Jharkhand High Court
Basant Singh vs The State Of Jharkhand And Anjana Devi on 16 March, 2007
Equivalent citations: 2007(2)BLJR2013, [2007(3)JCR457(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 2014
1. Heard the parties.The petitioners have filed the instant application, invoking the powers under Section 482 Cr.P.C. for quashing the entire criminal proceedings in respect of Complaint Case No. 315 of 2001 (T. R. No. 1250 of 2002) and also the order dated 30.1.2002 passed by the learned Sub-Divisional Judicial Magistrate, Bokaro whereby summons were issued to the petitioners directing them Page 2015 to face trial for the offence under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The aforesaid order has been assailed mainly on the ground that the trial court has erred in taking cognizance of the offences beyond the period of limitation as prescribed under the Code of Criminal Procedure and also on the additional ground that even on the basis of the allegations in the complaint petition as made by the opposite party No. 2, no offence whatsoever is made out against the petitioner and further, that the allegations being essentially in relation with the matrimonial dispute, the compromise which was affected between the complainant and the accused person-petitioner ought to have been considered by the trial court for dropping the entire proceedings.
2. The facts of the case stated briefly are that the opposite party No. 2-complainant had filed the aforementioned complaint case against the petitioner and four other co-accused persons on 11.10.2001 before the Chief Judicial Magistrate, Bokaro, alleging, inter alia, that her marriage with the accused No. 1, namely, the present petitioner, was solemnized about 18 years ago according to Hindu Rites and Customs. After marriage she began residing at her matrimonial house, but since she could not bear any child, she was ill-treated, neglected and subjected to various acts of cruelty both mentally or physically by her husband, parents-in-law and brother-in-law. A demand for Rajdoot Motorcycle and a sum of Rs. 10,000/- was also made by the husband and in-laws and non-fulfillment of the demand led to more tortures and cruelty inflicted on her. Eventually, the complainant was brought by her husband-petitioner to her father's house on 15.1.1998 after illegally retaining her entire personal belongings including her gold ornaments, and she was left with a warning that she would not be allowed to return to her matrimonial house without the demand being fulfiled. A compromise between the spouse was attempted by the complainant's father and other witnesses, but the attempt had failed. Later, the husband married another lady by way of second marriage even during the subsistence of his matrimonial relation with the complainant.
In her statement recorded on solemn affirmation during inquiry conducted by the trial court under Section 202 Cr.P.C., the complainant and her witnesses had acknowledged that the complainant has been living at the house of her parents since the date she was brought and left there and two years prior to the filing of the complaint, a Panchyat meeting was called, but the husband petitioner refused to comply with the direction of the Panchyat.
On considering the statements of the complainant and the witnesses recorded on solemn affirmation, the learned trial court recorded its observation that the statements and evidences attribute misconduct only against the husband and therefore had proceeded to record that a prima facie case appears against the husband-petitioner for the offence under Section 498A I.P.C. and Section 4 of the Dowry Prohibition Act. Accordingly the remaining persons, who are also cited as accused were not proceeded against.
3. Mr. A.K. Chatruvedi, learned Counsel appearing for the petitioner points out that even according to the own admission of the complainant she was brought by the petitioner to her father's house on 15.1.1998 and thereafter she never returned to her matrimonial house. Obviously the alleged acts constituting the offence under Section 498A I.P.C. relate to the period prior to 15.1.1998 and not after. The punishment for the offence under Section 498A I.P.C. is three years only whereas Page 2016punishment for the offence under Section 4 of the Dowry Prohibition Act is six months. Learned Counsel points out that cognizance of the offence should have been taken within period of limitation, which for the offence under Section 498A I.P.C,as prescribed under Section 468 Cr.P.C. is three years only. Learned Counsel points out further that the complaint was filed by the opposite party No. 2 on 11.10.2001 which is itself beyond the period of three years computed even from 15.1.1998. While taking cognizance the learned court below did not extend the period of limitation as per the provisions of Section 473 Cr.P.C. Likewise no extension of the period of limitation in respect of the offence under Section 4 of the Dowry Prohibition Act was made prior to the taking cognizance of the offences by the learned court below and therefore the cognizance being hit by the rule of limitation, the entire proceeding is liable to be quashed. Learned Counsel adds further that even during the pendency of the proceedings, the complainant-opposite party No. 2 had filed a petition under Section 257 Cr.P.C. before the trial court on 27.1.2003 stating therein that an out of court settlement was arrived at between her and her husband and she does not want to proceed any further against him and had prayed for allowing her to withdraw her complaint case. This fact has also been admitted by the witness examined on behalf of the complainant. Learned Counsel submits that even in this view of the matter the learned trial court ought to have dropped the proceedings considering the fact of compromise between the spouse and even otherwise, where the complainant has herself declared her unwillingness to proceed with the case, the trial would never lead to conviction of the accused-petitioner in the said case and as such the continuance of the proceedings would be not only a futile exercise but also abuse of the process of the court. Learned Counsel contends that this is a fit case therefore for invoking inherent jurisdiction of this Court for quashing the entire proceedings.
4. Mr. A.K. Sahani, learned Counsel appearing for the opposite party No. 2 does not refute the claim of the petitioner in respect of a petition for withdrawal of the case purported to have been filed by the complainant before the trial court. However, he has seriously challenged the ground of the petitioner in respect of limitation. The contention of Sahani is that the cruelty did not stop on the date when the petitioner had brought and left the opposite party No. 2 at her father's place on 15.1.1988. Rather, it had continued even thereafter as because the opposite party No. 2 was still expecting that her husband would come and take her back and restore conjugal relation and in continuous and persistent efforts she had even called for a Panchyat which was held less than two years prior to the date of filing of the complaint petition and the petitioner-husband having failed to honour the direction of the Panchyat, had caused further mental cruelty to the complainant.
5. From the rival arguments, the question which arises for determination in the facts and circumstances of the present case is whether the order of cognizance is beyond limitation and what should be the starting point of limitation to be computed for the offences both under Section 498A I.P.C. and Section 4 of the Dowry Prohibition Act.
6. To place the facts in proper prospective, it would be necessary to note that the complaint case was filed by the complainant-opposite party No. 2 before the court of Chief Judicial Magistrate on 11.10.2001. The learned Magistrate on receiving the complaint, after perusal of the same and also after hearing the learned lawyer for the complainant, transferred the case to the court of S.D.J.M., for inquiry and disposal, Page 2017 under Section 192 Cr.P.C. This order was passed on 11.10.2001. It is apparent that the order transferring the case to the transferee court was passed by the learned Chief Judicial Magistrate only after having taken cognizance for the offences. As such, the date of cognizance has to be considered as 11.10.2001. The contention of the petitioner that cognizance of the offence was taken by the transferee court on 30.1.2001, is, therefore, incorrect. The order by which case was transferred to the transferee court for inquiry and disposal was intended only to postpone the issuance of summons after finding out as to which of the accused persons should the trial proceed against. The order dated 30.1.2002 is therefore not an order of cognizance but is an order whereby the court which had conducted the inquiry had recorded its satisfaction about the existence of a prima facie case in respect of certain offences, namely, the offence under Section 498A I.P.C and Section 4 of the Dowry Prohibition Act against one of the persons named as accused i.e. the present petitioner.
7. However, as per the contention of the learned Counsel for the petitioner, even if the period of limitation is computed from 15.1.1988, the period of three years which is the period of limitation for the offence under Section 498A I.P.C. had long lapsed much prior to the date of failing of the complaint petition and the date of cognizance. It also appears that while taking cognizance of the offences, the learned court below did not extend the period of limitation as laid down in the provisions of Section 473 Cr.P.C. In fact, learned Magistrate does not even appear to have applied his judicial mind on the question of extended limitation.
8. As regards the starting point of limitation in the present case, learned Counsel for the petitioner has rightly claimed that the starting point for computing the period of limitation has to be taken as 15.1.1988 which is admittedly the date on which the opposite party No. 2 had left her matrimonial house and had come to reside at the house of her parents. Admittedly the opposite party No. 2 never returned to her matrimonial house thereafter.
9. While considering a similar situation the Supreme Court in the case of Arun Vyas v. Anita Vyas , held that the last act of cruelty would be starting point of limitation. In this case the date when the complainant was brought and left at her parents house for ever, would be the last act of cruelty.
10. Mr. Sahani, on the other hand, invites attention to the statements of the complainant and the witnesses recorded on solemn affirmation wherein they had asserted that a Panchayat meeting was held two years prior to the filing of the complaint and therefore the date of Panchayat should be considered as the starting point of limitation since that date was the last date when the husband, by his refusal to honour the direction of the Panchayat, had inflicted mental torture upon the wife.
The argument of the learned Counsel, is not persuasive. The plea of any Panchayat meeting was not taken in the complaint petition at all and it appears to have been introduced at a later stage incorporated while recording the statements of complainant and her witnesses. Furthermore, even according to the aforesaid developed statements, the husband-petitioner did not participate in the Panchyat at all. Apparently, it was at the most a one sided endeavor made by the opposite party No. 2 and therefore the date fixed for Panchayat cannot be considered as the date of last act of cruelty.
Page 2018
11. Mr. Sahani had then referred to observation of the Supreme Court made in the case of Ramesh and Ors. v. State of Tamilnadu 2005 SCC (Cri.) 735 and submits that the benefit of extended period of limitation should certainly have been given by the learned Chief Judicial Magistrate at the time of taking cognizance but the failure should be ignored in the interest of justice and the period of limitation can still be extended since the interest of justice demands that the court should protect the oppressed and punish the oppressor/offender. Reading out the judgment Mr. Sahnai submits that it would be appropriate that even in case of delayed complaints, provision of Section 473 Cr.P.C. should be construed liberally in favour of a wife who is subjected to cruelty, if on the facts and circumstances of the case it is necessary so to do in the interests of justice. Learned Counsel argues further that applying the rule of limitation in the instant case when viewed in the context of the conduct of the accused person, it would give an unfair advantage to the petitioner and result in miscarriage of justice.
12. No doubt a liberal approach for the application of Section 473 Cr.P.C. was canvassed by the apex court and a similar approach was also made in the case of Arun Vyas (Supra). However, a point which could be distinguished from both the cases is that the delay of more than three years in filing the complaint has not been explained at all and neither was the complainant prevented from taking recourse to the processes of law for her redressal within the period of limitation.
13. In the facts and circumstances of the case, I am of the view that the starting point of limitation in the instant case would be 15.1.1988 which was the date on which the complainant had left her matrimonial house forever. The order of cognizance beyond the three years period of limitation without extension of the period, is certainly bad in law. Furthermore, in view of the fact that the complainant-opposite party No. 2 has subsequently reconciled and has declared before the trial court that she does not want to pursue her case any further on account of the out of court settlement arrived at between her and her husband, further continuance of the proceeding even thereafter, in my opinion, would cause injustice and hardship to the parties since in view of the change in attitude of the complainant, the proceeding would not possibly end in the conviction of the accused-petitioner and the entire proceedings would be an exercise in futility. It is true that Section 498A I.P.C. is not a compoundable offence under the provisions of Section 320 Cr.P.C. but the restraint under Section 320 Cr.P.C. does not limit or affect the powers under Section 482 Cr.P.C. As has been held by the Supreme Court in the case of B.S. Joshi and Ors. v. State of Haryana and Anr. , wherein a case of matrimonial dispute a compromise is arrived at between the spouses and there is no chance of conviction, it would be improper to decline to exercise of powers of quashing on the ground that it would be permitting the parties to compound non-compoundable offence.
14. For the foregoing reasons, I find merit in this application and accordingly, it is allowed. The entire criminal proceedings vide C.P. Case No. 315 of 2001 (T. R. No. 1250 of 2002) pending in the Court of S.D.J.M., Bokaro is hereby quashed.