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2007 DIGILAW 219 (PAT)

Gita Devi v. State Of Bihar

2007-01-31

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 4.12.2004 passed by learned Sub-Divisional Judicial Magistrate, Buxar in Nawanagar P.S.Case No. 46 of 1999 corresponding to G.R. No. 802/1999/ Tr. No. 1869/05, by which he took cognizance under Section 498A of the Indian Penal Code against the petitioner and others. There is also prayer to quash the entire criminal proceeding against the petitioner. 2. The prosecution case in short is that on 10.7.2009 informant Kabita Devi filed a written report before the Officer Incharge of Nawanagar Police Station that she was married to Anjani Kumar Singh of Village-Kulahawa P.S.-Dumraon, District- Bhojpur in the year 1995 in which her father had given Rs. 50,000/- in cash and ornaments including other articles worth Rs. 50,000/- more. After second marriage (Gauna) which took place one year after marriage she came to Village-Kulahawa. In the year 1998 she gave birth to a male child. It is alleged that after two years of marriage her husband and members of his family changed their behaviour. She was assaulted at times. Accused started abusing and torturing her. It is further alleged that the accused persons asked her father to purchase one second hand Maruti Van but her father could not provide the same and due to that on 22.3.1999 she was assaulted and ousted from the house. Accused persons however kept her child with them. She came to her Naihar and narrated the incident to her parents. Her father went to settle the matter but in vain. On the basis of written report of the informant the Police registered Nawanagar P.S. Case No. 46/1999 and after concluding investigation, submitted final report in favour of the petitioner and others, except husband of the informant namely Anjani Kumar Singh. It appears that learned Chief Judicial Magistrate by order dated 4.12.2004 took cognizance under Section 498A of the Penal Code against non- charge-sheeted accused also. Against the said order of cognizance the petitioner has preferred the present application before this Court. 3. Learned counsel for the petitioner contended that the impugned order of cognizance is barred by limitation as the same has been taken much after the expiry of period of limitation of three years from the last date of occurrence. Against the said order of cognizance the petitioner has preferred the present application before this Court. 3. Learned counsel for the petitioner contended that the impugned order of cognizance is barred by limitation as the same has been taken much after the expiry of period of limitation of three years from the last date of occurrence. In support of his contention, learned counsel placed reliance on a decision of the Apex Court given in the case of Arun Vyas V/s. Anita Vyas, reported in AIR 1999 Supreme Court 2071. 4. Chapter XXXVI of the Code prescribes limitation for taking cognizance of certain offence. Section 468 of the Code prescribes different period of limitation for taking cognizance depending upon the gravity of the offence. Section 469 of the Code lays down as to when the period of limitation should begin to run in relation to an offence. Section 470 of the Code provides certain rules regarding exclusion of time while computing the period of limitation. Section 471 of the Code provides for exclusion of date when the Court is closed. Section 472 of the Code lays down the period of limitation in cases of continuing offence. Last section i.e. Section 473 of the Code lays down as to when the period of limitation may be extended in a proper explanation of delay or in the interests of justice. 5. In the above background now let us see what Section 468 of the Code says: "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. (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." 6. (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." 6. The offence under Section 498A of the Code is a continuing offence and on each occasion on which the wife was subjected to cruelty, she would have a new starting point of limitation. The last act of cruelty was committed against wife within the meaning of cruelty as defined in the explanation appended to that section on 23.3.1999 when she was forced to leave the matrimonial home. Admittedly cognizance was taken on 4.12.2004 and therefore, it is clearly barred by limitation under Section 468(2)(c) of the Code. The Apex Court in the above decision has observed as follows: "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 498A 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. 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 interest of justice. This is only illustative not exhaustive." 7. Section 473 of the Code, therefore confers power on the Court taking cognizance after expiry of period of limitation, if it is satisfied on the facts and circumstances of the case that delay has been properly explained and that it is necessary so to do in the interest of justice. Interest of justice always demands that the Court should protect the oppressed and punish the offender. From the impugned order, it appears that the, learned Magistrate did not take note of Section 473 of the code while taking cognizance. 8. In the above facts and circumstances this application is allowed and the impugned order of cognizance is set aside. The matter is remanded to the learned Magistrate who shall consider the question of limitation taking note of Section 473 of the Code in the light of what has been mentioned above. Before passing any fresh order notice shall be given to the accused.