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Ashutosh Chowdhury-vs-State And Anr. on 28 April, 1995

Calcutta High Court Ashutosh Chowdhury-vs-State And Anr. on 28 April, 1995
Equivalent citations:1996 CriLJ 2231
Author: N Bhattacharya
Bench: N Bhattacharya

ORDER

N.K. Bhattacharya, J.

1. By this revision under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, the petitioners have challenged a proceeding in G.R. Case No. 19 of 1992 arising out of Deganga P.S. Case No. 1 dated 2-1-92 under Section 498A/406/120B of the Indian Penal Code, pending in the Court of the learned Sub-divisional Judicial Magistrate, Barasat, North 24-Paraganas. According to the petitioners, the entire incident happened on and from 8th May, 1985 and continued up to 4th April, 1986 when, according to the wife opposite party No. 2, she was driven out from her matrimonial home. Thereafter, on 2nd July, 1991 the wife opposite party No. 2 filed a petition of complaint alleging torture, both mental and physical, by the accused persons upon her and the said complaint was forwarded to the police by the learned Magistrate in exercise of his power under Section 156(3) of the Code of Criminal Procedure. The said complaint was treated as an FIR and the police case was started being Deganga P.S. Case No. 1 dated 2-4-92 under Sections 498A/406/120B of the Indian Penal code, as stated above. The matter was investigated by the police and the chargesheet was submitted on 5th June, 1992 and cognizance was taken upon that chargesheet on 15th February, 1993.

2. Appearing for the petitioners, learned Advocate, Mr. Debi Prosad Sengupta, contended that the order of taking cognizance is bad inasmuch as the cognizance had been taken at a point of time when the period of limitation had already started and taking cognizance is a bar under Section 468 of the Code of Criminal Procedure. According to Mr. Sengupta, cognizance has been taken against the accused persons by the learned Magistrate for offence under Sections 498A and 406 of the Indian Penal Code. Mr. Sengupta submitted that both the offences are not in the nature of continuing offence and as such the provision of Section 468 of the Code of Criminal Procedure will apply in the instant case with all its intents and purposes. His second contention is that unless and untill an application is made for condonation of delay under Section 473 of the Code of Criminal Procedure and unless the matter has been disposed of by the learned Magistrate with notice upon the accused persons there is a bar of taking cognizance in the matter. In support of his submission Mr. Sengupta relied upon two decisions of the Supreme Court in the case of the State of Maharashtra v. Sharadchandra Vinayak Dongre, . He submitted that the offence

under Section 406 of the Indian Penal Code is not a continuing offence. Mr. Sengupta further placed reliance on a Supreme Court decision in the case of the State of Punjab v. Sarwan Singh and also on a decision of a single Bench of this Court in the case of Dinabandhu Banerjec v. Nandini Mukherjee reported in (1993) 2 Cal HN 292 : (1994 Cri LJ 422).

3. Mr. Pinaki Ranjan Mitra, learned Advocate appearing for the opposite party No. 2, on the other hand, contended that Section 406 is a continuing offence as it is a stridhan property and as such Section 468 has no manner of application in this case. In the second place, he contended that Section 473 of the Code of Criminal Procedure can be applied by the learned Magistrate suo motu for the purpose of condonation of delay if the learned Magistrate is satisfied that it is required for the interests of justice. In support of his submission Mr. Mitra relied on two Supreme Court decisions in the case of Bhagirath Kanoria v. The State of M.P. and in the

case of Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy, .

4. Having heard the learned Advocates for the parties and considering the materials on record I come to the following decision :–

No doubt our High Court has held that the offence under Section 406 of the Indian Penal Code is not a continuing offence and the reasoning that has been laid down therefor is consistent with my view and 1 do not find anything to differ with the view taken in the decision taken by the single Judge of this Court in the case of Dinabandhu Banerjee v. Nandini Mukherjee (1994 Cri LJ 422) (supra).

5. As has already been pointed out, according to Mr. Sengupta, the offence under Section 498 A of the Indian Penal Code is not also a continuing offence and the bar as contemplated under Section 468 of the Code of Criminal Procedure will apply in the case of Section 498A of the Indian Penal Code. His further contention was that unless there is an application by the prosecution under Section 473 of the Code of Criminal Procedure and unless that application is disposed of by the learned Magistrate first after service of notice upon the accused persons, no cognizance can be taken for an offence under Section 498A of the Indian Penal Code.

6. After consideration the judgments in the case of Bhagirath Kanoria (supra) and Vanka Radhamanohari (1993 AIR SCW 3595) (supra), it appears to me that the learned Magistrate can exercise the power under Section 473 of the Code of Criminal Procedure, independent of an application. That has been indicated in the case of Bhagirath Kanoria (supra). In paragraph 22 at page 1692 of that judgment the Supreme Court has held as follows:-

“Before we close, we consider it necessary to draw attention to the provisions of Section 473 of the Code which we have extracted above. That Section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code any Court may take cognizance of an offence after the expiry of the period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section 473 of the Code.”

The Supreme Court in its decision in the Vanka Radhamanohari’s case (1993 AIR SCW 3595) had the occasion to consider the case of Bhagirath Kanoria (supra). While quoting the passage, as quoted above, in paragraph 9 of that judgment at page 9, the Supreme Court further held as follows:-

“Coming to, the facts of the present case, the appellant is admittedly the wife of the respondent. She filed the petition of complaint in the year 1990 alleging that she was married to the respondent, who subjected her to cruelty, details whereof were mentioned in the complaint aforesaid. She further stated on May 4, 1990 he has married again, deserting the appellant. In view of the allegation regarding second marriage, an offence under Section 494 of the Penal Code was also disclosed which is punishable by imprisonment for a term which may extend to seven years. The High Court taking into consideration Section 468, has come to the conclusion that the complaint in respect of the offence under Section 498A which prescribes imprisonment for a term up to three years, was barred by time. Nothing has been said by the High Court in respect of the offence under Section 494 of the Penal Code, to which Section 468 of the Code is not applicable, the punishment being for a term extending up to seven years. Even in respect of allegation regarding an offence under Section 498A of the Penal Code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegation that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interests of justice to take cognizance even of the offence under Section 498A ignoring the bar of Section 468.” (Sic)

underscored by this Court.

This gives an indication that independent of an application by the prosecution under Section 473 of the Code of Criminal Procedure, the Court can take cognizance in appropriate case ignoring the bar under Section 468 of the Code.

7. The allegation in the instant case by the complainant wife, opposite party No. 2 herein, is that she was treated with cruelty by the accused petitioners including the husband and other members of his family both physically and mentally. Similar was the fact in the case of Vanka Radhamanohari (1993 AIR SCW 3595) (supra) and on that fact the observation as quoted above was made by the Supreme Court.

8. That being the position of the law, I do not feel that any wrong has been done or any illegality has been committed by the learned Magistrate in taking cognizance of the offence under Section 498A of the Indian Penal Code.

9. Since the order of the learned Magistrate taking cognizance does not smack of any illegality, impropriety or incorrectness, I do not think that this is a case for quashing the proceeding.

10. The revisional application is accordingly dismissed.

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