Section 498-A IPC is continuing offence; wife not barred to claim maintenance under DV Act even after 3 years

IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 5th December, 2018

W.P.(CRL) 2325/2017 and Crl. M.A. No.13146/2017 (stay)

ANTHONY JOSE ….. Petitioner
Represented by: Ms. Bina Madhavan and Ms.Akanksha Mehra, Advocate.

versus

STATE OF NCT OF DELHI & ORS ….. Respondents
Represented by: Mr. R.S. Kundu, Additional Standing Counsel for State with Ms. SumanSaharan and Mr. Bhagat Singh,
Advocates with ASI Aman Kumar,PS CWC, Nanak Pura.
Mr. Jogy Scaria, Advocate for respondent No.2.

CORAM:HON’BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)

1. By this petition, petitioner prays as under:

a) quash and set aside the FIR No.98 dated 28.07.2017 registered with Crime (Women) Cell, Nanak Pura, District Special Unit for Women and Children, Delhi against the Petitioner for offence under Section 498A, 406 and 34 of the Indian Penal Code, 1860;

b) quash and set aside the proceedings in CC No.7601 of 2017 under Section 12 of the Protection of Domestic Violence Act, 2005 pending before the Ld. Metropolitan Magistrate, Mahila Court-01, SouthEast District, Saket District Courts, New Delhi;

c) pass any other or further order which this Hon’ble Court deems fit and proper in facts and circumstances of the present case.

2. The grounds urged for seeking quashing of FIR No. 98/2017 under Sections 498A/406/34 IPC registered at PS Crime (Women) Cell, Nanak Pura, Delhi are that the FIR was registered to wreak vengeance and that it was beyond the period of limitation as the parties separated from each other in the year 2014. Parties admittedly resided together till August, 2014 whereafter they parted company and in 2015 the respondent No. 2 filed a complaint before CAW Cell where a settlement was arrived at between the parties in the pre-litigation mediation on 7th April, 2016, however, the said settlement was not fully acted upon and the parties drifted away from the settlement, whereafter the complainant filed an application for revival of the earlier complaint which was not revived as had been closed, thus she filed a fresh complaint on 28th July, 2017.

3. Considering the facts noted above that within the period of limitation of taking cognizance the complainant filed the complaint however, since talks of settlement continued and arrived at but not fully acted upon and the earlier complaint was not revived, the respondent No.2 was constrained to file the second complaint, it cannot be said that the FIR in question is beyond the period of limitation and thus liable to be quashed on that count.

4. Section 468 Cr.P.C. reads as under:

468. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

5. In (1993) 3 SCC 4 Vanka Radhamanohari Vs. Vanka Venkata Reddy the Supreme Court dealing with the bar of Section 468 Cr.P.C.in relation to the matrimonial offences held as under:

“7. It is true that the object of introducing Section 468 was to
put a bar of limitation on prosecutions and to prevent the
parties from filing cases after a long time, as it was 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 State of Punjab v. Sarwan
Singh [(1981) 3 SCC 34 : 1981 SCC (Cri) 625 : AIR 1981 SC
1054]. 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 matter of common experience
that victim is subjected to such cruelty repeatedly and it is
more or less like a continuing offence. It is only as a last resort
that a wife openly comes before a court to unfold and relate
the day-to-day torture and cruelty faced by her, inside the
house, which many of such victims do not like to be made
public. As such, courts while considering the question of
limitation for an offence under Section 498-A i.e. subjecting a
woman to cruelty by her husband or the relative of her
husband, should judge that question, in the light of Section 473
of the Code, which requires the Court, not only to examine as
to whether the delay has been properly explained, but as to
whether “it is necessary to do so in the interests of justice”.”

6. In the decision reported as 2003 (68) DRJ 437 Asha Ahuja Vs. Rajesh Ahuja & Ors. this Court dealing with the accused being discharged on the ground of limitation under Section 468 Cr.P.C. read with Section 473 Cr.P.C. held that Section 473 Cr.P.C. enjoins a duty upon the Court to examine not only as to whether delay in filing of the FIR is explained or not but also whether it is the requirement of justice to condone or ignore the delay and in matrimonial cases if the bar of Section 468 Cr.P.C. is pleaded the Court is required to apply its mind on the question as to whether it is necessary to condone the delay in the interest of justice. In the said case this Court considered the following reasons in the complaint to condone the delay:

“6. 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 insufficient 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 become a Hindu. The
petitioner came back to her matrimonial home in March, 1987
but 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 complainantpetitioner 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.”

7. Further, Supreme Court in (1999) 4 SCC 690 Arun Vyas Vs. Anita Vyas held that the essence of the offence in Section 498-A is cruelty as defined in the explanation appended to the said section and is a continuing offence and on each occasion on which the respondent was subjected to cruelty a new starting point of limitation arises. It was held:

“13. The essence of the offence in Section 498-A 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, on 13-10-1988 when, on the allegation made by
the respondent in the complaint to the 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 the offences under
Sections 406 and 498-A from 13-10-1988 and ended on 12-10-
1991. But the charge-sheet was filed on 22-12-1995, therefore,
it was clearly barred by limitation under Section 468(2)(c)
CrPC.”

8. Further dealing with Section 406 IPC this court in 2010 SCC OnLine Del 4384 S.K.Bhalla & Ors. Vs. State of NCT of Delhi & Anr. held that Section 406 being a continuing offence as defined under Section 472 IPC the bar under Section 468 Cr.P.C. was not applicable. It was held that :

“14. No doubt Section 468 Cr.P.C. provides limitation of three
years for taking cognizance of the offences which are
punishable for the maximum imprisonment of three years. This
provision, however is of no help to the petitioners for the
reason that as per the allegations in the FIR, the petitioners
have also committed an offence punishable under Section 406
IPC by misappropriating the ‘Stree-dhan’ of the complainant
entrusted to them and not returning it to her despite of
repeated demands. Section 472 Cr.P.C. is relevant in this case,
which reads thus:

“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”

15. Perusal of the FIR would show that the complainant has
made specific allegation that despite her demands, the
petitioners have failed to return her ‘Stree-dhan’ and
jewellery. She has not specified the date on which the demand
was made. Section 406 of IPC deals with the offence of
criminal misappropriation and the aforesaid offence is
complete when the entrusted property is not returned by the
persons who were entrusted with the property on demand by
the rightful owner. Thus, though the FIR discloses the
commission of offence under Section 406 IPC, it does not
specify on which date the demand for return of ‘Streedhan’ was made as such it is not clear when the offence of
criminal misappropriation was complete. This obviously is a
subject matter of investigation and evidence pertaining to the
same is to be seen in the charge sheet. Otherwise also, even if
it is presumed that demand for return of ‘Stree-dhan’ was
made in November, 1992, then also, till the ‘Stree-dhan’ of the
complainant is returned to her, the misappropriation by the
petitioners continues. Thus, fresh period of limitation shall
begin to run at every moment of the time during which the
offence continues. Therefore, prima facie, it cannot be said
that the FIR pertaining to the offence punishable under Section
406 IPC is time barred. It is well settled that delay in filing of
FIR by itself cannot be a ground for discharge or acquittal of
the accused. There can be many reasons for delay in filing of
the complaint. It would not be appropriate to speculate on this
aspect. If the complainant/prosecution is able to explain the
delay, then the court would be well within its rights to act on
the evidence led during trial and that explanation, if any, can
come only during trial. Thus, under the circumstances, I do not
find any merit in the contention of learned counsel for the
petitioners that the offence complained of in the FIR is barred
by limitation in view of Section 468 Cr.P.C.”

9. The second prayer in the present petition relates to the quashing of CC No.7601 of 2017 under Section 12 of Protection of Women from Domestic Violence Act (in short ‘PWDV Act’).

10. As perusal of the prayers in the complaint under Section 12 of the PWDV Act relate primarily to grant of maintenance to respondent No.2 and the minor child. Non providing of maintenance is a continuous cause of action and even if for three years the respondent No.2 did not claim the maintenance for herself or for the child, the same would not debar her from seeking maintenance under Section 12 of the PWDV Act and the complaint thereon cannot be dismissed being barred by limitation.

11. Learned counsel for the petitioner submits that in terms of the settlement the petitioner has been paying a regular maintenance of ?10,000/- per month however, that will be an issue which will be considered by the learned Trial Court while dealing with the petition for maintenance as to the amount which has already been paid and cannot be a ground for quashing of the complaint under Section 12 of the PWDV Act.

12. Petition and application are dismissed.

(MUKTA GUPTA)
JUDGE
DECEMBER 05, 2018

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