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Unknown vs The State Of West Bengal on 30 January, 2019

In the High Court at Calcutta
Criminal Revisional Jurisdiction

Present:
The Hon’ble Justice Asha Arora
C.R.R 1930 of 2017
1. Hironmoy Sen
2. Smt. Reba Sen
……..Petitioners
Versus
1. The State of West Bengal
2. Smt. Sarbani Sen
……… Opposite Parties

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

Hearing concluded on : 22.01.2019
Judgment on : 30th January, 2019
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
2

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 and
3

started 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
4

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 another
5

versus 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 another
6

versus 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–

First.–…………………………………………………………………………
Secondly.– ……………………………………………………………………
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 reliance
7

has 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
8

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. in
9

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 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,
10

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 be
11

extended 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 last
12

incident 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 regular
13

trial. 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)
14

“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
15

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 the
16

first 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 petitioner
17

being 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
18

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.

(Asha Arora, J.)
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