It would be of immense significance to mention at the very start before stating anything else that while criticizing the abject manner in which the prosecution had failed to file an application for the extension of limitation while dealing with the FIR related to sexual harassment charges against self styled Godman Shiva Sankar Baba, the Madras High Court has in a most learned, laudable, landmark and latest judgment titled Shiva Sankar Baba v. State and another in Crl.O.P.No.23806 of 2021 and Crl.M.P. No.13107 of 2021 and cited in 2023 LiveLaw (Mad) 74 that was reserved on November 29, 2022 and then finally pronounced on March 1, 2023 has laid down a slew of guidelines with respect to extension of limitation in such cases.

While dwelling on the prayer made in the petition, the Bench specifies that the Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to call for the records pertaining to Crime No.2 of 2021 registered by the first respondent Inspector of Police, CBCID, OCU Police Station-II, Chennai and quash the FIR as against the petitioner. It must be mentioned that the Single Judge Bench of Hon’ble Ms Justice RN Manjula had disposed of the petition that was filed by Baba after noting that the de facto complainant had filed a criminal revision petition to set aside the order of cognizance by the Trial Court.

No doubt, the prosecution agency should have taken all possible actions and the courts should have considered all aspects before deciding to condone the delay or reject the plea for an extension of limitation. In the present case, both the prosecution and the court had failed to do so. This all the more necessitated the issuing of guidelines for extending limitation period in criminal cases which has been done accordingly!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Madras High Court comprising of Hon’ble Ms Justice RN Manjula sets the ball in motion by first and foremost putting forth in para 1 that:
This Criminal Original Petition has been filed to call for the records pertaining to Crime No.2 of 2021 on the file of the first respondent police and quash the same.

To put things in perspective, the Bench envisages in para 2 that:
The case in Crime No.2 of 2021 has been registered against the petitioner on the allegations of sexual harassment caused by him to the second respondent between the academic year 2010-2011. The second respondent has sent a complaint through E-mail on 20.07.2021 and the F.I.R. has been registered on the basis of the same for the offences under Section 354 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.

Needless to say, the Bench then states in para 3 that:
Before adverting into the facts and merits of this petition, the trajectory which led to this stage of the order needs to be mentioned. By virtue of an earlier order dated 17.10.2022, this Criminal Original Petition got disposed. The order was to the effect of quashing the F.I.R. by allowing the petition on the ground of limitation under Section 468 Cr.P.C.

Further, the Bench then elucidates in para 4 stating that:
Subsequently the second respondent has filed a petition to recall the order by stating that she has not been given with notice before disposing the Criminal Original Petition. Though the first respondent/State was heard at length, the State had also filed a separate petition seeking the same prayer by stating the same reasons as stated by the second respondent. Those petitions have been dealt in Crl.M.P.Nos.16421 and 16422 of 2022. During the course of hearing of those petitions, the first respondent submitted that the charge sheet has been filed and it has been taken on file by the trial Court in C.C.No.654 of 2022, even when the Criminal Original Petition was heard and hence the Criminal Original petition ought to have been dismissed as infructuous.

Do note, the Bench points out in para 24 that:
The holistic reading of the above judgment would show that the procedural relaxation with regard to the filing of the petition for condoning the delay is purely based upon the interest of justice. In JOSEPH vs. STATE OF KERALA reported in (1989) 2 Ker. LT 710, it is observed that the prosecution should not be encouraged by condoning inordinate delay like 6 years or 9½ years. In STATE OF MAHARASHTRA vs. S.V.DONGRE reported in AIR 1995 SC 231, it is held that in the application moved by the prosecution for condoning the delay, notice of opportunity should be offered to the opposite party. The order to condone the delay without giving proper notice to the accused was held to be not proper.

While referring to the relevant case law, the Bench states in para 25 that:
In SUKHDEV RAJ vs. STATE OF PUNJAB reported in 1994 SCC (Cri) 1480 also, it is reasserted that Section 473 Cr.P.C. does not lay down that the application to condone the delay should be filed at the time of filing the challan itself and the Court can condone the delay if it is properly explained and it is necessary to do so in the interest of justice.

It would be worthwhile to mention that the Bench then states in para 26 that, As explicitly stated in the very provision of Section 468 Cr.P.C., the question of limitation is applicable only for those offences which are punishable for a period not exceeding three years imprisonment. Though discretion is conferred on the Court to extend the period of limitation under Section 473 Cr.P.C. that has to be exercised judicially and the orders must be through a speaking order by indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. It has been held in a Full bench judgment of the Hon'ble Supreme Court rendered in STATE OF HIMACHAL PRADESH vs. TARA DUTT reported in (2000) 1 SCC 230 that in the absence of any positive order to that effect it is not permissible for the superior Courts to come to a conclusion that the Court had taken cognizance by condoning the delay. In SHIKHIL KATOCH vs. STATE OF HIMACHAL PRADESH reported in 2020 SCC online HP 2693, the High Court of Himachal Pradesh has followed the above principle and held as under:-

17. ….. Section 473 Cr.P.C. confers power on the Court taking cognizance after the expiry of the period of limitation, if conditions envisaged therein are fulfilled, i.e. where a proper and satisfactory explanation of delay is available and where the Court taking cognizance finds that it would be in the interest of justice, and this discretion conferred upon the Court, has to be exercised judicially and on well recognized principles and wherever the Court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the Court with respect to satisfactory explanation and interest of justice.

It is further observed that in absence of a positive order to that effect, it may not be permissible for the 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 of the offence and the matter of taking cognizance of an offence affecting the society, the Magistrate must liberally construe the question of limitation but the circumstances of the case requiring delay to be condoned must be manifest in the order of Magistrate itself. Discretion exercised by the Magistrate on relevant consideration, cannot be faulted with.

Most remarkably, the Bench then holds in para 28 that:
In so far as the complaints filed by adopting the private complaint procedure, it is needless to state that the complainant has to file a petition to condone the delay in case the offence is barred by limitation at the time when the complaint was filed and on which an order has to be passed by the Magistrate after giving a notice of opportunity to the accused. It is worthwhile to reiterate the significant observation of the Hon’ble Supreme Court made in SARAH MATHEW vs. INSTITUTE OF CARDIO VASCULAR DISEASES reported in (2014) 2 SCC 62 for bringing Chapter XXXVI in the Criminal Procedure Code. In the said judgment, a reference about the law commission’s report and the report of the Joint Parliamentary Committee mentioning the object for inserting Chapter XXXVI in the Criminal Procedure Code has been made. The significant paragraphs nos. 17 to 20 on the above subject are extracted as under:-

17. The Joint Parliament Committee (the JPC) accepted the recommendations of the Law Commission for prescribing period of limitation for certain offences. The relevant paragraphs of its report dated 30/11/1972 read as under:

Clauses 467 to 473 (new clauses) – These are new clauses prescribing periods of limitation on a graded scale for launching a criminal prosecution in certain cases. At present, there is no period of limitation for criminal prosecution and a Court cannot throw out complaint or a police report solely on the ground of delay although inordinate delay may be a good ground for entertaining doubts about the truth of the prosecution story. Periods of limitation have been prescribed for criminal prosecution in the laws of many countries and the Committee feels that it will be desirable to prescribe such periods in t he Code as recommended by the Law Commission.

Among the grounds in favour of prescribing the limitation may be mentioned the following

1. As time passes the testimony of witnesses become weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater.
    
2. For the purpose of peace and repose it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with the multifarious laws creating new offences many persons at some time or the other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.
    
3. The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of the persons concerned.
    
4. The sense of social retribution which is one of the purposes of criminal law looses its edge after the expiry of a long period.
    
5. The period of limitation would put pressure on the organs of criminal prosecution to make every effort to ensure the detection and punishment of the crime quickly. The actual periods of limitation provided for in the new clauses would, in the Committee’s opinion be appropriate having regard to the gravity of the offences and other relevant factors.

As regards the date from which the period is to be counted the Committee considered has fixed the date as the date of the offence. As, however this may create practical difficulties and may also facilitate an accused person to escape punishment by simply absconding himself for the prescribed period, the Committee has also provided that when the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the period of limitation would commence from the day on which the participation of the offender in the offence first comes to the knowledge of a person aggrieved by the offence or of any police officer, whichever is earlier.

Further, when it is not known by whom the offence has 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. The Committee has considered it necessary to make a specific provision for extension of time whenever the court is satisfied on the materials that the delay has been properly explained or that the accused had absconded. This provision would be particularly useful because limitation for criminal prosecution is being prescribed for the first time in this country.

18. Read in the background of the Law Commission’s Report and the Report of the JPC, it is clear that the object of Chapter XXXVI inserted in the Cr.P.C. was to quicken the prosecutions of complaints and to rid the criminal justice system of inconsequential cases displaying extreme lethargy, inertia or indolence. The effort was to make the criminal justice system more orderly, efficient and just by providing period of limitation for certain offences. In Sarwan Singh, this Court stated the object of Cr.P.C in putting a bar of limitation as follows:

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. The object which the statutes seek to sub-serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance 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.

19. It is equally clear however that the law makers did not want cause of justice to suffer in genuine cases. Law Commission recommended provisions for exclusion of time and those provisions were made part of Chapter XXXVI. We, therefore, find in Chapter XXXVI provisions for exclusion of time in certain cases (Section 470), for exclusion of date on which the Court is closed (Section 471), for continuing offences (Section 472) and for extension of period of limitation in certain cases (Section 473). Section 473 is crucial.

It empowers the court to take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Therefore, Chapter XXXVI is not loaded against the complainant. It is true that the accused has a right to have a speedy trial and this right is a facet of Article 21 of the Constitution. Chapter XXXVI of the Cr.P.C. does not undermine this right of the accused. While it encourages diligence by providing for limitation it does not want all prosecutions to be thrown overboard on the ground of delay. It strikes a balance between the interest of the complainant and the interest of the accused. It must be mentioned here that where the legislature wanted to treat certain offences differently, it provided for limitation in the section itself, for instance, Section 198(6) and 199(5) of the Cr.P.C. However, it chose to make general provisions for limitation for certain types of offences for the first time and incorporated them in Chapter XXXVI of the Cr.P.C.

Most commendably, the Bench observes in para 29 that:
In STATE OF PUNJAB Vs. SARWAN SINGH reported in 1981 SCALE (1) 619 the Hon’ble Supreme Court has held that putting a bar due to limitation is in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is further held that the utmost importance should be abided for Chapter XXXVI and the letter of law laid down therein, in any prosecution, whether by the State or a private complainant. Or else, it should take the risk of the prosecution failing on the ground of limitation. It is clarified that Chapter XXXVI is not loaded against the complainant but has a balance between the right of speedy trial under Article 21 of the Constitution of India and the right to get justice for the aggrieved who is affected due to commission of a crime.

Most sagaciously, the Bench notes in para 51 that:
It is needless to state that speedy trial is the core element for fair trial and it is a facet of Article 21 of the Constitution of India, which guarantees right to life and personal liberty. If a police officer registers a case involving an offence barred by limitation at the time when it was registered and goes on to investigate or even arrest the accused, it may be due to his unbridled powers. But the Court can not endorse the same, unless it is shown to be in the interest of justice. Even then, the Court cannot pass any orders on a time barred complaint without giving any notice of opportunity to the opposite party and passing a reasoned orders for extension of limitation under Section 473 Cr.P.C.

It cannot be glossed over that the Bench points out in para 58 that:
In the case in hand, though it has been stated in the counter filed by the first respondent/State that they would file a petition under Section 473 Cr.P.C. to extend or condone the limitation, while filing the charge sheet, the first respondent did not file any such petition under Section 473 Cr.P.C. At one stretch, the prosecution vehemently argues about the seriousness of the sexual offences but at another stretch it remains indifferent by not choosing to file a petition under Section 473 Cr.P.C. at the time when the charge sheet was filed and thus creating a ground for the accused to claim that the charge sheet so filed is non-est in law. Prosecuting Agency who demands a serious consideration from the Courts should have also acted in a serious manner by taking all possible action at the earliest point of time.

Quite significantly, the Bench hastens to add in para 59 stating that:
At the risk of repetition, it is reiterated that the object of introducing Chapter XXXVI is to prevent the parties from filing cases after a long time and as a result of which the material evidence might disappear and prevent abuse of the process of Court by filing vexatious and belated prosecution after a long time. As held in the case of STATE OF PUNJAB vs. SARWAN SINGH reported in 1981 SCALE (1) 619 that any prosecution whether by the State or through a private complainant, must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.

It is because even if the accused was convicted in a case barred by limitation, the entire proceedings would get vitiated and become non-est. Even while condoning the delay, the interest of justice which has to play a paramount role and not any other extravagant reasons. Hence the Court has to take note of the nature of the offence, the class to which the victim belongs and the background of the victim, the amount of cruelty or inhumane treatment undergone by the victim at the hands of the accused etc. while considering the request for condoning the delay. Any factor like inconsequential nature of the offence, deliberate inaction on the part of the prosecution etc., would defeat the interest of justice and hence those can be the reasons to reject the plea for extension of limitation.

Be it noted, the Bench notes in para 60 that:
In the case in hand, admittedly neither the prosecution had filed any petition to condone the delay nor the jurisdictional Court has passed any speaking order as to why the case has been taken cognizance even though the offence is barred by limitation and there was a delay of ten years at the time when the F.I.R. was registered.

As we see, the Bench then states in para 61 that:
The learned counsel for the petitioner submitted that since the cognizance was taken in a case which is already barred by limitation due to delay of ten years from the date of the occurrence, the proceedings have become non-est in the eyes of law.

Most significantly, the Division Bench minces absolutely no words to mandate in para 63 holding that:
In view of the above discussions on the law of limitation applicable to the criminal cases, I feel it is essential to lay down the following guidelines:

1. If any magisterial action/orders including an order for remand is required to be passed against any accused in a case involving a F.I.R. which has been registered for an offence which is already barred by limitation, the Court shall not pass any such order, without passing a speaking order about the extension of the period of limitation/condonation, after giving a notice of opportunity to the accused.
    
2. The accused shall be remanded only if the Court positively considers the extension of limitation or condonation of delay and the case is well founded with grounds for remanding the accused.
    
3. If the Court does not choose to grant a favourable order for extending the limitation or condoning the delay, the accused shall not be remanded and he should be released forthwith.
    
4. If no magisterial action/order is required to be passed on a case registered for an offence already barred by limitation, but the charge sheet has been filed, the Court has to pass an order for either extending the period of limitation and condoning the delay or rejecting the extension for the reasons recorded thereon and in the interest of justice, after causing a notice of opportunity to the accused. The above order shall be passed before the magistrate proceeds to take cognizance of the charge sheet.
    
5. The orders as to the extension/condonation or rejection of limitation is essential even in the absence of any petition filed by the prosecution under Section 473 Cr.P.C.
    
6. In case the Court takes cognizance of the charge sheet filed for a time barred offence without passing any order for extending the period of limitation or condoning the delay, the accused shall have a right to file a petition for discharging him, irrespective of the stage of the proceedings, on the ground of limitation.
    
7. If the offence is not barred by limitation at the time when the F.I.R. was registered, but limitation expired during the course of investigation, the charge sheet has to be filed along with a proper application under Section 473 Cr.P.C. In the event of such application is filed, the Court shall give notice of opportunity to the accused and pass an order after hearing both sides. Only if the delay is condoned by means of a speaking order the charge sheet can be taken cognizance.
    
8. If for extraneous reasons the charge sheet has been taken on file without a petition filed under Section 473 Cr.P.C. along with the charge sheet filed as mentioned above and without any order about condoning the delay, the prosecution can file a petition under Section 473 Cr.P.C. even at any subsequent stage of the proceedings, for any acceptable reasons. However, an order on the said petition can be passed only after a notice of opportunity is given to the accused. A positive order on such a petition filed under Section 473 Cr.P.C. cannot be a routine one but after considering the genuineness of the reasons stated and all other relevant factors in the interest of justice.
    
9. If the offence is not barred by limitation at the time when the F.I.R. was registered and also when the charge sheet was filed, but the limitation expired due to the delay on the part of the Court in taking cognizance, the Court shall not insist for any petition under Section 473 Cr.P.C., but take cognizance of the charge sheet, by recording the reasons of its own delay.

For sake of clarity, the Bench clarifies in para 64 stating that:
Since the second respondent is said to have filed a Criminal Revision Petition for setting aside the order of cognizance in order to enable the prosecution to file a petition under Section 473 Cr.P.C. along with the charge sheet and the same is pending, this Criminal Original Petition is disposed with the above observation. Depending on the orders passed in the Criminal Revision Petition, the petitioner can raise his objections in the event of any petition is filed by the first respondent under Section 473 Cr.P.C. Even if the Criminal Revision Petition is pending but there is no order of stay, the petitioner shall have the liberty of either filing a fresh Criminal Original Petition for quashing the charge sheet or a petition before the trial Court for discharging him on the ground of limitation. Consequently, connected Miscellaneous Petition is closed.

Finally, the Bench concludes by holding firmly in para 65 that:
Before parting, this Court places it on record about an ugly turn that had taken place after this matter was reserved for orders. Pseudonymous letters of threat was sent for dissuading this Court from passing orders in this petition. Such cheap attitude on the part of the person who sent would only show cowardice and disregard to the process of the Court. The Courts are not pliable for such kind of threats and those cheap attempts will not stand in the way of dispensing justice. The above message is delivered in louder terms by way of passing the orders in this Criminal Original Petition.

In sum, we thus see that this is a very noteworthy case in which adequate detailed guidelines have been issued by the Madras High Court for extending limitation period in criminal cases. It thus merits no reiteration that all the courts must definitely pay heed to what the Madras High Court has laid down so very elegantly, eloquently and effectively in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh