Orissa High Court
Mahammad Isak vs State Of Orissa on 23 August, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 2811 OF 2012
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with C.T. Case No.319 of 2012
which was pending on the file of S.D.J.M., Athagarh but now
pending in the Court of J.M.F.C., Tigiria, Cuttack.
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Mahammad Isak ......... Petitioner
-Versus-
State of Orissa ......... Opposite party
For Petitioner: - Mr. Subhendu Ku. Nayak
Miss P. B. Mohanty
For Opposite Party: - Mr. Jyoti Prakash Patra
Addl. Standing Counsel
For Respondent: - Mr. Umesh Ch. Patnaik
Dhirendra Ku. Das
Gangadhar Nayak
S. D. Mishra
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment:- 23.08.2016
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S. K. SAHOO, J.This is an application under section 482 Cr.P.C. filed by the petitioner Mahammad Isak challenging the proceeding in C.T. Case No.319 of 2012 arising out of Tigiria P.S. Case No.76 2 of 2012 which was pending the Court of learned S.D.J.M., Athagarh (now pending on transfer in the Court of learned J.M.F.C., Tigiria, Cuttack) for commission of offences under sections 498-A/34 of the Indian Penal Code.
2. The prosecution case, as per the First Information Report submitted by Soreya Begum, the opposite party no.2 who is the wife of the petitioner before the Officer in charge, Tigiria Police Station on 23.05.2012 is that the marriage between the petitioner and the opposite party no.2 was solemnized in accordance with the Muslim rites and customs on 24.07.1987 and five to six months after marriage, the mother-in-law of the informant namely Nusharat Nisha as well as the petitioner subjected the informant to physical and mental torture. The informant gave birth to five daughters and stayed with the petitioner for seven years. She complained before Odisha State Commission for Women, D.G. of Police as well as Tigiria Police Station regarding her torture and sometimes there used to be settlement between the parties and she was taken back to her in-laws' house. It is further stated in the First Information Report that as the informant was subjected to torture, she left her in- laws' house on 11.04.2004 while she was pregnant. Five to six years thereafter, on 03.10.2011 the informant contacted her 3 advocate and sent a legal notice to the petitioner which was replied by the petitioner through his advocate on 01.02.2012 and on 23.05.2012 the informant came to know that the petitioner was going to marry at another place and accordingly, she lodged the First Information Report.
On the basis of such F.I.R., Tigiria P.S. Case No.76 of 2012 was registered under section 498-A of the Indian Penal Code against the petitioner Mahammad Isak and his mother Nusharat Nisha on 23.05.2012 and the investigation was taken up. The Investigating Officer visited the spot, examined the informant and other witnesses, seized two numbers of compromise petitions and after completion of investigation, on 21.09.2012 he submitted charge sheet under sections 498-A/34 of the Indian Penal Code against the petitioner Mahammad Isak and Nusharat Nisha and accordingly on 22.09.2012, cognizance of offence was taken under sections 498-A/34 of the Indian Penal Code.
The order of cognizance reads as follows:-
"C.S. No.110 dated 21.09.2012 under sections 498-A/34 I.P.C. is received from the I.O. against accused persons (1) Mohammad Isak (52 years) S/o-late Mohammad Kayum (2) Nisharat Nisha @ Nusarat Nisha (77) W/o- Late Mohammad Kayum, both are village- Karadapalli, P.S-Tigiria, Dist-Cuttack. Perused the case record. A prima 4 facie case is well made out against the accused persons. Hence, cognizance of offence u/s.498- A/34 I.P.C. is taken against them. The above noted accused are bailed by the police."
3. Learned counsel for the petitioner Mr. Subhendu Kumar Nayak contended that the parties are residing separately since 2004 and the petitioner and the opposite party no.2 have executed khulanama/divorce deed in presence of witnesses under Annexure-2 on 09.02.2008 before the Subai Amir, President of Odisha, Cuttack of Ahamadia Muslim Community. He further submits that there are no materials on record to show that the petitioner subjected the opposite party no.2 to physical and mental torture after she left the house of the petitioner in 2004 and therefore, the ingredients of the offence under section 498-A of the Indian Penal Code are not attracted. Learned counsel for the petitioner further contended that since the maximum prescribed punishment under section 498-A of the Indian Penal Code is three years, in view of provision under section 468(2)(c) of Cr.P.C., there is bar in taking cognizance after lapse of period of limitation which in this case is three years which shall commence from the date of offence in view of section 469 of Cr.P.C. It is further contended that since the learned Magistrate has taken cognizance beyond the prescribed period of 5 limitation without condoning the delay as envisaged under section 473 of Cr.P.C., the proceeding should be quashed.
Learned counsel for the State has produced the case diary and placed the F.I.R. as well as charge sheet and contended that prima facie case under section 498-A of the Indian Penal Code is clearly made out.
Learned counsel for the informant also opposed the prayer made by the petitioner to quash the proceeding.
4. There is no dispute that the offence under section 498-A of the Indian Penal Code which deals with cruelty to a woman by her husband or the relative of the husband is more or less like a 'continuing offence'. A 'continuing offence' is distinguishable from the one which is committed once and for all and which is susceptible of continuance. A 'continuing offence' constitutes a fresh offence every time or occasion on which it continues and the victim would have a new starting point of limitation on each occasion on which she was subjected to cruelty.
"Cruelty" may be physical or mental which has been defined under explanation (a) and (b) to section 498-A of the Indian Penal Code. The period of limitation has to be computed from the last act of cruelty committed against the victim.6
5. From the narration in the First Information Report as well as other materials available in the case diary, it appears that the informant-opposite party no.2 left the company of the petitioner on 11.04.2004 and a khulanama/divorce deed was executed between the parties vide Annexure-2 on 09.02.2008 in which both the parties have put their signatures so also their witnesses. There is absence of any material on record that there was either any physical torture or mental torture after 11.04.2004. When the F.I.R. was presented on 23.05.2012 which is obviously more than eight years after the informant left her in-laws house and charge sheet was submitted on 21.09.2012 and accordingly cognizance was taken on 22.09.2012 which is obviously beyond the prescribed period of limitation for such offence, the learned Magistrate before taking cognizance of the offence should have taken recourse to the provisions under section 473 Cr.P.C. The Magistrate was empowered to take cognizance beyond the period of limitation after being satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it was necessary so to do in the interest of justice. Without passing a speaking order extending the period of limitation, in my humble view, the learned Magistrate has committed illegality in 7 mechanically taking cognizance of offence under sections 498-A/34 of the Indian Penal Code.
In case of Smt. Venka Radhamanohari -Vrs.-
Vanka Venkata Reddy and others reported in (1993) 6 Orissa Criminal Reports (SC) 459 while analyzing the provision under section 473 of the Cr.P.C. with reference to offence under section 498-A of the I.P.C., it was held by the Hon'ble Supreme Court as follows:-
"4. At times it has come to our notice that many Courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the Court that there was sufficient cause for condonation of delay under Section 5 of the Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of the delay, whereas Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever, the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take notice of the nature of offence, 8 the class to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim vigilantibus, et non, dormientibus jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty against women.
It is true that the object of introducing Section 468 was to put a bar of limitation on prosecution and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh AIR 1981 SC 1054. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that wife openly comes before a Court to unfold and relate the day-to-day torture 9 and cruelty faced by her, inside the house, which many of such victims do not like to be made public. 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 interest of justice".
In the case of Bhagirath Kanoria -Vrs.-
State of M.P. AIR 1984 SC 1688 this Court even after having held that non-payment of the employer's contribution to the Provident Fund before the due date, was a continuing offence, and as such the period of limitation prescribed by Section 468 was not applicable still referred to Section 473 of the Code. In respect of Section 473 it was said:
"That section is in the nature of an overriding provision according to which notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non- continuing nature, could have been averted by holding that, considering the object and purpose of the Act the learned Magistrate ought to take cognizance of the offence after the expiry of the period 10 of limitation, if any such period is applicable, because interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and considerations to the provisions contained in Section 473 of the Code."
In case of Arun Vyas and another -Vrs.- Anita Vyas reported in (1999) 17 Orissa Criminal Reports (SC) 94, it was held that offence under section 498-A of the I.P.C. is a continuing offence and that there would be a new starting point of limitation on each occasion on which the victim was subjected to cruelty. It was specifically held that the last act of cruelty was committed when the victim was forced to leave matrimonial home. It was held:-
"10. 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 11 for offences under Sections 406 ad 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.
11. It may be noted here that Section 473 Cr.P.C. which extends the period of limitation 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 facts 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 12 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 interest of justice. This is only illustrative not exhaustive."
In case of State of Himachal Pradesh -Vrs.- Tara Dutt and another reported in (2000) 18 Orissa Criminal Reports (SC) 320, it is held as follows:-
"7. Section 473 confers power on the Court taking cognizance 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 and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provide in Section 468, 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. This discretion conferred on the Court has to be exercised judicially and on well recognized principles. This being a discretion conferred on the Court taking cognizance, 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 condonation of the same was in the interest of justice. In the 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 13 was barred and yet the Court took cognizance and proceeded with the trial of the offence......
8. In view of the observations made by a Bench of two Judges of this Court, while this appeal was placed before their Lordships, for hearing that the decision in the case of Aruna Vyas v. Anita Vyas, (1999) 17 Orissa Criminal Reports (SC) 94, requires reconsideration, we think it necessary to notice the same. In the said case of Aruna Vyas, one of the questions for consideration was whether the offence u/S. 498-A of the IPC is a continuing offence. The Court ultimately answered that the essence of the offence in Section 498-A, being cruelty, the same 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. On fact, the Court found that the last act of cruelty being committed on 13.10.1988 and the period of limitation having commenced from that date, the charge-sheet that was filed on 22.12.1995 and the subsequent cognizance on that basis was clearly barred by limitation under Section 468(2)(c) of the Code of Criminal procedure, we see no infirmity with the said conclusion. One other question that was raised and adverted to in the aforesaid case is that in the absence of any specific order by the Magistrate, taking cognizance, after the period of limitation provided in Section 468(2)(c) of the Code of Criminal Procedure by invoking the power under Section 473 and condoning the delay, the Magistrate committed error by discharging the accused on the ground of limitation. The aforesaid observations made by this Court indicates that the order of the Magistrate a the time of taking cognizance in case of an offence 14 under Section 498- A, should indicate as to why the Magistrate does not think it sufficient in the interest of justice to condone the delay inasmuch as an accused committing of an offence under Section 498-A should not be lightly let of. We have already indicated in the earlier part of this Judgment as to the true import and construction of Section 473 of the Code of Criminal Procedure. The said provision being an enabling provision, whenever a Magistrate invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay. But without such an order being there or in the absence of such positive order, it cannot be said that the Magistrate has failed to exercise jurisdiction vested in law. It is no doubt true that in view of the fact that an offence under Section 498-A is an offence against the society and, therefore, in the matter of taking cognizance of the said offence, the Magistrate must liberally construe the question of limitation but all the same the Magistrate has to be satisfied, in case of period of limitation for taking cognizance under Section 468(2)(c) having been expired that the circumstances of the case requires delay to be condoned and further the same must be manifest in the order of the Magistrate itself. This in our view is the correct interpretation of Section 473 of the Code of Criminal Procedure."15
In case of Chandrasekhar Mohanty -Vrs.- Japani Sahoo reported in (2006) 34 Orissa Criminal Reports 698, it is held as follows:-
"5. In the code of Criminal Procedure 1973, Chapter XXXVI has been added prescribing limitation for taking cognizance of certain offences with a view to expedite the process of detection and investigation of crimes and also to ensure observance of the principle of fairness in the trial of the offences by barring belated and vexatious prosecution. Delay in prosecution of cases causes undue hardship as it keeps the sword hanging on the head of the accused persons and it also results in the material evidence getting vanished. This chapter applies to all such offences for which punishment prescribed is less than three years. But it does not apply to offences for which punishment prescribed is more than three years and to economic offences under various Acts, which are excluded under Central Act 12 of 1974 or any State Act. It contains seven Sections being Sections 467 to 473. Section 467 defines 'period of limitation' used in the Chapter. Section 468 creates a bar for taking cognizance of offences after lapse of period of limitation. Section 473 vests power upon the Court to take cognizance of an offence after the expiry of the period of limitation if it is satisfied in the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. Thus in a given case where the Court is satisfied in the facts and circumstances of the case that in the interest of justice the delay in the 16 prosecution may be condoned, it can do so but then by giving reasons................"
In case of Basant Kumar Mishra & Ors. -Vrs.-
State of Orissa reported in (2007) 37 Orissa Criminal Reports 215, it was held that the order of taking cognizance by extending the period of limitation in exercise of power under section 473 of Cr.P.C. has to be a speaking order.
6. Thus, in view of nature of offence under section 498-A of the Indian Penal Code, the Court should adopt liberal approach in favour of extending the period of limitation under section 473 of the Cr.P.C. and has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. While taking cognizance of such offence after expiry of period of limitation, the Magistrate has to pass a speaking order assigning reasons for exercise of the discretion as required under section 473 of the Cr.P.C.
7. The proceeding in the present case was instituted by way of lodging an F.I.R. about eight years after the opposite party no.2 left her matrimonial house on 11.04.2004 and there is absolutely no material on record that after the opposite party no.2 left the matrimonial house, she was subjected to physical or mental torture either by the petitioner or his mother rather the 17 record reveals that khulanama/divorce deed was executed between the parties on 09.02.2008.
Therefore, I am of the view that submission of charge sheet under sections 498-A/34 of the Indian Penal Code on 21.09.2012 was clearly barred by limitation under section 468(2)(c) of Cr.P.C. and taking cognizance of offence by the learned S.D.J.M., Athagarh on such charge sheet beyond the prescribed period of limitation is illegal particularly when there is no speaking order extending the period of limitation as envisaged under section 473 of the Cr.P.C.. I would have remanded the matter back to the learned Magistrate to reconsider the order taking cognizance but since the opposite party had left the matrimonial home on 11.04.2004 and the parties are living separately since then and they have also executed khulanama/divorce deed in presence of witnesses on 09.02.2008, I am of the humble view that passing such order on the facts and in the circumstances of the case would not be in the interest of justice and the continuance of the criminal proceeding against the petitioner would be an abuse in process.
Therefore in exercise of the power under section 482 Cr.P.C., I am inclined to quash the criminal proceeding against 18 the petitioner in C.T. Case No.319 of 2012 pending in the Court of learned J.M.F.C., Tigiria, Cuttack.
Accordingly, the CRLMC is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 23th August, 2016/Sisir