Supreme Court of India
UDAI SHANKAR AWASTHIversusSTATE OF U.P. ANR.
- Citation
- 2013 INSC 27
- Decided
- 9 January 2013
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
The Supreme Court held that the complaint was an abuse of process, the offence was not a continuing offence, the limitation period had expired, and the magistrate erred in issuing summons, thereby quashing the criminal proceedings.
Summary
The dispute arose from a work order awarded to Manish Engineering Enterprises by IFFCO, which was later cancelled, leading the firm to seek payment through arbitration and writ petitions. After the arbitrator rejected the claim of removal of items from IFFCO premises, the complainant filed multiple criminal complaints alleging theft and criminal breach of trust, all of which were dismissed on merits. A fresh complaint (Complaint No. 628 of 2011) was later filed, and the magistrate issued summons despite the accused being outside his territorial jurisdiction and despite the earlier complaints being dismissed. The appellants sought quashing of the proceedings under Section 482 CrPC, which the High Court rejected. The Supreme Court held that the new complaint was an abuse of process, the offence was not a continuing offence, the limitation period of three years under Section 468 CrPC had expired, and the magistrate erred in issuing summons without complying with Section 202. Consequently, the Court set aside the High Court order and quashed the criminal proceedings.
Issues considered
- The applicability of the limitation period under Section 468 CrPC to the alleged offence.
- Whether the alleged offence constitutes a continuing offence under Section 472 CrPC.
- Whether the magistrate was justified in issuing summons despite the accused being outside his territorial jurisdiction under Section 202 CrPC.
- Whether the fresh complaint is maintainable given the prior dismissal of similar complaints.
- Whether the criminal proceedings constitute an abuse of the process of law.
Legislation cited
- Arbitration and Conciliation Act, 1996s. 11, s. 34
- Code of Criminal Procedure, 1973s. 202, s. 202 (as amended), s. 203, s. 468, s. 469, s. 472, s. 473, s. 482
- Indian Penal Code, 1860s. 120B, s. 147, s. 148, s. 201, s. 323, s. 379, s. 403, s. 406, s. 415, s. 504, s. 506
Subjects
criminal procedurelimitation periodcontinuing offenceabuse of processSection 202 CrPCSection 468 CrPCSection 472 CrPCSection 473 CrPCSection 482 CrPCsecond complaintjurisdictionmagistratecondonation of delayarbitration
Judgment
[2013] 3 S.C.R. 935
UDAI SHANKAR AWASTHI A
v.
STATE OF U.P. 8. ANR.
(Criminal Appeal No. 61 of 2013)
JANUARY 9, 2013
B
[DR. B.S. CHAUHAN AND JAGDISH SINGH
KHEHAR,JJ.]
Code of Criminal Procedure, 1973:
c
s.482 - Termination of contract between a proprietary firm
and a company - Initiation of arbitration proceedings - The
a/legation of the firm against the officials of the company that
they removed certain property, kept in the premises of the
company - The arbitrator rejected the allegation - Three 0
complaints by the proprietors of the firm dismissed - One
complaint entertained by the Magistrate - Petition by the
officials of the Company for quashing the criminal
proceedin9s - Dismissed by High Court - On appeal, held
The criminal proceedings were abuse of the process of the E
Court - Complaint case was not maintainable.
ss.468, 469, 472 and 473 - Termination of contract
between proprietary firm and company - Complaint by the
proprietor of the firm against officials of the company after a
period of 15 years - Held: Limitation for taking cognizance is F
3 years - In the fact situation of the case, the offence alleged
is not a continuing offence, even though the effect caused by
it may be continuous - Limitation.
s.202 (as amended by Amendment Act, 2005) - It is G
. mandatory for the Court to postpone the issue of process, if
the accused falls outside the territorial jurisdiction of the Court
- In the instant case, the Magistrate was wrong in issuing
summons as the ·accused were outside his territorial
jurisdiction.
935 H
936 SUPREME COURT REPORTS [2013] 3 S.C.R.
A Criminal Jurisprudence - Law does not prohibit second
complaint even on the same facts. if the earlier complaint was
decided on the basis of insufficient material, or the order was
passed without understanding the nature of complaint, or
complete facts could not be placed, or where certain material
B facts came to knowledge of the complainants after disposal
of the first complaint - Where earlier complaint is decided on
merits after full consideration of the case, second complaint
is not maintainable.
Limitation.- Law of Limitation - Prescribed under Cr.P.C.
C - Observance of - Held: Law of /imitation prescribed under
Cr.P. C. must be observed, but in exceptional circumstances
- The principle of condonation of delay is based on general
rule of criminal justice system that 'a crime never dies'-
Criminal court may condone delay in tne interest of justice
D recording reasons for the same - Code of Criminal
Procedure, 1973 - ss.468, 469, 472 and 473 - Delay -
Condonation of.
Delay - Question of delay in launching criminal
E proceedings - May not by itself be a ground for dismissing
the complaint at the threshold.
Criminal Law - 'Continuing offence' and 'Instantaneous
offence' - Difference between.
F Maxim - 'nulfum tempus out locus occurrit regi' -
Applicability.
The works contract, awarded by IFFCO to the firm,
of which respondent No.2 was the proprietor, was
G terminated. The matter was referred to arbitrator. The
arbitrator rejected the claim of respondent No.2 whereby
he had alleged that the items kept in the godown of their
firm, which was located within the premises of IFFCO,
were removed by the officials of IFFCO. However, the
H arbitrator accepted some other claims. The application
UDAI SHANKAR AWASTHI v STATE OF U.P. & ANR. 937
challenging the award of the arbitrator .is still pending. A
Brother of respondent No. 2 had filed 2 complaints
against the officers of IFFCO and the appellants u/ss. 323,
504, 506, 406 and 120-B IPC and u/ss.147, 148, 323, 504,
506, 201 and 379 IPC respectively. Both the complaints
were dismissed. Respondent No.2 had also filed a B
complaint against the 'appellants u/ss. 323, 504, 506, 406
and 120-B IPC, wherein the police report stated that the
allegations made in the complaint were false. Respondent
No.2 filed another complaint u/ss.403 and 406 IPC, of
which congnizance was taken and bailable warrants c
were issued against the appellants. Appellants filed
application u/s.482 Cr.P.C. for quashing the criminal
proceedings a_gainst them. The application was
dismissed by High Court.
Allowing the appeals, the Court D
HELD: 1. In the instant appeals, criminal proceedings
must be labeled as an abuse of the process of the court,
particularly in view of the fact that, with respect to enact
the same subject matter, various complaint cases had E
already been filed by respondent No.2 and his brother,
which were all dismissed on merits, after the examination
of witnesses. In such a fact-situation, Complaint Case
was not maintainable. Thus, the Magistrate concerned
committed a grave error by entertaining the said case, and F
wrongly took cognizance and issued summons to the
appellants. [Para 33] [960-B-D]
Rabindra Nath Bose and Ors. v. Union of India and Ors.
AIR 1970 SC 470: 1970 (2) SCR 697 - followed.
G
State of Orissa v. Sri Pyarimohan Samantaray and 'Ors.
AIR 1.976 SC 2617; State of Orissa etc. v. Shri Arun Kumar
Patnaik and Anr. etc. etc. AIR 1976 SC 1639: 1976 (0)
Suppl. SCR 59; Swatantar Singh v. State of Haryana and
Ofs. AIR 1997 SC 2105: 1997 (2) SCR 639; Sri Krishna H
938 SUPREME COURT REPORTS [2013] 3 S.C.R.
A Coconut Co. etc. v. East Godavari Coconut and Tobacco
Market Committee AIR 1967 SC 973: 1967 SCR 974;
Kamataka Power Corporation Ltd. and Anr. v. K. Thangappan
and Anr. AIR 2006 SC 1581: 2006 (3) SCR 783; Eastern
Coalfields Ltd. v. Dugal Kumar AIR 2008 SC 3000: 2008 (11)
s SCR 369; Kishan Singh (dead) thr. Lrs. v. Gurpal Singh and
Ors. AIR 2010 SC 3624: 2010 (10) SCR 16 - relied on.
2. The law does not prohibit filing or entertaining of
the second complaint even on the same facts provided
the earlier complaint has been decided on the basis of
C insufficient material or the order has been passed without
understanding the nature of the complaint or the
complete facts could not be placed before the court or
where the complainant came to know certain facts after
disposal of the first complaint which could have tilted the
D balance in his favour. [Para 17] [953-D-F]
Shiv Shankar Singh v. State of Bihar and Anr. (2012) 1
SCC 130: 2011 (13) SCR 247; Pramatha Nath Talukdar v.
Saroj R_anjan Sarkar AIR 1962 SC 876: 1962 Suppl.
E SCR 297; Jatinder Singh and Ors. v. Ranjit Kaur AIR 2001
SC 784: 2001 (1) SCR 707; Mahesh Chand v. B.
Janardhan Reddy and Anr.' AIR 2003 SC 702: 2002 (4)
Suppl. SCR 566; Poonam Chand Jain and Anr. v. Fazru AIR
2005 SC 38: 2004 (5) Suppl. SCR 525 - relied on.
F 3.1. Approaching the court at a belated stage for a
rightful cause, or even for the violation of the fundamental
rights, has always been considered as a good ground for
its rejection at the threshold. In case a representation is
made by the person aggrieved and the same is rejected
G by the competent statutory authority, and such an order
is communicated to the person aggrieved, making
repeated representations will not enable the party to
explain the delay. [Para 28) [958-B-D]
H 3.2. Section 468 Cr.P.C. places an embargo upon
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 939
court from taking cognizance of an offence· after the A
expiry of the limitation period provided therein. Section
469 prescribes when the period of limitation begins.
Section 473 enables the court to condone delay,
provided that the court is satisfied with the explanation
furnished by the prosecution/complainant, and where, in B
the interests of justice, extension of the period of
limitation is called for. The principle of condonation of
delay is based on the general rule of the criminal justice
system which states that a crime never dies, as has been
explained by way of the legal maxim, nu/lum tempus aut c
locus occurrit regi (lapse of time is no bar to the Crown
for the purpose of it initiating proceeding against
offenders). A criminal offence is considered as a wrong
against the State and also the society as a whole, even
though the same has been committed against an 0
individual. [Para 6] (948-0-G]
3.3. The question of delay in launching a criminal
prosecution may be a circumstance to be taken into
consideration while arriving at a final decision; however, .
the same may not itself be a ground for dismissing the E
complaint at the threshold. Moreover, the issue of
limitation must be examined in the light of the gravity of
the charge in question. [Paras 7] [94~-G-H; 949-A]
Japani Sahoo. v. Chandra Sekhar Mohanty AIR 2007 SC F
.2762: 2007 (8) SCR 582; Sajjan Kumar v. Central Bureau
of Investigation (2010) 9 SCC 368: 2010 (11) SCR 669;
Noida Entrepreneurs Association v. Noida and Ors. AIR 2011
SC 2112 : 2011 (8) SCR 25; State of Maharashtra v. Sharad
Chandra Vinayak Dongre and Ors. AIR 1995 SC 231: 1994 G
(4) Suppl. SCR 378; State of H.P. v. Tara Dutt and Anr. AIR
2000 SC 297:1999 (4) Suppl. SCR 514- relied on.
3.4. Section 472 Cr.P.C. provides that in case of a
continuing offence, a fresh period of limitation begins to
H
940 SUPREME COURT REPORTS [2013] 3 S.C.R.
A run at every moment of the time period during which the
offence continues. [Para 10] [949-E-F]
3.5. In the case of a continuing offence, the
ingredients of the offence continue, i.e., endure even after
the period of consllmmation, whereas in an
8
instantaneous offence, the offence takes place once and
for all i.e. when the same actually takes place. In such
cases, there is no continuing offence, even though the
damage resulting from the injury may itself continue.
C [Para 16] [953-A-B]
Balakrishna Sava/ram Pujari Waghmare and Ors. v.
Shree Dnyaneshwar Maharaj Sansthan and Ors. AIR 1959
SC 798: 1959 Suppl. SCR 476; Gokak Patel Vo/kart Ltd. v.
Dundayya Gurushiddaiah Hiremath and Ors. (1991) 2 SCC
D 141: 1991 (1) SCR. 396; State of Bihar v. Oeokaran Nenshi
and Anr. AIR 1973 SC 908: 1973 (3) SCR 1004; Bhagirath
Kanoria and Ors. v. State of M.P. AIR 1984 SC 1688: 1985
(1) SCR 626; Amrit Lal Chum v. Devoprasad Dutta Roy AIR
1988 SC 733:1988 (2) SCR 783; Mis. Raymond Limited and
E Anr. Etc. Etc. v. Madhya Pradesh Electricity Board and Ors.
Etc. Etc. AIR 2001 SC 238: 2000 (4) Suppl. SCR 668;
Sankar Dastidar v. Smt. Banjula Dastidar and Anr. AIR 2007
SC 514: 2006 (10) Suppl. SCR 101 - relied on.
3.6. The limitation period within which cognizance
F must be taken, as per the provisions of Section 468
Cr.P.C. is three years. In the case of an instantaneous
offence, as per the provisions of Section 469 of the
Cr.P.C., the period of limitation commences on the date
of offence. ln1the instant case, admittedly, the claim of the
G said firm was rejected by way of a speaking order dated
15.10.2001, in pursuance of the order of the High Court
dated 25.5.2001, and the said order was communicated
vi de letter dated 29.10.2001. Respondent No. 2 correctly
understood the nature of the offence and, therefore,
H subsequently approached the High Court for the
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 941
purpose of seeking recovery of outstanding dues, A
wherein the High Court directed him to pursue the
remedy available under the arbitration agreement
between the parties. In such a fact situation, the offence
involved herein can not possibly be termed as a
continuing offence. [Para 27) (957-D-G] B
Arun Vyas and Ors. v. Anita Vyas AIR 1999 SC 2071:
1999 (3) SCR 719; Ramesh and Ors. v. State of Tamil Nadu
AIR 2005 SC 1989: 2005 (2) SCR 493 - relied on.
4. The Magistrate, in the instant case, issued C
summons without meeting the mandatory requirement of
Section 202 Cr.P.C., though the appellants were outside
his territorial jurisdiction. The provisions of Section 202
Cr.P.C. were amended vide Amendment Act of 2005,
making it mandatory to postpone the issue of process D
where the accused resides in an area beyond the
territorial jurisdiction of the Magistrate concerned. The
same was found necessary in order to protect innocent
persons from being harassed by unscrupulous persons
and making it obligatory upon the Magistrate to enquire E
into the case himself, or to direct investigation to be made
by a police officer, or by such other person as he thinks
fit for the purpose of finding out whether or not, there
was sufficient ground for proceeding against the accused
betore issuing summons in such cases. [Para 26) [956- F
H; 957-A~C]
Shivjee Singh v. Nagendra Tiwary and Ors. AIR 201 OSC
2261: 2010 (7) SCR 667; National Bank of Oman v. Barakara
Abdul Aziz and Anr. JT 2012 (12) SC 432 - relied on.
G
Case Law Reference:
2007 (8) SCR 582 relied on Para 7
2010 (11) SCR 669 relied on Para 7
H
942 SUPREME COURT REPORTS [2013] 3 S.C.R.
A 2011 (8) SCR 25 relied on Para 7
1994 (4) Suppl. SCR 378 relied on Para 8
1999 (4) Suppl. SCR 514 relied on Para 8
1959 Suppl. SCR 476 relied on Para 11
B
1991 (1) SCR 396 relied on Para 12
1973 (3) SCR 1004 relied on Para 13
1985 (1) SCR 626 relied on Para 13
c 1988 (2) SCR 783 relied on Para 13
2000 (4) Suppl. SCR 668 relied on Para 14
2006 (10) Suppl. SCR 101 relied on Para 15
D 2011 (13) SCR 247 relied on Para 17
1962 Suppl. SCR 297 relied on Para 17
2001 (1) SCR 707 relied on Para 17
E 2002 (4) Suppl. SCR 566 relied on Para 17
2004 (5) Suppl. SCR 525 relied on Para 17
2010 (7) SCR 667 relied on Para 26
JT 2012 (12) SC 432 relied on Para 26
F
1999 (3) SCR 719 relied on1 Para 27
2005 (2) SCR 493 relied on Para 21
1970 (2) SCR 697 followed Para 29
G Para 30
AIR 1976 SC 2617 relied on
1976 (0) Suppl. SCR 59 . relied on · . Para 30
1997 (2) SCR 639 relied on Para 30.
H 1967 SCR 974 relied on Para 31
UDAI SHAN KAR AWASTHI v. STATE OF U.P.. & ANR.. 943
..
2006 (3) SCR 783 relied o'n Para 31 A
2008 (11) SCR 369 relied on· Para 31
· 2010 (10) SCR 16 relied on Paras 32, 33
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal B
No. 61 of 2013.
From the Judgment & Order dated 13.03.2012 of the High
Court of Judicature at Allahabad in Criminal Misc. Application
No. 41827 of 2011.
WITH
c
Crl. A.No. 62 of 2013
Mukul Rohatgi, Nagendra Rai, Abhay Kumar, Upendra
Pratap Singh, Vineet Kr. Singh, Neetu Jain for the Appellant .
D
Gaurav Bhatia, AAG, Devvrat, Shalini Kumar, Anuvrat
Sharma, Gautam Talukdar for the Respondent.
The Judgment of the Court was delivered by
E
DR. B.S. CHAUHAN, J. 1. Both these appeals have been
preferred against the impugned judgment and order dated
13.3.2012, passed by the High Court of Judicature at
Allahabad in Criminal Misc. Application No. 41827 of 2011, by
which the High Court has rejected the petition filed under
Section 482 of Code of Criminal Procedure, 1973 (hereinafter F
referred to as the 'Cr.P.C.') for quashing the proceedings in
Complaint Case No.628 of 2011 (Sudha Kant Pandey v. K.L.
Singh & Anr.) under .Sections 403 and 406 of Indian Penal
Code, 1860 (hereinafter referred to as the 'IPC').
G
2. Facts and circumstances giving rise to these appeals
are:
A. Mis. Manish Engineering Enterprises, of which
respondent No.2, Sudha Kant Pandey, claims to be the H
944 SUPREME COURT REPORTS [2013] 3 S.C.R.
A proprietor, was given a work order by M/s. Indian Farmers
Fertilizer Cooperative Ltd. (hereinafter referred to as "IFFCO"),
Phulpur unit, on 1.2.1996 for the purpose of conducting repairs
in their plant worth an estimated value of Rs.13,88,750/-. The
said work order was subsequently cancelled by IFFCO on
B 7.2.1996.
B. Aggrieved, M/s. Manish Engineering Enterprises made
a representation dated 21.3.2001, to IFFCO requesting it to
make payments for the work allegedly done by it. As there was
no response from the management of IFFCO, the said concern
C filed Writ Petition No. 19922 of 2001 before the High Court of
Allahabad, seeking a direction by it to IFFCO for the payment
of an amount of Rs.22,81,530.22 for alleged work done by it.
C. The High Court disposed of the said Writ Petition vide
D order dated 25.5.2001, directing IFFCO to dispose of the
representation dated 21.3.2001, submitted by the said concern
within a period of 6 weeks. In pursuance of the order of the High
Court dated 25.5.2001, the said representation dated
21.3.2001, was considered by the Managing Director of IFFCO
E and was rejected by way of a speaking order dated 15.10.2001,
and the same was communicated to the said concern vide
letter dated 29.10.2001.
D. Mis. Manish Engineering Enterprises filed Writ Petition
No. 7231 of 2002 before the High Court of Allahabad for the
F recovery of the said amount, which stood disposed of vide
order dated 20.2.2002, with a direction to pursue the remedy
available under the arbitration clause contained in the
agreement executed in pursuance of the aforementioned work
order.
G
E. Mis. Manish Engineering Enterprises filed Arbitration
Application No. 24 of 2002 before the High Court of Allahabad
under Section 11 of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as 'the Act 1996') on 24.5.2002, praying
H for the appointment of an arbitrator, in view of the fact that the
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 945
[DR. B.S. CHAUHAN, J.]
application made by the said concern for the purpose of A
appointing an arbitrator, had been rejected by IFFCO as being
time barred. The High Court therefore, vide judgment and order
dated 17.10.2003, appointed an arbitrator. However, the said
arbitrator expressed his inability to work. Thus, vide order dated
13.2.2004, another arbitrator was appointed. B
F. Mis. Manish Engineering Enterprises filed a Claim
Petition on various counts, including one for an amount of
Rs.9,27, 182/- towards the alleged removal of items from their
godown within the IFFCO premises.
c
The learned arbitrator so appointed, framed a large
number of issues and rejected in particular, the claim of alleged
removal of items from the godown of M/s. Manish Enterprises,
located within the IFFCO premises (being issue No.13). though
he accepted some other claims vide award dated 11.3.2007. D
IFFCO filed an application under Section 34 of the Act,
1996 for the purpose of setting aside the award dated
11.3.2007, before the District Court, Allahabad and the matter
is sub-judice. E
G. Mr. Sabha Kant Pandey, the brother of respondent
no.2/complainant, filed Complaint Case No. 4948 of 2009
against the officers of IFFCO on 23.11.2009 under Sections
323,, 504, 506, 406 and 120-B IPC before the court of Special
Chief Judicial Magistrate, Allahabad. Therein, some witnesses F
including the said complainant were examined.
H. Sabha Kant Pandey, the brother of respondent no.2 filed
another Complaint Case No. 26528 of 2009, against the
appellants and others under Sections 147, 148, 323, 504, 506, G
201 and 379 IPC. In the said complainant, the brother of
respondent no.2 was examined alongwith others as a witness.
, I. Complaint case no. 4948 of 2009 was rejected by way
of a speaking order passed by the Special Chief Judicial
H
946 SUPREME COURT REPORTS [2013) 3 S.C.R.
A Magistrate, vide order dated 20.3.2010 under Section 203
Cr.P.C.
J. Respondent no.2 filed Criminal Complaint No. 1090 of
2010 against the appellants and others on 2.4.2010, under
Sections 323, 504, ~06, 406 and 120-8 IPC before the Special
8
Chief Judicial Magistrate, Allahabad. After investigating the
matter, the police submitted a report on 18.4.2010 stating that,
allegations made in complaint case no. 1090 of 2010 were
false.
C K. The Additional Chief Judicial Magistrate, vide order
dated 18.8.2011 dismissed complaint case no. 26528 of 2009
filed by the brother of respondent no.2.
L. Respondent no.2 filed another complaint case no. 628
o- -of 2011 on 31.5.2011 under Sections 403 and 406 IPC, in
which, after taking cognizance, summons were issued to the
present appellants under Sections 403 and 406 IPC on
16.7.2011, and vide order dated 22.9.2011, bailable warrants
were issued against the appellants by the Addi. CJM,
E Allahabad. Subsequently, vide order dated 21.11.2011, non-
bailable warrants were also issued against one of the
appellants by the Addi. CJM, Allahabad.
In view of the fact that K.L. Singh, appellant in the
connected appeal, could not be served properly as the correct
F address was not given, on being requested, the Addi. CJM
withdrew the non-bailable warrants on 17.12.2011.
M. Aggrieved, the appellants filed Criminal Misc.
Application No. 41827 of 2011 under Section 482 Cr.P.C.
G before the High Court for quashing the said criminal
proceedings, which has been dismissed vide impugned
judgment and order.
Hence, these appeals.
H 3. Shri Mukul Rohtagi and Shri Nagendra Rai, learned
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 947
[DR. B.S. CHAUHAN, J.]
senior counsel appearing for the appellants, have submitted that A
as the cornplaint cases filed by the brother of the respondent
-no.2 in regard to the same subject matter were dismissed by
the magistrate concerned, the question of entertaining a fresh
complaint could not arise. A fresh complaint cannot be
entertained during the pendency of the complaint case filed by B
respondent No. 2, with respect to which, the police filed a final
report, stating the same to be a false complaint. It was further
submitted, that there was suppression of material facts, as in
Complaint Case No. 628 of 2011, dismissal of the earlier
complaint was not disclosed. Furthermore, as the matter is c
purely civil in natute, and in. view of the fact that arbitration
proceedings with respect to the very same subject matter are
presently sub-judice, and the claim of respondent no.2 on this
, count has already been rejected by the arbitrator, entertaining/
continuing criminal proceedings in the said matter is clearly an
0
abuse of the process of the court. Moreover, the alleged claim
is related to the period of 1996. A complaint made after a lapse
of 15 years is barred by the provisions of Section 468 Cr.P.C.,
and the High Court has erred in holding the same to be a
continuing offence. As, in pursuance of the High Court's order E
dated 25. 5.2001, the representation of respondent no.2 dated
21.3.2001 was decided by the Managing Director, IFFCO vide
order dated 15.10.2001, the limitation period began from the
date of the said order, or at the most from 29.10.2001, that is,
the date on which, the order of rejection was· communicated.
F
The initiation of criminal proceedings is nothing but an
attempt by the frustrated litigant to give vent to his frustration,
by invoking the jurisdiction of the criminal court and thus, the
proceedings are liable to be quashed.
G
4. Per contra, Shri Devrrat, learned counsel appearing for
respondent no.2, has submitted that the High Court has rightly
held that the same was in fact, a case of continuing offence.
Therefore; the question of limitation does not arise. The law
does not prohibit the initiation of criminal proceedings where
H
948 SUPREME COURT REPORTS [2013] 3 S.C.R.
A there has been breach of trust and further, in such a case, in
spite of the fact that arbitration proceedings are pending, a
criminal complaint is maintainable, and the court concerned has
rightly entertained the same. There is no prohibition in law as
regards maintaining a second application, even though the
B earlier application has been dismissed. Thus, the appeals are
liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties as well as by Shri Gaurav Bhatia
and Shri Annurat, learned counsel appearing for the State of
C U.P. and perused the record.
In light of the facts of these cases, it is desirable to deal
first, with the legal issues involved herein.
D LIMITATION IN CRIMINAL CASES- Section 468 Cr.P.C.:
6. Section 468 Cr.P.C. places an embargo upon court
from taking cognizance of an offence after the expiry of the
limitation period provided therein. Section 469 prescribes when
the period of limitation begins. Section 473 enables the court
E to condone delay, provided that the court is satisfied with the
explanation furnished by the prosecution/complainant, and
where, in the interests of justice, extension of the period of
limitation is called for. The principle of condonation of delay is
based on the general rule of the criminal justice system which
F states that a crime never dies, as has been explained by way
of the legal maxim, nullum tempus aut locus occurrit regi
(lapse of time is no bar to the Crown for the purpose of it
initiating proceeding against offenders). A criminal offence il?
considered as a wrong against the State and also the society
G as a whole, even though the same has been committed against
an individual.
7. The question of delay in launching a criminal prosecution
may be a circumstance to be taken into consideration while
H arriving at a final decision, however, the same may not itself
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 949
[DR. B.S. CHAUHAN, J.]
be a ground for dismissing the complaint at the threshold. A
Moreover, the issue of limitation must be examined in light of
the gravity of the charge in question. (Vide: Japani Sahoo v.
Chandra Sekhar Mohanty, AIR 2007 SC 2762; Sajjan Kumar
v. Central Bureau of Investigation, (2010) 9 SCC 368; and
Noida Entrepreneurs Association v. Noida & Ors., AIR 2011 8
SC 2112).
8. The court, while condoning delay has to record the
reasons for its satisfaction, and the same must be manifest in
the order of the court itself. The court is further required to state
in its conclusion, while condoning such delay, that such C
condonation is required in the interest of justice. (Vide: State
of Maharashtra v. Sharad Chandra Vinayak Dongre & Ors.,
AIR 1995 SC 231; and State of H.P. v. Tara Dutt & Anr., AIR
2000 SC 297).
D
9. To sum up, the law of limitation prescribed under the
Cr.P.C., must be observed, but in certain exceptional
circumstances, taking into consideration the gravity of the
charge, the Court may condone delay, recording reasons for
the same, in the event that it is found necessary to condone E
such delay in the interest of justice.
CONTINUING OFFENCE:
10. Section 472 Cr.P.C. provides that in case of a
continuing offence, a fresh period of limitation begins to run at F
every moment of the time period during which the offence
continues . ._The expression, 'continuing offence' has not been •
defined in the Cr.P.C. because it is one of those expressions
which does not have a fixed connotation, and therefore, the
formula of universal application cannot be formulated in this G
respect.
11. In Ba/akrishna Sava/ram Pujari Waghmare & Ors. v.
Shree Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC
798, this Court dealt with the aforementioned issue, and
H
950 SUPREME COURT REPORTS [2013] 3 S.C.R.
A observed that a continuing offence is an act which creates a
continuing source of injury, and renders the doer of the act
responsible and liable for the continuation of the said injury. In
case a wrongful act causes an injury which is complete, there
is no continuing wrong even though the damage resulting
8 from the said act may continue. If the wrongful act is of such
character that t~e injury caused by it itself continues, then the
said act constitutes a continuing wrong. The distinction between
the two wrongs therefore depends, upon the effect of the injury.
In the said case, the court dealt with a case of a wrongful
C act of forcible ouster, and held that the resulting injury caused,
was complete at the date of the ouster itself, and therefore there
was no scope for the application of Section 23 of the Limitation
Act in relation to the said case.
D 12. In Gokak Patel Vo/kart Ltd. v. Dundayya
Gurushiddaiah Hiremath & Ors., (1991) 2 SCC 141, this Court
dealt with the issue and held as under:
"According to the Blacks' Law Dictionary, Fifth Edition,
'Continuing' means 'enduring; not terminated by a single
E act or fact; subsisting for a definite period or intended to
cover or apply to successive similar obligations or
occurrences. ' Continuing offence means 'type of crime
which is committed over a span of time.' As to period of
statute of limitation in a continuing offence, the last act
F of the offence controls for commencement of the period.
'A continuing offence, such that only the last act thereof
within the period of the statute of limitations need be
alleged in the indictment or information, is one which may
consist of separate acts or a course of conduct but which
G arises from that singleness of thought, purpose or action
which may be deemed a single impulse.' So also a
'Continuous Crime' means "one consisting of a
continuous series of acts, which endures after the period
of consummation, as, the offence of carrying concealed
H weapons. In the case of instantaneous crimes, the statute
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 951
[DR. B.S. CHAUHAN, J.]
of limitation begins to run with the consummation, while A
in the case of continuous crimes it only begins with the
cessation of the criminal conduct or act."
13. While deciding the case in Gokak Patel Vo/kart Ltd.
(Supra), this Court placed reliance upon its earlier judgment in 8
State of Bihar v. Deokaran Nenshi & Anr., AIR 1973 SC 908,
wherein the court while dealing with the case of continuance of
an offence has held as under:
"A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which C
is committed once and for all. It is one of those offences
which arises out of a failure to obey or comply with a rule
or its requirement and which involves a penalty, the
liability for which continues until the rule or its requirement
is obeyed or complied with. On every occasion that such D
disobedience or non-compliance occurs and recurs,
there is the offence committed. The distinction between
the two kinds of offences is between an act or omission
which constitutes. an offence once and for all and an act
or omission which continues and therefore, constitutes a E
fresh offence every time or occasion on which it
continues. In the case of a continuing offence, there is
thus the ingredient of continuance of the offence which
is absent in the case of an offence which takes place
when an act or omission is committed once and for all." F
(See also: Bhagirath Kanoria & Ors. v. State of M.P., AIR
1984 SC 1688; and Amrit Lal Chum v. Devoprasad Dutta
Roy, AIR 1988 SC 733).
14. In Mis. Raymond Limited & Anr., Etc. Etc. v. Madhya G
Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238,
this Court held as under:
"It cannot legitimately be contended that the word
"continuously" has one definite meaning only to co'1vey H
952 . SUPREME COURT REPORTS (2013) 3 S.C.R.
A uninterrupted ness in time sequence or essence and on
the other hand the very word would also mean 'recurring
at repeated intervals so as to be of repeated occurrence'.
That apart, used as an adjective it draws colour from the
context too."
B
15. In Sankar Dastidar v. Smt. Banjula Dastidar & Anr.,
AIR 2007 SC 514, this Court observed as under:
"A suit for damages, in our opinion, stands on a different
footing vis-vis a continuous wrong in respect of
c enjoyment of one's right in a property. When a right of
way is claimed whether public or private over a certain
land over which the tort-teaser has no right of possession,
the breaches would be continuing one. It is, however,
indisputable that unless the wrong is a continuing one,
D period of limitation does not stop running. Once the
period begins to run, it does not stop except where the
provisions of Section 22 of the Limitation Act would
apply."
E The Court further held:
"Articles 68, 69 and 91 of the Limitation Act govern suits
in respect of movable property. For specific movable
property lost or acquired by theft, or dishonest
misappropriation or conversion; knowledge as regards
F possession of the party shall be the starting point of
limitation in terms of Article 68. For any other specific
movable property, the time from which the period begins
to run would be when the property is wrongfully taken, in
terms of Article 69. Article 91 provides for a period of
G limitation in respect of a suit for compensation for
wrongfully taking or injuring or wrongfully detaining any
other specific movable property. The time from which the
period begins to run would be when the property is
wrongfully taken or injured or when the detainer's
H possession becomes unlawful."
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 953
[DR. B.S. CHAUHAN, J.]
16. Thus, in view of the above, the law on the issue can A
be summarised to the effect that, in the case of a continuing
offence, the ingredients of the offence continue, i.e., endure
even after the period of C(onsummation, whereas in an
instantaneous offence, the offence takes place once and for all
i.e. when the same actually takes place. In such cases, there B
is no continuing offence, even though the damage resulting from
the injury may itself continue.
SECOND COMPLAINT ON SAME FACTS-
MAINTAINABILITY:
c
17. While considering the issue at hand in Shiv Shankar
Singh v..State of Bihar & Anr., (2012) 1 SCC 130, this Court,
after considering its earlier judgments in Pramatha Nath
Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876; Jatinder
Singh & Ors. v. Ranjit Kaur AIR 2001 SC 784; Mahesh Chand D
v. B. Janardhan Reddy & Anr., AIR 2003 SC 702; Poonam
Chand Jain & Anr. v. Fazru.AIR 2005 SC 38 held:
"It is evident that the Jaw does not prohibit filing or
entertaining of the second complaint even on the same
E
facts provided the earlier complaint has been decided on
the basis of insufficient material or the order has been
passed without understanding the nature of the complaint
or the complete facts could not be placed before the court
or where the complainant came to know certain facts after
F
disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would
not be maintainable wherein the earlier complaint has
been disposed of on full consideration of the case of the
c'Omplainant on merit."
G
18. The present appeals require to be decided on the
basis of the settled legal propositions referred to hereinabove.
Complaint Case No.4948 of 2009 was filed by Sabha Kant
Pandey, brother of respondent no.2, wherein, he claimed to be H
954 SUPREME COURT REPORTS [2013] 3 S.C.R
A a partner in the firm M/s Manish Engineering Enterprises,
against one of the appellants and other officers of IFFCO, under
Sections 323, 504, 506, 406 and 1208 IPC at Police Statition
Phulpur, District Allahabad, alleging that the said Firm had been
given a separate godown/office within the IFFCO compound,
B wherein their articles worth Rs.30-40 lacs, as well as their
documents were kept. The complainant was not permitted to
remove them and additionally, even the payment for the work
done by the firm was not niade, on certain technical grounds.
The officers of IFFCO, including Mr. U.S. Awasthi - the
c appellant, misbehaved with the complainant and kept the said
articles worth Rs.30-40 lacs, as also the important documents,
in addition to the entry gate pass required to enter the plant by
the complainant and his brother Sudhakant (respondent no.2
herein), therefore making it impossible for them to access their
godown.
0
19. The complaint was dealt with appropriately by the
competent court, wherein the present complainant was also
examined as a prosecution witness. The Court took note of the
fact of pendency of the Arbitration Proceedings with respect
E to the payment of dues, and came to the conclusion that the
c9mplaint had been filed to put pressure on IFFCO to
obtain payments. The said complaint was dismissed on
merits.
F 20. Complaint Case No.26528 of 2009 was then filed by
Sabhakant Pandey, brother of respondent no.2, against one of
the appellants and also other officers of IFFCO under Sections
147, 148, 323, 504, 506, 201 and 379 IPC in Police Statition
Phulpur, Allahabad, making similar allegations, and giving full
G particulars of the outstanding dues. That complaint was heard
and disposed of by the competent court, taking note of the fact
that there had been a cross-complaint by the officers of IFFCO,
wherein allegations were made to the effect that on 19.12.2008,
Arbitration Proceedings in Case No.1 of 2007 took place at
H the residence of the Arbitrator, a retired Judge of the Allahabad
UDAI SHANKAR AWASTHI v.
STATE OF U.P. & ANR. 955
[DR. B.S. CHAUHAN, J.]
High Court, wherein Sabha Kant Pandey and Sudha Kant A
Pandey misbehaved with the Arbitrator, and he was hence
forced to adjourn the hearing of the case. Subsequently, they
stood in front of his house and shouted slogans, abusing the
officers of IFFCO and even tried to beat them up. The court
dismissed the said complaint after recording the following B
findings:
"In the opinion of the court, the complaint filed by
Sabhakant Pandey is imaginary, a bald story with an
intention to put illegal pressure and by suppressing C
material facts in the complaint."
21. Complaint Case No.1090 of 2010 was filed by the
present complainant, respondent no.2 against the appellant
Udai Shankar Awasthi and other officers of IFFCO under
Sections 323, 504, 506, 406 and 1208 IPC, making similar D
allegations as were mentioned in the first complaint, to the
effect that articles worth Rs.15-20 lacs in each godown were
lying in the premises of IFFCO, and that the complainant was
not permitted to remove the same. In the said case, after
investigation, the police filed the final report stating that all the E
allegations made in the complaint were false. The concluding
part of the report reads as under:
"For last 6 months no body has turned up to get his
statement recorded in spite of notice. The application had F
been filed on false facts and complaint was bogus,
forceless and baseless and was liable to be dismissed."
22. So far as the present complaint is concerned, the same
has been filed under Sections 415, 406 and 403 IPC, wherein
the allegation that their Bill had been cleared on 10.7.1996, but G
the requisite payment, to the tune of Rs.22,81,530/- was not
made to the complainant. Their claim for payment was wrongly
rejected. Certain articles and documents belonging to the
complainant were lying within the premises of IFFCO and the.
same were not returned to the complainant despite requests H
956 SUPREME COURT REPORTS [2013] 3 S.C.R.
A for the same. In this case, after taking cognizance, summons
were issued on 16.7.2011, under Sections 403 and 406 IPC,
though the case under Section 415 IPC stood rejected.
23. It is evident that in the said complaint. no reference was
made by the complainant as regards the Arbitration
8
Proceedings. There was also no disclosure of facts to show
that earlier complaints in respect of the same subject matter,
had been dismissed on merits by the same court.
24. A copy of the Award made by the Arbitrator was placed
C on record, wherein issue no.13 which dealt with the present
controversy, i.e. some material and documents were placed in
the premises of IFFCO and the return of the same was refused.
The claim as regards the same, has been rejected. There has
been no mention of such claim and its rejection by the said
D concern, in either of the writ petitions filed before the High Court
earlier or even for that matter, in the application filed by the said
concern before IFFCO, for the purpose of making appointment
of an arbitrator, or in the application filed under Section 11 of
the Act, 1996 before the High Court.
E
25. In the counter affidavit filed by respondent no.2, it has
been submitted that the contract was terminated by IFFCO
fraudulently, to usurp the entire amount towards the work done
by it and that IFFCO took illegal possession of all the goods
and articles belonging to the firm lying within its premises, and
F as the amount had not been paid, the officers were guilty of
criminal breach of trust and were therefore, liable to be
punished. However, the fact that earlier complaints had been
filed by the brother of respondent no.2 Sabha Kant Pandey has
been admitted. It has further been admitted that Arbitration
G Proceedings are still pending, but it has also simultaneously
been urged that criminal prosecution has nothing to do with the
Arbitral award.
26. The Magistrate had issued summons without meeting
H the mandatory requirement of Section 202 Cr.P.C., though the
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 957
[DR. S.S. CHAUHAN, J.]
appellants were outside his territorial jurisdiction. The A
provisions of Section 202 Cr.P.C. were amended vide
Amendment Act 2005, making it mandatory to postpone the
issue of process where the accused resides in an area
beyond the territorial jurisdiction of the Magistrate concerned.
The same was found necessary in order to protect innocent B
persons from being harassed by unscrupulous persons and
making it obligatory upon the Magistrate to enquire into the
case himself, or to direct investigation to be made by a police
officer, or by such other person as he thinks fit for the purpose
of finding out whether or not, there was sufficient·ground for c
proceeding against the accused before issuing summons in
such cases .. (See also: Shivjee Singh v. Nagendra Tiwary &
Ors., AIR 2010 SC 2261; and National Bank of Oman v.
Barakara Abdul Aziz & Anr., JT 2012 (12) SC 432).
27. Section 403 IPC provides for a maximum punishment D
of 2 years, or fine or both; and Section 406 IPC provides for a·
-maximum punishment of 3 years, or fine or both. The limitation
period within which cognizance must be taken, as per the
provisions of Section 468 of Cr.P.C. is three years. In the case
of an instantaneous offence, as per the provisions of Section E
469 of the Cr.P.C., the period of limitation commences on the
date of offence. In the instant case, admittedly, the claim of the
said firm was rejected by way of a speaking order dated
15.10.2001, in pursuance of the order of the High Court dated
25.5.2001, and the said order was communicated vide letter F
dated 29.10.2001. Respondent No. 2 correctly understood the
nature of the offence and, therefore, subsequently approached
the High Court for the purpose of seeking recovery of
outstanding dues, wherein the High Court directed him to
pursue the remedy available under the arbitration agreement G
between the parties. In such a fact situation, it is beyond our
imagination as to how the offence involved herein can possibly
be termed as a continuing offence. In fact, the damage caused
by virtue of non-payment of their dues, if any, is legally
sustainable, may continue, but the offence is most certainly not H
958 SUPREME COURT REPORTS [2013] 3 S.C.R.
A a continuing offence, as the same has not recurred subsequent
to order dated 15.10.2001, even though the effect caused by
it may be continuous in nature.
In Arun Vyas & Ors. v. Anita Vyas, AIR ·1999 SC 2071,
B this Court held that in a case of cruelty, the starting point of
limitation would be the last act of cruelty. (See also: Ramesh
& Ors. v. State of Tamil Nadu, AIR 2005 SC 1989).
28. Approaching the court at a belated stage for a rightful
cause, or even for the violation of the fundamental rights, has
C always been considered as a good ground for its rejection at
the threshold. The ground taken by the learned counsel for
respondent No. 2 that the cause of action arose on 20.10.2009
and 5.11.2009, as the appellants refused to return money and
other materials, articles and record, does not have substance
D worth consideration. In case a representation is made by the
person aggrieved and the same is rejected by the competent
statutory authority, and such an order is communicated to the
person aggrieved, making repeated representations will not
enable the party to explain the delay.
E
29. In Rabindra Nath Bose & Ors. v. Union of India & Ors.,
AIR 1970 SC 470, in spite of the fact that the Government
rejected a representation and communicated such rejection to
the applicant therein, his subsequent representations were
F entertained by the Government. A Constitution Bench of this
Court held as under:
"He says that the representations were being received by
the government all the time. But there is a limit to the time
which can be considered reasonable for making
G representations. If the Government has turned down
one representation, the making 'of another
representation on similar lines would not enable the
petitioners to explain the delay." (Emphasis added)
H 30. In State of Orissa v. Sri Pyarimohan Samantaray &
UDAI SHANKAR AWASTHI v. STATE OF U.P. & ANR. 959
[DR. B.S. CHAUHAN, J.]
Ors., AIR 1976 SC 2617; State of Orissa etc. v. Shri Arun A
Kumar Patnaik & Anr. etc., etc., AIR 1976 SC 1639; and
Swatantar Singh v. State of Haryana & Ors., AIR 1997 SC
2105, a similar view has been reiterated.
31. The view taken by this Court in Rabindra Math Bose
8
(Supra) has been approved and followed in Sri Krishna
Coconut Co. etc. v. East Godavari Coconut and Tobacco
Market Committee, AIR 1967 SC 973, Karnataka Power
Corporation Ltd. & Anr. v: K. Thangappan & Anr., AIR 2006
SC 1581; and Eastern Coalfields Ltd. v. Dugal Kumar, AIR C
2008 SC 3000.
32. In Kishan Singh {dead) thr. Lrs. v. Gurpal Singh &
Ors. AIR 2010 SC 3624, this court while dealing with a case
of inordinate delay in launching a criminal prosecution, has held
as under: D
"In cases where there is a delay in lodging a FIR, the
Court has to look for a plausible explanation for such
delay. In absence of such an explanation, the delay may
be fatal. The reason for quashing such proceedings may E
not be merely that the allegations were an afterthought
or had given a coloured version of events. In such cases
the court should carefully examine the facts before it for
the reason that a frustrated litigant who failed to succeed
before the Civil Court may initiate criminal proceedings F
just to harass the other side with ma/a fide intentions or
the ulterior motive of wreaking vengeance on the other
party. Chagrined and frustrated litigants should not be
permitted to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal court. The court
proceedings ought not to be permitted to degenerate into G
a weapon of harassment and persecution. In such a
case, where an FIR is lodged clearly with a view to spite
the other party because of a private and personal grudge
and to enmesh the other party in long and arduous
H
960 SUPREME COURT REPORTS [2013] 3 S.C.R.
A criminal proceedings, the court may take a view that it
amounts to an abuse of the process of law in the facts
and circumstances of the case. (Vide : Chandrapal Singh
& Ors. v. Maharaj Singh &Anr., AIR 1982 SC 1238; State
of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992
B SC 604; G. Sagar Suri & Anr. v. State of UP.& Ors., AIR
2000 SC 754; and Gorige Pentaiah v. State of A.P. &
Ors., (2008) 12 sec 531)."
33. The instant appeals are squarely covered by the
observations made in Kishan Singh (Supra) and thus, the
C proceedings must be labeled as nothing more than an abuse
of the process of the court, particularly in view of the fact that,
with respect to enact the same subject matter, various
complaint cases had already been filed by respondent No.2
and his brother, which were all dismissed on merits, after the
D examination of witnesses. In such a fact-situation, Complaint
Case No. 628 of 2011, filed on 31.5.2001 was not
maintainable. Thus, the Magistrate concerned committed a
grave error by entertaining the said case, and wrongly took
cognizance and issued summons to the appellants.
E
34. In view of above, the appeals are allowed. The
impugned judgment dated 13.3.2012 is set aside and the
proceedings in Complaint Case No. 628 of 2011 pending
before the Additional C.J.M., Allahabad, are hereby quashed.
F K.K.T. Appeals allowed.
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