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2008 DIGILAW 763 (BOM)

Dilip Amrutrao Taral v. State of Maharashtra

2008-06-11

NISHITA MHATRE

body2008
JUDGMENT: . The petitioners have challenged the order passed by the JMFC, Daund on 23.2.1999 whereby a charge was framed against them for offences punishable under sections 498A and 323 r/w section 34 of the Indian Penal Code. 2. The main contention raised by the petitioners in this petition is that the complaint was barred by limitation and, therefore, no process could have been issued against them. The facts giving rise to the present complaint are as follows: Petitioner NO.1 married Respondent NO.2 in Kolhapur on 14.6.1990. It appears that Respondent No.2 left Petitioner No.1’s home on 26.4.1991. A divorce petition was filed by Petitioner No.1 before the Family Court, Bandra being MJ Petition No.A-728 of 1992. A decree of divorce was granted on 28.9.1992, ex parte. Till today, there is no challenge to that decree. Four years later, i.e. on 9.12.1996, Respondent No.2 filed a private complaint being RCC No.218 of 1996 in the Court of JMFC, Daund alleging that the petitioners have committed offences punishable under sections 498A, 420, 323 r/w section 34 of the IPC. The JMFC issued process against the petitioner on 31.12.1996 in respect of offences u/s 323, 498A r/w 34 of the Indian Penal Code after concluding that there was no delay in filing the complaint. 3. A bare perusal of the complaint indicates that the allegation against the petitioners is that they have committed the offences from June 1990 to 26.4.1991. The complaint admittedly is filed on 10.12.1996, well beyond the period of limitation. The trial Court has held that there were sufficient reasons to condone the delay and has framed the charge. 4. Section 468 of the Code of Criminal Procedure stipulates that a complaint must be filed within a specific period of limitation. In fact, there is a bar to take cognizance of complaints filed beyond the period of limitation except as otherwise provided in the Code. The period of limitation stipulated in respect of offences punishable under section 498A is three years and that for section 323 it is one year. 5. Section 469 provides that the period of limitation in relation to an offence shall commence from the date of the offence. Thus, when the complaint itself indicates that the offences have been allegedly committed from 1990 to 1991, there is no need to frame a charge against the petitioners. 5. Section 469 provides that the period of limitation in relation to an offence shall commence from the date of the offence. Thus, when the complaint itself indicates that the offences have been allegedly committed from 1990 to 1991, there is no need to frame a charge against the petitioners. Section 473 provides that cognizance of an offence can be taken after the expiry of the period of limitation if the Court is satisfied on facts that in the circumstances of the case the delay has been properly explained or that it was necessary to do so in the interests of justice. 6. In the present case, no complaint was filed for a period of four years after the divorce was granted to the petitioner. The complaint under sections 498A and 323 r/w section 34 of the IPC was filed four years later. The delay in filing the complaint has not been properly explained. The offences allegedly occurred from 1990 to 1991 and the complaint was filed 5 years later. The trial Court has erroneously held that the limitation starts running from 8.11.1996, i.e. when the complainant realized that she had been divorced. She had expressed her willingness to cohabit with the Petitioner through these letters sent to him in 1992, 1993 and 1995. The delay has been condoned as the JMFC was of the opinion that these letters indicate that the offence was a continuing one and the decree of divorce was the proverbial last straw on the camel’s back. The offence under section 498A can continue even after the dissolution of the marriage on 28.9.1992. As far as the offence under section 323 is concerned there is no material on record indicating that this offence continued after 1991. Therefore, the entire reasoning of the trial Court is based on incorrect premises and must be set aside. In these circumstances, the trial Court has erred in framing the charge against the petitioner. 7. The petition is allowed. The process issued against the Petitioners is quashed and set aside. The proceedings in RCC No.218/96 in the Court of JMFC, Daund are quashed and set aside. Rule accordingly made absolute in terms of prayer clause (a). No order as to costs.