Holding

The limitation period under CrPC section 468 is determined with reference to the offence charged, and where no limitation is prescribed (offences punishable with imprisonment exceeding three years), cognizance is not barred.

Summary

The State of Himachal Pradesh charged Tara Dutt and others under IPC sections 468, 420, 120‑B and the Prevention of Corruption Act for forging receipts in 1983. The charge‑sheet was filed in 1987 and cognizance was taken the same year. The Special Judge acquitted them of the charged offences but convicted them under sections 417, 465 and 109 IPC. The High Court set aside those convictions, holding that cognizance was barred by the limitation period under CrPC section 468. The Supreme Court held that the limitation period in section 468 applies to the offence charged, not to the offence finally proved, and that no limitation applies to offences punishable with imprisonment exceeding three years, such as the charges under sections 468 and 120‑B and the PC Act provision. Consequently, the cognizance was not barred. The Court also clarified that the power to condone delay under section 473 must be exercised by a speaking order and is irrelevant where no limitation exists. The appeal was allowed and the High Court was directed to dispose of the matter on its merits.

Issues considered

The applicability of the limitation period under CrPC section 468 to the offence charged versus the offence proved.
Whether cognizance is barred for offences punishable with imprisonment exceeding three years due to absence of a limitation period.
The requirement of a speaking order for exercising the condonation power under CrPC section 473.
The validity of convictions for minor offences when the major offence charge is acquitted.

Legislation cited

Code of Criminal Procedure, 1973s. 468, s. 469, s. 473
Indian Penal Code, 1860s. 109, s. 120-B, s. 417, s. 420, s. 465, s. 468
Prevention of Corruption Act, 1947s. 5(2)

Subjects

limitation periodSection 468 CrPCSection 473 CrPCcognizanceIndian Penal CodePrevention of Corruption Actconvictionappeal

Judgment

A ST A TE OF HIMACHAL PRADESH
v.
TARA DUTT AND ANR.

NOVEMBER 19, 1999

B [G.B. PATTANAIK, M. SRINIVASAN AND M.B. SHAH, JJ.]

Penal Code, 1860/Prevention of Corruption Act, 1947/Criminal
Procedure Code, 1973: Sections 109, 417, 465, 468, 420 and 120-B!Section
5 (2)/Sections 468 and 473-Respondents charged for the offences under
C Sections 468, 420 and 120-B-Cognizance taken four years after the
commission-Trial Court acquitted respondents of the said charges but
convicted them under Sections 417, 465 and 109-0n appeal the High Court
acquitted the respondents of the charges under Sections 417, 465 and 109
also on the ground of cognizance being barred by limitation-On appeal-
D Held, /imitation for offences is for the offences charged and not the offences
proved-No period of limitation is provided for the offences under Sections
468, 420 and 120-B-Cognizance by the trial Court not barred by
limitation-Power to condone delay must be exercised by a speaking order-
Section 473 not applicable to the present case as no period of /imitation is
provided for the offences charged.
E
Respondents were challaned for offences under Sections 468, 420, 120-
B of the Penal Code and Section 5 (2) of the Prevention of Cor.ruption Act,
1947. The offence was alleged to have been committed in the year 1983 by
forging the receipts under the 'Scab Control Scheme, 1983'. The chargesheet
was submitted in November, 1987 and cognizance was taken in December,
F 1987. The Special Judge acquitted the respondents of the aforesaid charges
but convicted them under Section 417 and 465 read with Section 109 IPC. In
appeal, the High Court acquitted the respondents of charges under Sections
417 and 465 IPC on the ground that cognizance was barred by limitation.
The High Court observed that the power to condone delay was not exercised
G by the Special Judge and cognizance by the trial Court was barred by
limitation. In appeal to this Court, a two judge Bench referred the matter to
a larger Bench; thus the matter came up before the present Bench of three
Judges.

Allowing the appeal, the Court
H 514
STA TE OF HIMACHAL PRADESH v. TARA DUTT 515
HELD : 1.1. The plain and unambiguous language of Section 468 of the A
Code of Criminal Procedure, 1973 makes it crystal clear that under sub-
section 2 (a) where the offence for which the accused is charged is punishable
with fine only, the prosecution must he launched within_six months from the
date of commission of the offence. Similarly, under sub-section (2) (b), the
period of limitation is one year if the offence is punishable with imprisonment B
for a term not exceeding onte year and under sub-section (2) (c) of the said
Section where the offence charged is punishable with imprisonment for a term
exceeding one year but not exceeding three years, then the period of limitation
provided is three years for taking cognizance. Sub-section (3) of Section 468
which was added by the Code of Criminal Procedure (Amendment) Act, 1978
provides that in relation to offences which may be tried together, the period of c
limitation shall be determined with reference to the offence which is
punishable with the more or most severe punishment. The language of sub-
section (3) makes it imperative that the limitation provided in Section 468
for taking cognizance is in respect of the offence charged and not in respect
of offence finally proved. [518-D-E-F[
D
1.2. In the case in hand, the respondents were charged under Section
468 read with Section 120-B IPC, for which the imposable punishment is
seven years and Section 5 (2) of the Prevention of Corruption Act, 1947 which
is punishable with imprisonment for a term which may extend to seven years
and for such offences no period of limitation having been provided for in Section E
468, the cognizance taken by the Special Judge cannot be said to be barred
by limitation. [518-G-H)

State of Punjab v. Swaran Singh, [1981) 3 SCC 34, distinguished .

. 2.1 Section 473 Cr.P.C. confers power on the Court taking cognizance F
after the expiry of the period of limitation, if is satisfied on the facts and in
the circumstances of the case that the delay had been properly explained and
it is necessary so to do in the interest of justice. Therefore, in respect of the
offences for which a period of limitation has been provided in Section 468,
power had been conferred on the Court taking cognizance to extend the said G
period oflimitation where a proper and satisfactory explanation of the delay
is available and where the Court taking cognizance finds that it would be in
the interest of justice. This discretion conferred on the Court has to be
exercised judicially and on well recognized principals. This being a discretion
conferred on the Court taking cognizance, wherever the Court exercises this
discretion, the same must be ·by a speaking order, indicating the satisfaction H
516 SUPREME COURT REPORTS [1999] SUPP, 4 S.CR.

A of the Court that the delay was satisfactorily explained and condonation of the
same was in the interest of justice. In the absence of a positive order to that
effect it may not be permissible for a superior Court to come to the conclusion
that the Court must be deemed to have taken cognizance by condoning the
delay whenever the cognizance was barred and yet the Court took cognizance
B and proceeded with the trial of the offence. But the provisions are of no
application to the case in hand since for the offence charged, no period of
limitation has been provided in view of the imposable punishment thereunder.
[519-F-G-H; 520-A-B)

2.2. Section 473 Cr.P.C. being an enabling provision, whenever a
C Magistrate invokes the said provision and condones the delay, the order of
the Magistrate must indicate that he was satisfied on the facts and
circumstances of the case that the delay has been properly explained and that
it is necessary in the interest of justice to condone the delay. But without
such an order being there or in the absence of such positive order, it cannot
be said that the Magistrate has failed to exercise jurisdiction vested in law.
D (521-A-BJ

Arun Vyas and Anr. v. Anita Vyas, (1994) 4 SCC 690, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1224 of 1999.
E
From the Judgment and Order dated 19.1 L97 of the Himachal Pradesh
High Court in CrL A.No. 28 of 1994.

N.C. Kochhar and Ms. Meenakshi Arora for the Appellant

TN. Singh and B.M. Sharma for the Respondents.
F
The Judgment of the Court was delivered by

PATTANAIK, J. Leave granted.

The State of Himachal Pradesh has preferred this appeal against the
G Judgment of the learned Single Judge of the Himachal Pradesh High Court,
who being of the opinion that conviction in respect of a minor offence where
charges had been framed for a major offence becomes barred under Section
468 of the Criminal Procedure Code, as on the date of cognizance for such
minor offence the provisions of Section 468 gets attracted. The short facts
necessary for disposal of this appeal are that the two respondents herein were
H
~
challaned for offences under Sections 468, 420, 120-B of the Indian Penal

I
STA TE OF HIMACHAL PRADESH v. TARA DUTT [PA TTANAIK, J.] 517

Code and for the offence under Section 5(2) of the Prevention of Corruption A
Act, 1947. The offence in question was alleged to have been committed in the
year 1983 by forging the receipts under the 'Scab Contro.1 Scheme, 1983 '. The
charge-sheet was submitted in November, 1987 and cognizance was taken in
December, 1987. Charges were framed under Sections 468, 420, 120-B of the
Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. B
Learned Special Judge acquitted them of the charge under Section 468 and
420 !PC and Section 5(2) of the Prevention of Corruption Act but convicted
them under Sections 417 and 465 read with Section 109 of the Indian Penal
Code. Some other accused persons who had also been tried along with the
respondents herein were acquitted fully. On appeal, the High Court of Himachal
Pradesh on ananlysis of Section 468 of the Code of Criminal Procedure came C
to the conclusion that for the offences for which the two respondents have
been convicted by the Special Judge namely Sections 417 and 465 of the
Indian Penal Code, the cognizance taken on 31.12.1987 was barred by limitation
and, therefore he acquitted the accused persons. The High Court also came
to the conclusion that though under Section 4 73 of the Code of Criminal
Procedure the power to condone the delay taking cognizance was there for D
cogent reasons but since the learned Special Judge had not exercised that
power inasmuch no such reasons had been recorded, the said provisions
. cannot be pressed into service. Having recorded the conclusion that the
cognizance itself was barred by limitation, the High Court also in the penultimate
para of the impugned Judgment expressed opinion on merits and had held E
that the offences under Sections 417 and 465 would not stand proved.

When the matter was placed before a Bench of two learned Judges, it
was felt that the decision of this Court in A run Vyas and Anr. v. Anita Vyas,
[ 1999] 4 SCC 690, requires reconsideration by a larger Bench of three Judges
and that is how the matter has been placed before us. F

Section 468 of the Code of Criminal Procedure provides period of
limitation for taking cognizance in sub-section (2) thereof and puts an embargo
on the Court from taking cognizance of an offence after the expiry of the
period of limitation under sub-section (I) thereof. Sub-section (3), however G
which was introduced by way of an Amendment Act of 1978, provides that
when accused is tried for several offences, the period of limitation in relation
to the offence which is punishable with more severe punishment would be
the period of limitatior: for taking cognizance. For better appreciation of the
point in issue, Section 468 of the Criminal Procedure Code is quoted in
extenso: H
518 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A "Sec. 468. Bar to taking cognizance after lapse of the period of limitation.
<
(!) 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 -
B (a) six months, of 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, of the offence is punishable with imprisonment for
a term exceeding one year but not exceeding three years.
c
(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 mere severe punishment or, as the case may be, the
most severe punishment."
D
The plain and unambiguous language of the aforesaid provision of the
Code of Criminal Procedure makes it crystal clear that under sub-section (2)
(a) of Section 468 where the offence for which the accused is charged is
punishable with fine only, the prosecution must be launched within six months
E from the date of commission of the offence. Similarly, under sub-section (2)(b)
of Section 468, the iJeriod of limitation is one year if the offence is punishable
with imprisonment for a term not exceeding one year and under sub-section
(2)(c) of the said Section where the offence charged is punishable with
imprisonment for a term exceeding one year but not exceeding three years,
then the period of limitation provided is three years for taking cognizance.
F Sub-section (3) of Section 468 which was added by the Code of Criminal
Procedure (Amendment) Act, 1978, provides that in relation to offences which
may be tried together, the period of limitation shall be determined with reference
to the offence which is punishable with the more or most severe punishment. c
The language of sub-section (3) of Section 468 makes it imperative that the
G limitation provided for taking cognizance in Section 468 is in respect of the
offence charged and not in respect of offence finally proved This being the
position, in the case in hand, when the respondents were charged under
Section 468 read with Section 120-B for which the imposable punishment is
seven years and Section 5(2) of the Prevention of Corruption Act, 194 7, which
is punishable with imprisonment for a term which may extend to seven years
H and for such offences no period of limitation having been provided for in
cl
STATE OF HIMACHAL PRADESH v. TARA DUTT [PATTANAIK, J.] 519
Section 468, the cognizance taken by the learned Special Judge cannot be said A
to be barred by limitation. The High Court in recording its conclusion relied
upon the decision of this Court in the case of State of Punjab v. Sarwan
Singh, [1981] 3 SCC 34. In the said case, the respondent was charged under
Section 406 for misappropriation. The challan was presented on October 13,
1976 and therein it was clearly mentioned that the offence was committed on B
August 22, 1972. The learned trial Judge acquitted the accused of the charges
under Section 468 but convicted him of the charge under Section 406 of the
Code of Criminal Procedure. This Court came to the conclusion that since the
charge-sheet itself mentions that the offence was committed on August 22,
1972, the cognizance was barred under Section 468(2)(c) of the Code. At the
outset it may be stated that in the aforesaid case the Court had not considered C
the provisions of sub-section (3) of Section 468 which was in fact not there
on the statue book when the alleged offence was held to have been committed.
But in view of the provisions o-.' sub-section (3) of Section 468 which we have
already considered this decision will be of no application and the High Court
committed error in relying upon the aforesaid decision to come to the ·
conclusion that in the case in hand the cognizance itself was barred by D
limitation.

The learned counsel for the appellant contended that Sectior. 469 of the
Criminal Procedure Code can also be taken recourse to in the present case
for finding out the commencement of the period of Jim itation. But since in
respect of the offences providing punishment for more than three years no E
period of limitation has been provided under Section 468, question of
examining the applicability of Section 469 of the Criminal Procedure Code
to the case in hand does not arise.
Section 4 73 confers power on the Court taking cognizance after the
expiry of the period of limitation, if it is satisfied on the facts and in the F
circumstances of the case that the delay has been properly explained and
that it is necessary so to do in the interest of justice. Obviously, therefore
in respect of the offences for which a period of limitation has been provided
in Section 468, the power has been conferred on the Court taking cognizance
to extend the said period of limitation where a proper and satisfactory G
explanation of the delay is available and where the Court taking cognizance
finds that it would be in the interest of justice. This discretion conferred on
the Court has to be exercised judicially and on well recognised principles.
This being a discretion conferred on the Court taking cognizance, where-
ever the Court exercises this discretion, the same must be by. a speaking
order, indicating the satisfaction of the Court that the delay was satisfactorily H

r
520 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A explained and condonation of the same was in the interest of justice. In the
absence of a positive order to that effect it may not be permissible for a
superior Court to come to the conclusion that the Court must be deemed to
have taken cognizance by condoning the delay whenever the cognizance
was barred and yet the Court took cognizance and proceeded with the trial
B of the offence. But the provisions are of no application to the case in hand
since for the offences charged, no period of limitation has been provided in
view of the imposable punishment thereunder. In this view of the matter we
have no hesitation to come to the conclusion that the High Court committed
serious error in holding that the conviction of the two respondents under
(
Section 417 would be barred as on the date of taking cognizance the Court
C could not' have taken cognizance for the said offence. Needless to mention,
it is well settled by a catena of decisions of this Court that if an accused is
charged of a major offence but is not found guilty thereunder, he can be
convicted ofa minor offence ifthe facts established indicate that such minor
offence has been committed.

D In view of the observations made by a Bench of two Judges of this
Court, while this appeal was placed before Their Lordships, for hearing that
the decision in the case of Aruna Vyas and Anr. v. Anita Vyas, [1999) 4 SCC
690, requires re-consideration, we think it necessary to notice the same. In the
said case of Aruna Vyas. one of the questions for consideration was whether
E the offence under Section 498A of the !PC is a continuing offence. The Court
ultimately answered that the essence of the offence in Section 498A, being
cruelty, the same is a continuing offence and on each occasion on which the
respondent was subjected to :ruelty, she would have a new starting point of
limitation. On fact, the Court found that the last act of cruelty being committed
on 13. l 0.88 and the period oflimitation having commenced from that date, the
F charge-sheet that was filed on 22.12.95 and the subsequent cognizance on
that basis was clearly barred by limitation under Section 468(2)( c) of the Code
of Criminal Procedure, we see no infirmity with the said conclusion. One other
question that was raised and adverted to in the aforesaid case is that in the <
absence of any specific order by the Magistrate, taking cognizance, after the
G period of limitation provided in Section 468(2)(c) of the Code of Criminal
Procedure by invoking the power under Section 473 and condoning the delay,
the Magistrate committed error by discharging the accused on the ground of
limitation. The aforesaid observations made by this Court indicates that the
order of the Magistrate at the time of taking cognizance in case of an offence
under Section 498A, should indicate as to why the Magistrate does not think
H it sufficient in the interest of justice to condone the delay inasmuch as an
STATE OF HIMACHALPRADESH v. TARA DUTT (PATTANAIK,J.] 521
accused committing of an offence under Section 498A should not be lightly A
let of. We have already indicated in the earlier part of this Judgment as to
the true import and construction of Section 473 of the Code of Criminal
Procedure. The said provision being an enabling provision, whenever a
Magistrate invokes the said provision and condones the delay, the order of
the Magistrate must indicate that he was satisfied on the facts and B
circumstances of the case that the delay has been properly explained and that
it is necessary in the interest of justice to condone the delay. But without
such an order being there or in the absence of such positive order, it cannot
be said that the Magistrate has failed to exercise jurisdiction vested in law.
It is no doubt true that in view of the fact that an offence under Section 498A
is an offence against the society and, therefore, in the matter of taking C
cognizance of the said offence, the Magistrate must liberally construe the
question of limitation but all the same the Magistrate has to be satisfied, in
case of period of limitation for taking congnizance under Section 468(2)(c)
having been expired that the circumstances of the case requires delay to be
condoned and further the same must be manifest in the order of the Magistrate
itself. This in our view is the correct interpretation of Section 473 ofthe Code D
of Criminal Procedure.

It has no doubt been indicated in the penultimate paragraph of the
impugned Judgment that even on merits the offence under Sections .417 and
465 !PC has not been established but that was only a casual observation E
without application of mind and without consideration of the facts on record
on the basis of which the learned Special Judge convicted the two respondents
of the offence under Sections 417 and 465 of the Indian Penal Code. It is also
apparent from the very Judgment itself when the learned Judge indicated that
it is not necessary to set out in detail the material facts giving rise to the
appeal as the same are not required to be repeated since the appeal is being F
disposed of on a pure question oflaw. In this view of the matter we set aside
> the impugned Judgment of the High Court and direct that the appeal in
question be disposed of by the High Court on merits.

This appeal is accordingly allowed.
G
RC.I<. Appeal allowed.

'