Asha Ahuja vs Rajesh Ahuja And Ors.
2003 Latest Caselaw 366 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) is directed against an order dated 3.2.2000 passed by learned Additional Sessions Judge, Delhi by which a Revision Petition filed by the petitioner/complainant against an order dated 21.10.1997 passed by learned Metropolitan Magistrate discharging the accused under Section 498-A, IPC was dismissed.

2. The petitioner/complainant had filed a complaint against respondent Nos. 1 to 4 on the basis of which FIR No. 252/1995 under Sections 498-A/406, IPC was

registered at PS Rajouri Garden, New Delhi. After investigations charge-sheet under Section 173 of the Code was filed. Learned Metropolitan Magistrate declined to frame a charge against the respondents under Section 498-A of the IPC in view of the bar created by Section 468 of the Code as the FIR had been filed beyond a period of three years. However, charge under Section 406, IPC was ordered to be framed against respondent Nos. 1, 2 and 3. The petitioner/complainant filed a Revision which was dismissed by learned ASJ vide orders dated 3.2.2000. The learned ASJ upheld the order passed by learned Metropolitan Magistrate and held that since no explanation had been given for the delay in the filing of the FIR, the provisions of Section 473 of the Code could not be invoked to condone the delay.

3. Learned Counsel for the petitioner relies upon a judgment of the Apex Court in "Vanka Radhamanohari v. Vanka Venkata Reddy and Ors." to contend that it was not necessary for the complainant-petitioner to explain the delay and pray for condensation thereof inasmuch as Section 473 of the Code casts a duty upon the Court to examine as to whether such delay has been explained or not and as to whether the interests of justice demand condoning of the delay or ignoring it altogether. Learned Counsel for the respondent, on the other hand, relies upon a judgment of this High Court "Sukhbirjain and Anr. v. State" reported in 1994 (1) CC. Cases 609 in which the bar of Section 468 of the Code was invoked in a case under Section 498-A, IPC. In this case the cruelty was taken as condoned upon joining back of husband by the wife. He also relies upon the judgments "State of Punjab v. Sarwan Singh" and "Srinwas Pal v. Union Territory of Arunachal Pradesh" to contend that object of speedy trial cannot be thwarted by circumventing the provisions of Section 468 of Code. It is contended that the facts and circumstances of this case clearly show that the petitioner/complainant had left her matrimonial home in the year 1991 whereas the FIR was made in the year 1995 and since there was no act of cruelty committed by the respondent qua the petitioner after her leaving the matrimonial home the cognizance for the offence under Section 498-A, IPC could not be taken after three years.

4. After considering the submissions and the judgments relied upon by Counsels for the parties, this Court finds that the view taken by the two Courts below was contrary to the law laid down by the Apex Court in the case of Vanka Radhamanohari (supra), and as such, the impugned orders discharging the respondents under Section 498-A of the IPC cannot be sustained. In the case of Vanka Radhamanohari also, the Apex Court had noticed that the complainant had left her matrimonial home in the year 1985 but had filed the complaint in the year 1990. It was argued before Their Lordships that after leaving her matrimonial home in 1985, there could not be any matrimonial cruelty as defined under Section 498-A of the IPC but it was held that the Courts while considering the question of limitation for an offence under Section 498-A of the IPC should judge the question of limitation in the light of Section 473 of the Code which requires the Court not merely to examine as to whether the delay has been properly explained or not but also as to whether it is necessary to ignore it in the interests of justice. In para 6 of the judgment, Their Lordships drew a distinction between the provisions of Section 5 of Limitation

Act and Section 473 of the Code and had held that for exercise of powers under Section 5 of the Limitation Act, the onus remains upon the appellant or the applicant to satisfy the Court that there was sufficient cause for condensation of the delay whereas Section 473 of the Code enjoins a duty upon the Court to examine not only as to whether such delay has been explained or not but as to whether it is the requirement of justice to condone or ignore such delay. It was also held that wherever the bar of Section 468 of the Code is pleaded in matrimonial offences, the Court has to apply its mind on the question as to whether it is necessary to condone such delay in the interests of justice.

5. Learned Metropolitan Magistrate as well as learned Additional Sessions Judge were predominantly influenced by the non-explanation of delay and did not properly evaluate the desirability of condoning or ignoring delay. In view of the dictum of the Apex Court in the case of Vanka Radhamanohari, this Court is of the considered view that in cases relating to matrimonial offences, the bar of Section 468 of the Code should not be automatically applied and effort should be to lift it by invoking Section 473 of the Code which casts a duty upon the Court to consider the reasons for delay for condoning or even ignoring the same in the absence of proper explanation. The question of invoking the bar of Section 468 of the Code in relation to matrimonial offences, therefore, must be decided by the Courts in the light of Section 473 of the Code which has an overriding effect. The decision should be taken after taking into consideration the facts and circumstances of the case, reasons for delay and the situation in which the complainant wife had been put when she was suffering cruelty in her matrimonial home and thereafter when she was out of her matrimonial home. A perusal of the complaint filed by the petitioner in the present case shows that soon after her marriage, the respondents had started taunting and harassing her for bringing in sufficient dowry and warned her of serious consequences if more articles like refrigerator, washing machine, scooter, etc. were not brought. She was humiliated, abused and tortured by them and was literally treated as a maid servant. She was given beatings also. She lost her health and in the meanwhile, became pregnant but before her delivery, she was forced to leave her matrimonial home. Her husband changed his religion even with a view to re-marry but thereafter, was made to re-convert and became a Hindu. The petitioner came back to her matrimonial home in March, 1987but after a few weeks again, her harassment for bringing more dowry articles commenced. In August, 1991, she was again thrown out of her matrimonial home along with her children and, thereafter, continuous efforts were made to persuade her husband and in-laws to take her back along with the children but the respondents kept on dilly-dallying. Her husband filed a suit for divorce as well as custody of children and thereafter alone the complainant-petitioner felt compelled to initiate present proceedings against her husband and family members. Considering the circumstances under which the complainant-petitioner had been put and her constant desire to go back to her matrimonial home, it was a fit case in which the Courts below ought to have condoned /ignored the delay in the filing of the complaint under Section 498-A, IPC.

6. Under the circumstances, this Court is of the considered view that the impugned orders discharging the respondents under Section 498-A, IPC were

contrary to law and legally erroneous and, as such, cannot be sustained. The impugned orders are, therefore, set aside and the learned Trial Court is directed to frame charge against the respondent Nos. 1 to 4 under Section 498-A read with Section 34, IPC also.

The petition stands disposed of.

7. Nothing stated herein shall be taken as an expression of opinion on the merits of the case pending trial before the learned Metropolitan Magistrate.