SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mohd. Fahim Shekhani vs Amrin Bano on 30 June, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Page 1 of 10

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 549 of 2021

Order Reserved on : 18.06.2021

Order Delivered on : 30.06.2021

1. Mohd. Fahim Shekhani, Aged About 32 Years (wrongly
mentioned as 25), S/o Hazi Mohd. Aslam Shekhani.
2. Hazi Mohd. Aslam Shekhani, Aged About 54 Years (wrongly
mentioned as 55), S/o Late Ishak Shekhani.
3. Khairun Nisha, Aged About 49 Years, W/o Hazi Mohd. Aslam
Shekhani.
All R/o M/s Nurani Steel Kadrapara, Raipur Road, Bemetara
and Aslam Hardware Bazarpara, Bemetara, Tahsil and Thana,
District- Bemetara (C.G.)
—- Petitioners
Versus
Amrin Bano, Aged About 25 Years, W/o Fahim Shekhani, D/o Late
Abdul Jabbar Memon, By Caste- Muslaman, R/o Civil Line,
Dharamjaygarh, Tahsil- Dharamjaygarh, District- Raigarh (C.G.)
—- Respondent

For Petitioners : Mr. Parag Kotecha, Advocate.

Hon’ble Shri Justice Narendra Kumar Vyas

CAV Order

1. The petitioners have filed present petition under Section 482
of the Cr.P.C. against order dated 02.02.2021 passed by
Judicial Magistrate First Class, Dharamjaigarh, District-
Raigarh (C.G.), for quashing of the complaint filed by
respondent under Section 12 of Protection of Woman From
Domestic Violence Act, 2005 (for short “the Act, 2005”) , who
is wife of petitioner No. 1.

2. The brief facts as projected by the petitioners are that
petitioner No. 1 and the respondent is husband and wife and
her marriage was solemnized as per Muslim Law on
22.01.2015. The petitioners have harassed her and committed
Page 2 of 10

cruelty against the respondent, therefore, she has filed a
complaint under
Section 498A of I.P.C. before learned Judicial
Magistrate First Class, Dharamjaigarh, District- Raigarh (C.G.)
which is pending consideration, thereafter, she filed
application under
Section 125 of the Cr.P.C. for grant of
maintenance and after that she filed complaint on 27.10.2018
against the petitioners under Section 12 of the Act, 2005. On
27.10.2018, she has filed the complaint stating that she has
been suffering of domestic violence by the petitioners and
prayed for restraining petitioners from repetition of domestic
violence. She has also claimed that she may be allowed to
enter into house where she was residing at her matrimonial
house as per Section 19 of the Act. The respondent has also
filed for monetary relief under Section 20 of the Act, 2005.
The respondent has claimed custody of child as per Section
21 of the Act, 2005. She has also claimed compensation
under Section 22 of the Act, 2005.

3. The learned Judicial Magistrate First Class taking cognizance
on the complaint, has issued notice to the petitioners. The
petitioners have filed an application under Section 203 of the
Cr.P.C. for dismissal of the complaint as it is barred by
limitation mainly contending that the respondent has deserted
matrimonial house of the petitioners on 04.04.2017, whereas
she has filed present complaint on 27.10.2018 i.e. after lapse
of one year and six months, therefore, it is barred by limitation
as per Section 468 of the Cr.P.C.

4. It is contended by learned counsel for the petitioners that after
expiry of one year, the complaint will be barred by limitation as
per Section 31 of the Act, 2005. If an offence under this Act is
committed and shall be punishable with imprisonment of
either description for a term which may extend to one year, or
with fine which may extend to twenty thousand rupees, or with
both. The limitation for filing complaint is one year whereas
present complaint has been filed after one year, therefore, it is
Page 3 of 10

delayed and the same is liable to be dismissed on this count
alone.

5. The respondent replied to the application contending that as
per Section 4 of the Act, 2005, it is continued cause of action,
therefore,
Section 468 of the Cr.P.C. is not applicable and the
application has been filed to prolong the matter with ulterior
motive and prayed for rejection of the application. The learned
Judicial Magistrate First Class, Dharamjaigarh vide its order
dated 02.02.2021 dismissed the objection raised by the
petitioners observing that it is continued cause of action.
Relying on the judgment of various High Court, the trial court
recorded finding that it is continued cause of action, therefore,
the application is within limitation and the objection raised by
the petitioners is decided on merits and is rejected. This order
as well as cognizance of the offence were challenged by the
petitioners before this Court by filing the present petition.

6. Learned counsel for the petitioners relies upon the judgment
of the Supreme Court in Inderjit Singh Grewal Vs. State of
Punjab another1, and submits that as per this judgment,
the trial court has committed irregularity and illegality in
passing the impugned order, which is liable to be quashed by
this Court exercising inherent power under Section 482 of
Cr.P.C.

7. Before adverting to the case, it is necessary to examine the
various provisions of the Act, 2005, which has been enacted
with an object to provide for more effective protection of the
rights of women guaranteed under the Constitution, who are
victims of violence of any kind occurring within the family.

8. Section 2(a) of the Act, 2005 defines ‘aggrieved persons’,
which means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have
been subjected to any act of domestic violence by the
respondent.
Section 3 defines ‘domestic violence. Chapter IV
deals with procedure for obtaining orders of reliefs.
Section 12

1 (2011) 12 SCC 588
Page 4 of 10

deals with procedure for filing of application to Magistrate.
Section 17 deals with right to reside in a shared household.
Section 18 deals with protection orders. Section 19 deals with
residence orders.
Section 20 deals with monetary reliefs to
meet the expenses incurred and losses suffered by the
aggrieved persons and any child of the aggrieved person as a
result of domestic violence.
Section 21 deals with custody
orders, which provides notwithstanding anything contained in
any other law for the time being in force, the Magistrate may,
at any stage of hearing of the application for protection order
or for any other relief under this Act grant temporary custody
of any child or children to the aggrieved person or the person
making an application on her behalf and specify, if necessary,
the arrangements for visit of such child or children by the
respondent.
Section 22 deals with compensation order, in
addition to other reliefs as may be granted under this Act, the
Magistrate may on an application being made by the
aggrieved person, pass an order directing the respondent to
pay compensation and damages for the injuries, including
mental torture and emotional distress, caused by the acts of
domestic violence committed by that respondent. Section 28
of Act deals with the procedure to be followed while hearing
complainant, as per this Section,
Sections 12 ,18 ,19 21,22
23 31 shall be governed by the procedure of the Code of
Criminal Procedure 1973.

9. The Central Government exercising its power conferred, u/s
37 of the Act has framed Rules “the Protection of Women
from Domestic Violence Rules, 2006 (for short “the Rules,
2006”). These Rules are effective from 26th October, 2006.
The rule 15(6) of the Rules provides that when charges are
framed under
section 31 or in respect of offences under
section 498A of Indian Penal Code ,1860 or any other offence
not summarily triable ,the court may separate the procdings
from such offences to be tried in the manner prescribed under
code of Criminal Procedure ,1973 and proceed to summarily
Page 5 of 10

try the offence of the breach of protection order under section
31, in accordance with the procedure of XXI of the Code of
Criminal Procedure, 1973.

10. Learned counsel for the petitioners submits that as per
Section 468 of the Cr.P.C., cognizance on the complaint after
period of one year cannot be taken by the Judicial Magistrate
First Class as punishment has been provided in this Act is
less than one year, therefore, the complaint is barred by
limitation and the same is liable to be rejected. He would
further submit that since the respondent has left the
matrimonial house on 04.04.2017 thereafter, she has filed the
complaint under Section 12 of the Act, 2005 on 27.10.2018, it
is barred by limitation as per
Section 468 of the Cr.P.C., which
reads as under:-

“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 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.]”

11. Learned counsel for the petitioners drew attention towards
para 32 of the judgment passed by the Supreme Court in
Inderjit Singh Grewal (Supra), which reads as under:-

“32. Submissions made by Shri Ranjit Kumar on
the issue of limitation, in view of the provisions of
Section 468 Cr.P.C., that the complaint could be
Page 6 of 10

filed only within a period of one year from the
date of the incident seem to be preponderous in
view of the provisions of Section 28 and 32 of the
Act 2005 read with Rule 15(6) of The Protection
of Women from Domestic Violence Rules, 2006
which make the provisions of
Cr.P.C. applicable
and stand fortified by the judgments of this court
in
Japani Sahoo v. Chandra Sekhar Mohanty,
AIR 2007 SC 2762; and Noida Entrepreneurs
Association v. Noida Ors., (2011) 6 SCC 508.”

12. Before considering the submission made by learned counsel
for the petitioners, it is necessary to examine the concept of
continued cause of action. It is pertinent to mention that the
word ‘continued offence’ is not defined in the Act, 2005, but it
is a subject matter of interpretation by the Supreme Court in
various judgments. The Supreme Court in Bhagirath Kanoria
others Vs. State of M.P.2, held as under:-

“10. It is impossible to accept Shri Bobde’s con-
tention. The expression ‘continuing offence’ is
not defined in
the Code but, that is because ex-
pressions which do not have a fixed connotation
or a static import are difficult to define. How diffi-
cult it is to put the concept of a continuing of-
fence in a strait jacket is illustrated by the deci-
sion of this Court in State of Bihar Vs. Deokaran
Nenshi and Another, . In that case, respondents
who were owners of a stone quarry in Bombay
were required to forward certain annual returns
in respect of the preceding year, on or before
January 21 in each year. Failure to forward the
returns as required is punishable with fine u/s 66
of the
Mines Act, 1952. The respondents having
failed to furnish the returns by the due date,
which was January 21, 1960 a complaint was
filed against them in a Court at Dhanbad on April
12, 1961. One of the contentions of the respon-
dents was that the complaint was barred by limi-
tation u/s 79 of the
Mines Act which provided that
no Court shall take cognizance of an offence un-
der that Act unless the complaint was filed within
six months of the date of the offence. The Expla-
nation to
Section 79 provided that if the offence
in question was a continuing offence, the period
of limitation shall be computed with reference to
every part of the time during which the said of-

fence continued. It was held by this Court that

2 (1984) 4 SCC 222
Page 7 of 10

the infringement which occurred on January 21
of the relevant year was complete when the
owner failed to furnish the annual returns on that
date. Since, the Regulation did not lay down that
the owner would be guilty of an offence if he con-
tinued to work the mine without furnishing the re-
turns, the offence was non-continuing and, there-
fore, the complaint was time barred. While dis-
cussing the question as to when an offence
could be said to be a continuing offence, the
Court made the following observations :

A continuing offence is one which is sus-

ceptible of continuance and is distinguishable
from the one which is committed once and for all.
It is one of those offences which arises out of a
failure to obey or comply with a rule or its re-
quirement and which involves a penalty, the lia-
bility for which continues until the rule or its re-
quirement is obeyed or complied with. On every
occasion that such disobedience or non-compli-
ance occurs and recurs, there is the offence
committed. The distinction between the two
kinds of offences is between an act or omission
which constitutes an offence once and for all and
an act or omission which continues and there-
fore, constitutes a fresh offence every time or oc-
casion on which it continues. In the case of a
continuing offence, there is thus the ingredient of
continuance of the offence which is absent in the
case of an offence which takes place when an
act or omission is committed once and for all. (p.
1006)

11. This passage shows that apart from saying
that a continuing offence is one which continues
and a non-continuing offence is one which is
committed once and for all, the Court found it dif-
ficult to explain as to when an offence can be de-
scribed as a continuing offence. Seeing that diffi-
culty, the Court observed that a few illustrative
cases would help to bring out the distinction be-
tween a continuing offence and a non-continuing
offence. The illustrative cases referred to by the
Court are three from England, two from Bombay
and one from Bihar.

19. The question whether a particular offence is
a continuing offence must necessarily depend
upon the language of the statute which creates
that offence, the nature of the offence and,
above all, the purpose which is intended to be
achieved by constituting the particular act as an
offence. Turning to the matters before us, the of-

Page 8 of 10

fence of which the appellants are charged is the
failure to pay the employer’s contribution before
the due date. Considering the object and pur-
pose of this provision, which is to ensure the wel-
fare of workers, we find it impossible to hold that
the offence is not of a continuing nature. The ap-
pellant were unquestionably liable to pay their
contribution to the Provident Fund before the
due date and it was within their power to pay it,
as soon after the due date had expired as they
willed. The late payment could not have ab-
solved them of their original guilt but it would
have snapped the recurrence. Each day that
they failed to comply with the obligation to pay
their contribution to the fund, they committed a
fresh offence. It is putting an incredible premium
on lack of concern for the welfare of workers to
hold that the employer who has not paid contribu-
tion or the contribution of the employees to the Provi-
dent Fund can successfully evade the penal conse-
quences of his act by pleading the law of limitation.
Such offences must be regarded as continuing of-
fences, to which the law of limitation cannot apply. ”

13. The Supreme Court in Krishna Bhattacharjee Vs. Sarathi
Choudhury others3, has examined the scheme of the Act,
2005 and held that the Act, 2005 gives more effective
protection of constitutional right to women and to ensure that
there is victim of any crime of domestic violence being social
legislature and has distinguished the judgment passed by the
Supreme Court in Inderjit Singh Grewal (Supra), in para 15.
The same is extracted below:-

“15. In the instant case, as has been indicated
earlier, the courts below as well as the High
Court have referred to the decision in Inderjit
Singh Grewal (supra). The said case has to be
understood regard being had to the factual ex-
pose therein. The Court had referred to the deci-
sion in D. Velusamy Vs. D. Patchaiammal,
wherein this Court had considered the expres-
sion “domestic relationship” Under
Section 2(f) of
the Act and judgment in Savitaben Somabhai
Bhatiya Vs. State of Gujarat and Others, and dis-
tinguished the said judgments as those cases re-
lated to live-in relationship without marriage. The
Court analyzing the earlier judgments opined
that the couple must hold themselves out to soci-

3 (2016) 2 SCC 705
Page 9 of 10

ety as being akin to spouses in addition to fulfill-

ing all other requisite conditions for a valid mar-
riage. The said judgments were distinguished on
facts as those cases related to live-in relation-
ship without marriage. The Court opined that the
parties therein had got married and the decree of
the civil court for divorce subsisted and that apart
a suit to declare the said judgment and decree
as a nullity was still pending consideration before
the competent court.

31. Thereafter, the Court referred to the authorities
and adverted to Deokaran Nenshi (supra) and even-
tually held:

“19. The question whether a particular of-
fence is a continuing offence must necessarily de-
pend upon the language of the statute which creates
that offence, the nature of the offence and, above all,
the purpose which is intended to be achieved by
constituting the particular act as an offence.”

32. Regard being had to the aforesaid statement of
law, we have to see whether retention of stridhan by
the husband or any other family members is a con-
tinuing offence or not. There can be no dispute that
wife can file a suit for realization of the stridhan but it
does not debar her to lodge a criminal complaint for
criminal breach of trust. We must state that was the
situation before the 2005 Act came into force. In the
2005 Act, the definition of “aggrieved person” clearly
postulates about the status of any woman who has
been subjected to domestic violence as defined Un-
der
Section 3 of the said Act. “Economic abuse” as it
has been defined in
Section 3(iv) of the said Act has
a large canvass.
Section 12, relevant portion of
which have been reproduced hereinbefore, provides
for procedure for obtaining orders of reliefs. It has
been held in Inderjit Singh Grewal (supra) that Sec-
tion 498
of the Code of Criminal Procedure applies to
the said case under the 2005 Act as envisaged Un-
der
Sections 28 and 32 of the said Act read with Rule
15(6) of the Protection of Women from Domestic Vio-
lence Rules, 2006. We need not advert to the same
as we are of the considered opinion that as long as
the status of the aggrieved person remains and strid-
han remains in the custody of the husband, the wife
can always put forth her claim Under
Section 12 of
the 2005 Act. We are disposed to think so as the sta-
tus between the parties is not severed because of
the decree of dissolution of marriage. The concept of
“continuing offence” gets attracted from the date of
deprivation of stridhan, for neither the husband nor
any other family members can have any right over
the stridhan and they remain the custodians. For the
purpose of the 2005 Act, she can submit an applica-

Page 10 of 10

tion to the Protection Officer for one or more of the
reliefs under the 2005 Act.

33. In the present case, the wife had submitted the
application on 22.05.2010 and the said authority had
forwarded the same on 01.06.2010. In the applica-
tion, the wife had mentioned that the husband had
stopped payment of monthly maintenance from
Jauary 2010 and, therefore, she had been compelled
to file the application for stridhan. Regard being had
to the said concept of “continuing offence” and the
demands made, we are disposed to think that the
application was not barred by limitation and the
courts below as well as the High Court had fallen into
a grave error by dismissing the application being
barred by limitation.

34. Consequently, the appeal is allowed and the or-
ders passed by the High Court and the courts below
are set aside. The matter is remitted to the learned
Magistrate to proceed with the application Under
Section 12 of the 2005 Act on merits.

14. From the above law laid down by the Hon’ble Supreme Court
as well as scheme of Act, 2005, it is quite clear that the reliefs
sought by the respondent is of continued in nature as she
has prayed for restraining petitioners from repetition of
domestic violence, her entrance into matrimonial house
where she was residing with respondent, monetary relief,
custody of child and for grant of Compensation , as such,
the learned Judicial Magistrate First Class has not committed
any irregularity or illegality in rejecting the objection raised by
the petitioners, as well as issuance of process which warrants
interference of this Court exercising power under Section 482
of the Cr.P.C.

15. Accordingly, the instant petition being devoid of merits, is
liable to be and is hereby dismissed at motion stage itself.

Sd/-

(Narendra Kumar Vyas)
Judge

Arun

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation