2025:UHC:6235

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application U/s 482 No. 1310 of 2023

17 July, 2025

Gurdev Singh --Applicant

Versus

State Of Uttarakhand and Another --Respondents

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Presence:-

Ms. Ananya Jain, learned counsel holding brief of Mr.

Sandeep Kothari, learned counsel for the applicant.

Mr. S.S. Chauhan, learned D.A.G. with Mr. Vikas Uniyal,

learned Brief Holder for the State of Uttarakhand/

respondent No.1.

Mr. Akshay Pradhan, learned counsel for respondent No.2.

Hon’ble Pankaj Purohit, J. (Oral)

Heard learned counsel for the parties.

2. By means of the present C482 application,

the applicant has challenged cognizance order dated

07.02.2023 passed in Criminal Case No.59 of 2021

State of Uttarakhand Vs. Gurdev, and summoning order

dated 29.05.2023 in Criminal Case No.8 of 2023, Km.

Raina Vs. Gurdev, under Section 354-D IPC, passed by

learned Judicial Magistrate, Purola, District

Uttarkashi, whereby, the final report has been rejected,

protest petition has been registered as a complaint case

and the applicant has been summoned, along with the

entire proceedings of the aforesaid criminal case.

3. The facts in brief are that the respondent

No.2 was working as Assistant Boring Technician in

Minor Irrigation, Sub -division Purola, District

Uttarkashi while the applicant was working as Assistant Engineer in Minor Irrigation, Sub-division

Naugaon, District Uttarkashi. The respondent No.2

had filed a complaint before the Executive Engineer of

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the concerned division on 13.09.2018 and on the said

complaint, departmental inquiry was conducted.

Thereafter, the respondent No.2 lodged the FIR on

18.09.2019 against the applicant stating that the

applicant used to send obscene messages to her from

his mobile.

4. Learned counsel for the applicant submits

that there was nothing found against the applicant in

the departmental inquiry. Sh e submits that the

respondent No.2 had asked for the applicant’s mobile

phone on the pretext of there was no recharge on her

phone and respondent No.2 wants to talk urgently with

her parents, probably, at that time, respondent No.2

had sent some messages from the mobile phone of

applicant to her mobile phone inasmuch as it might

have been deleted from his phone.

5. Learned counsel for the applicant contends

that after lodging of the FIR, final report was submitted

and the matter was referred for further investigation by

the orders of higher officers of Police and during this

time, the applicant’s phone was also sent to CFSL,

Chandigarh for forensic examination, however, again

no evidence could be substantiated and a final report

was submitted, to which the notices were issued to the

respondent No.2. Thereafter, respondent No.2 had

submitted a protest petition on 28.08.2021 before the

learned Judicial Magistrate, Purola, District Uttarkashi

and without considering the overall facts and

circumstances of the case, learned Magistrate had

taken the cognizance on 07.02.2023 and registered the

protest petition as a complaint case. Learned

Magistrate had proceeded to pass the summoning

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order on 29.05.2023, whereby, the applicant was

summoned to face the trial under Section 354-D IPC.

6. It is contended by learned counsel for the

applicant that the summoning order passed by the

learned Magistrate is abuse of process of law and is not

sustainable for the simple reason that the manner in

which the inquiry at different level have been carried

out and in every inquiry, when the allegations could

not be substantiated, on the same material, taking

cognizance is absolutely erroneous inasmuch as it is

an admitted position that under Section 202 Cr.P.C.,

no other evidence has been tendered by the respondent

No.2 in order to support the case.

7. It is further contended by her that the

provisions contained in Section 468(2)(c) Cr.P.C. states

that the cognizance could not have been taken beyond

a period of three years for an offence punishable under

Section 354-D. In the present set of circumstances, the

alleged offence had taken place on 30/31.08.2018 and

the summoning order was passed on 29.05.2023 and

at best it can be treated as 07.02.2023, but it is a time

much beyond a period of three years and hence the

cognizance taken by the learned Magistrate is barred

by the provision of Section 468 Cr.P.C.

8. Per contra, learned State Counsel has

supported the prosecution story and submits on the

basis of its counter affidavit that allegations made in

the FIR have been found to be proved and consequently

the final report has been filed after collecting evidences.

Thus, the cognizance order dated 29.05.2023 has been

rightly passed by the learned Magistrate on the basis of

the statement made by the respondent No.2-victim as

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well as the Inquiry Report dated 02.07.2019.

9. Learned counsel for respondent No.2 has filed

its counter affidavit and on the basis of it, he submits

that the applicant is making a futile and baseless

attempt to concoct a fig -leaf of a defense for his heinous

and unconscionable act of stalking and harassing the

respondent No.2. He further submits that a Court can

throw out a complaint solely on the ground of delay,

because, the question of delay in filing a complaint may

be circumstance to be taken into consideration in

arriving at the final verdict, but by itself, it affords no

grounds for dismissing the complaint. Further, it is well

established that rules of limitation pertain to domain of

adjectival law and they operate only to bar the remedy

but not to extinguish the right. That for the purpose of

computing the period of limitation under Section 468 of

Cr.P.C., the relevant date is the date of institution of

prosecution and not the date on which the learned

Magistrate took cognizance.

10. Learned counsel for the applicant filed its

rejoinder affidavit and he submits that the initial

complaint was considered by the Circle Officer, who is

the rank of Deputy Superintendent of Police, District

Uttarkashi, who post enquiry, has submitted the report

and found that the allegations made against the

applicant were not substantiated and further the

internal complaint committee have also not given any

conclusive finding regarding the allegations contained

in the complaint of respondent No.2, however, the

respondent No.2 had insisted for lodging of the FIR and

consequently, the FIR was lodged.

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11. Having heard the learned counsel for the

applicants and on perusal of the FIR and other

documents available on record, this Court finds that

the arguments made by the learned counsel for the

parties are a matter of evidence, which can only be

looked into by the learned Trial Court at the time of

trial when the evidence would be adduced by both the

parties. Moreover, the argument of learned counsel for

the applicant regarding the trial being time barred is

also fallacious, as it is a settled position of law that

computation of limitation is done from the lodging of

FIR or filing of a complaint and it has no concern as to

the date of taking cognizance. On perusal of the present

factual matrix, it clearly shows that the complaint of

alleged incident was filed before the Executive Engineer,

Minor Irrigation Department, Uttarkashi, on

13.09.2018, on which, after departmental inquiry, FIR

was registered on 18.09.2019 against the applicant.

Both the complaint and the FIR was filed well within

three years, on which cognizance was taken at a later

stage on 07.02.2023. Thus, in no stretch of

imagination, it can be said that the case of respondent

No.2 was time barred. My view is further fortified by a

judgment dated 04.06.2025 rendered by Hon’ble Apex

Court in the case of Ghanshyam Soni Vs. State (Govt.

of NCT of Delhi) and Another , in Criminal Appeal

No.2894 of 2025. For ready reference, the relevant Para

Nos. 15 and 16 of the said judgment are quoted herein

below:-

“15. It is a settled position of law that for the computation of

the limitation period under Section 468 Cr .P.C. 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. The dicta laid

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down in the case of Bharat Damodar Kale & Anr. v.

State of Andhra Pradesh makes it unequivocally clear

that the Magistrate is well within his powers to take

cognizance of a complaint filed within a period of three

years from the date of the commission of offence as

mandated under section 468 CrPC. The relevant portion

is reproduced as under:

“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.

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.”

16. The following observation in Kamatchi v. Lakshmi

Narayanan also re-iterates the said position, and further

holds that simply because the cognizance is taken at a

later stage, but the Complaint was filed within the

specified period from the commission of the offence, the

Complainant cannot be put to prejudice and her

Complaint cannot be discarded as time-barred.

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“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.”

12. Further, t his Court under Section 482 of

Cr.P.C. cannot embark upon a fact finding inquiry

which can only be done by the learned Trial Court. This

case does not fall in the ‘rarest of rare’ category for

invoking the inherent powers of this Court.

13. Accordingly, the C482 application is

dismissed.

14. Interim order dated 04.07.2023 stands

vacated.

(Pankaj Purohit, J.)

17.07.2025

PN

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