JUDGMENT AND ORDER : 1. Heard Mr. S. Das, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the State. 2. By this revision petition, the petitioner has challenged the judgment and order dated 17.02.2014 delivered in Criminal Appeal 45(4) of 2013 by the Sessions Judge, South Tripura, Udaipur, as he then was. 3. The brief fact leading to this revision petition is that the petitioner has been convicted and sentenced by the Chief Judicial Magistrate, South Tripura, Udaipur by the judgment and order dated 28.10.2013 in GR case no. 77 of 2009 for committing offence of cruelty punishable under Section 498(A) of the IPC. 4. The genesis of the prosecution is rooted in the complaint filed by one Smt. Gouri Debnath (Chakraborty), the wife of the petitioner. The said complaint was filed on 17.01.2009 in the court of the Chief Judicial Magistrate, South Tripura, Udaipur disclosing that after one and half years of their marriage, the petitioner was being harassed for realization of unlawful demand. On 05.03.2004, the accused no. 2 and 3, as described in the said complaint, ill-advised the petitioner and the complainant was severely assaulted and she was left in a half-fed condition. Thereafter she was taken to the hospital. She did not return to her matrimonial home and she continued to stay in the parent’s residence after the said occurrence. 5. The said complaint was referred to the police station under Section 156(3) of the Cr.P.C. for investigation and accordingly Kakrabon PS Case No. 23 of 2009 under Section 498(A) was registered and taken up for investigation. On investigation, the final report under Section 173 Cr.P.C. was filed and cognizance was taken in due course. On recording the evidence led by the prosecution (deposition of PW 1 to PW 11) and having examined the petitioner under Section 313 Cr.P.C. the trial court passed the judgment and order of conviction and sentence dated 28.10.2013. The said judgment and order dated 28.10.2013 was challenged in Criminal Appeal 45(4) of 2013 in the court of the Sessions Judge, South Tripura, Udaipur. 6. In the said judgment dated 28.10.2013, the question related to limitation in respect of taking cognizance was not raised and discussed but in the appellate court, this objection was raised. The said judgment and order dated 28.10.2013 was challenged in Criminal Appeal 45(4) of 2013 in the court of the Sessions Judge, South Tripura, Udaipur. 6. In the said judgment dated 28.10.2013, the question related to limitation in respect of taking cognizance was not raised and discussed but in the appellate court, this objection was raised. According to the prosecution the last overt act in the continuing offence occurred on 05.03.2004 and the complaint was filed in the court of the Chief Judicial Magistrate, South Tripura, Udaipur on 17.01.2009. In terms of Section 468(2)(c) of the Cr.P.C. since the maximum imprisonment is three years, the period of limitation for an offence punishable under Section 498(A) of the IPC would be three years. It is manifest from the records of evidence that the cognizance was taken of the said offence much after, after-more than 4 years and 9 months. In the impugned judgment dated 17.02.2014, the appellate court has observed as under:- “............It is true that the period for taking cognizance is 3 years, if it is punishable with imprisonment for three years. But in this case date of occurrence is not 2004 but it is continuous for the affected woman who was subjected to mental and physical torture being driven out from her husband’s house. So, cognizance was not barred.” 7. Mr. S. Das, learned counsel appearing for the petitioner has submitted that the said reasoning is entirely unsustainable as the Apex Court in various decisions has held that the last incident means the last overt act contributing to the continuance of the offence. Continuance of an offence cannot be extended by any mental activity. It must be an overt act. Further, he has submitted that even if that reasoning is to be accepted, the Magistrate at the time of offence should have waived the bar of the limitation showing the special reason that how he was satisfied that the period of limitation, as imposed by Section 468(2)(c) of the Cr.P.C. was required to be waived. Unless such reason is available, the cognizance will be entirely illegal and incurable. 8. To bolster his submission, Mr. Das learned counsel has relied on a decision of the Apex Court in Arun Vyas and Another vs. Anita Vyas, (1999) 4 SCC 690 , wherein the Apex Court held as follows: “12. Unless such reason is available, the cognizance will be entirely illegal and incurable. 8. To bolster his submission, Mr. Das learned counsel has relied on a decision of the Apex Court in Arun Vyas and Another vs. Anita Vyas, (1999) 4 SCC 690 , wherein the Apex Court held as follows: “12. 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. 13. 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 13.10.1988 and ended on 12.10. 1991. But the charge-sheet was filed on 22.12.1995, therefore, it was clearly barred by limitation under Section 468(2)(c ) Cr.P.C. 14. 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. 1991. But the charge-sheet was filed on 22.12.1995, therefore, it was clearly barred by limitation under Section 468(2)(c ) Cr.P.C. 14. 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 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. 9. In Arun Vyas (supra), the Apex Court has observed that when the conduct of the accused is such that applying the 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 the period of limitation in the interest of justice. This is only illustrative and not exhaustive. In this regard, Mr. This is only illustrative and not exhaustive. In this regard, Mr. Das has also relied on another decision of the Apex Court in Udai Shankar Awasthi vs. State of Uttar Pradesh and Another, (2013) 2 SCC 435 , wherein the Apex Court has observed as under: “20. The question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold. Moreover, the issue of limitation must be examined in light of the gravity of the charge in question. 21. The court, while condoning delay has to record the reasons for its satisfaction, and the same must be manifest in the order of the court itself. The court is further required to state in its conclusion, while condoning such delay, that such condonation is required in the interest of justice. 22. To sum up, the law of limitation prescribed under the Cr.P.C. must be observed, but in certain exceptional circumstances, taking into consideration the gravity of the charge, the Court may condone delay, recording reasons for the same, in the event that it is found necessary to condone such delay in the interest of justice. 23. Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression, ‘continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect. 24. In Balakrishna Savalram Pujari Waghmare and Others vs. Shree Dhyaneshwar Maharaj Sansthan and Others, AIR 1959 SC 798 , this Court dealt with the aforementioned issue, and observed that a continuing offence is an act which creates a continuing source of injury, and renders the doer of the act responsible and liable for the continuation of the said injury. In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue. If the wrongful act is of such character that the injury caused by it itself continues, then the said act constitutes a continuing wrong. In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue. If the wrongful act is of such character that the injury caused by it itself continues, then the said act constitutes a continuing wrong. The distinction between the two wrongs therefore depends, upon the effect of the injury.” 10. In Balakrishna Savalram Pujari Waghmare and Others vs. Shree Dhyaneshwar Maharaj Sansthan and Others, AIR 1959 SC 798 , the Apex Court in respect of the continuity of the offence, has observed as under:- “In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue.” 11. Having relied on this part, Mr. Das, learned Counsel has observed that even the damage may continue but that will not be treated as a part of the continuity of the offence. He has finally relied on a decision of the Apex Court in State of Himachal Pradesh vs. Tara Dutt and Another, AIR 2000 SC 297 . In that case, the Apex Court had occasion to observe thus: “In view of the observations made by a Bench of two Judges of this Court, while this appeal was placed before Their Lordships, for hearing that the decision in the case of Aruna Vyas and Another vs. Anita Vyas, (1999) 4 SCC 690 , requires re-consideration, we think it necessary to notice the same. In the said case of Anna Vyas, one of the questions for consideration was whether the offence under Section 498A of the JPC is a continuing offence. The Court ultimately answered that the essence of the offence in Section 498A, being cruelty, the same 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- On fact, the Court found that the last act of cruelty being committed on 13.10.88 and the period of limitation having commenced from that date, the charge-sheet that was filed on 22.12.95 and the subsequent cognizance on that basis was clearly barred by limitation under Section 468(2)(c) of the Code of Criminal Procedure, we see no infirmity with the said conclusion. One other question that was raised and adverted to in the aforesaid case is that in the absence of any specific order by the Magistrate, taking cognizance, after the period of limitation provided in Section 468(2)(c) of the Code of Criminal Procedure by invoking the power under Section 473 and condoning the delay, the Magistrate committed error by discharging the accused on the ground of limitation. The aforesaid observations made by this Court indicates that the order of the Magistrate at the time of taking cognizance in case of an offence under Section 498A, should indicate as to why the Magistrate does not think it sufficient in the interest of justice to condone the delay inasmuch as an accused committing of an offence under Section 498Ashould not be lightly let of. We have already indicated in the earlier part of this Judgment as to the true import and construction of Section 473 of the Code of Criminal Procedure. The said provision being an enabling provision, whenever a Magistrate invokes the said provision and condones the delay, the order of the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone the delay. But without such an order being there or in the absence of such positive order, it cannot be said that the Magistrate has failed to exercise jurisdiction vested in law. It is no doubt true that in view of the fact that an offence under Section 498A is an offence against the society and, therefore, in the matter of taking cognizance of the said offence, the Magistrate must liberally construe the question of limitation but all the same the Magistrate has to be satisfied, in case of period of limitation for taking cognizance under Section 468(2)(c) having been expired that the circumstances of the case requires delay to be condoned and further the same must be manifest in the order of the Magistrate itself. This in our view is the correct interpretation of Section 473 of the Code of Criminal Procedure.” 12. This in our view is the correct interpretation of Section 473 of the Code of Criminal Procedure.” 12. It appears from Tara Dutt (supra) that it is incumbent on the Magistrate, if he intends to exercise the power expressly provided by Section 473 of the Cr.P.C. and to waive the bar of the limitation by way of condonation, the Magistrate must indicate that he was satisfied on the facts and circumstances of the case that the delay has been properly explained and that it is necessary in the interest of justice to condone such delay. But without such an order being there or in absence of such positive order, it cannot be said that the Magistrate has exercised the jurisdiction, as stated in law. 13. In this case, on scrutiny of the records, it appears that neither the police made any application before the Magistrate to waive the bar by way of condonation of the delay as prescribed by the provisions of Section 468(2)(c) of the Cr.P.C. nor the Magistrate had exercised his jurisdiction under Section 473 of the Cr.P.C. 14. Having noticed thus, Mr. Das, has submitted that the cognizance was wrong as after the last incident which occurred on 05.03.2004, there was no overt act on the part of the petitioner. Even the victim did not allege or prove by way of evidence nor the prosecution has proved that there was any overt act on the part of the petitioner to form continuity. Thus, even if there is some impact of the earlier incident, that cannot be treated as the continuity of the offence. 15. Mr. RC Debnath, learned Additional Public Prosecution appearing for the State has submitted that the reasoning given by the court of the Sessions Judge is sound because the misery of being thrown out from matrimonial home after assault continues even after the overt act. 16. Having regard to the submissions of the learned counsel appearing for the parties, this Court is of the view that there was a serious failure on the part of the Magistrate while taking the cognizance under Section 498(A) of the IPC inasmuch as he has not passed any order under Section 468(2)(c) of the Cr.P.C. holding that the cognizance is barred by that time and the Magistrate will not exercise his power as either provided under Section 472 and 473 of the Cr.P.C. 17. In absence of any reason, whatsoever, this Court cannot waive the bar of the limitation as it appears to this court on a close scrutiny of the record, the incident that occurred on 05.03.2004 was a single act which actually separated the husband and the wife, and thereafter no incident did happen and in this respect even there is no allegation, least to say about the existence of any evidence in the records. 18. In view of that, it is declared that the cognizance taken by the Magistrate is incurably illegal, without jurisdiction and unsustainable in law. Accordingly, the cognizance is set aside. 19. Consequence thereof, the entire proceeding is quashed including the judgment and order of conviction and sentence. The petitioner is set at liberty. As the petitioner is on bail, his sureties are released from any obligations. 20. In the result, this petition stands allowed. LCRs be returned forthwith.