SARAH MATHEW Vs. INST., CARDIO VASCULAR DISEASES

JUDGEMENT

(1.) This matter has been referred to a three-Judge Bench as there is a direct conflict in the three-Judge Bench decision of this Court in Krishna Pillai v. T.A. Rajendran, 1990 Supp1 SCC 121 on the one hand and the two-Judge Bench decisions; (1) Bharat Damodar Kale v. State of A.P., 2003 8 SCC 559 ; (2) Japani Sahoo v. Chandra Sekhar Mohanty, 2007 7 SCC 394, on the other. The later two decisions have not noted the earlier decision in Krishna Pillai v. T.A. Rajendran, 1990 Supp1 SCC 121.

(2.) We have heard Mr K. Swami, learned counsel for the appellant and Mr K.V Viswanathan, learned Senior Counsel for Respondent 1 for some time. Prima facie, we are persuaded by the decision in Bharat Damodar Kale2 which has been followed in Japani Sahoo v. Chandra Sekhar Mohanty, 2007 7 SCC 394 wherein it has been held that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or the institution of prosecution and not the date of taking cognizance by a Magistrate or issuance of process by a court. The three-Judge Bench in Krishna Pillai1 has not adverted to diverse aspects including the aspect 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.

(3.) As a coordinate Bench, we cannot declare that Krishna Pillai1 does not lay down correct law. We are, therefore, of the view that the matter should be referred to a five-Judge Bench to examine the correctness of the view in Krishna Pillai.