Penal Code, 1860 – Ss. 498A / 323 / 114 - Criminal P.C. 1973 - Ss. 227 & 228 - 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.
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 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.
In the High Court at Calcutta
Criminal Revisional
Jurisdiction
Present: The Hon’ble Justice Asha Arora
Judgment on : 30th January,
2019
C.R.R 1930 of 2017
Hironmoy Sen v. The State of West Bengal
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
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 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 andstarted 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 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 anotherversus 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 anotherversus 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
reliancehas 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 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. infavour 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,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 beextended 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 lastincident 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 regulartrial. 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)
“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 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 thefirst 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
petitionerbeing 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 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.