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PETITIONER:

ARUN VYAS & ANR.

Vs.

RESPONDENT:

ANITA VYAS

DATE OF JUDGMENT: 14/05/1999

BENCH:

K.Venkataswami, Syed Shah Mohammed Quadri

JUDGMENT:

S.SHAH MOHAMMED QUADRI,J

Leave is granted.

This appeal is from the judgment and order of the High

Court of Rajasthan at Jabalpur in S.B.Crl.Revision No.316/96

dated March 17, 1998 setting aside the order of discharge

passed in favour of the appellants by the Additional Chief

Judicial Magistrate, Jodhpur on April 23, 1996. The facts

giving rise to this appeal may briefly be noted here.

Appellant No.1 married the respondent in accordance with the

Hindu rites on May 20, 1986. They were blessed with a girl

on January 2, 1988. The respondent, in the complaint filed

before the Court on October 18, 1995, alleged that she was

beaten up by her husband, mother-in-law and sisters-in- law

as her parents failed to satisfy the demand of dowry and

ultimately she was pushed out of the house on October

13,1988. The complaint was filed against the appellants

under Sections 498-A, 406 IPC read with Section 6 of the

Dowry Prohibition Act before Additional Chief Judicial

Magistrate, Jodhpur, under Section 190(1) Cr.P.C., who

ordered investigation by police. The police investigated

the complaint under Section 156(3) Cr.P.C. and submitted

charge-sheet (final report) under Section 498-A IPC on

December 22, 1995. On that report the learned Magistrate

took cognizance of offence under Sections 498-A as well as

406 IPC and issued summons to the appellants. The case was

posted on April 23, 1996 for framing charges. On that day

it was submitted on behalf of the accused that the complaint

was barred by limitation and that referring the case for

investigation to the police itself was bad, therefore, no

charges could be framed against the accused. That plea of

the appellants found favour from the learned Magistrate who

discharged the appellants by his order dated April 23, 1996.

The respondent challenged the validity of that order of the

learned Magistrate before the High Court of Rajasthan in

S.B.Cr.No.316 of 1966. On March 17,1998, the High Court set

aside the order of the learned Magistrate and directed him

to proceed with the case from the stage where he had

discharged the accused and decide the same in accordance

with law. It is that order of the High Court which is the

subject-matter of this appeal. Mr.Adarsh Goel, learned

senior counsel appearing for the appellant, contended that

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the High Court has committed illegality in holding that

there was no delay in filing the complaint and in observing

that even if there was delay in view of Section 468 Cr.P.C.

the learned Magistrate should not have overlooked the

provisions of Section 473 Cr.P.C. He argued that no

provision in Cr.P.C. provides that after taking cognizance,

the learned Magistrate could not have discharged the

appellants and that the reasons given by the High Court in

setting aside the order of the learned Magistrate are

erroneous in law. Mr.Pallav Shishodia, learned counsel

appearing for the respondent, submitted that the respondent

was subjected to cruelty and harassed for the demand of

dowry and she was sent out of the matrimonial home,

therefore, the High Court was justified in setting aside the

order of the learned Magistrate who did not take note of

Section 473 Cr.P.C. and directing him to proceed with the

case. On this above submissions, two questions arise for

consideration, namely : (i) whether the learned Magistrate

can discharge an accused after taking cognizance of an

offence by him but before the trial of the case; and

(ii) whether the learned Magistrate was right in

discharging the appellants on the grounds that the complaint

was barred by limitation under Section 468 Cr.P.C.

Point No.(i) : The answer to this point can be found

in Section 239 Cr.P.C. which is in the following terms :

"239. When accused shall be discharged - If, upon

considering the police report and the documents sent with it

under Section 173 and making such examination, if any, of

the accused as the Magistrate thinks necessary and after

giving the prosecution and the accused an opportunity of

being heard, the Magistrate considers the charge against the

accused to be groundless, he shall discharge the accused,

and record his reasons for so doing."

A perusal of the aforementioned section shows that the

Magistrate has to discharge the accused : if (1) on

consideration of (a) the police report, (b) the documents

filed under Section 173 Cr.P.C.; and (2) making such

examination, if any, of the accused as the Magistrate thinks

necessary; and (3) after giving the prosecution and the

accused an opportunity of being heard, he considers charge

against the accused to be groundless. This section,

however, casts an obligation on the Magistrate to record his

reasons for holding that the charge is groundless and

discharging the accused. Section 239 has to be read along

with Section 240 Cr.P.C. If the Magistrate finds that there

is prima facie evidence or the material against the accused

in support of the charge (allegations) he may frame charge

in accordance with Section 240 Cr.P.C. But if he finds that

the charge (the allegations or imputations) made against the

accused do not make out a prima facie case and do not

furnish basis for framing charge, it will be a case of

charge being groundless, so he has no option but to

discharge the accused. Where the Magistrate finds that

taking cognizance of the offence itself was contrary to any

provision of law, like Section 468 Cr.P.C., the complaint

being barred by limitation, so he cannot frame the charge,

he has to discharge the accused. Indeed in a case where the

Magistrate takes cognizance of an offence without taking

note of Section 468 Cr.P.C., the most appropriate stage at

which the accused can plead for his discharge is the stage

of framing the charge. He need not wait till completion of

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trial. The Magistrate will be committing no illegality in

considering that question and discharging the accused at the

stage of framing charge if the facts so justify. Point

No.(ii) : The new Code of Criminal Procedure Code contains

Chapter XXXVI, (Sections 467 to 473) which deals with

limitation for taking cognizance of certain offences.

Section 467 defines that the period of limitation for the

purposes of that Chapter, to mean the period specified in

Section 468 for taking cognizance of offence. Bar to taking

cognizance on the expiry of period of limitation and

extension of period of limitation, are dealt in by Sections

468 and 473 respectively. The point of commencement of

period of limitation in the case of continuing offence is

embodied in Section 472 and in the case other than a

continuing offence is contained in Section 469. The

provisions for exclusion of time in computing the period of

limitation are incorporated in Sections 470 and 471. It may

be noted here that the object of having Chapter XXXVI in

Cr.P.C. is to protect persons from prosecution based on

stale grievances and complaints which may turn out to be

vexatious. The reason for engrafting rule of limitation is

that due to long lapse of time necessary evidence will be

lost and persons prosecuted will be placed in a defenseless

position. It will cause great mental anguish and hardship

to them and may even result in miscarriage of justice. At

the same time it is necessary to ensure that due to delays

on the part of the investigating and prosecuting agencies

and the application of rules of limitation the criminal

justice system is not rendered toothless and ineffective and

perpetrators of crime are not placed in advantageous

position. The Parliament obviously taking note of various

aspects, classified offences into two categories, having

regard to the gravity of offences, on the basis of the

punishment prescribed for them. Grave offences for which

punishment prescribed is imprisonment for a term exceeding

three years are not brought within the ambit of Chapter

XXXVI. The period of limitation is prescribed only for

offences for which punishment specified is imprisonment for

a term not exceeding three years and even in such cases wide

discretion is given to the Court in the matter of taking

cognizance of an offence after the expiry of the period of

limitation. Section 473 provides that if any Court is

satisfied on the facts and in the circumstances of the case

that the delay has been properly explained or that it is

necessary so to do in the interests of justice, it may take

cognizance of an offence after the expiry of the period of

limitation. This section opens with a non obstante clause

and gives overriding effect to it over all the other

provisions of Chapter XXXVI. It is useful to read Section

468 Cr.P.C. here : "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 but not

exceeding three years.

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(c) three years, if the offence is punishable with

imprisonment for a 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."

A perusal of the provision, extracted above, shows

that Sub-section (1) of Section 468 enjoins that no Court

shall take cognizance of an offence of the categories

specified in sub-section (2), after the expiry of the period

of limitation mentioned therein. This rule is, however,

subject to the other provisions of the Code. Sub-section

(2) specifies the period of limitation of six months, if the

offence is punishable with fine only; of one year, if the

offence is punishable with imprisonment for a term not

exceeding one year and of three years, if the offence is

punishable with imprisonment for a term exceeding one year

but not exceeding three years. Sub-section (3) which is

inserted by Act 45 of 1978, deals with a situation where

offences, are tried together and directs that for the

purposes of that section the period of limitation 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. The essence of the offence in

Section 498-A is cruelty as defined in the explanation

appended to that section. It is a continuing offence and on

each occasion on which the respondent was subjected to

cruelty, she would have a new starting point of limitation.

The last act of cruelty was committed against the

respondent, within the meaning of the explanation, on

October 13, 1988 when, on the allegation made by the

respondent in the complaint to Additional Chief Judicial

Magistrate, she was forced to leave the matrimonial home.

Having regard to the provisions of Sections 469 and 472 the

period of limitation commenced for offences under Sections

406 and 498-A from October 13, 1988 and ended on October 12,

1991. But the charge-sheet was filed on December 22, 1995,

therefore, it was clearly barred by limitation under Section

468(2)(c ) Cr.P.C. It may be noted here that Section 473

Cr.P.C. which extends the period of limiation 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 interests 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 favour of a wife

who is subjected to cruelty if on the facts and in the

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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 interests of justice. This is

only illustrative not exhaustive. Any finding recorded by a

Magistrate holding that the complaint to be barred by

limitation without considering the provisions of Section 473

Cr.P.C will be a deficient and defective finding, vulnerable

to challenge by the aggrieved party. In this case the

complaint was clearly barred by limitation and no

explanation was offered for inordinate delay; this is what

the learned Magistrate took note of and concluded that the

complaint was barred by limitation. This is correct insofar

as the offence under Section 406 is concerned. Therefore,

in regard to Section 406 the order of the learned Magistrate

discharging the appellants cannot be faulted with. But

regarding offence under Section 498-A the learned Magistrate

did not advert to the second limb of the second part in

Section 473 Cr.P.C. referred to above. The order of the

learned Magistrate on this aspect was unsustainable so the

High Court has committed no illegality in setting aside that

part of the order of the learned Magistrate. In Vanka

Radhamanohari (Smt.) vs. Vanka Venkata Reddy & Ors.

[(1993) 3 SCC 4], the wife who was subjected to cruelty left

the matrimonial home in 1985. In 1990 she filed the

complaint alleging cruelty and maltreatment against the

husband and mother-in-law and further stating that the

husband had remarried. The Magistrate took cognizance of

offences under Sections 498-A and 494 IPC. On the petition

of the husband under Section 482 Cr.P.C., the High Court

quashed the complaint. This Court, on appeal from the

judgment of the High Court, held that the High Court erred

in quashing the complaint as Section 468 Cr.P.C. could not

be applied to offence under Section 494 IPC (for it is

punishable with imprisonment for a term which may extend to

7 years) and even in respect of offence under Section 498-A,

the attention of the High Court was not drawn to Section 473

Cr.P.C. While setting aside the impugned order of the High

Court this Court observed : "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 interests of justice"."

For the reasons stated above the High Court was not

correct insofar as the order of Magistrate relates to

Section 406 IPC. But in regard to offence under Section

498-A IPC no exception can be taken to the impugned order

under appeal as the learned Magistrate did not take note of

Section 473 Cr.P.C., while ordering discharge of the

appellants. Now the learned Magistrate shall consider the

question of limitation taking note of Section 473 Cr.P.C.

in the light of observations made hereinabove. Accordingly,

the appeal is allowed in part.