Arun
Vyas & ANR Vs. Anita Vyas [1999] INSC 211 (14 May 1999)
K.Venkataswami,
Syed Shah Mohammed Quadri S.SHAH MOHAMMED QUADRI,J Leave is granted.
This
appeal is from the judgment and order of the High Court of Rajasthan at Jabalpur in S.B.Crl.Revision No.316/96 dated
March 17, 1998 setting aside the order of
discharge passed in favour of the appellants by the Additional Chief Judicial
Magistrate, Jodhpur on April 23, 1996. The facts giving rise to this appeal may briefly be noted
here.
Appellant
No.1 married the respondent in accordance with the Hindu rites on May 20, 1986. They were blessed with a girl on January 2, 1988. The respondent, in the complaint
filed before the Court on October 18, 1995,
alleged that she was beaten up by her husband, mother-in-law and sisters-in-
law as her parents failed to satisfy the demand of dowry and ultimately she was
pushed out of the house on October 13,1988.
The complaint was filed against the appellants under Sections 498-A, 406 IPC
read with Section 6 of the Dowry Prohibition Act before Additional Chief
Judicial Magistrate, Jodhpur, under Section 190(1) Cr.P.C., who
ordered investigation by police. The police investigated the complaint under
Section 156(3) Cr.P.C. and submitted charge-sheet (final report) under Section
498-A IPC on December
22, 1995. On that
report the learned Magistrate took cognizance of offence under Sections 498-A
as well as 406 IPC and issued summons to the appellants. The case was posted on
April 23, 1996 for framing charges. On that day it
was submitted on behalf of the accused that the complaint was barred by
limitation and that referring the case for investigation to the police itself
was bad, therefore, no charges could be framed against the accused. That plea
of the appellants found favour from the learned Magistrate who discharged the
appellants by his order dated April 23, 1996.
The
respondent challenged the validity of that order of the learned Magistrate
before the High Court of Rajasthan in S.B.Cr.No.316 of 1966. On March 17,1998, the High Court set aside the order
of the learned Magistrate and directed him to proceed with the case from the
stage where he had discharged the accused and decide the same in accordance
with law. It is that order of the High Court which is the subject-matter of this
appeal. Mr.Adarsh Goel, learned senior counsel appearing for the appellant,
contended that the High Court has committed illegality in holding that there
was no delay in filing the complaint and in observing that even if there was
delay in view of Section 468 Cr.P.C. the learned Magistrate should not have
overlooked the provisions of Section 473 Cr.P.C. He argued that no provision in
Cr.P.C. provides that after taking cognizance, the learned Magistrate could not
have discharged the appellants and that the reasons given by the High Court in
setting aside the order of the learned Magistrate are erroneous in law. Mr.Pallav
Shishodia, learned counsel appearing for the respondent, submitted that the
respondent was subjected to cruelty and harassed for the demand of dowry and
she was sent out of the matrimonial home, therefore, the High Court was
justified in setting aside the order of the learned Magistrate who did not take
note of Section 473 Cr.P.C. and directing him to proceed with the case. On this
above submissions, two questions arise for consideration, namely : (i) whether
the learned Magistrate can discharge an accused after taking cognizance of an
offence by him but before the trial of the case; and (ii) whether the learned
Magistrate was right in discharging the appellants on the grounds that the
complaint was barred by limitation under Section 468 Cr.P.C.Point No.(i) : The
answer to this point can be found in Section 239 Cr.P.C. which is in the
following terms :
"239.
When accused shall be discharged - If, upon considering the police report and
the documents sent with it under Section 173 and making such examination, if
any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the 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." A perusal of the
aforementioned section shows that the Magistrate has to discharge the accused :
if (1) on consideration of (a) the police report, (b) the documents filed under
Section 173 Cr.P.C.; and (2) making such examination, if any, of the accused as
the Magistrate thinks necessary; and (3) after giving the prosecution and the
accused an opportunity of being heard, he considers charge against the accused
to be groundless. This section, however, casts an obligation on the Magistrate
to record his reasons for holding that the charge is groundless and discharging
the accused. Section 239 has to be read along with Section 240 Cr.P.C. If the
Magistrate finds that there is prima facie evidence or the material against the
accused in support of the charge (allegations) he may frame charge in
accordance with Section 240 Cr.P.C. But if he finds that the charge (the allegations
or imputations) made against the accused do not make out a prima facie case and
do not furnish basis for framing charge, it will be a case of charge being
groundless, so he has no option but to discharge the accused. Where the
Magistrate finds that taking cognizance of the offence itself was contrary to
any provision of law, like Section 468 Cr.P.C., the complaint being barred by
limitation, so he cannot frame the charge, he has to discharge the accused.
Indeed in a case where the Magistrate takes cognizance of an offence without
taking note of Section 468 Cr.P.C., the most appropriate stage at which the
accused can plead for his discharge is the stage of framing the charge. He need
not wait till completion of trial. The Magistrate will be committing no
illegality in considering that question and discharging the accused at the
stage of framing charge if the facts so justify. Point No.(ii) : 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. 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 but not exceeding three years.
(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." 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
not 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. 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. 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 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
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. 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. In Vanka Radhamanohari (Smt.)
vs. Vanka Venkata Reddy & Ors. [(1993) 3 SCC 4], 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"." 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.
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