Mayank Naithani And 2 Others vs State Of U.P And Another
2022 Latest Caselaw 14258 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 17856 of 2022
 

 
Applicant :- Mayank Naithani And 2 Others
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Abhitab Kumar Tiwari
 
Counsel for Opposite Party :- G.A.,Pankaj Srivastava
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Shri Abhitab Kumar Tiwari, learned counsel for the applicants, Shri Pankaj Srivstava, learned counsel for opposite party no. 2 and Shri Paritosh Malviya, learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed seeking quashing of entire criminal proceedings in Criminal Case No. 2223 of 2021 (Old No. 16942 of 2020) (State Vs. Mayank Maithani and others), under Sections 498-A, 504, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Medical College, District Meerut, pending in the Court of Additional Judicial Magistrate/Additional Civil Judge (Junior Division), Court No. 4, District Meerut including charge sheet no. 658 of 2020 dated 24.11.2020 in Case Crime No. 149 of 2020 and cognizance order dated 18.12.2020 passed by Chief Judicial Magistrate, Meerut.

3. The applicant no. 1 is husband of opposite party no. 2, applicant nos. 2 and 3 are father and mother of applicant no. 1, respectively.

4. Learned counsel for the applicants vehemently argued that the marriage was solemnized between applicant no. 1 and opposite party no. 2 on 18.11.2011, thereafter some dispute arose and they started living separately in the year 2016 and he placed reliance upon an application filed under Section 13-B of the Hindu Marriage Act that both had no relationship between them. Thereafter, an application was filed under Section 155 (2) Cr.P.C. on 17.01.2020, on which the learned Chief Judicial Magistrate passed an order dated 31.01.2020, consequently a FIR was lodged on 14.03.2020, therefore it was beyond three years, as such barred in terms of Section 468 Cr.P.C. (bar to take cognizance after lapse of period of limitation). Learned counsel has placed reliance on a judgment passed by Supreme Court in Kamlesh Kalra v. Shilpika Kalra & Others (Criminal Appeal No. 416 of 2020, decided on 24.04.2020).

5. Section 498 I.P.C. is punishable with maximum period of three years and sub-section 1-C of Section 468 Cr.P.C. states that the limitation period is three years if the offence is punishable with imprisonment for a terms exceeding one year but not exceeding three years.

6. The next argument of learned counsel for the applicants is that the cognizance on the charge-sheet of the offence was taken in a printed proforma without application of mind and for that he placed reliance upon the judgment passed by the Co-ordinate Bench in the case of Ankit Vs. State of U.P.; 2009 (3) Crl. Rulings 427.

7. The last argument of learned counsel for the applicants is that even if the contents of the entire investigation considered to be true, even then no case is made out against applicant nos. 2 and 3 as there is no allegation against them.

8. Per contra Shri Paritosh Malviya, learned A.G.A. has supported the investigation and has placed reliance on Section 471 Cr.P.C. i.e. that considering the period of limitation the time during which the offender absent from the India or from any territory outside India, which is under the administration of the Central Government, shall be excluded.

9. Shri Pankaj Srivastava, learned counsel for opposite party no. 2 while supporting the impugned proceedings pointed out that despite a bailable warrant issued against applicant no. 1, till date he has not appeared. So far as applicant nos. 2 and 3 are concerned, they have appeared and admittedly they have been granted bail.

10. The Court has to consider the first argument that whether on the basis of material before this Court the order of cognizance is barred by Section 468 Cr.P.C. The charge-sheet is filed under Sections 498-A, 504 and 506 I.P.C. Section 498-A I.P.C. falls under Chapter XXVIII (Cruelty by husband or relatives of husband). It states that whoever, being the husband or the relative of the husband of a woman, subject such woman to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also liable to fine. The explanation thereof provides that cruelty includes mental as well as physical also.

11. Section 468 Cr.P.C. provides that no court shall take cognizance of an offence of the category specified in sub-section 2 after the expiry of period of limitation and the relevant sub section for the purpose of the present case is (c) i.e. three years, if the offence is punishable with imprisonment for exceeding one year but not exceeding three years. Section 472 Cr.P.C. (Continuing offence) and Section 473 Cr.P.C. (Extension of period of limitation in certain cases) would be relevant and mentioned here in below:-

"472. Continuing offence.- In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.

473. Extension of period of limitation in certain cases.- Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it 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 so in the interest of justice."

12. For this purpose, it is necessary to consider the contents of Section 498-A IPC as referred above, which involves mental and physical cruelty also. A wife who has suffered cruelty at the ends of her husband and other relatives and forced to stay at her matrimonial house, it cannot be said that his cruelty specifically the mental cruelty stops or come to an end, rather it will remain continues as she has to go through the trauma to reside with her parents despite being married. Therefore, to say in a very simple words that since the opposite party no. 2 was residing at her matrimonial house or she has no connection with the applicants, the time period of limitation starts from the date he starts residing at her house would not be a correct approach. The Court cannot ignore the word "mental cruelty" which remain continues even she stay at her parental house. Therefore, to say that provisions of Section 468 (3) (1) (c) Cr.P.C. barred the cognizance in present case would not be correct contents of Section 472 Cr.P.C. also supports above discussion.

13. The application filed under Section 13 B of Hindu Marriage Act was filed 3.1.2018, wherein it was stated that parties were living separately since 25.05.2016 and cause of action lastly arose on 25.12.2017. The complainant has filed an application under Section 155 (2) Cr.P.C. on 17.01.2020 stating that petition for mutual divorce was filed on incorrect averments as well as an NCR No. 04/2019 was registered as her husband (NRI) has forced her parents for marriage and her Stridhan was not returned but no action was taken.

14. The facts of Kamlesh Kalra (Supra) are distinguishable that it was admitted case that both husband and wife were residing separately since 10.06.2009 and FIR was lodged on 28.01.2013 and in between complainant has not taken any steps to take back her stridhan, whereas in present case as noted above, cause of action was arose on 25.12.2017 and though the complaint was filed on 17.01.2020 and in between there was an NCR was reported in 2019, therefore complaint was before police authority as well even therein some delay was explained properly.

15. It would be apt to refer a judgment passed by Supreme Court in Arun Vyas and Another v. Anita Vyas; (1999) 4 SCC 690 that in complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and in-laws. It is, therefore, appropriate for the courts, in case of delayed complaints, to construe liberally Section 473 CrPC in favour 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 the 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 the period of limitation in the interests of justice. This is only illustrative, not exhaustive. (also see Vanka Radhamanohari v. Vanka Venkata Reddy; (1993) 3 SCC 4).

16. In view of the above discussion and the purport of the above referred provisions, the criminal proceedings cannot be quashed only on the ground that there was a delay of more than three years though on the facts of the case and further from the submission of opposite party no. 2 it appears that she had tried even after 2017 to have a communication with her husband and he has also visited during that period also further she was forced to file application under Section 13-B of Hindu Marriage Act, further a NCR was filed in 2019 as well as considering Arun Vyas (Supra). Therefore, also the argument of learned counsel for the applicants is sans merit and, accordingly, rejected.

17. The second issue is to consider whether the evidence are sufficient therefore a case is made out against applicant nos. 2 and 3 i.e. father-in-law and mother-in-law of opposite party no. 2. In the FIR it has been contended that there is no evidence against these two accused persons and only there are certain general allegations against them. All the allegations are against the applicant no. 1 i.e. husband of the opposite party no. 2. I have perused the contents of the FIR as well as contents of the statement of opposite party no. 2. The allegations against these two applicants are to the extent that she has complained about cruelty committed by her husband to them but nothing was done on behalf of them. Further there is specific allegation that in November, 2016 even these two applicants alongwith applicant no. 1 has refused her to allow to enter in his house and they have enticed her to make signature on the mutual divorce petition. Therefore, to say that there is absolutely no case was made out against these two applicants would be contrary to record. Accordingly, this submission is also rejected.

18. Lastly this Court has to consider the argument in regard to cognizance taken on the printed proforma. In the case of Ankit (supra) the Court has held that taking cognizance is a serious procedure and as such there should be application of mind and should not be taken in a very formal manner and has depreciated the cognizance be taken in printed proforma, however, the learned trial Court has taken cognizance on the basis of contents of the charge-sheet. Since the Court has considered the case on merit, considering the submission of learned counsel for the parties and came to conclusion that a prima facie case is made out against all the applicants, therefore, to remand the matter back for fresh consideration only on ground that order of cognizance has no reasons, though the learned Court has mentioned that order was passed after perusal of record, will be against the interest of justice. Accordingly, this prayer is also rejected.

19. In view of the above, discussion, I do not find any merit in the application. The application is dismissed.

Order Date :- 17.10.2022

Shafique

(Sl. No. 24 out of 335 fresh cases)