Rajasthan High Court - Jaipur
Sahabuddin And Ors vs State on 3 October, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CRIMINAL MISC. PETITION NO. 1612/2006 SAHABUDDIN & OTHERS VS. THE STATE OF RAJASTHAN & ANOTHER. DATE OF ORDER : 3.10.2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II Mr. S.S. Ali, for the petitioners.
Mr. Laxman Meena, Public Prosecutor, for the Respondent No. 1-State.
Mr. Praveen Jain, for the Respondent No. 2.
Instant petition has been filed under Section 482 Cr.P.C. by the accused-petitioners against the order dated 11.07.2006 passed by the learned Special Judge, SC/ST(Prevention of Atrocities Cases), Tonk(hereinafter referred to as the Revisional Court) in Criminal Revision No. 30/2005, whereby the learned Revisional Court dismissed the revision petition filed by the petitioners and upheld the order dated 18.07.2002 passed by the learned Additional Chief Judicial Magistrate, Tonk(hereinafter referred to as the Trial Court) whereby the learned Trial Court took cognizance under Sections 498A and 406 IPC on charge sheet submitted by the police.
2. Brief facts of the case are that marriage of the accused-Petitioner No. 1 and the complainant-Respondent No. 2, Smt. Samina was solemnized according to Muslim Sariat and customs at Village Jawari on 04.05.1996. Thereafter, relations of husband and wife did not remain cordial and ultimately, father of Samina brought her from the petitioners house in July, 1997 and since then she is living with her father at Jawari. When all the efforts of the Petitioner No. 1 to fetch her at his residence at Tonk and to live with her and discharge marital obligations failed, the petitioner No. 1 stated to think regarding divorcing her and accordingly he divorced the complainant-wife on 22.03.1999 and informed her through registered post about the Talaknama. The complainant/Respondent No. 2 submitted an application under Section 125 Cr.P.C. for grant of maintenance allowance from the Petitioner No. 1, but interim maintenance application was rejected by the learned Trial Court vide order dated 03.12.2001. After dismissal of the interim maintenance application on 03.12.2001, the complainant filed a complaint on 18.04.2002 making the allegations for the offences punishable under Sections 498-A and 406 IPC against the accused-petitioners. That complaint was sent for investigation to the concerned police station under Section 156(3) Cr.P.C. After due investigation, charge sheet was filed on 20.06.2002 for the offences punishable under Section 498-A and 406 IPC against the petitioners. Thereafter, the accused-petitioners protested to the concerned Magistrate ascertaining therein that the allegations for the aforesaid offences are false and fictitious and the charge sheet has been filed after the limitation prescribed for taking the cognizance of these offences under Section 468 Cr.P.C. and they had invited the attention of the Court to the Police Statement also.
3. After hearing both the parties, learned Trial Court turned down the protest of the accused-petitioners vide order dated 18.07.2002. Being aggrieved with the aforesaid order passed by the Trial Court, the petitioners filed criminal revision petition No. 30/2005 and the same was dismissed by the learned Revisional Court vide impugned order dated 11.07.2006. Being aggrieved by the aforesaid orders passed by both the Courts below, this misc. petition has been filed by the accused-petitioners.
4. Heard learned counsel for the accused-petitioners, learned counsel for the complainant-Respondent No. 2 as well as learned Public Prosecutor appearing on behalf of the Respondent No. 1-State and perused the material available on record and also the judgments cited by learned counsel for both the parties.
5. Learned counsel for the accused-petitioners firstly submitted that powers of the High Court are not limited to pass any order for the ends of justice and for the purpose of preventing the abuse of the process of the Court. It is also provided that these are the inherent powers of the High Court to make any order which appears to be just and reasonable and necessary to prevent the abuse of the process of the Court or for securing the ends of justice. Learned counsel for the accused-petitioners in support of his arguments has placed reliance upon the decision rendered by the Honble Supreme Court in the case of Jitender Kumar Jain Vs. Stae of Delhi & Others, 1998(8) SCC 770, in which it has been held by the Honble Apex Court that Court of Sessions dismissing the revision petition-petition under Section 482 filed against said revisional order, held, should not have been dismissed by High Court merely because in such a case a second revision petition before the High Court did not lie-it was otherwise open to the High Court not to interfere in the matter when examining the case under Section 482 Cr.P.C.
6. Learned counsel for the accused-petitioners further submitted that Respondent No. 2-complainant admittedly is living with her father since 1997. She has been divorced as early as on 22.03.1999 and only for this reason learned Trial Court has dismissed her application for interim maintenance clarifying therein that a divorced lady can only claim her rights under Section 3(2) of the Muslim Women Protection on Divorce Act, 1986. So, the charge sheet for the offences punishable under Sections 498-A and 406 IPC against the petitioners appears to be quite false and fictitious as well as time barred also, but the learned Trial Court as well as learned Revisional Court have committed abuse of process by passing impugned orders of taking cognizance against the petitioners which is beyond the limitation prescribed in the statute. Learned counsel for the petitioners further submitted that provisions of Section 468 Cr.P.C. provide a bar for taking cognizance after the period prescribed in the statute. Offences under Sections 498-A and 406 IPC are punishable for three years for which the limitation under Section 468(2)(c) is three years, if the offence is punishable with imprisonment with a term exceeding one but not exceeding three years and as such both the offences were punishable with three years imprisonment and the period of limitation is also prescribed for three years. In these circumstances, the complainant-Respondent No. 2 is living with her parents at Village Jawari and she has been divorced in 1999 and she has been defined as a divorced lady in the order of interim maintenance, she made a false complaint for the offences punishable under Sections 498-A, 406 IPC on 18.04.2002, admittedly after more than three years of her living separately with the petitioners. So, as is apparent from the orders of both the Courts below, the cognizance has been taken as late as on 18.07.2002, admittedly after a period of limitation prescribed under Section 468 Cr.P.C. Admittedly the complainant-Respondent No. 2 was living with her parents for the last four years since 1997 and has been divorced as early as on 22.03.1999. So, the learned counsel for the petitioners prayed that this misc. petition may be allowed and the impugned orders passed by both the Courts below may be quashed and set aside.
7. Learned counsel for the Respondent No. 2-complainant vehemently submitted that the orders passed by both the Courts below are legal, just and proper in the facts and circumstances as well as evidence available on record. He further submitted that learned Trial Court has passed the order taking cognizance on 18.07.2002 after perusal of charge sheet and the papers filed by the police after due investigation and rightly discussed that in the facts and evidence available on record, prima facie case for taking cognizance under Section 498-A and 406 IPC is made out against the accused-petitioners and learned Revisional Court has rightly dismissed the revision petition filed by the accused-petitioners vide order dated 11.07.2006. Learned counsel for the petitioners relied upon the order dated 03.12.2001 passed by the learned Additional Chief Judicial Magistrate, Tonk in Case No. 130/2001, whereby the learned Magistrate has denied to pass any order for interim maintenance, but after that order learned Magistrate having jurisdiction has passed the maintenance order in favour of the complainant-Respondent No. 2 and the petitioner No. 1-husband is paying the maintenance to the complainant till now, hence, order dated 03.12.2001 has no evidentary value after passing final order.
8. Learned counsel for the Respondent No. 2-complainant submitted that order dated 03.12.2001 is of interlocutory nature, but final order was passed in favour of the Respondent No. 2. So, the order dated 03.12.2001 does not affect the case of the Respondent No. 2 adversely. Learned counsel further submitted that plea of Section 468 Cr.P.C. for time barred complaint can be taken at the time of framing of the charge. He has further submitted that if upon considering the police report and the documents sent with it under Section 173 Cr.P.C. and upon making an examination, if any of the case, as the Magistrate thinks necessary and after giving the prosecution and accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. If the Magistrate thinks proper and finds that there is prima facie evidence or the material against the accused-persons in support of the charge(allegations), he may frame charge in accordance with Section 240 Cr.P.C. In support of his arguments, learned counsel for the Respondent No. 2 has placed reliance upon the judgments rendered by the Honble Supreme Court in the cases of Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 and Arun Vyas & Another Vs. Anita Vyas, AIR 1999 SC 2071.
9. Having considered all the facts and circumstances of the case and upon perusal of the record, it is apparent that after due investigation, the police has filed charge sheet against the accused petitioners for the offences punishable under Section 498-A and 406 IPC. It is also relevant that after passing the order of interim maintenance dated 03.12.2001, concerned Magistrate has passed the maintenance order in favour of the Respondent No. 2-complainant and learned counsel for the petitioners has not denied this fact. In this way, the interim maintenance order dated 03.12.2001 is not adversely effecting to the case of the Respondent No. 2-complainant. Learned Trial Court has observed in its order dated 18.07.2002 that articles and Stridhan of the complainant was recovered from the possession of Accused-Petitioner No. 1 Sahabuddin on 11.06.2002 and the petitioners have not given the Stridhan to the Respondent No. 2-complainant till 11.06.2002 and offence under Section 406 IPC is within limitation and for the offence under Section 498-A IPC, learned Trial Court has observed that this is continuing offence. As per the decision rendered by the Honble Supreme Court in the case of Arun Vyas & Another(supra), the Court has vide powers in such type of cases, the accused should not be discharged in the garb of provisions of limitation and Section 473 Cr.P.C. should be applied.
10. The Honble Apex Court in the case of Arun Vyas & Another(supra) has observed as under:
10. The new Code of Criminal Procedure Code contains Chapter XXXVI, (Sections 467 to 473) which deals with limitation for taking cognizance of certain offences. Section 467 defines that the period of limitation for the purposes of that Chapter, to mean the period specified in Section 468 for taking cognizance of offence. Bar to taking cognizance on the expiry of period of limitation and extension of period of limitation, are dealt in by Sections 468 and 473 respectively. The point of commencement of period of limitation in the case of continuing offence is embodied in Section 472 and in the case other than a continuing offence is contained in Section 469. The provisions for exclusion of time in computing the period of limitation are incorporated in Sections 470 and 471.
11. It may be noted here that the object of having Chapter XXXVI in Cr.P.C. is to protect persons from prosecution based on stale grievances and complaints which may turn out to be vexatious. The reason for engrafting rule of limitation is that due to long lapse of time necessary evidence will be lost and persons prosecuted will be placed in a defenseless position. It will cause great mental anguish and hardship to them and may even result in miscarriage of justice. At the same time it is necessary to ensure that due to delays on the part of the investigating and prosecuting agencies and the application of rules of limitation the criminal justice system is not rendered toothless and ineffective and perpetrators of crime are not placed in advantageous position. The Parliament obviously taking note of various aspects, classified offences into two categories, having regard to the gravity of offences, on the basis of the punishment prescribed for them. Grave offences for which punishment prescribed is imprisonment for a term exceeding three years are not brought within the ambit of Chapter XXXVI. The period of limitation is prescribed only for offences for which punishment specified is imprisonment for a term not exceeding three years and even in such cases wide discretion is given to the Court in the matter of taking cognizance of an offence after the expiry of the period of limitation. Section 473 provides that if any Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice, it may take cognizance of an offence after the expiry of the period of limitation. This section opens with a non obstante clause and gives overriding effect to it over all the other provisions of Chapter XXXVI.
It is useful to read Section 468 Cr.P.C. here :
"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 a 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. A perusal of the provision, extracted above, shows that Sub-section (1) of Section 468 enjoins that no Court shall take cognizance of an offence of the categories specified in sub-section (2), after the expiry of the period of limitation mentioned therein. This rule is, however, subject to the other provisions of the Code. Sub-section (2) specifies the period of limitation of six months, if the offence is punishable with fine only;of one year, if the offence is punishable with imprisonment for a term exceeding one year and of three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Sub-section (3) which is inserted by Act 45 of 1978, deals with a situation where offences, are tried together and directs that for the purposes of that section the period of limitation 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.
13. The essence of the offence in Section 498-A is cruelty as defined in the explanation appended to that section. It is a continuing offence and on each occasion on which the respondent was subjected to cruelty, she would have a new starting point of limitation. The last act of cruelty was committed against the respondent, within the meaning of the explanation, on October 13, 1988 when, on the allegation made by the respondent in the complaint to Additional Chief Judicial Magistrate, she was forced to leave the matrimonial home. Having regard to the provisions of Sections 469 and 472 the period of limitation commenced for offences under Sections 406 and 498-A from October 13, 1988 and ended on October 12, 1991. But the charge-sheet was filed on December 22, 1995, therefore, it was clearly barred by limitation under Section 468(2)(c) Cr.P.C.
14. It may be noted here that Section 473 Cr.P.C. which extends the period of limiation is in two parts. The first part contains non obstante clause and gives overriding effect to that section over Sections 468 to 472. The second part has two limbs. The first limb confers power on every competent court to take cognizance of an offence after 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 and the second limb empowers such a court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression `in the interest of justice' in Section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is `interest of justice'. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C.in favour of a wife who is subjected to cruelty if on the fact and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interests of justice. This is only illustrative not exhaustive.
15. Any finding recorded by a Magistrate holding that the complaint to be barred by limitation without considering the provisions of Section 473 Cr.P.C will be a deficient and defective finding, vulnerable to challenge by the aggrieved party. In this case the complaint was clearly barred by limitation and no explanation was offered for inordinate delay; this is what the learned Magistrate took note of and concluded that the complaint was barred by limitation. This is correct insofar as the offence under Section 406 is concerned. Therefore, in regard to Section 406 the order of the learned Magistrate discharging the appellants cannot be faulted with. But regarding offence under Section 498-A the learned Magistrate did not advert to the second limb of the second part in Section 473 Cr.P.C. referred to above. The order of the learned Magistrate on this aspect was unsustainable so the High Court has committed no illegality in setting aside that part of the order of the learned Magistrate.
16. In Vanka Radhamanohari (Smt.) vs. Vanka Venkata Reddy, (1993) 3 SCC 4 : (1993 AIR SCW 3595), the wife who was subjected to cruelty left the matrimonial home in 1985. In 1990 she filed the complaint alleging cruelty and maltreatment against the husband and mother-in-law and further stating that the husband had remarried. The Magistrate took cognizance of offences under Sections 498-A and 494 IPC. On the petition of the husband under Section 482 Cr.P.C., the High Court quashed the complaint. This Court, on appeal from the judgment of the High Court, held that the High Court erred in quashing the complaint as Section 468 Cr.P.C. could not be applied to offence under Section 494 IPC (for it is punishable with imprisonment for a term which may extend to 7 years) and even in respect of offence under Section 498-A, the attention of the High Court was not drawn to Section 473 Cr.P.C. While setting aside the impugned order of the High Court this Court observed :
"As such, courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interests of justice".
17. For the reasons stated above the High Court was not correct insofar as the order of Magistrate relates to Section 406 IPC. But in regard to offence under Section 498-A IPC no exception can be taken to the impugned order under appeal as the learned Magistrate did not take note of Section 473 Cr.P.C., while ordering discharge of the appellants. Now the learned Magistrate shall consider the question of limitation taking note of Section 473 Cr.P.C. in the light of observations made hereinabove. Accordingly, the appeal is allowed in part.
11. The petitioners have already availed one revision as envisaged under Section 397 Cr.P.C. and in the garb of the petition under Section 482 Cr.P.C., the petitioners want to avail second revision, which is otherwise barred by sub-Section (3) of Section 397 Cr.P.C. Though, this court, in appropriate cases, has inherent powers to be exercised, where it appears that the orders, which are under challenge, have resulted in serious miscarriage of justice or abuse of process of the court, further, the power being an extraordinary one and it has to be exercised sparingly. The case in hand is not of that nature. Whatever the defence, the petitioners may have, it is always open for them to take the same before the learned Trial Court at the appropriate stage and certain questions, which are to be raised, are purely the questions of facts and they have to be decided on adducing the evidence by the parties. In the facts and circumstances and evidence available on record of the present case, I do not find any good ground to interfere with the impugned orders in exercise of the inherent jurisdiction under section 482 Cr.P.C.
12. Having considered the submissions made by learned counsel for the parties and upon careful perusal of the impugned orders passed by both the Courts below, I find no error or illegality in the impugned orders passed by both the Courts below and the same require no interference by this Court under it's inherent jurisdiction under Section 482 Cr.P.C.
13. Consequently, the misc. petition is, accordingly, dismissed.
(NARENDRA KUMAR JAIN-II),J.
Manoj All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MANOJ NARWANI JUNIOR PERSONAL ASSISTANT