MANU/SC/0471/2022

Equivalent/Neutral Citation: 2022(234)AIC 79, AIR2022SC 2932, 2022 (120) AC C 282, 2022 (2) ALT (C rl.) 254 (A.P.), 2022(2)C ivilC C (S.C .)769,
2022(2)C rimes154(SC ), 2022(2)C riminalC C 516, III(2022)DMC 90SC , 2022GLH(2)703, 2022(2)HLR302, 2022 INSC 422, 2022(2)J.L.J.R.451,
2022(3)JKJ74[SC ], 2022(3)KLT180, 2022(4)MLJ(C rl)228, 2022 (1) MWN (C R.) 593, 2022(2)PLJR413, 2022(2)RC R(C riminal)751,
2022(2)RLW1104(SC ), 2022(6)SC ALE247, (2022)15SC C 50, 2022 (3) SC J 286

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 627 of 2022 (Arising out of Special Leave to Appeal (Crl.) No. 2514
of 2021)
Decided On: 13.04.2022
Kamatchi Vs. Lakshmi Narayanan
Hon'ble Judges/Coram:
U.U. Lalit and Pamidighantam Sri Narasimha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sharath Chandran, Shyam Gopal, D. Durga Devi, Advs.
and Pranab Prakash, AOR
For Respondents/Defendant: Nikhil Singla, Ananta Prasad Mishra, Advs. and Gagan
Gupta, AOR
Cases Reversed/Partly Reversed:
Lakshmi Narayanan vs. Kamatchi MANU/TN/3855/2020
Case Category:
CRIMINAL MATTERS - MATTERS FOR/AGAINST QUASHING OF CRIMINAL PROCEEDINGS
Case Note:
Criminal - Quashing of proceedings - Section 12 of the Protection of Women
from Domestic Violence Act, 2005 - Instant appeal is preferred by the
Appellant against the order allowing the Petition filed by the Respondent and
the proceedings against them were quashed - Whether High Court wrongly
equated filing of an application under Section 12 of the Act to lodging of a
complaint or initiation of prosecution?
Facts:
The present proceedings arise out of an application preferred by the Appellant
under Section 12 of the Act, 2005. The application was filed seeking
appropriate protection in terms of Sections 17 and 18 of the Act and was
preferred against the Respondent-husband as well as the father-in-law and
sister-in-law of the Appellant. The Petition filed by the father-in-law and the
sister-in-law was allowed and the proceedings against them were quashed.
The High Court took the view that the application ought to have been filed
within one year of the incident and since the Appellant had left the
matrimonial home in the year 2008, the application was abuse of process of
the court. Appellant submits that, The limitation prescribed under Section 468
of the CrPC postulates that, no cognizance be taken by the Court more than a
year after the commission of offence. Thus, the limitation is to be reckoned

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from the date of commission of offence.
Held, while allowing the appeal
1. It is, thus, clear that though Section 468 of the Code mandates that
'cognizance' ought to be taken within the specified period from the
commission of offence, by invoking the principles of purposive construction,
this Court ruled that a complainant should not be put to prejudice, if for
reasons beyond the control of the prosecuting agency or the complainant, the
cognizance was taken after the period of limitation. It was observed by the
Constitution Bench that if the filing of the complaint or initiation of
proceedings was within the prescribed period from the date of commission of
an offence, the Court would be entitled to take cognizance even after the
prescribed period was over. [13]
2. The dictum in Sarah Mathew has to be understood in light of the situations
which were dealt with by the Constitution Bench. If a complaint was filed
within the period prescribed under Section 468 of the Code from the
commission of the offence but the cognizance was taken after the expiry of
such period, the terminal point for the prescribed period for the purposes of
Section 468, was shifted from the date of taking cognizance to the filing of
the complaint or initiation of proceedings so that a complaint ought not to be
discarded for reasons beyond the control of the complainant or the
prosecution. [14]
3. It is thus clear that the High Court wrongly equated filing of an application
under Section 12 of the Act to lodging of a complaint or initiation of
prosecution. The High Court was in error in observing that the application
under Section 12 of the Act ought to have been filed within a period of one
year of the alleged acts of domestic violence. [20]
4. It is, however, true that as noted by the Protection Officer in his Domestic
Inspection Report dated 2.08.2018, there appears to be a period of almost 10
years after 16.09.2008, when nothing was alleged by the Appellant against
the husband. But that is a matter which will certainly be considered by the
Magistrate after response is received from the husband and the rival
contentions are considered. That is an exercise which has to be undertaken
by the Magistrate after considering all the factual aspects presented before
him, including whether the allegations constitute a continuing wrong. The
view taken by the High Court is quashed. Appeal allowed. [21]
JUDGMENT
U.U. Lalit, J.
1. Leave granted.
2. This appeal challenges the final judgment and order dated 16.03.2020 passed by the
High Court1 in Crl. O.P. No. 28924 of 2018.
3. The present proceedings arise out of an application preferred by the Appellant Under
Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as 'the Act'), which was numbered as D.V.C. No. 21 of 2018 in the Court of
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Judicial Magistrate, Ambattur, Chennai. The application was filed seeking appropriate
protection in terms of Sections 17 and 18 of the Act and was preferred against the
Respondent-husband as well as the father-in-law and sister-in-law of the Appellant. The
Protection Officer vide his Domestic Inspection Report dated 21.08.2018 tabulated the
incidents of domestic violence as under:
4. Incidents of domestic violence:

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13-08-2025 (Page 4 of 21) www.manupatra.com Chamber of Manasi Bhushan
The basic allegations as culled out from the Report of the Protection Officer were:
My name Kamakshi. Marriage solemnized in between me and my husband on
07.09.2007. The dowry, which was given to my marriage, 60 sovereign gold, 4
½ kg silver, Rs. 50,000/- and other household things placed at my Husband's
House. My parents spent Rs. 15 lakhs for marriage. Before the marriage, my
husband family members came to our home for give invitation and gave mental
stress and stated that jewel and dowry are not enough. My father borrowed
loan and conducted marriage with intention of marriage should be go in smooth
manner. After next day of marriage, they spoke in disrespectful manner towards
me and my parents stating that no sufficient jewel and household things were
given. They did many tricks for I would not go with my husband to London and
they tortured me. I gave birth to a male child on 06.09.2008. My husband
family members came for Punyathanam function and spoke disrespectful as this
is not our heir and refused to accept the child. I preferred many cases for to
living together with my husband. I went to my husband home with the High
Court order. Rajeshwari has not allowed me and my child and spoke
disrespectful manner and drove us out and told me to go and die somewhere.
4 . Soon thereafter, father-in-law and sister-in-law of the Appellant filed Crl. O.P. No.
27097 of 2018 Under Section 482 of the Code of Criminal Procedure, 1973 ('the Code',
for short) before the High Court seeking quashing of the proceedings under the Act. Crl.
O.P. No. 28924 of 2018 was filed by the Respondent-husband seeking identical relief
Under Section 482 of the Code. The main grounds taken by the Respondent in said
Original Petition were:
E. It is submitted that the Petitioners are forced to face the ordeal of trial on no
material or even probabilities or a real instance, thus, the impugned
proceedings in D.V. No. 21 of 2018 against the Petitioner is illegal, unwarranted
and it is nothing but an abuse of process of law and therefore it is liable to be
quashed.
F. The Petitioner submits that a matrimonial dispute is sought to be given a
criminal colour at the instance of the Respondent. The allegations against the
Petitioner is unsustainable in law and allowing the proceedings further would
serve no purpose so far as the Petitioner is concerned. Therefore, on that
ground, the proceedings against the Petitioner/Respondent in D.V. No. 21 of
2018 on the file of the learned Judicial Magistrate, Ambattur, is liable to be
quashed.
5. Both the Original Petitions came up before the High Court on 16.03.2020.
A. The Petition filed by the father-in-law and the sister-in-law was allowed and
the proceedings against them were quashed. It was observed by the High
Court:
5. In view of the above, this Court is inclined to quash the proceedings
in D.V. No. 21 of 2018, on the file of the Judicial Magistrate, Ambattur,
insofar as the Petitioners herein are concerned, on condition that, they
shall ensure that the A1/husband of the Respondent shall deposit a sum
of Rs. 5,000(Rupees Five Thousand only) before 5th of every English
Calendar month to the credit of D.V. No. 21 of 2018, on the file of the
Judicial Magistrate, Ambattur, as ad-interim maintenance, without
prejudice to both the parties, failing which this order shall stand
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 automatically cancelled. On such deposit being made, the Respondent
is entitled to withdraw the same.
6 . Insofar as A1/husband of the Respondent is concerned, since the
impugned proceedings in D.V. No. 21 of 2018 is pending from the year
2018 onwards, it would be appropriate to direct the Trial Court to
complete the trial within a period of six months from the date of receipt
of copy of this order. A1/husband of the Respondent is directed to
appear before the Trial Court on the next hearing date, failing which,
the Respondent is at liberty to approach this Court.
B. However, with regard to the petition filed by the Respondent, the High Court
took the view that the application ought to have been filed within one year of
the incident and since the Appellant had left the matrimonial home in the year
2008, the application was abuse of process of the court. The relevant
observations made were:
5 . The only point for consideration is limitation. In this regard, it is
relevant to rely upon the judgment in the case of Inderjit Singh Grewal
v. State of Punjab and Anr., reported in MANU/SC/0988/2011 : 2012
Crl.L.J. 309. Sections 28 and 32 of the Protection of Women from
Domestic Violence Act, 2005 r/w Rule 15(6) of the Protection of
Women from Domestic Violence Rules 2006, makes the provisions of
Code of Criminal Procedure applicable. Therefore, the Respondent
ought to have filed the complaint within a period of one year from the
date of the incident.
6 . In the case on hand, the Respondent left the matrimonial home in
the year 2008 itself, thereafter, there are so many proceedings pending
against the Petitioner and the Respondent herein, in respect to their
family disputes. The Petitioner was directed to pay a sum of Rs.
30,000/- to the Respondent herein and a sum of Rs. 15,000/- to the
minor son as maintenance in MC No. 261 of 2013 and it is under
challenge before this Court in Crl. R.C. No. 567 of 2018 and the
Petitioner herein has been continuously paying the maintenance to the
Respondent.
7 . Therefore, on the ground of limitation, the entire complaint is
nothing but a clear abuse of process of Court and it cannot be
sustained as against the Petitioner.
6 . In these circumstances, the instant appeal is preferred by the Appellant against the
order allowing the Petition filed by the Respondent.
7. We have heard Mr. Sharath Chandran, learned Advocate in support of the appeal and
Mr. Siddhartha Dave, learned Senior Advocate for the Respondent.
8. Mr. Sharath Chandran, learned Advocate submits:
a) The limitation prescribed Under Section 468 of the Code postulates inter alia
that no cognizance be taken by the Court more than a year after the
commission of offence. Thus, the limitation is to be reckoned from the date of
commission of offence.

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 b) Section 12 of the Act speaks of filing of an application seeking one or more
reliefs under the Act, whereafter the relevant material is considered by the
Magistrate including any Domestic Incident Report. The matter is then heard in
terms of Sub-section (4) and finally an order may be made on the application.
c) As laid down in Section 31 of the Act, any breach of an order passed inter
alia Under Section 12 of the Act is punishable with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.
Thus, the offence Under Section 31 of the Act will be said to have been
committed only after the breach of an order passed Under Section 12 of the Act,
occurs.
d) There is no limitation under the Code or under the provisions of the Act for
filing of an application and as such, the High Court was not right in observing
that the proceedings were barred by limitation.
e) The Judgments relied upon by the High Court were completely
distinguishable. Reliance was placed on the decision of the Single Judge of the
High Court in Dr. P. Padmanathan and Ors. v. Tmt. V. Monica and Anr.
9. Mr. Siddhartha Dave, learned Senior Advocate for the Respondent submits:
i) The tabular chart prepared by the Protection Officer in his Report indicates
that after 16.09.2008 for almost 10 years nothing was alleged against the
Respondent or the father-in-law or sister-in-law.
ii) The parties had been living separately for last several years and the
application was nothing but a desperate attempt to file something against the
Respondent in a court of law; and was clearly an abuse of process of court.
iii) Going by the dictum of this Court in Sarah Mathew v. Institute of Cardio
Vascular Diseases MANU/SC/1210/2013 : (2014) 2 SCC 62, the starting point
for reckoning the period of limitation ought to be from the date of application
and as such, the High Court was justified in observing that the action was
barred by time.
In the written submissions, it is also submitted that:
This Hon'ble Court in Adalat Prasad v. Rooplal Jindal
MANU/SC/0688/2004 : (2004) 7 SCC 338 held that if a Magistrate
takes cognizance of an offence, issues process without there being any
allegation against the Accused, or any material implicating the Accused,
or in contravention of provisions of Sections 200 and 202, the order of
the Magistrate may be vitiated. However, the relief an aggrieved
Accused can obtain at that stage is not by invoking Section 203 of the
Code, because the Code does not contemplate a review of an order.
Hence in the absence of any review power, or inherent power with the
subordinate criminal courts, the remedy lies in invoking Section 482 of
the Code.
10. Before we consider the rival submissions, the relevant provisions, namely Sections
12, 28, 31 and 32 of the Act may be extracted:
12. Application to Magistrate.--

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 (1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act:
Provided that before passing any order on such application, the
Magistrate shall take into consideration any domestic incident
report received by him from the Protection Officer or the
service provider.
(2) The relief sought for Under Sub-section (1) may include a relief for
issuance of an order for payment of compensation or damages without
prejudice to the right of such person to institute a suit for
compensation or damages for the injuries caused by the acts of
domestic violence committed by the Respondent:
Provided that where a decree for any amount as compensation
or damages has been passed by any court in favour of the
aggrieved person, the amount, if any, paid or payable in
pursuance of the order made by the Magistrate under this Act
shall be set off against the amount payable under such decree
and the decree shall, notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908), or any other law for
the time being in force, be executable for the balance amount,
if any, left after such set off.
(3) Every application Under Sub-section (1) shall be in such form and
contain such particulars as may be prescribed or as nearly as possible
thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not
ordinarily be beyond three days from the date of receipt of the
application by the court.
(5) The Magistrate shall endeavor to dispose of every application made
Under Sub-section (1) within a period of sixty days from the date of its
first hearing.
28. Procedure.--
(1) Save as otherwise provided in this Act, all proceedings Under
Sections 12, 18, 19, 20, 21, 22 and 23 and offences Under Section 31
shall be governed by the provisions of the Code of Criminal Procedure,
1973 (2 of 1974).
(2) Nothing in Sub-section (1) shall prevent the court from laying down
its own procedure for disposal of an application Under Section 12 or
Under Sub-section (2) of Section 23.
31. Penalty for breach of protection order by Respondent.--
(1) A breach of protection order, or of an interim protection order, by
the Respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which
may extend to one year, or with fine which may extend to twenty

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 thousand rupees, or with both.
(2) The offence Under Sub-section (1) shall as far as practicable be
tried by the Magistrate who had passed the order, the breach of which
has been alleged to have been caused by the Accused.
(3) While framing charges Under Sub-section (1), the Magistrates may
also frame charges Under Section 498A of the Indian Penal Code (45 of
1860) or any other provision of that Code or the Dowry Prohibition Act,
1961 (28 of 1961), as the case may be, if the facts disclose the
commission of an offence under those provisions.
32. Cognizance and proof.--
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offence Under Sub-section (1) of
Section 31 shall be cognizable and non-bailable.
(2) Upon the sole testimony of the aggrieved person, the court may
conclude that an offence Under Sub-section (1) of Section 31 has been
committed by the Accused.
11. Similarly, Section 468 of the Code is also set out for facility:
468. Bar to taking cognizance after lapse of the period of limitation:
(1) Except as otherwise provided elsewhere in this Code, no Court shall
take cognizance of an offence of the category specified in Sub-section
(2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment
for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment
for term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation in relation
to offences which may be tried together, shall be determined with
reference to the offence which is punishable with the more severe
punishment or, as the case may be, the most severe punishment.
12. In terms of Section 468 of the Code, the cognizance of an offence of the categories
specified in Sub-section 2 can not to be taken after the expiry of the period specified
therein.
In following cases, the complaints alleging commission of an offence were filed well in
time so that cognizance could have been taken within the prescribed period, but the
matters were considered by the Magistrate after the expiry of the prescribed period, and
as such the cognizance in each of the cases was taken after the expiry of the period
prescribed.

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(A) A bench of three Judges of this Court in Krishna Pillai v. T.A. Rajendran and Anr.
1990 (Supp.) SCC 121, while dealing with Section 9 of the Child Marriage Restraint Act,
1929, which mandates that no Court should take cognizance of an offence after the
expiry of one year from the day when the offence was allegedly committed, observed:
3. It is not disputed that cognizance has been taken by the court more than a
year after the offence was committed. Counsel for the Respondents has stated
that since the complaint had been filed within a year from the commission of
the offence it must be taken that the court has taken cognizance on the date
when the complaint was filed. In that view of the matter there would be no
limitation.
4 . Taking cognizance has assumed a special meaning in our criminal
jurisprudence. We may refer to the view taken by a five Judge bench of this
Court in A.R. Antulay v. Ramdas Sriniwas Nayak MANU/SC/0082/1984 :
(1984) 2 SCC 500 : 1984 SCC (Cri.) 277. At p. 530 (para 31) of the reports this
Court indicated:
When a private complaint is filed, the court has to examine the
complainant on oath save in the cases set out in the proviso to Section
200 Code of Criminal Procedure. After examining the complainant on
oath and examining the witnesses present, if any, meaning thereby that
the witnesses not present need not be examined, it would be open to
the court to judicially determine whether a case is made out for issuing
process. When it is said that court issued process, it means the court
has taken cognizance of the offence and has decided to initiate the
proceedings and a visible manifestation of taking cognizance process is
issued which means that the Accused is called upon to appear before
the court.
(B) In Bharat Damodar Kale and Anr. v. State of Andhra Pradesh MANU/SC/0794/2003
: (2003) 8 SCC 559 a complaint was lodged within one year but the cognizance was
taken after the period of one year was over. The complainant had approached within
time and the delay was because of an act of court, over which the prosecuting agency
or the complainant had no control. A bench of two Judges of this Court observed that
"Limitation for taking cognizance of certain offences" must be reckoned from the day
when the complaint was filed or proceedings were initiated. The discussion on the point
was:
10. On facts of this case and based on the arguments advanced before us, we
consider it appropriate to decide the question whether the provisions of Chapter
XXXVI of the Code apply to the delay in instituting the prosecution or to the
delay in taking cognizance. As noted above, according to the learned Counsel
for the Appellants, the limitation prescribed under the above Chapter applies to
taking of cognizance by the court concerned, therefore even if a complaint is
filed within the period of limitation mentioned in the said Chapter of the Code,
if the cognizance is not taken within the period of limitation the same gets
barred by limitation. This argument seems to be inspired by the chapter
heading of Chapter XXXVI of the Code which reads thus: "Limitation for taking
cognizance of certain offences". It is primarily based on the above language of
the heading of the Chapter, the argument is addressed on behalf of the
Appellants that the limitation prescribed by the said Chapter applies to taking of
cognizance and not filing of complaint or initiation of the prosecution. We

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 cannot accept such argument because a cumulative reading of various
provisions of the said Chapter clearly indicates that the limitation prescribed
therein is only for the filing of the complaint or initiation of the prosecution and
not for taking cognizance. It of course prohibits the court from taking
cognizance of an offence where the complaint is filed before the court after the
expiry of the period mentioned in the said Chapter. This is clear from Section
469 of the Code found in the said Chapter which specifically says that the
period of limitation in relation to an offence shall commence either from the
date of the offence or from the date when the offence is detected. Section 470
indicates that while computing the period of limitation, time taken during which
the case was being diligently prosecuted in another court or in appeal or in
revision against the offender should be excluded. The said Section also
provides in the Explanation that in computing the time required for obtaining
the consent or sanction of the Government or any other authority should be
excluded. Similarly, the period during which the court was closed will also have
to be excluded. All these provisions indicate that the court taking cognizance
can take cognizance of an offence the complaint of which is filed before it
within the period of limitation prescribed and if need be, after excluding such
time which is legally excludable. This in our opinion clearly indicates that the
limitation prescribed is not for taking cognizance within the period of limitation,
but for taking cognizance of an offence in regard to which a complaint is filed
or prosecution is initiated beyond the period of limitation prescribed under the
Code. Apart from the statutory indication of this view of ours, we find support
for this view from the fact that taking of cognizance is an act of the court over
which the prosecuting agency or the complainant has no control. Therefore, a
complaint filed within the period of limitation under the Code cannot be made
infructuous by an act of court. The legal phrase "actus curiae neminem
gravabit" which means an act of the court shall prejudice no man, or by a delay
on the part of the court neither party should suffer, also supports the view that
the legislature could not have intended to put a period of limitation on the act
of the court of taking cognizance of an offence so as to defeat the case of the
complainant. This view of ours is also in conformity with the earlier decision of
this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada
MANU/SC/1052/1997 : (1997) 2 SCC 397 : 1997 SCC (Cri.) 415.
11. If this interpretation of Chapter XXXVI of the Code is to be applied to the
facts of the case, then we notice that the offence was detected on 5-3-1999 and
the complaint was filed before the court on 3-3-2000 which was well within the
period of limitation, therefore, the fact that the court took cognizance of the
offence only on 25-3-2000, about 25 days after it was filed, would not make
the complaint barred by limitation.
12. In view of our above finding, we do not think it is necessary for us to go to
the next question argued on behalf of the Appellants that the court below was
in error in invoking Section 473 of the Code for extending the period of
limitation nor is it necessary for us to discuss the case of State of Himachal
Pradesh v. Tara Dutt and Anr. MANU/SC/0729/1999 : (2000) 1 SCC 230 :
2000 SCC (Cri.) 125 relied on by the Appellants.
(Emphasis added)
(C) In Japani Sahoo v. Chandra Sekhar Mohanty MANU/SC/3080/2007 : (2007) 7 SCC
394 the offence was allegedly committed on 2.2.1996 and the complaint was filed on

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5.2.1996 but the cognizance of the offence was taken on 8.8.1997 when the period of
limitation Under Section 468 of the Code for the concerned offence was only six
months. After considering the relevant cases on the point including Bharat Damodar
Kale MANU/SC/0794/2003 : (2003) 8 SCC 559, a bench of two Judges of this Court
observed:
48. So far as the complainant is concerned, as soon as he files a complaint in a
competent court of law, he has done everything which is required to be done by
him at that stage. Thereafter, it is for the Magistrate to consider the matter, to
apply his mind and to take an appropriate decision of taking cognizance,
issuing process or any other action which the law contemplates. The
complainant has no control over those proceedings.
49. Because of several reasons (some of them have been referred to in the
aforesaid decisions, which are merely illustrative cases and not exhaustive in
nature), it may not be possible for the court or the Magistrate to issue process
or take cognizance. But a complainant cannot be penalized for such delay on
the part of the court nor can he be non-suited because of failure or omission by
the Magistrate in taking appropriate action under the Code. No criminal
proceeding can be abruptly terminated when a complainant approaches the
court well within the time prescribed by law. In such cases, the doctrine 'actus
curiae neminem gravabit' (an act of court shall prejudice none) would indeed
apply. (vide Alexander Rodger v. Comptoir D' Escompte (1871) LR 3 PC 465 :
17 ER 120. One of the first and highest duties of all courts is to take care that
an act of court does no harm to suitors.
50. The Code imposes an obligation on the aggrieved party to take recourse to
appropriate forum within the period provided by law and once he takes such
action, it would be wholly unreasonable and inequitable if he is told that his
grievance would not be ventilated as the court had not taken an action within
the period of limitation. Such interpretation of law, instead of promoting justice
would lead to perpetuate injustice and defeat the primary object of procedural
law.
51. The matter can be looked at from different angle also. Once it is accepted
(and there is no dispute about it) that it is not within the domain of the
complainant or prosecuting agency to take cognizance of an offence or to issue
process and the only thing the former can do is to file a complaint or initiate
proceedings in accordance with law, if that action of initiation of proceedings
has been taken within the period of limitation, the complainant is not
responsible for any delay on the part of the court or Magistrate in issuing
process or taking cognizance of an offence. Now, if he is sought to be penalized
because of the omission, default or inaction on the part of the court or
Magistrate, the provision of law may have to be tested on the touchstone of
Article 14 of the Constitution. It can possibly be urged that such a provision is
totally arbitrary, irrational and unreasonable. It is settled law that a court of law
would interpret a provision which would help sustaining the validity of law by
applying the doctrine of reasonable construction rather than making it
vulnerable and unconstitutional by adopting Rule of litera legis. Connecting the
provision of limitation in Section 468 of the Code with issuing of process or
taking of cognizance by the court may make it unsustainable and ultra vires
Article 14 of the Constitution.

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 52. In view of the above, we hold that for the purpose of computing the period
of limitation, the relevant date must be considered as the date of filing of
complaint or initiating criminal proceedings and not the date of taking
cognizance by a Magistrate or issuance of process by a court. We, therefore,
overrule all decisions in which it has been held that the crucial date for
computing the period of limitation is taking of cognizance by the
Magistrate/court and not of filing of complaint or initiation of criminal
proceedings.
53. In the instant case, the complaint was filed within a period of three days
from the date of alleged offence. The complaint, therefore, must be held to be
filed within the period of limitation even though cognizance was taken by the
learned Magistrate after a period of one year. Since the criminal proceedings
have been quashed by the High Court, the order deserves to be set aside and is
accordingly set aside by directing the Magistrate to proceed with the case and
pass an appropriate order in accordance with law, as expeditiously as possible.
(Emphasis added)
(D) In Sarah Mathew v. Institute of Cardio Vascular Diseases etc. and Ors.
MANU/SC/0443/2014 : (2014) 2 SCC 102, a bench of two Judges of this Court noted
the facts of the case as under:
1 . Mr. K. Swami, learned Counsel appearing for the Appellant, submitted that
the High Court [Institute of Cardio Vascular Diseases v. Sarah Mathew, Criminal
OP No. 12001 of 1997, decided on 17-7-2002 (Mad)] was clearly wrong in
holding that the proceeding against the Respondents was barred by limitation,
as provided Under Section 468(2)(c) of the Code of Criminal Procedure, 1973,
because the order issuing summons against the Accused was passed by the
Magistrate after three years from the date of the occurrence, even though the
complaint was admittedly filed within the period of limitation. In support of the
contention, he relies upon a two-Judge Bench decision of this Court in Bharat
Damodar Kale MANU/SC/0794/2003 : (2003) 8 SCC 559 in which, on an
examination of the provisions contained in Chapter XXXVI of the Code of
Criminal Procedure, it was held that the Court can take cognizance of an
offence, the complaint of which is filed before it, within the period of limitation
prescribed and, if need be, after excluding such time which is legally
excludable. It further held that the limitation prescribed is not for taking
cognizance within the period of limitation, but for taking cognizance of an
offence in regard to which a complaint is filed or prosecution is initiated beyond
the period of limitation prescribed under the Code of Criminal Procedure. The
decision in Bharat Damodar Kale MANU/SC/0794/2003 : (2003) 8 SCC 559 is
followed in another two-Judge Bench decision of this Court in Japani Sahoo v.
Chandra Sekhar Mohanty MANU/SC/3080/2007 : (2007) 7 SCC 394. In para
52 of the decision in Japani Sahoo MANU/SC/3080/2007 : (2007) 7 SCC 394,
it was reiterated that for the purpose of computing the period of limitation, the
relevant date must be considered as the date of filing of complaint or initiating
criminal proceedings and not the date of taking cognizance by a Magistrate or
issuance of process by a court.
Thereafter, noticing the conflict in the view taken in Bharat Damodar Kale
MANU/SC/0794/2003 : (2003) 8 SCC 559 and Japani Sahoo MANU/SC/3080/2007 :
(2007) 7 SCC 394 as against that in Krishna Pillai 1990 (Supp.) SCC 121, the matter

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was referred to a three Judge bench, which in turn referred2 the matter to a larger
Bench. While doing so, the three-Judge Bench observed:
...The three-Judge Bench in Krishna Pillai 1990 (Supp.) SCC 121 has not
adverted to diverse aspects including the aspects that inaction on the part of
the court by not taking cognizance swiftly or within limitation, although the
complaint has been filed within time or the prosecution has been instituted
within time, should not act prejudicial to the prosecution or the complainant.
(E) A Constitution Bench of this Court in Sarah Mathew v. Institute of Cardio Vascular
Diseases etc. and Ors. MANU/SC/1210/2013 : (2014) 2 SCC 62 framed the questions
for its consideration as under:
3 . No specific questions have been referred to us. But, in our opinion, the
following questions arise for our consideration:
3.1. (i) Whether for the purposes of computing the period of limitation
Under Section 468 Code of Criminal Procedure the relevant date is the
date of filing of the complaint or the date of institution of the
prosecution or whether the relevant date is the date on which a
Magistrate takes cognizance of the offence?
3.2. (ii) Which of the two cases i.e. Krishna Pillai 1990 (Supp.) SCC
121 or Bharat Kale MANU/SC/0794/2003 : (2003) 8 SCC 559 (which
is followed in Japani Sahoo MANU/SC/3080/2007 : (2007) 7 SCC
394, lays down the correct law?
After noticing the 42nd Law Commission's Report and the relevant provisions and
scheme of Chapter XXXVI of the Code, the Constitution Bench stated:
3 7 . We are inclined to take this view also because there has to be some
amount of certainty or definiteness in matters of limitation relating to criminal
offences. If, as stated by this Court, taking cognizance is application of mind by
the Magistrate to the suspected offence, the subjective element comes in.
Whether a Magistrate has taken cognizance or not will depend on facts and
circumstances of each case. A diligent complainant or the prosecuting agency
which promptly files the complaint or initiates prosecution would be severely
prejudiced if it is held that the relevant point for computing limitation would be
the date on which the Magistrate takes cognizance. The complainant or the
prosecuting agency would be entirely left at the mercy of the Magistrate, who
may take cognizance after the limitation period because of several reasons;
systemic or otherwise. It cannot be the intention of the legislature to throw a
diligent complainant out of the court in this manner. Besides, it must be noted
that the complainant approaches the court for redressal of his grievance. He
wants action to be taken against the perpetrators of crime. The courts
functioning under the criminal justice system are created for this purpose. It
would be unreasonable to take a view that delay caused by the court in taking
cognizance of a case would deny justice to a diligent complainant. Such an
interpretation of Section 468 Code of Criminal Procedure would be
unsustainable and would render it unconstitutional. It is well settled that a
court of law would interpret a provision which would help sustaining the
validity of the law by applying the doctrine of reasonable construction rather
than applying a doctrine which would make the provision unsustainable and

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 ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhya Prasad
Mishra MANU/SC/8042/2008 : (2008) 10 SCC 139 : (2008) 2 SCC (L&S)
1000)
*** *** ***
4 1 . There can be no dispute about the Rules of interpretation cited by the
counsel. It is true that there is no ambiguity in the relevant provisions. But, it
must be borne in mind that the word "cognizance" has not been defined in Code
of Criminal Procedure. This Court had to therefore interpret this word. We have
adverted to that interpretation. In fact, we have proceeded to answer this
reference on the basis of that interpretation and keeping in mind that special
connotation acquired by the word "cognizance". Once that interpretation is
accepted, Chapter XXXVI along with the heading has to be understood in that
light. The Rule of purposive construction can be applied in such a situation. A
purposive construction of an enactment is one which gives effect to the
legislative purpose by following the literal meaning of the enactment where that
meaning is in accordance with the legislative purpose or by applying a strained
meaning where the literal meaning is not in accordance with the legislative
purpose (see Francis Bennion on Statutory Interpretation). After noticing this
definition given by Francis Bennion in National Insurance Co. Ltd. v. Laxmi
Narain Dhut MANU/SC/1233/2007 : (2007) 3 SCC 700 : (2007) 2 SCC (Cri.)
142, this Court noted that: (SCC p. 718, para 35)
35. More often than not, literal interpretation of a statute or a provision
of a statute results in absurdity. Therefore, while interpreting statutory
provisions, the courts should keep in mind the objectives or purpose
for which statute has been enacted.
In the light of this observation, we are of the opinion that if in the instant case
literal interpretation appears to be in any way in conflict with the legislative
intent or is leading to absurdity, purposive interpretation will have to be
adopted.
*** *** ***
49. It is true that penal statutes must be strictly construed. There are, however,
cases where this Court has having regard to the nature of the crimes involved,
refused to adopt any narrow and pedantic, literal and lexical construction of
penal statutes. (See Murlidhar Meghraj Loya v. State of Maharashtra
MANU/SC/0146/1976 : (1976) 3 SCC 684 : 1976 SCC (Cri.) 493 and Kisan
Trimbak Kothula v. State of Maharashtra MANU/SC/0133/1976 : (1977) 1 SCC
300 : 1977 SCC (Cri.) 97. In this case, looking to the legislative intent, we have
harmoniously construed the provisions of Chapter XXXVI so as to strike a
balance between the right of the complainant and the right of the Accused.
Besides, we must bear in mind that Chapter XXXVI is part of the Code of
Criminal Procedure, which is a procedural law and it is well settled that
procedural laws must be liberally construed to serve as handmaid of justice and
not as its mistress. (See Sardar Amarjit Singh Kalra (D) by Lrs. and Ors. v.
Pramod Gupta (D) by Lrs. and Ors. MANU/SC/1214/2002 : (2003) 3 SCC 272,
N. Balaji v. Virendra Singh MANU/SC/0864/2004 : (2004) 8 SCC 312 and
Kailash v. Nankhu and Ors. MANU/SC/0264/2005 : (2005) 4 SCC 480.
Finally, it was concluded in paragraphs 50 and 51 as under:
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 50. Having considered the questions which arise in this reference in the light of
legislative intent, authoritative pronouncements of this Court and established
legal principles, we are of the opinion that Krishna Pillai 1990 (Supp.) SCC 121
will have to be restricted to its own facts and it is not the authority for deciding
the question as to what is the relevant date for the purpose of computing the
period of limitation Under Section 468 Code of Criminal Procedure, primarily
because in that case, this Court was dealing with Section 9 of the Child
Marriage Restraint Act, 1929 which is a special Act. It specifically stated that no
court shall take cognizance of any offence under the said Act after the expiry of
one year from the date on which offence is alleged to have been committed.
There is no reference either to Section 468 or Section 473 Code of Criminal
Procedure in that judgment. It does not refer to Sections 4 and 5 Code of
Criminal Procedure which carve out exceptions for the special Acts. This Court
has not adverted to diverse aspects including the aspect that inaction on the
part of the court in taking cognizance within limitation, though the complaint is
filed within time may work great injustice on the complainant. Moreover,
reliance placed on Antulay '1984' case MANU/SC/0082/1984 : (1984) 2 SCC
500 : 1984 SCC (Cri.) 277, in our opinion, was not apt. In Antulay '1984' case
MANU/SC/0082/1984 : (1984) 2 SCC 500 : 1984 SCC (Cri.) 277 this Court
was dealing inter alia with the contention that a private complaint is not
maintainable in the Court of the Special Judge set up Under Section 6 of the
Criminal Law (Amendment) Act, 1952 ("the 1952 Act"). It was urged that the
object underlying the 1952 Act was to provide for a more speedy trial of
offences of corruption by a public servant. It was argued that if it is assumed
that a private complaint is maintainable then before taking cognizance, a
Special Judge will have to examine the complainant and all the witnesses as per
Section 200 Code of Criminal Procedure. He will have to postpone issue of
process against the Accused and either inquire into the case himself or direct an
investigation to be made by a police officer and in cases under the Prevention
of Corruption Act, 1947 by police officers of designated rank for the purpose of
deciding whether or not there is sufficient ground for proceeding. It was
submitted that this would thwart the object of the 1952 Act which is to provide
for a speedy trial. This contention was rejected by this Court holding that it is
not a condition precedent to the issue of process that the court of necessity
must hold the inquiry as envisaged by Section 202 Code of Criminal Procedure
or direct investigation as therein contemplated. That is matter of discretion of
the court. Thus, the questions which arise in this reference were not involved in
Antulay '1984' case MANU/SC/0082/1984 : (1984) 2 SCC 500 : 1984 SCC
(Cri.) 277: since there, this Court was not dealing with the question of bar of
limitation reflected in Section 468 Code of Criminal Procedure at all, in our
opinion, the said judgment could not have been usefully referred to in Krishna
Pillai 1990 (Supp.) SCC 121 while construing provisions of Chapter XXXVI Code
of Criminal Procedure. For all these reasons, we are unable to endorse the view
taken in Krishna Pillai 1990 (Supp.) SCC 121.
51. In view of the above, we hold that for the purpose of computing the period
of limitation Under Section 468 Code of Criminal Procedure the relevant date is
the date of filing of the complaint or the date of institution of prosecution and
not the date on which the Magistrate takes cognizance. We further hold that
Bharat Kale MANU/SC/0794/2003 : (2003) 8 SCC 559 which is followed in
Japani Sahoo MANU/SC/3080/2007 : (2007) 7 SCC 394, lays down the correct
law. Krishna Pillai 1990 (Supp.) SCC 121 will have to be restricted to its own
facts and it is not the authority for deciding the question as to what is the
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 relevant date for the purpose of computing the period of limitation Under
Section 468 Code of Criminal Procedure.
13. It is, thus, clear that though Section 468 of the Code mandates that 'cognizance'
ought to be taken within the specified period from the commission of offence, by
invoking the principles of purposive construction, this Court ruled that a complainant
should not be put to prejudice, if for reasons beyond the control of the prosecuting
agency or the complainant, the cognizance was taken after the period of limitation. It
was observed by the Constitution Bench that if the filing of the complaint or initiation of
proceedings was within the prescribed period from the date of commission of an
offence, the Court would be entitled to take cognizance even after the prescribed period
was over.
14. The dictum in Sarah Mathew MANU/SC/1210/2013 : (2014) 2 SCC 62 has to be
understood in light of the situations which were dealt with by the Constitution Bench. If
a complaint was filed within the period prescribed Under Section 468 of the Code from
the commission of the offence but the cognizance was taken after the expiry of such
period, the terminal point for the prescribed period for the purposes of Section 468,
was shifted from the date of taking cognizance to the filing of the complaint or initiation
of proceedings so that a complaint ought not to be discarded for reasons beyond the
control of the complainant or the prosecution.
15. Let us now consider the applicability of these principles to cases under the Act. The
provisions of the Act contemplate filing of an application Under Section 12 to initiate
the proceedings before the concerned Magistrate. After hearing both sides and after
taking into account the material on record, the Magistrate may pass an appropriate
order Under Section 12 of the Act. It is only the breach of such order which constitutes
an offence as is clear from Section 31 of the Act. Thus, if there be any offence
committed in terms of the provisions of the Act, the limitation prescribed Under Section
468 of the Code will apply from the date of commission of such offence. By the time an
application is preferred Under Section 12 of the Act, there is no offence committed in
terms of the provisions of the Act and as such there would never be a starting point for
limitation from the date of application Under Section 12 of the Act. Such a starting point
for limitation would arise only and only after there is a breach of an order passed Under
Section 12 of the Act.
16. We may now deal with the case on which reliance was placed by the High Court.
Inderjit Singh Grewal v. State of Punjab and Anr. MANU/SC/0988/2011 : (2011) 12
SCC 588 was a case where the marriage between the parties was dissolved by judgment
and decree dated 20.03.2008. Thereafter, the wife preferred an application under the
provisions of the Act on 4.5.2009 alleging that the decree of divorce was sham and that
even after the divorce the parties were living together as husband and wife; and that
she was thereafter forced to leave the matrimonial home. It was, in these
circumstances, that an application Under Section 482 of the Code was filed by the
husband seeking quashing of the proceedings under the Act. It was observed that a suit
filed by the wife to declare the judgment and decree of divorce as a nullity was still
pending consideration before the competent court. The effect of the proceedings
culminating in decree for divorce was considered by this Court as under:
16. The question does arise as to whether the reliefs sought in the complaint
can be granted by the criminal court so long as the judgment and decree of the
civil court dated 20-3-2008 subsists. Respondent 2 has prayed as under:

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 It is therefore prayed that Respondent 1 be directed to hand over the
custody of the minor child Gurarjit Singh Grewal forthwith. It is also
prayed that Respondent 1 be directed to pay to her a sum of Rs. 15,000
per month by way of rent of the premises to be hired by her at
Ludhiana for her residence. It is also prayed that all the Respondents
be directed to restore to her all the dowry articles as detailed in
Annexures A to C or in the alternative they be directed to pay to her a
sum of Rs. 22,95,000 as the price of the dowry articles. Affidavit
attached.
Thus, the reliefs sought have been threefold: (a) custody of the minor son; (b)
the right of residence; and (c) restoration of dowry articles.
17. It is a settled legal proposition that where a person gets an order/office by
making misrepresentation or playing fraud upon the competent authority, such
order cannot be sustained in the eye of the law as fraud unravels everything.
"Equity is always known to defend the law from crafty evasions and new
subtleties invented to evade law." It is trite that "fraud and justice never dwell
together" (fraus et jus nunquam cohabitant). Fraud is an act of deliberate
deception with a design to secure something, which is otherwise not due. Fraud
and deception are synonymous. "Fraud is anathema to all equitable principles
and any affair tainted with fraud cannot be perpetuated or saved by the
application of any equitable doctrine." An act of fraud on court is always viewed
seriously. (Vide Meghmala v. G. Narasimha Reddy MANU/SC/0608/2010 :
(2010) 8 SCC 383)
18. However, the question does arise as to whether it is permissible for a party
to treat the judgment and order as null and void without getting it set aside
from the competent court. The issue is no more res integra and stands settled
by a catena of decisions of this Court. For setting aside such an order, even if
void, the party has to approach the appropriate forum. [Vide State of Kerala v.
M.K. Kunhikannan Nambiar Manjeri Manikoth MANU/SC/0240/1996 : (1996) 1
SCC 435 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd.
MANU/SC/0280/1997 : (1997) 3 SCC 443]
The plea based on the issue of limitation was then considered in paragraphs 32 and 33
and it was observed:
32. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view
of the provisions of Section 468 Code of Criminal Procedure, that the complaint
could be filed only within a period of one year from the date of the incident
seem to be preponderous in view of the provisions of Sections 28 and 32 of the
2005 Act read with Rule 15(6) of the Protection of Women from Domestic
Violence Rules, 2006 which make the provisions of Code of Criminal Procedure
applicable and stand fortified by the judgments of this Court in Japani Sahoo v.
Chandra Sekhar Mohanty MANU/SC/3080/2007 : (2007) 7 SCC 394 and
NOIDA Entrepreneurs Assn. v. NOIDA MANU/SC/0570/2011 : (2011) 6 SCC
508.
33. In view of the above, we are of the considered opinion that permitting the
Magistrate to proceed further with the complaint under the provisions of the
2005 Act is not compatible and in consonance with the decree of divorce which
still subsists and thus, the process amounts to abuse of the process of the

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 court. Undoubtedly, for quashing a complaint, the court has to take its contents
on its face value and in case the same discloses an offence, the court generally
does not interfere with the same. However, in the backdrop of the factual
matrix of this case, permitting the court to proceed with the complaint would be
travesty of justice. Thus, interest of justice warrants quashing of the same.
1 7 . Another case on which reliance was placed during the hearing was Krishna
Bhattacharjee v. Sarathi Choudhary MANU/SC/1330/2015 : (2016) 2 SCC 705. In that
case, a decree for judicial separation was passed by a competent court. Thereafter, an
application Under Section 12 of the Act was preferred by the wife seeking return of
Stridhan articles and allied reliefs. A plea was taken by the husband that the
proceedings under the Act were barred by time. The Magistrate held that as a result of
decree for judicial separation, the parties ceased to be in domestic relationship and as
such, no relief could be granted. The appeal arising therefrom was dismissed by the
lower appellate court and finally revision preferred by the wife was also dismissed by
the High Court. In light of these facts, the issue of limitation was considered by this
Court as under:
3 2 . Regard being had to the aforesaid statement of law, we have to see
whether retention of stridhan by the husband or any other family members is a
continuing offence or not. There can be no dispute that wife can file a suit for
realization of the stridhan but it does not debar her to lodge a criminal
complaint for criminal breach of trust. We must state that was the situation
before the 2005 Act came into force. In the 2005 Act, the definition of
"aggrieved person" clearly postulates about the status of any woman who has
been subjected to domestic violence as defined Under Section 3 of the said Act.
"Economic abuse" as it has been defined in Section 3(iv) of the said Act has a
large canvass. Section 12, relevant portion of which has been reproduced
hereinbefore, provides for procedure for obtaining orders of reliefs. It has been
held in Inderjit Singh Grewal MANU/SC/0988/2011 : (2011) 12 SCC 588 that
Section 468 of the Code of Criminal Procedure applies to the said case under
the 2005 Act as envisaged Under Sections 28 and 32 of the said Act read with
Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We
need not advert to the same as we are of the considered opinion that as long as
the status of the aggrieved person remains and stridhan remains in the custody
of the husband, the wife can always put forth her claim Under Section 12 of the
2005 Act. We are disposed to think so as the status between the parties is not
severed because of the decree of dissolution of marriage. The concept of
"continuing offence" gets attracted from the date of deprivation of stridhan, for
neither the husband nor any other family members can have any right over the
stridhan and they remain the custodians. For the purpose of the 2005 Act, she
can submit an application to the Protection Officer for one or more of the reliefs
under the 2005 Act.
33. In the present case, the wife had submitted the application on 22-5-2010
and the said authority had forwarded the same on 1-6-2010. In the application,
the wife had mentioned that the husband had stopped payment of monthly
maintenance from January 2010 and, therefore, she had been compelled to file
the application for stridhan. Regard being had to the said concept of
"continuing offence" and the demands made, we are disposed to think that the
application was not barred by limitation and the courts below as well as the
High Court had fallen into a grave error by dismissing the application being
barred by limitation.
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18. Inderjit Singh Grewal MANU/SC/0988/2011 : (2011) 12 SCC 588 was decided
before the decision of this Court in Sarah Mathew MANU/SC/1210/2013 : (2014) 2
SCC 62. Rather than the issue of limitation, what really weighed with this Court in
Inderjit Singh Grewal MANU/SC/0988/2011 : (2011) 12 SCC 588 was the fact that the
domestic violence was alleged after the decree for divorce, when any relationship
between the parties had ceased to exist. It is true that the plea based on Section 468 of
the Code was noted in paragraph 32 of said decision but the effect and interplay of
Sections 12 and 31 of the Act was not noticed. In Krishna Bhattarcharjee
MANU/SC/1330/2015 : (2016) 2 SCC 705 as is evident from paragraph 33 of the said
decision, the plea of limitation was rejected as the offence was found to be continuing
one and as such there was no terminal point from which date the limitation could be
reckoned.
Thus, none of these decisions is material for the purposes of the instant matter.
19. The special features with regard to an application Under Section 12 of the Act were
noticed by a Single Judge of the High Court in Dr. P. Padmanathan and Ors. as under:
19. In the first instance, it is, therefore, necessary to examine the areas where
the D.V. Act or the D.V. Rules have specifically set out the procedure thereby
excluding the operation of Code of Criminal Procedure as contemplated Under
Section 28(1) of the Act. This takes us to the D.V. Rules. At the outset, it may
be noticed that a "complaint" as contemplated under the D.V. Act and the D.V.
Rules is not the same as a "complaint" under Code of Criminal Procedure.
A complaint Under Rule 2(b) of the D.V. Rules is defined as an allegation made
orally or in writing by any person to a Protection Officer. On the other hand, a
complaint, Under Section 2(d) of the Code of Criminal Procedure is any
allegation made orally or in writing to a Magistrate, with a view to his taking
action under the Code, that some person, whether known or unknown has
committed an offence. However, the Magistrate dealing with an application
Under Section 12 of the Act is not called upon to take action for the commission
of an offence. Hence, what is contemplated is not a complaint but an
application to a Magistrate as set out in Rule 6(1) of the D.V. Rules. A
complaint under the D.V. Rules is made only to a Protection Officer as
contemplated Under Rule 4(1) of the D.V. Rules.
20. Rule 6(1) sets out that an application Under Section 12 of the Act shall be
as per Form II appended to the Act. Thus, an application Under Section 12 not
being a complaint as defined Under Section 2(d) of the Code of Criminal
Procedure, the procedure for cognizance set out Under Section 190(1)(a) of the
Code followed by the procedure set out in Chapter XV of the Code for taking
cognizance will have no application to a proceeding under the D.V. Act. To
reiterate, Section 190(1)(a) of the Code and the procedure set out in the
subsequent Chapter XV of the Code will apply only in cases of complaints,
Under Section 2(d) of Code of Criminal Procedure, given to a Magistrate and
not to an application Under Section 12 of the Act.
20. It is thus clear that the High Court wrongly equated filing of an application Under
Section 12 of the Act to lodging of a complaint or initiation of prosecution. In our
considered view, the High Court was in error in observing that the application Under
Section 12 of the Act ought to have been filed within a period of one year of the alleged
acts of domestic violence.

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2 1 . It is, however, true that as noted by the Protection Officer in his Domestic
Inspection Report dated 2.08.2018, there appears to be a period of almost 10 years
after 16.09.2008, when nothing was alleged by the Appellant against the husband. But
that is a matter which will certainly be considered by the Magistrate after response is
received from the husband and the rival contentions are considered. That is an exercise
which has to be undertaken by the Magistrate after considering all the factual aspects
presented before him, including whether the allegations constitute a continuing wrong.
2 2 . Lastly, we deal with the submission based on the decision in Adalat Prasad
MANU/SC/0688/2004 : (2004) 7 SCC 338. The ratio in that case applies when a
Magistrate takes cognizance of an offence and issues process, in which event instead of
going back to the Magistrate, the remedy lies in filing petition Under Section 482 of the
Code. The scope of notice Under Section 12 of the Act is to call for a response from the
Respondent in terms of the Statute so that after considering rival submissions,
appropriate order can be issued. Thus, the matter stands on a different footing and the
dictum in Adalat Prasad MANU/SC/0688/2004 : (2004) 7 SCC 338 would not get
attracted at a stage when a notice is issued Under Section 12 of the Act.
23. We, therefore, allow this appeal and set aside the view taken by the High Court.
Crl. O.P. No. 28924 of 2018 is accordingly, dismissed. The husband shall file his
response before the Magistrate within two weeks and the matter shall thereafter be
considered by the Magistrate in terms of the provisions of the Act.
24. We must clarify that we have considered the instant matter from the perspective
whether the application preferred Under Section 12 of the Act was rightly considered by
the High Court for reckoning the period of limitation. We have not and shall not be
taken to have expressed any view on merits of the matter which shall be gone into
independently at every stage.
25. The appeal is, thus, allowed. No order as to costs.

1 High Court of Judicature at Madras

2 (2014) 2 SCC 104
© Manupatra Information Solutions Pvt. Ltd.

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