The Supreme Court has significantly held that limitation period prescribed under Section 468 CrPC is not applicable on applications filed under Section 12 of the DV Act.
The Division Bench comprising of Justice Uday Umesh Lalit and Justice PS Narasimha quashed the impugned Madras High Court judgement wherein it has been observed that application ought to have been filed within one year of alleged domestic violence incident and since the appellant had left the matrimonial home in the year 2008, the application was abuse of process of the court.
The Court relied on Inderjit Singh Grewal Vs. State of Punjab & ANR., 2011 Latest Caselaw 633 SC.
Cousel for the appellant contended that limitation prescribed under Section 468 of the Code postulates inter alia that no cognizance be taken by the Court more than a year after the commission of offence. Thus, the limitation is to be reckoned from the date of commission of offence.
He submitted that Section 12 of the DV Act speaks of filing of an application seeking one or more reliefs under the Act, whereafter the relevant material is considered by the Magistrate including any Domestic Incident Report. The matter is then heard in terms of SubSection (4) and finally an order may be made on the application.
He further averred that as laid down in Section 31 of the DV Act, any breach of an order passed inter alia under Section 12 of the DV Act is punishable with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Thus, the offence under Section 31 of the DV Act will be said to have been committed only after the breach of an order passed under Section 12 of the Act, occurs.
The Counsel argued that there is no limitation under the Code or under the provisions of the Act for filing of an application and as such.
Contrary, Counsel for the respondent submitted that the parties had been living separately for last several years and the application was nothing but a desperate attempt to file something against the respondent in a court of law; and was clearly an abuse of process of court.
He relied on Mrs. Sarah Mathew Vs. The Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian & Ors., 2013 Latest Caselaw 820 SC wherein it was observed that the starting point for reckoning the period of limitation ought to be from the date of application.
Supreme Court's Analysis
The Court begun by reiterating the subject provisions and proceeded to cite cases wherein the complaints alleging commission of an offence were filed well in time so that cognizance could have been taken within the prescribed period, but the matters were considered by the Magistrate after the expiry of the prescribed period, and as such the cognizance in each of the cases was taken after the expiry of the period prescribed.
- Krishna Pillai v. T.A. Rajendran & Anr. wherein it was observed that when a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 Cr.P.C. After examining the complainant on oath and examining the witnesses present, if any, meaning thereby that the witnesses not present need not be examined, it would be open to the court to judicially determine whether a case is made out for issuing process. When it is said that court issued process, it means the court has taken cognizance of the offence and has decided to initiate the proceedings and a visible manifestation of taking cognizance process is issued which means that the accused is called upon to appear before the court.
-Bharat Damodar Kale & ANR Vs. State of A.P, 2003 Latest Caselaw 494 SC
- Japani Sahoo Vs. Chandra Sekhar Mohanty, 2007 Latest Caselaw 573 SC
In view of the above, the Court noted that though Section 468 of the Code mandates that ‘cognizance’ ought to be taken within the specified period from the commission of offence, by invoking the principles of purposive construction, this Court ruled that a complainant should not be put to prejudice, if for reasons beyond the control of the prosecuting agency or the complainant, the cognizance was taken after the period of limitation. It was observed by the Constitution Bench that if the filing of the complaint or initiation of proceedings was within the prescribed period from the date of commission of an offence, the Court would be entitled to take cognizance even after the prescribed period was over.
"If a complaint was filed within the period prescribed under Section 468 of the Code from the commission of the offence but the cognizance was taken after the expiry of such period, the terminal point for the prescribed period for the purposes of Section 468, was shifted from the date of taking cognizance to the filing of the complaint or initiation of proceedings so that a complaint ought not to be discarded for reasons beyond the control of the complainant or the prosecution"
The Court conlcuded that the High Court wrongly equated filing of an application under Section 12 of the Act to lodging of a complaint or initiation of prosecution.
"The provisions of the Act contemplate filing of an application under Section 12 to initiate the proceedings before the concerned Magistrate. After hearing both sides and after taking into account the material on record, the Magistrate may pass an appropriate order under Section 12 of the Act. It is only the breach of such order which constitutes an offence as is clear from Section 31 of the Act. Thus, if there be any offence committed in terms of the provisions of the Act, the limitation prescribed under Section 468 of the Code will apply from the date of commission of such offence. By the time an application is preferred under Section 12 of the Act, there is no offence committed in terms of the provisions of the Act and as such there would never be a starting point for limitation from the date of application under Section 12 of the Act. Such a starting point for limitation would arise only and only after there is a breach of an order passed under Section 12 of the Act."
Case Title: KAMATCHI vs LAKSHMI NARAYANAN
Case Details: CRIMINAL APPEAL NO.627 OF 2022
Coram: Justice Uday Umesh Lalit and Justice PS Narasimha
Read Judgement Here:
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