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2019 Supreme(Cal) 214
IN THE HIGH COURT OF CALCUTTA
Asha Arora, J.
Hironmoy Sen - Appellant
Vs.
State of West Bengal - Respondent
Criminal Revision No. 1930 of 2017
Decided On : 30-01-2019
Sekhar Basu, Adv., Souvik Mitter, Adv., Ayan Basu, Adv., Goutam Banerjee, Adv., Apalak Basu, Adv., Pritha Bhowmik, Adv., Sayak Chakraborty, Adv., Ankur Mishra, Adv., Animesh Bhattacharyya, Adv.
The main legal point established in the judgment is that the bar of limitation under section 468 CrPC is not applicable to matrimonial offences alleging cruelty and torture upon the complainant by the husband and mother-in-law, and the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation based on the lapse of time.
Headnote:
Limitation - Matrimonial Offence - Section 498A/323/114 IPC - [Indian Penal Code] - [Section 468 CrPC not applicable to offences relating to cruelty against women] - The court held that the bar of limitation under section 468 CrPC is not 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. The court cited the case of Vanka Radhamanohari versus Vanka Venkata Reddy and others reported in, (1993) 3 SCC 4 (paragraph 6) and observed that 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.
Fact of the Case:
The complainant alleged that she was subjected to mental and physical torture by her husband and in-laws regarding caste, age, and household articles. The last act of cruelty was allegedly committed in the year 2005, but the complaint was lodged in the year 2012. The petitioners argued that taking cognizance of the offence itself is contrary to section 468 of the Code of Criminal Procedure, as the complaint was barred by limitation.
Finding of the Court:
The court found that the bar of limitation under section 468 CrPC is not 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. The court also held that the petition of complaint, the statement of witnesses, and the injury reports of the complainant clearly disclose a prima facie case for proceeding against both the petitioners for the offences alleged.
Issues: The issues revolved around the applicability of section 468 CrPC to the case, the allegations of mental and physical torture, and the sufficiency of evidence to proceed against the petitioners for the alleged offences.
Ratio Decidendi: The court's decision was influenced by the interpretation of section 468 CrPC and its applicability to matrimonial offences alleging cruelty against women. The court emphasized the need for a deeper examination of grievances in the interest of justice, instead of applying the rule of limitation based on the lapse of time.
Final Decision: The application was dismissed as devoid of merit, and it was made clear that no opinion has been expressed by the court on the merits of the case, and the trial court will proceed with the matter in accordance with the law.
Asha Arora, J.
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 and 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 SC 1054. Reference has been made to the case of Arun Vyas and another versus Anita Vyas reported in, AIR 1999 SC 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
