Prashant Satsangi vs Union Territory Of J&K And Another
2021 Latest Caselaw 566 j&K

                                                                 Serial No. 109

                HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU
                           (THROUGH VIRTUAL MODE)
                                                      CRM(M) 282/2021
                                                      CrlM 797/2021
                                                      CrlM 798/2021



    Prashant Satsangi                                        ...Petitioner(s)

                          Through:- Mr. Aman Bhagotra, Advocate

                          v/s

Union Territory of J&K and another                           ....Respondent(s)

                          Through:-


Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE (ORAL)
                                       ORDER

, 1. Through the medium of instant petition, the petitioner has

challenged order dated 07.04.2018 passed by learned Special Mobile

Municipal Magistrate, Jammu as upheld by learned Additional Sessions

Judge, Jammu in revision vide his order dated 21.09.2019, whereby the

learned Magistrate has taken cognizance of offence under S.498-A RPC,

beyond the prescribed period of limitation.

2. It is case of the petitioner that in the year 2012, a false and

frivolous FIR bearing No. 201/2012 for offences under Sections 452 and

498-A RPC came to be registered with Police Station, Gandhi Nagar, Jammu

on the basis of a complaint lodged by respondent No. 2 against him. After

investigation of the case, charge-sheet was ultimately presented by the

investigating agency before the learned trial court on 08.07.2016 after more

than three years of registration of the FIR.

2 CRM(M) 282/2021

3. It is contended that despite charge-sheet having been filed

beyond the prescribed period of limitation, which in the instant case is three

years, the learned Magistrate, in terms of his order dt.05.04.2018, took

cognizance of the offence and put the petitioner on trial for offence under

Section 498-A RPC. It is further averred that the petitioner challenged the

aforesaid order before the learned Additional Sessions Judge, Jammu by way

of a revision petition, but said revision petition came to be dismissed by the

learned Revisional Court vide its order dated 21.09.2019.

4. The petitioner has challenged the aforesaid orders of the learned

trial Magistrate and the learned Revisional Court on the grounds that no

explanation for the delay in filing the challan was offered by the prosecution

but in spite of this, the learned trial Magistrate as well as the learned

Revisional Court ignored the mandate of Section 538-B of J&K Cr.P.C and

passed the impugned orders; that the reasoning for condoning the delay in

filing the challan by the learned trial Magistrate and learned Additional

Sessions Judge is not acceptable and that taking of cognizance of the

offence by the learned trial court against the petitioner has caused grave

hardship to him inasmuch as, he will have to attend the trial court on each

date of hearing.

5. I have heard learned counsel for the petitioner and perused the

impugned orders passed by the learned trial Magistrate and the learned

Revisional Court. I have also gone through the petition and the documents

attached thereto.

6. In the instant case, admittedly the challan has been presented

before the trial Court and cognizance of offence under S.498-A RPC has

been taken by the said Court against the petitioner beyond the prescribed 3 CRM(M) 282/2021

period of limitation, which is three years. Section 538-B of J&K Cr.P.C,

bars the taking of cognizance of an offence beyond the prescribed period of

limitation. However, Section 538-G of Jammu and Kashmir Code of

Criminal Procedure, which is applicable to the instant case, vests jurisdiction

with the Court to extend the period of limitation in certain circumstances. It

reads as under:-

"538-G. Extension of period of limitation in certain cases. Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of 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 or that it is necessary so to do in the interests of justice."

7. From a perusal of the afore quoted provision it is clear that a

Court is empowered to extend the period of limitation for taking cognizance

of an offence not only where it is satisfied on the facts and circumstance of

the case that the delay has been properly explained but also in a case where

the court forms an opinion that extension of period of limitation is necessary

in the interest of justice. In my aforesaid view, I am supported by the

judgment of the Supreme Court in the case of Vanka Radhamanohari vs.

Vanka Venkata Reddy and Ors. (1993) 3 SCC 4. In the said case, the

Supreme Court after noticing the provisions contained in S.473 Cr. P. C

(Central) which are in pari materia with S. 538-G of J&K Cr.P.C, observed

as under:

"In view of Section 437 a Court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly 4 CRM(M) 282/2021

explained, but even in absence of proper explanation if the Court is satisfied that it is necessary so to do in the interests of justice. The said Section 473 has a non obstante clause which means that said section has an overriding effect on Section 468, if the Court is satisfied on the facts and in the circumstances of a particular case, that either the delay has been properly explained or that it is necessary to do so in the interests of justice."

8. A perusal of the impugned orders passed by the learned trial

Magistrate as upheld by learned Revisional Court, shows that the period of

limitation in the instant case has been extended by exercise of power vested

in terms of the latter part of Section 538-G of Jammu and Kashmir Code of

Criminal Procedure. It has been clearly stated by both the courts below that

it will be in the interest of justice to extend the period of limitation in the

instant case.

9. The question that arises for consideration is whether this Court

in exercise of its jurisdiction under Section 482 Cr. P. C can interfere in the

discretion exercised by the trial Court, whereby it has extended the period of

limitation for taking cognizance by recording a satisfaction that it would be

in the interest of justice to do so. The answer to this question is that the

superior courts can interfere with discretion of extending the period of

limitation for taking cognizance of an offence by trial court only if the

discretion has not been exercised judicially and on well recognized

principles.

10. Adverting to the facts of the instant case, the Ld. Trial Court

has, by a speaking order and after hearing the accused, extended the period

of limitation for taking cognizance on the ground that the victim in the case

happens to be a lady who, as per the challan, has been subjected to cruelty 5 CRM(M) 282/2021

by the accused. On this basis, the Ld. Trial Court has felt satisfied that it

would be in the interests of justice to take cognizance of the offence against

the accused. The reasoning adopted by the Trial Court is based on sound and

recognized principles, as the interests of justice demand that discretion

should be exercised in favour of the oppressed.

11. The Supreme Court has, in the case of Venka Radhamanohari

(Supra), while dealing with a similar issue, explained the principles that are

required to be followed while dealing with such matters. The observations of

the Court, that are relevant to the context, are reproduced as under:

" 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 the 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 the 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, 6 CRM(M) 282/2021

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 subtenunt (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."

12. Again, the Supreme Court, in the case of Arun Vyas and Anr.

Vs. Anita Vyas (1999)4 SCC 690, while reiterating the aforesaid legal

position, interpreted the expression 'in the interest of justice' appearing in

S.473 Cr.P.C. in the context of a case involving offence under S.498-A IPC.

While doing so, the Court observed as under:

"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 interests 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, 7 CRM(M) 282/2021

therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C.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 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 interests of justice. This is only illustrative, not exhaustive."

13. From the foregoing analysis of the legal position on the

subject, it is clear that no exception can be taken to the reasoning adopted by

the Ld. Trial Court in the impugned order. Thus there is no ground for this

Court to interfere in the impugned orders passed by the Ld. Trial Magistrate

and the Ld. Revisional Court.

14. The petition, being devoid of any merit, is dismissed.

(SANJAY DHAR) JUDGE Jammu 25.05.2021 Bir

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No