IN THE COURT OF SH. DEVENDER KUMAR JANGALA ADDITIONAL SESSIONS JUDGE03, WEST, TIS HAZARI COURTS, DELHI Criminal Revision no. 10/1/2016 U.I.D. No. 55807/2016 P.S. Paschim Vihar Ashwani Sharma, S/o Late Sh. Bansi Lal Sharma, C/o Shiva Garments Main Bazar, Ladwa, District Kurukshetra, Haryana. ......... Revisionist Versus 1. State 2. Ms. Meenakshi Sharma, W/o Shawani Sharma, D/o Sh. Darshan Singh, R/o B3/71, Paschim Vihar, New Delhi. ....... Respondents
Date of filing: 01.05.2014 Date of arguments: 12.04.2017 Date of order: 17.04.2017 O R D E R The revisionist has filed the present revision petition UID No.55807/2016 Ashwani Sharma Vs State & Another 1 of 14 under Section 397/399 and Section 400 of Code of Criminal Procedure against the order dated 13.01.2014 and 21.03.2014 passed by the court of Ms. Collette Rashmi Kujur, Ld. Metropolitan Magistrate (Mahila Court), West, Tis Hazari Courts, Delhi, in case FIR no. 255/2006, P.S. Paschim Vihar, Delhi whereby the Ld. Metropolitan Magistrate has ordered the revisionist to be charged under Section 498A & 406 IPC.
2. The brief facts of the case are that a case FIR no. 255/06 was registered on the complaint lodged by Ms. Meenakshi Sharma in P S Paschim Vihar. The police official after completion of the investigation filed the chargesheet. On 13.01.2014, the Ld. Trial Court has passed the order on charge whereby it is held that there is sufficient material on record to charge the appellant/accused for the offence punishable under Section 498A/406 IPC. The formal charge was accordingly framed on 21.03.2014. The appellant being aggrieved by the order dated 13.01.2014 and 21.03.2014 has filed the present revision petition.
3. In the present revision petition, it is stated that the order passed by the Ld. Trial Court is improper and incorrect. That no charge should have been framed on the basis of allegations made against the revisionist/accused. That the cognizance of the alleged offence is barred by law of limitation. That the complainant herself admits that she has left the matrimonial home on 31.03.2014 on her own sweet will in the absence of petitioner without his consent.
4. It is also stated that the courts at Delhi has no jurisdiction to try the commission of the offence under Section 498A/406 IPC. That no cause of action either wholly or in part has arisen in Delhi. It is prayed that in view of the submissions made in the revision petition, the order dated 13.01.2014 and 21.01.2014 of Ld. Trial Court be set aside and the revisionist/accused may kindly be discharged.
5. The notice of the revision petition was issued to the respondents. The Ld. Addl. P.P. for the State has accepted the notice on behalf of the state and strongly opposed the revision petition. Ashwani Sharma Vs State & Another
6. The respondent no. 2/complainant has put appearance through a counsel. Ld. Counsel for the respondent no. 2/complainant and Addl. P.P. for the state has strongly opposed the revision petition. It is stated that there is no illegality or infirmity in the order passed by Ld. Trial Court. That there is sufficient material on record to frame the charge for the commission of the alleged offence against the revisionist/accused. It is prayed that revision petition may kindly be dismissed.
7. I have carefully perused the material on record and gone through the submissions of Ld. Counsel for the revisionist, Ld. Addl. PP for the State/respondent no.1 and Ld. Counsel for the respondent no.2.
8. The relevant part of the impugned order dated 13.01.2014 is reproduced as under: “The accused has left the complainant and their children without any means of support and has also not been giving any maintenance to her or the children. All these allegations are sufficient to show that offence under Section 498A IPC is made out.
As to the argument that this court does not have jurisdiction to try this case, it is well settled that in matrimonial cases the matrimonial courts at the brides residence have the territorial jurisdiction to try the case. In Arun Vyas V. Anita Vyas (AIR 1999 SC 2071) it was held that the offence of cruelty was a continuing one and that with every act of cruelty a fresh period of limitation takes a start. In that the wife was harassed and sent out of the matrimonial home. A complaint even if time barred, could be entertained if otherwise it would give any unfair advantage to the accused person or result in miscarriage of justice. In the present matter there is nothing to show that the dowry items have been returned, her gold jewellery articles are still in the custody of her in laws or even the amounts given to the accused at his demand from the complainant.
In view of the above observations I find there is sufficient material on record to frame the charges for both offences punishable under Section 498A and 406 IPC against the accused Ashwani Sharma”.
9. Section 239 of Cr.P.C. lays down the condition in which the accused shall be discharged. It lays down that a Magistrate has to discharge the accused if on consideration of the police report and the documents filed under Section 173 Cr.P.C., the Magistrate thinks that the charge against the accused are groundless. Section 239 Cr.P.C. 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 or allegations he may frame the 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 prime facie case and do not furnish the basis for framing the charge, it will be a case of the charge being groundless, so he has no option but to discharge the accused.
10. In the present case, the revisionist/accused has raised the contention that the complaint was filed beyond the limitation period. Therefore, the Trial Court was debarred from taking the cognizance of the commission of the alleged offence by virtue of Section 468 of Cr.P.C. It is submitted that the complaint has been filed by the complainant/respondent no. 2 after 14 years from the date of marriage. That the petitioner and the respondent no. 2 were married in the year 1992 and the complaint was filed in the year 2006 i.e. after the period of 14 years.
11. It is necessary for a Magistrate taking cognizance of an offence to consider the provision of Section 468 Cr.P.C. The cognizance is generally taken in the absence of the accused and the accused had no privilege to raise any contention or the address the arguments before the court at time of taking cognizance. The most appropriate stage at which the accused can plead for his discharge is the stage of framing of charge. The accused need not wait to till completion of the trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing the charge if the facts so justify.
12. It may be noted here that the object of having Chapter XXXVI in the Cr.P.C. is to protect persons from prosecution based on stale grievance and complaints which may turn out to be vexatious. The reason for engrafting the rule of limitation is that due to a 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 the perpetrators of crime are not placed in an advantageous position. 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 the 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 the punishment specified is imprisonment for a term not exceeding three years and even in such cases a 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 Cr.P.C. 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 interest of justice, it may take cognizance of an offence after the expiry of the period of limitation.
13. The present FIR was registered on a written complaint submitted by the complainant Smt. Meenakshi Sharma. The complainant has alleged that her marriage with the accused took place on 26.01.1992. The complainant has disclosed the specific incident of cruelty up to October1996. The complaint has not disclosed any allegations of the commission of the offence under Section 498A/406 IPC after October1996. The complainant has narrated various incident up to the date of the filing of the complaint but none of the allegations levelled by the complainant fulfill the necessary ingredient of Section 498A/406 of IPC. The narration in the complaint seems to be the grievance of the complainant regarding the careless attitude of the accused.
Section 498A of IPC relates to the cruelty by husband or relatives of husband. It lays down that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment. The unhappiness between husband and wife does not constitute the offence of Section 498A IPC.
14. The complaint was lodged by the complainant on 06.10.2005 and the FIR was registered on 02.04.2006. There is no allegations of the commission of the offence punishable under Section 498A/406 IPC within last preceding 3 years from the date of filing the complaint.
15. The Ld. Trial Court has held that the accused has left the complainant and their children without any means & support and she was also not been given any maintenance and these allegations are sufficient to show that offences under Section 498A IPC is made out. Neglect of the wife or the children by the husband does not fulfill the necessary ingredient of Section 498A IPC. Therefore, these facts does not constitute the commission of the offence under Section 498AIPC. The Ld. Trial Court has wrongly observed that desertion by the accused of the complainant and her children without any means or support amounts to cruelty under Section 498A IPC. The allegations of carelessness or desertion by the accused are not connected with the demand of dowry, therefore, even if these allegations are deemed proved the necessary ingredient of offence under Section 498A IPC is lacking.
16. It is clear that the cognizance of the offence under Section 498A IPC beyond the period of 3 years from the date of commission of offence is barred under Section 468 of the Cr.P.C. The Ld. Trial Court has wrongly applied the proposition of law that the offence of cruelty is continuing one and with every act of cruelty a fresh period of limitation takes a start by placing reliance upon the judgment Arun Vyas V Anit Vyas AIR 1999 SC 2071. This judgment relied upon by the Ld. Trial Court is not applicable to the facts of the present case. No fresh act of cruelty has been alleged to have been committed within the preceding 3 years from the date of the filing the complaint. Therefore, this case law is not helpful in the case of the prosecution. The Ld. Trial Court has wrongly applied the case law on the facts of the present case.
17. The Ld. Trial Court has further observed that there is nothing on record to show that dowry items have been returned, which are still in the custody of her in laws or even the amounts given to the accused at his demand from the complainant has been returned. The perusal of the complaint reveals that complainant has nowhere alleged that the accused had withheld her property against her will. It must be alleged that the beneficial interest in the property in respect of which the offence is alleged to have been committed so vested with the complainant and the accused had held the property despite asking him to return the same.
18. The Hon’ble Supreme Court has also explained the circumstances to be considered for condonation of delay in taking cognizance. In the judgment titled as Arun Vyas and Another Vs Anita Vyas AIR 1999 SC 2071. The Hon’ble Supreme Court has held as under: “As such, courts while considering the question of limitation for an offence under Section 498A 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’.”
19. The complaint in the present case has fails to explain the delay in lodging the complaint after 13 years of the date of the commission of the offence. There is no other circumstances brought on record to justify condonation of delay for taking the cognizance beyond period of limitation. The facts and circumstances of the case does not warrant condonation of delay even in the interest of justice.
20. In view of the above discussions, I am of the considered opinion that the order dated 13.01.2014 abd 21.01.2014 passed by the court of Ms. Colette Rashmi Kujur, Ld. Metropolitan Magistrate (West) (Mahila Court02) Delhi/ Tis Hazari Court is not sustainable in the eyes of law and accordingly the same set aside and revisionist/accused Ashwani Sharma is discharged for the commission of offence under section 498A/406 IPC.
21. The personal bond and surety bond of revisionist/accused are extended for a period of six month under Section 437A Cr.P.C. UID No.55807/2016 Ashwani Sharma Vs State & Another 13 of 14
22. Revision file be consigned to record room after completion of necessary formalities.
23. TCR be sent back along with copy of this order. Announced in the open court today i.e. 17th April, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.55807/2016 Ashwani Sharma Vs State & Another 14 of 14