Madras High Court
K.Kalavathy vs State Rep. By on 6 August, 2017
Crl.O.P.No.4110 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 05.07.2022
Delivered On : 26.08.2022
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.4110 of 2021
1.K.Kalavathy
2.C.Karunamoorthy
3.K.Indhumathy
4.K.Anupriya
5.K.Keerthana ... Petitioners/Accused
-vs-
1.State rep. by
Inspector of Police,
Bagayam Police Station,
Vellore,
(Crime No.223 of 2017) ... Respondent/Complainant
2.Anjum ... Respondent/De-facto Complainant
PRAYER: Criminal Original Petition has been filed under Section 482 of
Cr.P.C, praying to call for the records in Crime No.223 of 2017 on the file
of the first Respondent and quash the same and render justice.
For Petitioner : Mr.R.Radha Pandian
For Respondent 1 : Mr.L.Baskaran
Government Advocate (Crl. Side)
For Respondent 2 : No appearance
1/9
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.4110 of 2021
ORDER
This Criminal Original Petition had been filed seeking to quash the First Information Report in Crime No.223 of 2017 on the file of the first Respondent.
2.The learned Counsel for the Petitioner submitted that the FIR in Crime No.223 of 2017 had been registered against the Petitioners 1 to 5 based on the complaint of the second Respondent/De-facto Complainant, dated 06.08.2017. The FIR is registered for the offences under Sections 147, 294(b), 323, 427 of IPC r/w. 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2004. He further submitted that the punishment for the offence under Section 147 is two years imprisonment or fine or both, for the offence under Section 294(b) - imprisonment of three months or fine or both, for the offence under Section 323 imprisonment of one year or fine, for offence under Section 427 imprisonment for two years or fine. He further submitted that as per Section 468(2) of the period of limitation shall be maximum three years of imprisonment. In this case, the offences involved are punishable with one year or two years imprisonment. 2/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 Therefore, maximum period of three years prescribed as per Section 468(2) of Cr.P.C. had already been lapsed, however, till date charge sheet had not been filed from the date of registration of the FIR. Therefore, the learned Counsel for the Petitioners submitted that the FIR in Crime No.223 of 2017 on the file of the first Respondent/Inspector of Police, Bagayam Police Station, Vellore District, has to be quashed.
3.In support of his contention, the learned Counsel for the Petitioners relied upon the following decisions:
3.1.In the case of Aftab Khan -vs- The State of Jharkhand reported in 2012 3 JLRJ 468 wherein the High Court of Jharkhand had observed as follows:
“7. Out of the offences, for which the case was instituted against the petitioner, the maximum punishment is provided for the offence under Section 414 of the Penal Code, 1860, which is punishable with the maximum period of imprisonment for 3 years. In that view of the matter, there is clear bar under Section 468(2)(c) of the Cr.P.C. in taking cognizance of the offence after the lapse of the period of 3 years. The Impugned order clearly shows that charge sheet has been submitted in the case and cognizance has been taken against the petitioner after the lapse of the period of three years. In that view of the matter, impugned order is absolutely illegal and wholly without jurisdiction and the same cannot be sustained in the eyes of law.” 3.2.In the case of Sarah Mathew -vs- Institute of Cardio Vascular 3/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 Diseases rep. by its Directors and Others reported in (2014) 2 SCC 102 the Hon'ble Supreme Court had observed as under:
3. In Krishna Pillai [1990 Supp SCC 121 : 1990 SCC (Cri) 646] , the Court after referring to the Constitution Bench decision in A.R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 277] made the following observations : (Krishna Pillai case [1990 Supp SCC 121 : 1990 SCC (Cri) 646] , SCC p. 122, para 4) “4. … The extract from the Constitution Bench judgment [(1984) 2 SCC 500 : 1984 SCC (Cri) 277] clearly indicates that filing of a complaint in court is not taking cognizance and what exactly constitutes taking cognizance is different from filing of a complaint. Since the magisterial action in this case was beyond the period of one year from the date of the commission of the offence the Magistrate was not competent to take cognizance when he did in view of the bar under Section 9 of the Act. We accordingly allow the appeal and quash the prosecution. The writ petition is permitted to be withdrawn as not pressed.” 3.3.In the case of Mahesh Murthy -vs- The State of Maharashtra and Others reported in 2019 2 CriCC 628 the High Court of Bombay had observed as under:
“11.Before parting with this order, we must make a reference to the arguments made by Ms.Shah, learned Counsel for the respondent No.2, regarding petitioner being serial sexual offender and the provisions of limitation could not be made applicable to sexual offences. We are unable to accept the said argument in the absence of any supporting material. Section 468 of Cr.P.C. is applicable to every offence under IPC 4/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 and offences under Sections 354 and 509 as alleged against the petitioner are under IPC. The allegations against the petitioner that he is a serial sexual offender would not be relevant to examine the validity and legality of subject criminal proceedings pending before the learned Magistrate.” 3.4.In an unreported decision of this Court in Crl.O.P.(MD) No.9589 of 2021 dated 23.09.2021 [S.Subash -vs- The State rep. by The Inspector of Police, Nagamalai Pudukottai Police Station, Madurai District and another] it has been held as under:
“5. The learned counsel for the petitioner would rely upon the judgment of the Hon-ble Supreme Court reported in Mrs.Sarah Methew Vs. The Institute of Cardio Vascular Diseases by its Director Dr.K.M.Cherian & Others in Crl.A.No.829 of 2005. Wherein, the question which arose before the Hon'ble Supreme Court is whether for the purpose of computing the period of limitation under Section 468 Cr.P.C, the relevant date is the date of filing of the complaint or the date of institution of prosecution or the date of cognizance of the offence. So, after going through the entire provision of law as well as proceedings, the Hon'ble Supreme Court, came to the conclusion that the relevant date of the limitation under Section 468 Cr.P.C is the date, which it has been presented before the concerned Court and not the date, which has been taken cognizance.
6. So, in the light of the above said discussion, as mentioned earlier, it has been presented before the concerned Court, only on 24th March 2021. Even though, it has been prepared on 02.07.2017, it was not presented before the concerned Court within the above said time, is clearly barred by limitation and so, the cognizance taken by the Trial Court is illegal and the entire prosecution is liable to be quashed.” 5/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021
4.Section 468(2) of Cr.P.C. is extracted as under:
“468. Bar to taking congnizance after lapse 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.”
5.The learned Government Advocate (Crl. Side) appearing for the first Respondent vehemently objected to quash the FIR stating that it is an offence attracting Harassment of Women Act. Therefore, the Investigation Officer is within his power to file the Charge Sheet.
6.On consideration of the rival submissions and on perusal of the provisions to Section 468 of Cr.P.C. and the reported rulings relied upon by the Petitioners in support of his submission viz., i) Aftab Khan -vs- The 6/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 State of Jharkhand reported in 2012 3 JLRJ 468, ii) Sarah Mathew -vs- Institute of Cardio Vascular Diseases rep. by its Directors and Others reported in (2014) 2 SCC 102, iii) Mahesh Murthy -vs- The State of Maharashtra and Others reported in 2019 2 CriCC 628 and unreported judgment of this Court in Crl.O.P.(MD) No.9589 of 2021 dated 23.09.2021 [S.Subash -vs- The State rep. by The Inspector of Police, Nagamalai Pudukottai Police Station, Madurai District and another], it is found that the offences involved in this case attracts maximum period of imprisonment of two years. Therefore, as per Section 468(2) of Cr.P.C., the charge sheet ought to have been filed within three years from the date of registration of the First Information Report. The facts of the case in the reported rulings squarely applies to the facts of this case. Since the charge sheet had not been filed till date, the FIR in Crime No.223 of 2017 on the file of the first Respondent is to be quashed.
In the result, this Criminal Original Petition is allowed. The FIR in Crime No.223 of 2017 on the file of the first Respondent/Inspector of Police, Bagayam Police Station, Vellore, is 7/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 quashed.
26.08.2022 SRM Index : Yes / No Internet : Yes / No To
1.The Inspector of Police, Bagayam Police Station, Vellore.
2.The Public Prosecutor, High Court, Madras.
8/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.4110 of 2021 SATHI KUMAR SUKUMARA KURUP., J.
SRM Order made in Crl.O.P.No.4110 of 2021 26.08.2022 9/9 https://www.mhc.tn.gov.in/judis