In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present: The Hon’ble Justice Asha Arora
Judgment on : 30th January, 2019
C.R.R 1930 of 2017
The State of West Bengal
For the Petitioners : Mr. Sekhar Basu, senior advocate Mr. Souvik Mitter, advocate For the Opposite : Mr. Ayan Basu, advocate Party No. 1/State Mr. Goutam Banerjee, advocate For the Opposite Party No. 2 : Mr. Apalak Basu, advocate Ms. Pritha Bhowmik, advocate Mr. Sayak Chakraborty, advocate Mr. Ankur Mishra, advocate Mr. Animesh Bhattacharyya, advocate
Asha Arora, J.
1. By the instant application petitioners have assailed the order dated 20/4/2017 passed by the learned Judicial Magistrate, 10th Court, Alipore in ACGR Case No. 12561 of 2012 arising out of Jadavpur P.S. Case No. 649 of 2012 dated 18/11/2012 under section 498A/323/114 of the Indian Penal Code whereby a petition dated 7/12/2016 filed by the accused persons/petitioners herein praying for discharge from the said case was rejected on contest and the case was posted for framing of charge. The petitioners have sought for quashing of the aforesaid proceeding which is pending before the trial Court.
2. The facts in brief leading to the present application may be summarized as follows:
On 25/10/2012 the opposite party no. 2 herein/complainant lodged a written complaint at Jadavpur P.S. alleging offences under 498A/323/114 IPC against the petitioners who are the husband and mother-in-law of the opposite party no. 2. According to the aforesaid complaint, on 1/12/1995 the complainant was married to the petitioner no. 1 whereafter she started residing in her matrimonial home with her husband and in laws. It is alleged by the complainant that she was subjected to mental and physical torture by her husband and his family members regarding caste, age and household articles which were given by her mother at the time of marriage. Her husband would pressurize her to bring money from her father’s house and assault her on the provocation of her mother-in-law. Within a few months of her marriage when she became pregnant, her husband made her undergo abortion. On 27/8/1999 when the complainant gave birth to a female child, her mother-in-law would taunt and humiliate her for not giving birth to a male child. Her husband continued to torture her when she went to reside with him in his place of posting at Kanpur. In the year 2003 the complainant returned with her husband to Kolkata andstarted residing with her in laws. Again the physical torture upon her by her husband and in laws started. In August 2005 the petitioner no. 1 shifted to another flat with the complainant and her daughter. During their stay in the said flat the complainant would protest against her husband’s illicit relation with other women so he started residing in a separate room and later shifted to another apartment on the third floor of the same building. It is further alleged that a divorce suit has been filed by her husband who continued to assault her for which she made several diaries at Jadavpur P.S.. Lastly on 23/10/2012 her husband along with her mother-in-law entered her flat and started assaulting her in consequence of which she sustained injuries. On the basis of the aforesaid written complaint the criminal proceeding being Jadavpur P.S. Case No. 649 of 2012 dated 18/11/2012 was initiated. Investigation culminated in the submission of the charge-sheet under section 498A/323/114 IPC against the present petitioners.
3. Learned senior counsel appearing for the petitioners strenuously argued that the allegations made in the written complaint and the materials collected during investigation indicate that the last act of cruelty was allegedly committed in the year 2005 but the complaint was lodged in the year 2012 (on 25/10/2012) followed by investigation thereon so in view of section 468 of the Code of Criminal Procedure, taking of cognizance is barred by limitation. To buttress such submission reliance has been placed upon the case of State of Punjab versus Sarwan Singh reported in AIR 1981 Supreme Court 1054. Reference has been made to the case of Arun Vyas and another versus Anita Vyas reported in AIR 1999 Supreme Court 2071 (paragraph 9) in support of the submission that the issue of limitation should be considered by the trial court at the stage of framing of charge. If taking cognizance of the offence itself is contrary to any provision of law, like section 468 CrPC, the complaint being barred by limitation, the charge cannot be framed and the accused should be discharged. It is argued that the point of limitation was urged before the learned Magistrate with reference to section 469(1)(a) CrPC but it has erroneously been observed in the impugned order that such an issue is a mixed question of fact and law which can only be decided by evidence during trial. It is further argued that the contents of the written complaint do not disclose the ingredients of the offence under section 498A IPC. So far as the petitioner no. 2 is concerned, there is no iota of material either under section 498A or under section 323 IPC. Learned counsel sought to impress that the allegations in the FIR and the statement of witnesses indicate that on and from 2005 the petitioner no. 1, the complainant and their daughter were residing separately from the petitioner no. 2 though she had her residence in the same building. It is canvassed that the alleged presence of the petitioner no. 2 on 23/10/2012 in the flat of the complainant at or around the time when she was allegedly assaulted by the petitioner no. 1 does not characterize her as an abettor within the meaning of section 107 IPC. To fortify his argument learned counsel for the petitioners placed reliance upon Satish Mehra versus State (NCT of Delhi) and Another reported in (2012)13 Supreme Court Cases 614, Geeta Mehrotra and anotherversus State of Uttar Pradesh and another reported in (2012)10 Supreme Court Cases 741, Varala Bharath Kumar and another versus State of Telangana and another reported in (2017)3 Supreme Court Cases (Cri) 740 and Century Spinning & Manufacturing Co. Ltd. versus State of Maharashtra reported in AIR 1972 Supreme Court 545. Reference has also been made to the case of State of U.P. versus Dr. Sanjay Singh and another reported in 1994 Supreme Court Cases (Cri) 1701 and State Anti Corruption Bureau Hyderabad and another versus P. Suryaprakasam reported in 1999 Supreme Court Cases (Cri) 373.
4. Repudiating the submissions on behalf of the petitioners, learned counsel for the opposite party no. 2/complainant countered that from the FIR which is corroborated by the statement of witnesses and the injury reports of the complainant a prima facie case for the offences alleged is made out against both the petitioners. Relying upon the case of Ashish Chadha versus Asha Kumari and Another reported in (2012)1 Supreme Court Cases 680, it is argued that a roving and fishing inquiry cannot be conducted at the stage of framing charge. Referring to the case of Lalu Prasad alias Lalu Prasad Yadav versus State of Bihar Through CBI (AHD) Patna reported in (2007)1 Supreme Court Cases (Cri) 241 (paragraphs 13, 14 and 15) it is pointed out that when the order of discharge is passed it is obligatory for the Court to record the reasons but for framing of charge the Court is required to form an opinion that there is ground for presuming that the accused has committed the offence alleged. Relying upon the case of Bhaskar Lal Sharma and anotherversus Monica and others reported in (2014)3 Supreme Court Cases 383, it pointed out that “cruelty” as defined in the explanation to section 498A IPC has twofold meaning. Under Explanation (a) any wilful conduct which is likely to cause injury or danger to life, limb or health (mental or physical) would come within the meaning of the expression “cruelty”. It is argued that the averments made in the petition of complaint and the statement of witnesses show that the complainant was subjected to cruelty. It is canvassed that the mother-in-law’s involvement is evident from paragraphs 2, 5, 8 and 10 of the petition of complaint and the statement of the complainant’s daughter which speak of provocation by the petitioner no.
2 who is an abettor within the meaning of “Thirdly” of section 107 IPC which reads thus:
“107. Abetment of a thing.—A person abets the doing of a thing, who—
Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing.”
Learned counsel for the opposite party rightly pointed out that it was the legal and moral duty of the petitioner no. 2 to restrain her son (petitioner no. 1) from inflicting physical torture upon the complainant but instead of doing so, she was talking against the complainant. On the point of limitation, it is argued that the bar of section 468 CrPC is not applicable to offences relating to cruelty against women. In support of such submission reliancehas been placed upon the case of Vanka Radhamanohari versus Vanka Venkata Reddy and others reported in (1993)3 Supreme Court Cases 4 (paragraph 6).
5. Learned counsel appearing for the State/opposite party no. 1 argued that the statement of witnesses and the injury report of the complainant support the allegation of cruelty. It is contended that section 468 CrPC is not applicable since cognizance was taken well within the period of limitation. Learned counsel pointed out that the last incident of cruelty occurred on 23/10/2012. The written complaint was lodged on 25/10/2012 and the charge-sheet was filed on 31/3/2013. It is urged that there is sufficient material in support of the offences alleged against both the petitioners.
6. In Sarwan Singh’s Case (supra), while dismissing the appeal of the State of Punjab against the acquittal of the respondent by the High Court of Punjab and Haryana mainly on the ground of limitation under section 468 and 469 of the Code of Criminal Procedure, the Supreme Court observed that the object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from launching prosecution after a long lapse of time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated cases long after the date of the offence. It is, therefore, of utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. But the question here is whether the bar of limitation under section 468 CrPC is applicable to the case in hand relating to a matrimonial offence alleging cruelty and torture upon the complainant by the husband and mother-in-law. In this context it will be useful to quote paragraph 14 of the judgement of the Supreme Court in Arun Vyas’s Case (supra) which reads as follows:
“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 interest 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. infavour 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 illustrative not exhaustive.”
7. It may also be beneficial to quote the relevant paragraphs 6 and 7 of the judgement in the case of Vanka Radhamanohari versus Vanka Venkata Reddy and others reported in (1993)3 Supreme Court Cases 4 wherein the Supreme Court observed as follows:
“6. At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the court that there was sufficient cause for condonation of delay under Section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of delay, whereas Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such,whenever the bar of Section 468 is applicable, the court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim : vigilantibus, et non, dormientibus, jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty against women.”
“7. It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh. But, that consideration cannot beextended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. 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 interest of justice”.”
8. In the case in hand, the petitioners are admittedly the husband and mother-in-law of the opposite party no. 2/complainant who filed the petition of complaint in the year 2012 alleging that after her marriage (on 1/12/1995) she was subjected to physical and mental torture, details of which as mentioned in the complaint have been referred hereinbefore. It is categorically averred by the complainant in the petition of complaint that the torture continued but for the sake of having a happy conjugal life she used to keep mum for such acts of her husband and mother-in-law. From a plain reading of the petition of complaint it appears that the cruelty, torture and assault upon the complainant started ‘since after her marriage’ and the lastincident of physical torture alleged in the petition of complaint occurred on 23/10/2012. The FIR was lodged on 25/10/2012 and the charge-sheet was filed on 31/3/2013. Therefore the bar of limitation under section 468 CrPC is not applicable. Even otherwise, in view of the decisions of the Supreme Court in the case of Vanka Radhamanohari (supra), and Arun Vyas’s Case (supra) and considering the facts and circumstances of the case in hand, it would be in the interests of justice to take cognizance of the offence under section 498A IPC ignoring the bar of section 468 CrPC. For the reasons aforestated, Sarwan Singh’s Case (supra) relied upon by the learned counsel for the petitioner has no application to the facts of the present case.
9. Coming to the next branch of argument advanced on behalf of the petitioners, it is well settled by a catena of decisions of the Supreme Court that at the stage of framing charge or while considering a petition for discharge of the accused, it is not for the Magistrate or the trial judge to hold a roving inquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial. The Court is required to find out if the facts emerging from the materials on record taken at their face value constitute the offence alleged. Disputed questions of fact are matters to be decided during the trial. At this juncture it will be useful to quote the relevant paragraph 11 of the judgement of the Supreme Court in Bhaskar Lal Sharma’s Case (supra) which reads as follows:
“11. The facts, as alleged, therefore will have to be proved which can only be done in the course of a regulartrial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court’s power to quash a criminal proceeding. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.”
10. It may also be beneficial to quote paragraphs 20 and 21 of the judgement in Ashish Chadha’s Case wherein the Supreme Court observed as follows:
“20. The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether the evidence collected by the prosecution discloses prima facie case against the accused or not.”
“21. In this connection, we may usefully refer to the observations of this Court in Munna Devi v. State of Rajasthan: (SCC p. 632, para 3)
“3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”
11. A bare perusal of the provisions of sections 227 and 228 CrPC, sections 239 and 240 CrPC and section 245 CrPC relating to discharge of the accused and framing of charge against the accused respectively in cases triable by the Court of Session, warrant triable cases by the Magistrate and in cases instituted otherwise than on a police report respectively would reveal that when the order of discharge of the accused is passed it is imperative to record the reasons but for framing of charge the Court is required to form an opinion that there is ground for presuming that the accused has committed the offence alleged. In case of discharge of the accused the use of the expression “reasons” has been inserted in sections 227, 239 and 245 of the CrPC. In the case of framing of a charge the expression used is “opinion”. It is clear that for discharging the accused the Magistrate or the Judge as the case may be, is under obligation to record his reasons but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. But where the question of jurisdiction is raised and the trial court is required to decide the issue, in such a case reasons have to be recorded dealing with the issue of jurisdiction.
12. Reverting to the present case in hand, I find that the petition of complaint, the statement of witnesses recorded under section 161 CrPC, the injury reports of the complainant and the outcome of investigation as evident from the charge-sheet clearly disclose a prima facie case for proceeding against both the petitioners for the offences alleged. At this juncture it may be useful to quote the relevant paragraphs 6 and 7 of the judgement in Varala Bharath Kumar’s Case (supra) wherein the Supreme Court observed as follows:
“6. It is by now well settled that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court, either to prevent abuse of process of the court or otherwise to secure the ends of justice. Where allegations made in the first information report/the complaint or the outcome of investigation as found in the charge-sheet, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out the case against the accused; where the allegations do not disclose the ingredients of the offence alleged; where the uncontroverted allegations made in thefirst information report or complaint and the material collected in support of the same do not disclose the commission of offence alleged and make out a case against the accused; where a criminal proceeding is manifestly attended with male fide and/or where the proceeding is maliciously instituted with a ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the power under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure may be exercised.”
“7. While exercising power under Section 482 or under Article 226 in such matters, the court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 of the Code though wide has to be exercised sparingly, carefully or with caution and only when such exercise is justified by the tests specifically laid down under Section 482 itself. It is to be exercised ex debito justitiae to do real and substantial justice, for the administration of which alone courts exist. The court must be careful and see that its decision in exercise of its power is based on sound principles. The inherent powers should not be exercised to stifle a legitimate prosecution. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.”
13. The aforesaid decision in Varala Bharath Kumar’s case relied upon by the learned counsel is of no help to the petitionerbeing clearly distinguishable on facts from the case in hand. In the said case it was observed that there was total absence of allegations for the offences under section 498A and 406 IPC. It was held therein that the allegations made in the FIR as well as the materials collected during investigation, even if taken at their face value and accepted in their entirety, do not prima facie constitute the offences under section 498A and 406 IPC against the appellant/accused. In the case in hand there is sufficient material to substantiate the offences alleged against the petitioners. For the same reason paragraphs 19 and 21 referred in Satish Mehra’s case(supra) relied on behalf of the petitioner find no application to the facts of the case in hand. In Geeta Mehrotra’s case(supra) cited on behalf of the petitioners, it was apparent from the contents of the FIR that there were no allegations against the appellants Kumari Geeta and Ramji Mehrotra except casual reference of their names which were included in the FIR. This decision is not apposite for the purpose of the case in hand.
14. While elucidating the meaning and scope of section 251A sub sections (2) and (3) CrPC in the case of Century Spinning & Manufacturing Co. Ltd (supra) the Supreme Court held that sub-section (2) has to be read along with sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under chapter XXI of the Code, within the Magistrate’s competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charge. Reference to the aforesaid decision is of no avail to the petitioner for the simple reason that upon perusal of the material collected during investigation it cannot be said that there is no ground for presuming that the petitioners have committed the offence alleged or that the charge against the petitioners is groundless. For the same reason P. Suryaprakasam’s case (supra) and Sanjay Singh case (supra) do not enure to the benefit of the petitioners.
15. In the ultimate analysis, the application being C.R.R. 1930 of 2017 is devoid of merit and is accordingly dismissed.
16. No order as to cost.
17. It is made clear that no opinion has been expressed by this Court on the merits of the case and the trial court will proceed with the matter is accordance with law.
18. Urgent photostat certified copy of this judgement and order if applied for, be given to the applicant upon compliance of requisite formalities.