Bombay High Court
Bharat Vishnuprasad Agrawal vs Girdhar Chiranjivalal Agrawal on 13 February, 2017
Author: N.W. Sambre
Bench: N.W. Sambre
204.17crwp
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.204 OF 2017
Bharat Vishnuprasad Agrawal,
Age: 35 years, Occ: Business,
R/o.Geeta Jinning and Pressing
Compound, Near Surya Mandir,
Chalisgaon Road, Dhule,
Taluka and District Dhule. ..PETITIONER
VERSUS
1. Girdhar Chiranjivalal Agrawal,
Age: 58 years, Occ: Business,
2. Gopal Chiranjivalal Agrawal,
Age: 62 years, Occ: Busines,
3. Uma Gopal Agrawal,
Age: 60 years, Occ: Housework,
4. Reshu Girdhar Agrawal,
Age: 27 years, Occ: Student,
5. Ritika Girdhar Agrawal,
Age: 26 years, Occ: Student,
6. Aachal Girdhar Agrawal,
Age: 24 years, Occ: Student,
Nos. 1 to 6 R/o. Manohar Chowk,
Gondia, Taluka and Dist. Gondia.
7. Suresh Madanlal Agrawal,
Age: 62 years, Occ: Business,
8. Kusum Suresh Agrawal,
Age: 60 years, Occ: Business,
9. Pawan Suresh Agrawal,
Age: 32 years, Occ: Business,
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204.17crwp
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10. Rakhi Pawan Agrawal,
Age: 30 years, Occ: Household,
Nos. 7 to 10 R/o. Vandana Kapad
Dukan, Pachkandil, Agra Reoad,
Dhule, Taluka and Dist. Dhule.
11. The State of Maharashtra,
Through the Police Inspector,
Azadnagar Police Station,
Dhule. ..RESPONDENTS
Mr Amol S. Sawant, Advocate for petitioner;
Mr V.S. Badakh, Addl. Public Prosecutor for
respondent No.11;
CORAM : N.W. SAMBRE, J.
DATE : 13th FEBRUARY, 2017
ORAL ORDER :
The present petition is directed against the judgment and order dated 13 th October, 2016 passed by learned Additional Sessions Judge in Criminal Revision Application No. 38 of 2016.
2. Learned Sessions Judge, in the aforesaid revision, vide impugned judgment, quashed and set aside the order dated 5th May, 2015 passed below Exhibit-1 by Judicial Magistrate, First Class ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (3) (Court No.5) Dhule, ordering issuance of process in Criminal Misc. Application No.1201 of 2014 i.e. Summary Triable Case No. 760 of 2015.
3. The facts as are necessary for deciding present writ petition are as under :-
Petitioner Bharat claimed to have married to Palak on 24th June, 2012.
4. According to petitioner, just before the marriage, on the date of marriage and after the marriage, activities of Palak were not normal and upon observation, he could notice her abnormal activities, which perhaps was out of her unstable mental condition.
5. Petitioner claimed that Palak and her family members including mediator Suresh Agrawal and his family members have practiced fraud, committed criminal breach of trust, cheating upon petitioner and accordingly he has lodged complaint ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (4) on 30th June, 2014 with Police Station Azadnagar, Dhule.
6. Since the police had not taken cognizance of the aforesaid complaint, he filed private complaint being Criminal Misc. Application No. 1201 of 2014 before the Court of Chief Judicial Magistrate at Dhule. In the said complaint, he has impleaded Palak and her close relatives including her brother, sisters, father, mediator and his family members as accused. In the said complaint, after narrating the arrangement of marriage, he has stated in paragraph-4 that immediately on second day of marriage, he noticed very slow movements by Palak. According to him, Palak - his wife was not allowing him to have physical relations in view of advice by her family members, Doctors and Guide. He has also alleged that his wife had claimed that she had married with the petitioner against her will and wishes. He then continues to narrate various acts of Palak and her close relatives, which according to him, were offencive and on 17 th ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (5) November, 2014 filed complaint referred supra.
7. On 29th November, 2014, having noticed that, alleged accused persons are not residing within jurisdiction of the said Court and upon examining the complainant on oath under Section 200 of the Code of Criminal Procedure, learned Magistrate directed investigation under Section 202 of the Code of Criminal Procedure calling report from the police station.
8. As a consequence of the said order, Police Officer registered Crime No.9 of 2014 with Azadnagar Police Station, District Dhule, for offences punishable under Sections 406, 408, 420 read with Section 34 of the Indian Penal Code against the accused persons and submitted report to the Court of learned Magistrate in the aforesaid complaint.
9. Learned Judicial Magistrate, First Class (Court No.5), Dhule vide order dated 5th May, 2015 ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (6) directed issuance of process against accused Nos. 2 to 11 i.e. excluding wife of petitioner Palak for the offence punishable under Section 417 read with Section 34 of the Indian Penal Code. The Magistrate dismissed the complaint for offences punishable under Sections 406, 408 and 420 of the Indian Penal Code against all the accused persons.
10. Against the aforesaid dismissal, the petitioner never preferred any revision or appeal and said order of dismissal has attained finality. Though the issue, whether complaint can be dismissed after registration of crime or there has to be order of acquittal, is not gone into in the present matter. However, it is required to be noted that process, as ordered, came to be issued against the accused persons. The accused persons, respondents herein moved Criminal Revision Application No. 39 of 2016 questioning the order of learned Magistrate ordering issuance of process for offence punishable under Section 417 (cheating) read with Section 34 of the Indian Penal Code. ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 :::
204.17crwp (7) Amongst other, the grounds raised were issue of limitation, non-satisfaction of ingredients of the offence punishable under Section 417 of the Indian Penal Code, etc.
11. The revision preferred by present respondents - accused persons came to be allowed by the impugned order dated 13th October, 2016 by the learned Additional Sessions Judge, Dhule. Aggrieved thereby, present writ petition.
12. Heard Mr. Sawant, learned Counsel for the petitioner and learned Additional Public Prosecutor for the State at length. Mr. Sawant would urge that for offence punishable under Section 417 of the Indian Penal Code, punishment provided is one year and the complaint in view of provisions of Sections 468 and 469 of the Code of Criminal Procedure is required to be filed within period of one year. According to him, perusal of the complaint depicts that alleged incident which is formed to be the basis for registration of crime in ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (8) question is punishable under Section 417 of the Indian Penal Code, for which the cause of action is from the date of marriage till date of filing of the complaint. According to him, there is continual cause of action and as such, it has to be held that complaint was filed within limitation.
13. The next submission of Mr. Sawant is, contents of the complaint which are based on various events, are required to be considered harmoniously and not in isolation. According to him, various instances as are narrated in the complaint viz. the meeting of Agrawal Committee on 1st December, 2013 to sort out matrimonial discord, complaint lodged on 3rd December, 2013 with Womens' Grievances Rederessal Cell at Dhule etc., speak of continuity of cause of action and as such, it has to be inferred that the complaint was well within limitation.
14. So as to substantiate his contention, learned Counsel for the petitioner would invite ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (9) attention of this Court to the scheme of Sections 468 and 469 of the Code of Criminal Procedure and would urge that the order passed by learned Sessions Judge is not sustainable.
15. Learned Additional Public Prosecutor supports the order passed by learned Sessions Judge, as according to him, learned Sessions Judge has taken into consideration the contents of the complaint at its face value and has given effect to the meaning of provisions of Sections 468 and 469 of the Code of Criminal Procedure and has thus rightly set aside the order of issuance of process. According to him, writ petition being devoid of merits, is liable to be dismissed.
16. The undisputed facts as could be gathered from the record in the present case are as under :-
The marriage of present petitioner with Palak took place on 24th June, 2012 at Dhule.::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 :::
204.17crwp (10) A meeting of Agrawal Community was held on 1st December, 2013 so as to sort out matrimonial discord between the complainant on one side and Palak and her family members on the other.
Registration of Crime No. 92 of 2014 for offence punishable under Section 498-A read with Section 34 of the Indian Penal Code with Gondia Police Station, where the respondents are residing against the present petitioner.
Filing of the complaint case on 17 th November, 2014 before learned Chief Judicial Magistrate at Dhule.
17. In the aforesaid background, the contention of Mr. Sawant as regards the issue of limitation is required to be appreciated. It is claimed in the complaint, particularly paragraph-4 that immediately on 25th June, 2012 i.e. next day of marriage, which took place on 24th June, 2012, present petitioner noticed unexpectedly slow and ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (11) abnormal movements of his wife Palak and also experienced that she was not permitting him to establish physical relations. He has also alleged that family members of Palak got her married to him against her wishes and she is not in a position to permit the petitioner to have physical relations. Though the petitioner, on his own, narrated certain instances earlier to marriage, still if we take into consideration pleadings in paragraph-4 about getting knowledge for the first time qua alleged cheating, filing of the complaint on or about 17 th November, 2014 is required to be appreciated in the said background. The petitioner in the complaint then has not narrated any dates qua various objectionable behaviour and conduct of his wife, yet has claimed that on 1st December, 2013 at Dhule, there was meeting so as to sort out matrimonial discord.
18. In the aforesaid background, whether complaint was within limitation or not is required to be appreciated. While doing so, in my opinion, ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (12) provisions of Sections 468 and 469 of the Code of Criminal Procedure are required to be taken into consideration, which read thus :
"468. Bar to taking cognizance after lapse of 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 ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (13) 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."
469. Commencement of the period of limitation -
(1) The period of limitation, in relation to an offender, shall commence -
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier (2) In computing the said period, the day from which such period is to be computed shall be excluded."::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 :::
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19. The object with which the aforesaid provisions have been brought on statute book is also required to be appreciated. The provisions are made with a view to protect a person from prosecution with stale grievances, instances and also vexatious pleas. It is worth to observe here that because of lapse of time, necessary evidence gets lost and accused persons are put into defenceless position. This apart, intention also appears to avoid miscarriage of justice.
20. However, legislature has also taken precaution not to pass undue benefit on accused persons due to delay on the part of prosecution and investigation agencies and make criminal justice system ineffective. Keeping in mind, gravity of offences, those are categorized based on the punishment prescribed.
21. Provisions of Chapter XXXVI i.e. Sections 467, 468 and 469 of the Code of Criminal Procedure ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (15) prescribe limitation for filing criminal complaint or for initiation of prosecution. Section 468 puts an embargo on the powers of the Court from taking cognizance of an offence of the category specified thereunder. The offence in the present case is punishable under Section 417 of the Indian Penal Code for which maximum punishment provided is imprisonment of one year. As such, for the purpose computation of period of limitation, said offence would fall in category of clause (b) of sub section (2) of Section 468 of the Criminal Procedure Code. As a consequence thereof, the period of limitation in the present case would be of one year.
22. Section 469 of Chapter XXXVI of Code of Criminal Procedure provides for commencement of the period of limitation in relation to an offence. It prescribes that in relation to an offender, period of limitation shall commence; (a) on the date of the offence; (b) in case the commission of offence is not known to the person aggrieved by the offence or to any police officer, the first day on which ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (16) such offence comes to the knowledge of such person or to any police officer, whichever is earlier; (c) in case the offender is not known, the first day on which identity of the offender is known to the aggrieved person or to the police officer making investigation in to the offence, whichever is earlier.
23. In the backdrop of clear language employed in Section 469 of the Code of Criminal Procedure, limitation has to commence from the date of offence. The case in hand, in my opinion, falls in clause (a) of Section 469(1) of the Code of Criminal Procedure i.e. commencement of period of limitation from the date of offence as could be gathered from the pleadings in paragraph-4 of the complaint i.e. either on the day of marriage or immediately on the next day. Clauses (b) and (c) of sub section (1) of Section 469 of the Code of Criminal Procedure would not get attracted in the present matter, as it is not the case of complainant that commission of offence was not ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (17) known to him or he was not knowing the offender as provided in clause (c).
24. In the case in hand, as observed herein above in paragraph-4, a categorical statement is made that immediately on the next day of marriage, the petitioner noticed slow and abnormal behaviour of his wife Palak and her intention not to permit him to have any physical relations pursuant to advice give by accused persons, Doctors, etc. The contention in paragraph Nos. 5,6 and 7 of the complaint is narration of various events, particularly in the backdrop of cheating alleged by present petitioner against the accused persons. Reluctantly, it has to be assumed that first occasion on which present petitioner claimed that offence took place is either the date of his marriage i.e. 24th June, 2012 or at the most next day of marriage i.e. 25th June, 2012 as petitioner himself has pleaded so in the complaint. ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 :::
204.17crwp (18) Pursuant to clause (b) of sub-section (2) of Section 468 of the Code of Criminal Procedure considering that the limitation prescribed for taking cognizance of offence of cheating is maximum one year, it was expected of the petitioner to file complaint on or before 25th June, 2013. Admittedly, in the present case, the complaint is indisputably filed subsequent to said date i.e. 25th June, 2013, to be precise on 17th November, 2014. In the present case, pursuant to provisions of clause (a) of sub section (1) of Section 469 of the Code of Criminal Procedure, the limitation would begin to compute on the first day of offence i.e. on or about 25th June, 2013 as stated by petitioner in paragraph-4 of the complaint i.e. when he first time noticed the offence of cheating on the part of accused persons.
25. In the backdrop of above, it has to be held that the limitation in the present case for taking cognizance of offence of cheating punishable under Section 417 of the Indian Penal Code, for ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 ::: 204.17crwp (19) which, process was ordered to be issued by magistrate on 5th May, 2015 is one year and in any case prior to 25th June, 2013 and not beyond that. As stated herein above, since complaint was filed on 17th November, 2014, it could be inferred that the same was filed after the expiry of period of limitation i.e. after one year from the date of commission of offence.
26. In the aforesaid backdrop, in my opinion, learned Sessions Judge has rightly set aside the order of issuance of process dated 5th May, 2015 passed by learned Magistrate below Exhibit-1 in Criminal Misc. Application No. 1201 of 2014 i.e. S.T.C.C. No. 760 of 2015.
27. In the wake of above, in my opinion, no case for interference is made out. Criminal Writ Petition, as such, fails and stands dismissed.
(N.W. SAMBRE, J.) Tupe ::: Uploaded on - 02/03/2017 ::: Downloaded on - 27/08/2017 16:35:23 :::