, 1973 vide order dated 17.08.2017 (Annexure P/2). The said order was challenged by the petitioners by filing a revision under Section 397 of the Code of Criminal Procedure, 1973 before the Sessions Court and the revisional Court has also dismissed Criminal Revision No.181/2017 on 20.02.2018 (Annexure P/1). This order is subject matter of challenge before this Court.
8. Learned counsel for the petitioners has submitted that the Courts below have failed to consider that since the date of offence is known when the crime is alleged to have been committed, therefore, this case would definitely governed by Section 469 (1) of the Code of Criminal Procedure, 1973 and the period of limitation of taking the cognizance of the offence would commence from 04.10.2009 itself, when the petitioners refused to return the property; and the cognizance of the offence has been taken against the petitioners on 04.12.2012, therefore, the same is barred by limitation. The Courts below have totally failed to appreciate that the petitioners have raised a pure question of law, which can be considered at any stage of the proceedings. The Revisional Court has erred in holding that since no objection was taken by the petitioners at the time of taking of the cognizance of the offence, therefore, they cannot raise such kind of objection at the subsequent stage of the proceedings. The Courts below have also committed grave error of law in not considering that the earlier order passed by the Revisional Court was confined only with respect to framing of charge in the present case; and the continuation of prosecution against the petitioners will amount to abuse of process of law. Hence, learned counsel for the petitioners prays that impugned order dated 20.02.2018 (Annexure P/1) passed in Criminal Revisional No.181/2017 by the Additional Sessions Judge, Khachrod, District Ujjain (MP) including order dated 17.08.2017 (Annexure P/2) passed by the Court of Judicial Magistrate First Class, Khachrod, District Ujjain (MP) in Criminal Case No.691/2012 be quashed; and the application filed by the petitioners under Section 468 of the Code of Criminal Procedure, 1973 be allowed.
9. On the other hand, contention of learned counsel for respondent No.2 / complainant Amritlal is that the alleged incident is of “04.10.2009”, complaint was made by the complainant to the Police on “10.07.2012” (Annexure P/3) and First Information Report was lodged against the petitioners within a period of three years of commencement of the offence i.e. on “19.07.2012”; and if the charge sheet has been filed by the Police after 4 ½ months of the lodging of the FIR, then the complainant cannot be held responsible for the delay. Therefore, the Courts below have not committed any error in rejecting the prayer made by the petitioners.
10. Learned Public Prosecutor for respondent No.1 / State of Madhya Pradesh has supported the impugned order (s) by contending that charge has been framed against the petitioners, which was challenged by the petitioners before the Revisional Court and the same was dismissed and the petitioners did not assail / challenge the order passed by the Revisional Court, therefore, they cannot be permitted to raise the same objection at this stage.
11. I have heard learned counsel for the parties at length and perused the record of the case.
12. From perusal of the First Information Report, it appears that it was lodged on 19.07.2012. After completion of the investigation, charge sheet was filed on 04.12.2012 before the Court of Judicial Magistrate First Class, Khachrod, District Ujjain (MP). On the basis of the charge sheet, the Magistrate has taken cognizance of the offence against the petitioners and undisputedly, at that time, the petitioners have not raised any objection regarding the prescribed period of limitation.
13. As per averments made in the First Information Report, statement of the complainant and other witnesses recorded under Section 161 of the Code of Criminal Procedure, 1973, complainant Amritlal entrusted 33.139 kilograms of silver with the present petitioners. On 04.10.2009, when he makes a demand of his property, then the petitioners refused to return the same by stating that they are not having any silver of the complainant, which constituted an offence of criminal breach of trust, which is punishable under Section 406 of the Indian Penal Code, 1860 and it shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. It is now required to be seen that the present offence under Section 406 of the Indian Penal Code, 1860 would be barred by limitation under the provisions of Section 468 of the Code of Criminal Procedure, 1973 or not. Section 468 of the Code of Criminal Procedure, 1973 creates a bar for taking cognizance of an offence after expiry of period of limitation.
14. Section 468 of the Code of Criminal Procedure, 1973 reads, as under: -
“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 cognizance 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 term exceeding one year but not exceeding three years.
(3) For the purposes of this section, 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.”
15. Accordingly, period of limitation of three years is provided, as the limitation in respect of those cases, which are punishable with imprisonment for a term not exceeding three years. As the offence for which the petitioners have been prosecuted is under Section 406 of the Indian Penal Code, 1860 and is punishable with imprisonment for a term of three years, the limitation in this case, would be three years. Section 468 of the Code of Criminal Procedure, 1973 cannot be read in isolation, as the commencement of period of limitation is regulated by provisions of Section 469 of the Code of Criminal Procedure, 1973.
16. Section 469 of the Code of Criminal Procedure, 1973 reads, as under: -
“Section 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 person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
(2) In computing the said period, the day from which such period is to be computed shall be excluded.”
17. It would be clear that the period of limitation in relation to an offence would commence from the dates depending upon three situations, as noticed in Section 469 (a) (b) and (c). Thus, the period of limitation would commence from the date of offence or from some different dates depending upon the knowledge about the offence or the identity of the offender. The period of limitation accordingly would commence from the date of offence if the identity of the offender as well as the offences is known. Offence, in the present case, took place on 04.10.2009, when the petitioners refused to return the silver to complainant Amritlal. There is no doubt about it, as will be apparent from the charge sheet submitted. The learned Judicial Magistrate First Class, Khachrod, District Ujjain (MP) took cognizance of the offence on 04.12.2012, as well apparent from the first order, which he passed, therefore, apparently, the cognizance was taken by the Judicial Magistrate First Class, Khachrod, District Ujjain (MP) beyond the period of limitation. There is nothing on record at all to show that the learned Magistrate was approached to exercise his discretion under Section 473 of the Code of Criminal Procedure, 1973. It is true that plea of bar of limitation was not raised before the Magistrate at the stage of taking cognizance and it was for the first time, raised on behalf of the petitioners after framing of the charges. It would be appropriate to refer to case of State of Punjab v. Sarwan Singh reported in (1981) 3 SCC 34 = AIR 1981 SC 1054, in which Sarwan Singh was charged under Sections 406 and 408 of the Indian Penal Code, 1860 for misappropriation of amounts deposited with him as a cashier of the Tanda Badha Cooperative Society, District Pataila. The challan was presented against the accused on 13th October, 1976. The trial Court, after recording the evidence, acquitted him from charge under Section 408 of the Indian Penal Code, 1860, but convicted him of the charge under Section 406 of the Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-. The matter went in appeal before the High Court, which allowed the appeal and acquitted him maily on the ground that the prosecution launched against him was clearly barred by limitation under Sections 468 and 469 of the Code of Criminal Procedure, 1973. The High Court was of the view that the charge sheet clearly shows that the embezzlement is said to have been committed on 22nd August, 1972 and the Audit Report, through which the offence was detected in dated 5th January, 1973. Taking any of these dates, the prosecution was barred by limitation under Section 468 (2) (c) of the Code. The case went to the Supreme Court and the Apex Court was of the view that “the object of the Criminal Procedure Code 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.” It was also observed 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.” The prosecution in the above case on the ground of limitation, was held to be barred and the conviction as also the sentence of the respondent / accused as well as the entire proceedings culminating in the conviction of the respondent / accused were found to be non-est.
18. In the context of the aforesaid judgment of the Apex Court, I am of the considered view that the plea of bar of limitation can be raised at any stage of the proceedings. If it had been raised at the initial stage, the Magistrate should have decided it . Even when it was not raised, the Magistrate should have considered his power and authority, in light of sections 468 and 473 of the Code of Criminal Procedure, 1973. When this issue was raised before the Additional Sessions Judge, he should have considered it on merits and in accordance with law. He should not have taken the view that since at the initial stage, no action was taken, hence, whatever illegality started at the inception and continued throughout, should be deemed to have been legalized. There is no law to that effect.
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 9 ½ 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.
20. In view whereof, Miscellaneous Criminal Case No.26287/2018 is allowed; and as a result by invoking the powers under Section 482 of the Code of Criminal Procedure, 1973, order dated 20.02.2018 (Annexure P/1) passed by the Court of Additional Sessions Judge, Khachrod, District Ujjain (MP) in Criminal Revision No.181/2017 as well as order dated 17.08.2017 (Annexure P/2) passed by the Judicial Magistrate First Class, Khachrod, District Ujjain (MP) in Criminal Case No.619/2012 are hereby set aside; and the proceeding in Criminal Case No.619/2012 pending against the petitioners before the Judicial Magistrate First Class, Khachrod, District Ujjain (MP) for offence punishable under Section 406 read with Section 34 and Section 120-B of the Indian Penal Code, 1860 is hereby quashed.
