Orissa High Court
Basanta Kumar Mishra And Ors. vs State Of Orissa on 23 February, 2007
Equivalent citations: 2007(I)OLR700
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
JUDGMENT Indrajit Mahanty, J.
1. In the present application under Section 482 Cr. P.C. the petitioner has sought to challenge the order dated 20.9.2006 passed by the learned J.M.F.C., Banpur in G.R. Case No. 172 of 2002 extending the period of limitation exercising the power under Section 473 Cr.P.C. for taking cognizance of the offence under Sections 498A/34 I.P.C. as well as under Sections 4 and 6 of the Dowry Prohibition Act.
2. The undisputed facts of the case are that one Sanjit Rath, the son of petitioner No. 2-Bama Prasan Rath married the informant-Diptimayee @ Buni Mahapatra, on 29.5.2001 in accordance with the Hindu customs and rites. Thereafter, the informant left the matrimonial house on 10.7.2001 and the F.I.R. in the present case was lodged on 31.5.2002. It is the case of both the parties that the charge sheet in the case was filed on 6.6.2006 and the learned J.M.F.C. by exercising the power under Section 473 Cr.P.C. took cognizance of various offences by the impugned order dated 20.9.2006.
3. Shri S. K. Ray, learned Counsel for the petitioners submitted that the period of limitation prescribed for taking cognizance of the offences allegedly committed by the petitioners is contained in Section 468(2)(c) Cr.P.C. In the present case, charge sheet having been filed under Section 498A/34 I.P.C. and under Sections 4 and 6 of the D.P. Act and the period of imprisonment prescribed being not exceeding three years, therefore, in terms of Section 468(2)(c) Cr. P.C. the Court should not have taken cognizance of the offence after expiry of the period of limitation of three years from the date of commission of the offence. Learned Counsel for the petitioners submitted that even in the terms of the facts narrated in the F.I.R., the informant having left the matrimonial house on 10.7.2001, the Court is barred from taking cognizance of the offence beyond the period of three years from the alleged last date of offence i.e. 10.7.2001.
Shri Ray, further submitted that the learned J.M.F.C, has erroneously exercised his jurisdiction under Section 473 Cr.P.C. which reads as follows:
473. Extension of period of limitation in certain cases -Not-withstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of 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 or that it is necessary so to do in the interest of justice.
According to Mr. Ray, from the impugned order it would be clear that the prosecution has failed to properly explain the delay, if any, in filing the charge sheet and in absence of any such explanation, exercise of power under Section 473 Cr.P.C. extending the period of limitation is wholly illegal, improper and without jurisdiction. Therefore, according to Shri Ray, learned J.M.F.C, has wrongly placed reliance on a decision of the Apex Court in the case of State of Punjab v. Sarwan Singh in coming to hold that the alleged offence committed by the petitioners was 'more or less like a continuing offence' and holding the facts of the present case are similar to the facts of Sarwan Singh's case (supra), thereby, erroneously exercising the power under Section 473 Cr.P.C., has stated that it was necessary to take cognizance of the offences in the interest of justice.
Mr. Ray submitted that the F.I.R. lodged against the petitioners on 31.5.2002 is nothing but the reaction of the informant to the filing of O.S. No. 77 of 2002 on 26.4.2002 by her husband under Section 12 of the Hindu Marriage Act in the Court of the learned Civil Judge (Sr. Divn.), Khurda with a prayer to declare the marriage null and void. Therefore, the filing of the F.I.R. ought to be held to be a false case and is liable to be quashed. In support of his contention, Shri Ray placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Tara Dutt and Anr. as well as on a decision of the Calcutta High Court in the case of S.K. Bajaj and Ors. v. D.K. Bhattacharya and Ors. 1982 Crl.L.J. 210.
4. Shri S.K. Mishra, learned Counsel for the informant-intervenor while not disputing the dates/events, supported the order of the learned J.M.F.C, dated 20.9.2006 by stating that no illegality can be attributed to the impugned order since the learned J.M.F.C. has correctly exercised his jurisdiction in the matter having proper understanding of his authority and jurisdiction under Section 473 Cr.P.C. and in the interest of justice has rightly extended the period of limitation for the purpose of taking cognizance of various offences against the petitioners.
Shri Mishra, further submitted that the informant has lodged the F.I.R. on 31.5.2002 which was within the period of limitation, but there was defay on the part of the investigating agency in submitting the charge sheet on 6.6.2006 and the prosecution should not fail on account of delay on the part of the investigating agency in concluding the investigation and filing the charge sheet. In this regard he further submitted that the period more than four years was taken by the investigating agency to conclude the investigation and file the charge sheet and for that delay, the offenders should not go scotfree. In support of his contention, Shri Mishra has placed reliance on a decision of the Apex Court in the case of Arun Vyas and Anr. v. Anita Vyas and on another decision of the Apex Court in the case of Ramesh and Ors. v. State of Tamil Nadu (2005) 30 OCR (SC) 752.
5. On a reading of Section 473 Cr.P.C. it is clear that a Court may take cognizance after expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. The aforesaid provision makes it clear that there are two alternative circumstances which may be raised for the purpose of seeking exercise of the power of extension under Section 473 Cr.P.C.; the first is, in a case where the delay has been properly explained and the second is a case where the Court may deem it necessary to extend the period of limitation in the interest of justice. There may also be other circumstances where both the criteria are satisfied i.e. delay having been properly explained as well as demand of the interest of justice. But it is equally clear that even if either of the conditions is satisfied, the Court is justified in exercise of its authority in extending the period of limitation.
Learned Counsel for the petitioners placed stress on Tara Dutt's case (supra) and in particular, paragraph-7 thereof. In the said judgment Hon'ble Supreme Court has held that in respect of the offences for which a period of limitation has been provided under Section 468 Cr.P.C., the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory, explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice and such discretion conferred on the Court has to be exercised judicially and wherever the Court exercises this discretion, the same must be by a speaking order indicating the satisfaction of the Court that the delay was satisfactorily explained and the condonation of the same was in the interest of justice. In the said case, it was further held that in absence of a positive order to that effect it may not be permissible for a superior Court to come to the conclusion that the Court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the Court took cognizance and proceeded with the trial of the offence.
The aforesaid dicta of the Apex Court, in my opinion, has been complied with by the learned J.M.F.C. inasmuch as the impugned order is a speaking order which clearly indicates the reasons of the satisfaction of the Court for extension of the period of limitation ought to be granted in the facts and circumstances of the case since the same was in the interest of justice and therefore, the above judgment of the Apex Court, in my opinion, does not have come to the aid of the present petitioners.
Another very important point to be noted here is that, in the above judgment, the Apex Court came to hold that Section 473 Cr. P.C. is of no application to the facts of the said case since for the offences charged, no period of limitation has been provided in view of the imposable punishment thereunder and therefore, the said case is of no assistance to the present petitioners, inasmuch as, the Apex Court in the said case came to hold that where no period of limitation has been provided obviously Section 473 would have no application. But in the present case since the punishment imposable for the offences allegedly committed by the petitioners is a maximum of three years and comes within the purview of Section 468 Cr. P.C, the power to extend the period of limitation Under Section.473 Cr. P.C. clearly applies to the present case.
6. The next case relied upon the learned Counsel for the petitioners is S.K. Bajaj's case (supra). In the said case, the Calcutta High Court while dealing with the question of delay in filing the complaint petitions by the Provident Fund Inspector, quashed the order of taking cognizance. In that case the explanations offered for the delay in filing the complaint petitions were the delay in obtaining the sanction and in engagement of lawyers. In my opinion, the facts of that case and the law enunciated therein have no application to the facts of the present case inasmuch as in the present proceeding does not arise out of a complaint case. In the said case, the Calcutta High Court has held that the salutary purpose of Section 473 Cr.P.C. should not be allowed to be circumvented by taking recourse to the magic words of "interest of justice" unless there is manifestation of compelling and justifiable reasons in the complaint and in the order taking cognizance, to do so. In the present case the order of taking cognizance has spelt out the justifiable reasons which came to the notice of the learned J.M.F.C. for the exercise of power under Section 473 Cr.P.C. and this is not a case where there was delay in filing the complaint itself. The F.I.R. was lodged on 31.5.2002 and the date of occurrence was 10.7.2001, clearly within the period of limitation and the delay in taking cognizance was on account of delay in investigation by the investigating agency and filing of charge sheet, none of which is attributable to the informant.
7. In the case of Arun Vyas and Anr. (supra) the Hon'ble Supreme Court has come to conclude that Section 473 Cr.P.C. which extends the period of limitation is in two parts. The first part contains a non obstante and gives overriding effects 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 property 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 interest of justice. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. The Hon'ble Supreme Court has further concluded that in an appropriate case, the Court should consider Section 473 Cr.P.C. liberally in favour of the wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary so to do in the interest of justice. Finally, the Apex Court concluded that when the conduct of the accused is such that applying the 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 expiry of the period of limitation in the interest of justice.
8. In the case of Ramesh and Ors. (supra) the Hon'ble Supreme Court while dealing with Section 473 Cr.P.C. has affirmed the earlier judgment of the said Court in the case of Arun Vyas and Anr. (supra). In that case, the Apex Court was considering the facts of the case where the Magistrate had not addressed himself to the question whether there were grounds to extend the period of limitation. The Hon'ble Supreme Court did not remand the matter to the trial Court for taking a decision on this aspect and instead, considering the facts before it directed that it was an appropriate case for the Court to consider Section 473 liberally.
9. In the light of the discussions made above, though I am in agreement with the contention advanced by the learned Counsel for the petitioner that the offences alleged may not be "continuous offences" as noted in the impugned order of cognizance, yet I concur with the conclusion reached by the learned J.M.F.C. since it is fully supported by the law laid down by the Apex Court in the case of Arun Vyas (supra) which has been subsequently affirmed in the case of Ramesh and Ors. (supra). I am of the opinion that the discretion has been correctly exercised in the present case and it is a fit case where the Court has correctly extended the period of limitation exercising power under Section 473 Cr. P.C. Accordingly, the Crl. Misc. Case is dismissed. No costs.