Smt.Monalisha Sarkar v. State Of Tripura And 2 ORS.
INTHEHIGHCOURTOFTRIPURA AGARTALA CRL.A.No.36of2011 Smt.MonalishaSarkar,
! " # $ # .........Appellant Versus 1. TheStateofTripura 2. Md.RakeshMiah,
3. Md.SishuMiah,
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D "20.Thevictim,asPWB1onoathstatedthat,in the year 2008 the accused persons drove her out of her matrimonial home after assaulting her. Similarly, the victim stated that, on 16.08.2009 appellant Rakesh Miah assaulted her. The demand of dowry is not there, either intheallegedassaultoftheyear2008orinthe alleged assault of 16.08.2009. The episode of alleged assault of 2008 has not be substantiated by believable and cogent evidence although the alleged in the night of 16.08.2009hasbeenprovedbytheevidenceof the victim, corroborated by the evidence of PWs.2 and 3, the land lady and land lord, respectively,inwhosethevictimwastenant." [5] * ! + !
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& &! (3' 4 4 &0 0 > National Commission for Women vs. State of Delhi and another, (2010)12SCC599, ?!
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D 8. Chapter XXIX of the Code of Criminal Proceduredeals with"Appeal"(s).Section372 specifically provides that no appeal shall lie from a judgment or order of a Criminal Court exceptasprovidedbytheCodeorbyanyother law which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) w.e.f. 31st December,2009,givesa limitedrightto the victim to file an appeal in the High Court againstanyorderofaCriminalCourtacquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation.
The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, wouldconfer aright onlyonavictim andalso does not envisage an appeal against an inadequatesentence.Anappealwouldthusbe maintainable only under Section 377 to the High Court as it is effectively challenging the quantumofsentence. Section377isreproducedbelow: 377.
: (1) Save as otherwise provided in SubBsection(2),theStateGovernmentmay,in any case of conviction on a trial held by any CourtotherthanaHighCourt,directthePublic Prosecutor to present an appeal against the sentenceonthegroundofitsinadequacy- (a) to the Court of session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passedbyanyotherCourt. (2)Ifsuchconvictionisinacaseinwhichthe offence has been investigated by the Delhi SpecialPoliceEstablishment,constitutedunder the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than the
Code, [the Central Government may also direct] the Public Prosecutor to present an appeal against the sentence on the ground of itsinadequacy- (a) to the Court of session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passedbyanyotherCourt. (3)Whenanappealhasbeenfiledagainstthe sentence on the ground of the inadequacy the Court of Session, or, as the case may be, the High Court shall not enhance the sentence exceptaftergivingtotheaccusedareasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reductionofthesentence. [Emphasissupplied] [7] ! !
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D 13.TheessenceoftheoffenceinSection498A 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,onOctober13,1988when,onthe 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 Sections406 and498AfromOctober13, 1988 and ended on October 12, 1991.
But the chargeBsheetwasfiledonDecember22,1995, therefore, it was clearly barred by limitation underSection468(2)(c)Cr.P.C. 14. It may be noted here that Section 473 Cr.P.C.whichextendstheperiodoflimitationis 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 oflimitationifitissatisfiedonthefactsandin the circumstances of the case that the delay has been properly explained and the second limbempowerssuchacourttotakecognizance ofanoffenceifitissatisfiedonthefactsandin the circumstances of the case that it is necessarysotodointheinterestsofjustice.It is true that the expression 'in the interest of justice'inSection473cannotbeinterpretedto 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 498A the wife will invariably be oppressed,havingbeensubjectedtocrueltyby the husband and the inBlaws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C.
of the case it is necessary so to do in the interests of justice. When the conduct of the accusedissuchthatapplyingruleoflimitation willgiveanunfairadvantagetohimorresultin miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interests of justice. Thisisonlyillustrativenotexhaustive. [Emphasissupplied] [9] & ! & !
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D 29.Thus,inviewoftheabove,thelawonthe issue can be summarised to the effect that, in the case of a continuing offence, the ingredientsoftheoffencecontinue,i.e.,endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, thereisnocontinuingoffence,eventhoughthe damage resulting from the injury may itself continue.
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D TheHighCourtheld,andinouropinionrightly, that Section 32 of the said Regulation should be guided by the spirit of the Code and it will bepropertothrowoutacomplaintiftherewas inordinate or undue delay, which was not explained.Indeed,thisCourtin
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# *'% *''!of the report that the object of the Criminal ProcedureCodeinputtingabaroflimitationon prosecutionswasclearlytopreventtheparties from filing cases after a long time, as a result ofwhichmaterialevidencemaydisappearand also to prevent abuse of the process of the court by filing vexatious and belated prosecutionslongafterthedateoftheoffence. this Courtreiterated thattheobject whichthe statutes seek to subserve is clearly in consonance with this concept of fairness of trial as enshrined in Article 21 of the Constitution.
Shri Raju Ramachandran submittedthattheexerciseofthepowerunder Section 473 of the Criminal Procedure Code extendingtheperiodoflimitationbycondoning the delay in launching the prosecution, should precede the taking of cognizance of the offence. Reliance was placed on the Bench decision of the Madras High Court in + ,(- ./#01"2*.
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.thatcognizance taken by the Magistrate without deciding the pointinlimitationwasbeyondhisjurisdiction. In this connection, reliance may be placed to the decision of this Court in & 5 67 0#
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. !4 ##%*" %*. )$ . # 2 ! of the report, while dealing with the provisions of Section 468 of the Cr.PC, this Court observed that it is hardly necessary to say that statutes of limitation have legislative policybehindthem.Forinstance,theyshutout belated and dormant claims in order to save the accused from unnecessary harassment.
They also save the accused from the risk of havingtofacetrialatatimewhenhisevidence might have been lost because of the delay on thepartoftheprosecutor.Ashasbeenstated, a bar to the taking of cognizance has been prescribed under Section 468 of the CrPC and thereisnoreasonwhytheappellantshouldnot beentitledtoitinthefactsandcircumstances of this case. Our attention was also drawn to the case of 6 + ( - 2/ 0$ %4 , where the Court held that taking of cognizance without condoning delay was bad and without jurisdiction. [Emphasissupplied] [12] > State of Himachal Pradesh vs. Tara Dutt and Anr., AIR 2000 SC 297, ? !
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D 7. Section 473 confers power on the Court takingcognizanceaftertheexpiryoftheperiod oflimitation,ifitissatisfiedonthefactsandin the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously,therefore inrespectoftheoffences for which a period of limitation has been provided in Section 468, the power has been conferred on the Court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizancefindsthatitwouldbeintheinterest of justice.
This discretion conferred on the Courthastobeexercisedjudiciallyandonwell recognised principles. This being a discretion conferred on the Court taking cognizance, whereBevertheCourtexercisesthisdiscretion, the same must be by a speaking order, indicatingthesatisfactionoftheCourtthatthe delay was satisfactorily explained and condonationofthesamewasintheinterestof justice.
the offence. But the provisions are of no application to the case in hand since for the offences charged, no period of limitation has been provided in view of the imposable punishment thereunder. In this view of the matter we have no hesitation to come to the conclusion that the High Court committed serious error in holding that the conviction of the two respondents under Section 417 would be barred as on the date of taking cognizance the Court could not have taken cognizance for thesaidoffence.Needlesstomention,itiswell settled by a catena of decisions of this Court thatifanaccusedischargedofamajoroffence but is not found guilty thereunder, he can be convicted of a minor offence if the facts established indicate that such minor offence hasbeencommitted. [Emphasissupplied] [13] > Ramesh and others vs. State of Tamil Nadu, (2005) 3 SCC 507 ? ! !!
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the cases involving matrimonial offences, referred to the judgment in Sarwan Singh's case(supra)andobserved: It is true that the object of introducing Section 468 was to put a bar of limitation onprosecutionsand topreventtheparties fromfilingcasesafteralongtime,asitwas 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 Sarwan Singh (supra).
But, that consideration cannot be extended 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 matterofcommonexperiencethatvictimis subjectedtosuchcrueltyrepeatedlyandit ismoreorlesslikeacontinuingoffence.It is only as a last resort that a wife openly comes before a court to unfold and relate thedayBtoBdaytortureandcrueltyfacedby her, inside the house, which many of such victims do not like to be made public. As such,courtswhileconsideringthequestion of limitation for an offence under Section 498Ai.e.
subjectingawomantocrueltyby herhusbandortherelativeofherhusband, should judge that question, in the light of Section473oftheCode,whichrequiresthe Court, not only to examine as to whether thedelayhasbeenproperlyexplained,but as to whether 'it is necessary to do so in theinterestsofjustice'. [Emphasisadded] 18. The court then compared Section 473 Cr.P.C.
withSection5oftheLimitationActand observed: 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 the delay, whereas Section 473enjoinsadutyonthecourttoexamine 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.
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 : v igilantibus, et non, dormientibus,jurasubveniunt(thevigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connectionwithoffencesrelatingtocruelty againstwomen. [Emphasisadded] [15] > Sanapareddy Maheedhar vs. State of Andhra Pradesh, ?!
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!!!0ArunVyasvs.AnitaVyasD 14. It may be noted here that Section 473 Cr.P.C.whichextendstheperiodoflimitationis 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 oflimitationifitissatisfiedonthefactsandin the circumstances of the case that the delay has been properly explained and the second limbempowerssuchacourttotakecognizance ofanoffenceifitissatisfiedonthefactsandin the circumstances of the case that it is necessarysotodointheinterestsofjustice.
It is true that the expression 'in the interest of justice'inSection473cannotbeinterpretedto 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 498A the wife will invariably be oppressed,havingbeensubjectedtocrueltyby the husband and the inBlaws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C.infavour of awife whois subjectedto crueltyifonthefactsandinthecircumstances of the case it is necessary so to do in the interests of justice.
cognizance of an offence after the expiry of period of limitation in the interests of justice. Thisisonlyillustrativenotexhaustive. [20] % , ! ! 4 D (i)WhetheranappealunderprovisotoSection 372 of the Cr.P.C. is maintainable as the offencehasadmittedlyoccurredon16.08.2009 whereas the proviso to Section 372 of the Cr.P.C.hascomeintoforcew.e.f.31.12.2009? (ii) Whether the offence as allegedly committed on 16.08.2009 is in continuation of the previous acts of cruelty or it is an instantaneousculpableact?
(iii) Whether without any application by explaining the delay as occoured, the Magistrate can take cognizance of the alleged offence if it is not a continuing offence within theambitofSection472oftheCr.P.C.?and (iv)Whetherbytheimpugnedjudgment,hasit been correctly appreciated that from the evidence it cannot be held that there was continuous intimidating conduct or behaviour soastoconvicttheaccusedrespondents? [21] 2!,!&0+ -; .' '.-- $ 7-6@'..< ! 4 1!
& ,D In& , & )$4** #4 4%TheirLordshipobservedthat the conduct of the husband or his relatives to the wife must be such that the same may be attributed to painful or distressing. The evidence of torture both mentally and physically upon the informant, in her matrimonial home as well as in the rented house at Rajnagar by the accused person following the demand of Rs.1,00,000/B and ultimately driving her out of her matrimonial home for nonBfulfilment of his demand by the informantandsincethennottakingcareofthe informant and her child by the accused and
thereby causing her to lead a miserable life with her child are undoubtedly concrete ingredients of Sec. 498BA IPC and I find no reason to disbelieve the evidence of the prosecution witnesses since defence totally failedtobringanythingagainsttheevidenceof theprosecutionwitnessestodisbelievethem. In the light of the above authorities and the discussion and observation made hereBinB above,Idoherebyreachintheconclusionthat the charge under Sec. 498BA IPC has been successfully proved beyond all reasonable shadow of doubt against the accused persons fortheoffencepunishableunderSection498A and thus, the aforesaid points are decided in theaffirmativeagainsttheaccusedpersons. [22] # !
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D On16.08.2009inthenightatabout7.30/8pm. my accused husband Rakesh Miah mercilessly assaulted me. On hearing my cry the neighbouringpeoplecametomyrentedhouse. Attherelevanttimethedoorofourroomwas bolted by my husband. The neighbouring people compelled my husband to open the door.OutoffearIconcealedmyselfbysideof thebankofthepond.Theneighbouringpeople informedthemattertothepoliceaswellasto myfatheranduncle.Thepoliceandmyfather andunclearrivedatthespotandtheyrescued me and brought me to the P.S. from where I was brought by my father and uncle to my paternal house. On the following day of the incident police recovered my baby from the houseofmyaccusedhusbandandhandedover me at the father's house. Since then I am stying at my father's house. I lodged the instant case narrating all these facts to the O/C,R.K.PurP.S. >
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& !? (i)WhetheranappealunderprovisotoSection 372 of the Cr.P.C. is maintainable as the offencehasadmittedlyoccurredon16.08.2009 whereas the proviso to Section 372 of the Cr.P.C.hascomeintoforcew.e.f.31.12.2009? [24] > National Commission for Women vs. State of Delhi, ? ! ! &
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(ii) Whether the offence as allegedly committed on 16.08.2009 is in continuation of the previous acts of cruelty or it is an instantaneousculpableact?
[25] > Udai Shankar Awasthi vs. State of Uttar Pradesh, ?! !!
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> ! &+0 0! !! > Gokak Patel Volkart vs. Dundayaa Gurushiddaiah Hiremath, (1991)2SCC141, ?!
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& D "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offenceswhicharisesoutofafailuretoobeyor comply with a rule or its requirement and whichinvolvesapenalty,theliabilityforwhich continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or nonBcompliance occurs and reoccurs, there is the offence committed. The distinction between the two kindsofoffencesisbetweenanactoromission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus ingredientofcontinuanceoftheoffencewhich isabsentinthecaseofanoffencewhichtakes place when an act or omission is committed onceandforall.' [27] >!
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Bhagirath Kanoria vs. State of M.P., (1984) 4 SCC 222 AmritLalChumvs.DevoprasadDuttaRoy,(1988) 2SCC269.>RaymondLtd.&Anr.vs.M.P.ElectricityBoard (2001) 1 SCC 534, ? !
! D "18. ..... It cannot legitimately be contended that the word 'continuously' has one definite meaning only to convey uninterruptedness in time sequence or essence and on the other handtheveryworkwouldalsomean'recurring at repeated intervals so as to be of repeated occurrence'.Thatapart,usedasanadjectiveit drawscolourfromthecontexttoo..." [Emphasissupplied]
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D "Cruelty"forthepurposeofSection498AI.P.C. is to be established in the context of Section 498A IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the
conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commitsuicideetc.Itistobeestablishedthat the woman has been subjected to cruelty continuously/ persistently or at least in close proximity of time of lodging the complaint. Pettyquarrelscannotbetermedas'cruelty'to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomesunbearablemaybetermedascruelty.
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& ?! !0, ManjuRamKalitavs.State ofAssam ,! !-6 .; '..< ! 4 ! ! , ! & ! , !! ! , (iii) Whether without any application explaining the delay as happened, the Magistrate can take cognizance of the alleged offence if it is not a continuing offence within theambitofSection472oftheCr.P.C.? [28] C, 5
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, ! + ! (iv)Whetherbytheimpugnedjudgment,hasit been correctly appreciated that from the evidence it cannot be held that there was continuous intimidating conduct or behaviour soastoconvicttheaccusedrespondents? [29] ! ,! 4
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JUDGE