1989 Supreme(Raj) 957
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohini Kapur, J.
Durga Lal - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cri. Misc. Petition No 783 of 1989.
Decided On : 6-12-1989
Important Points
Cognizance for an offense punishable with imprisonment for a term not exceeding three years cannot be taken beyond a period of three years, and the period of limitation cannot be extended under Section 468(3) Cr. P. C. unless the evidence indicates that the dispute between the husband and wife was on account of a demand of dowry.
Subject
Criminal Law - LIMITATION FOR TAKING COGNIZANCE
Act Referred
CRIMINAL PROCEDURE CODE : S.468
INDIAN PENAL CODE : S.498(a)
Headnote
CRIMINAL PROCEDURE CODE, 1973 - SECTION 468 - LIMITATION FOR TAKING COGNIZANCE - OFFENCES PUNISHABLE WITH DIFFERENT PUNISHMENTS - MOST SEVERE PUNISHMENT TO BE CONSIDERED - SECTION 498-A IPC - COGNIZANCE TAKEN BEYOND THREE YEARS - BARRED BY LIMITATION.
Fact of the Case:
The petitioner, Durgalal, was accused of ill-treating his wife, Durga Devi, and was charged under Section 498-A IPC. The trial court took cognizance of the offense beyond the three-year limitation period prescribed under Section 468(2)(c) Cr. P. C. The petitioner challenged the cognizance, arguing that it was barred by limitation.
Finding of the Court:
The court held that cognizance for the offense under Section 498-A IPC could not be taken beyond a period of three years, as the offense was punishable with a maximum punishment of three years imprisonment. The court further held that the period of limitation for taking cognizance could not be extended under Section 468(3) Cr. P. C., as the evidence did not indicate that the dispute between the husband and wife was on account of a demand of dowry.
Issues: 1. Whether cognizance for the offense under Section 498-A IPC could be taken beyond a period of three years? 2. Whether the period of limitation for taking cognizance could be extended under Section 468(3) Cr. P. C.
Ratio Decidendi: 1. Section 468(2)(c) Cr. P. C. prescribes a three-year limitation period for taking cognizance of offenses punishable with imprisonment for a term not exceeding three years. 2. Section 468(3) Cr. P. C. provides that where offenses are more than one and can be tried together, the period of limitation shall be determined with reference to the offense which is punishable with the most severe punishment. 3. In the present case, the offense under Section 498-A IPC was punishable with a maximum punishment of three years imprisonment, and therefore, cognizance could not be taken beyond a period of three years. 4. The evidence did not indicate that the dispute between the husband and wife was on account of a demand of dowry, and therefore, the period of limitation could not be extended under Section 468(3) Cr. P. C.
Final Decision: The court set aside the order of the trial court taking cognizance of the offense under Section 498-A IPC and quashed the proceedings against the petitioner as being beyond limitation.
Advocates:
For the Petitioner:Mr. K. C. Soni, Advocate.
For the Respondent: Mr. D. K. Mathur, P. P.
JUDGMENT
1. 1. The petitioner Durgalal was married to Durga Devi a number of years ago. The allegation of the complainant, who is the brother of Durga Devi is that Durga Devi was not treated properly on account of bringing less dowry. Durga Devi came to her parents' house and later on a Panchayat was arranged on 2.11.84 and the petitioner took Durga Devi to his house. Prior to this, Durgalal had contracted a 'nata marriage' with one Sarswati Devi.
2. Durga Devi had two daughters. Some time before 7th May, 1985, she left the house of her husband Durgalal and has not been traced or recovered so far. Her brother Kailash Chand was to get married on 7th May, 1985 and she did not join the function on that occasion. Kailash had gone to fetch her but at that time he was told that she had gone to attend some other marriage. As Durga Devi was not traceable and her husband was making allegations that she has been taken away by her brother the complainant, Kailash Chand lodged a report.
3. On the other hand, the investigation reveal that Durga Devi had on one day beaten her daughter Vimla because she was getting attached to Saraswati Devi. Upon this, Durgalal gave some bows to Durga Devi and told her not to beat the child. Durga Devi went away to the house of some neighbour then Durgalal brought her back. On same day in the evening she went away with a box. Efforts to trace her did not bear any fruit.
4. The first information report of the incident was lodged on 21st July, 1985 and after investigation, a challan was filed on 17th August, 1988. The Magistrate took cognizance for the under Sections 364 and 201 IPC and committed two accused to stand trial before the court of Sessions. The Sessions Court, namely the Additional Sessions Judge No. 6. Jaipur City. Jaipur considered the facts and circumstances of the case and was of the opinion that the under Sections 364 and 201 IPC was not made out but from the evidence collected in the case, it would be said that the petitioner has been ill-treating his wife and there was sufficient ground for charging the accused for the under Section 498-A IPC. He therefore. discharged the petitioner from the under Sections 364 and 201 IPC and sent the case file to the Additional Chief Judicial Magistrate No 7, Jaipur City, Jaipur for trying the accused for the under Section 498-A IPC.
5. The petitioner moved an application before the Additional Chief Judicial Magistrate No 7, Jaipur City, Jaipur that cognizance for the under Section 498-A IPC had been taken beyond the period of limitation and as such. Section 468 Cr. P. C. was a bar to taking cognizance and trying the accused. This application has been disallowed by order dated 3rd August. 1989 mainly on the ground that the trial before the Magistrate is proceeding on the basis of a direction of a superior court. Against this order, the petitioner has come up under Section 482 Cr. P. C.
6. The main contention of the learned counsel for the petitioner is that the occurrence in this case took place prior to 7th May, 1985 and even the charge sheet was presented after three years and for an under Section 498-A IPC cognizance cannot be taken after three years under Section 468 (2) (c) Cr. P. C. In support of his contention reliance has been placed on Prabbakaran v. State of Kerala (1986 Cr. L. J. 1411) and Dr. Dalpat Singh v. State (1989 R.C.C. 467) . In the Rajasthan case it has been held that where cognizance for s under Section 218 and 465 IPC is taken after expiry of the period of limitation and the delay has neither been condoned nor explained the delay cannot be condoned after taking of cognizance. It was held that in case the delay is condoned, the accused is entitled to an opportunity of hearing. In case of Prabhakaran (supra) the case was jointly tried for the under Sections 39 and 44 of the Electricity Act, he was acquitted under Section 39 but convicted under Section 44. The limitation for taking cognizance under Section 44 was barred under Section 468
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