HIRONMOY SENSEN Vs. STATE OF WEST BENGALSEN

JUDGEMENT

(1.) By the instant application petitioners have assailed the order dated 20/4/2017 passed by the learned Judicial Magistrate, 10th Court, Alipore in ACGR Case No. 12561 of 2012 arising out of Jadavpur P.S. Case No. 649 of 2012 dated 18/11/2012 under section 498A/323/114 of the Indian Penal Code whereby a petition dated 7/12/2016 filed by the accused persons/petitioners herein praying for discharge from the said case was rejected on contest and the case was posted for framing of charge. The petitioners have sought for quashing of the aforesaid proceeding which is pending before the trial Court.

(2.) The facts in brief leading to the present application may be summarized as follows:

(3.) Learned senior counsel appearing for the petitioners strenuously argued that the allegations made in the written complaint and the materials collected during investigation indicate that the last act of cruelty was allegedly committed in the year 2005 but the complaint was lodged in the year 2012 (on 25/10/2012) followed by investigation thereon so in view of section 468 of the Code of Criminal Procedure, taking of cognizance is barred by limitation. To buttress such submission reliance has been placed upon the case of State of Punjab versus Sarwan Singh reported in, 1981 AIR(SC) 1054. Reference has been made to the case of Arun Vyas and another versus Anita Vyas reported in, 1999 AIR(SC) 2071 (paragraph 9) in support of the submission that the issue of limitation should be considered by the trial court at the stage of framing of charge. If taking cognizance of the offence itself is contrary to any provision of law, like section 468 CrPC, the complaint being barred by limitation, the charge cannot be framed and the accused should be discharged. It is argued that the point of limitation was urged before the learned Magistrate with reference to section 469(1)(a) CrPC but it has erroneously been observed in the impugned order that such an issue is a mixed question of fact and law which can only be decided by evidence during trial. It is further argued that the contents of the written complaint do not disclose the ingredients of the offence under section 498A IPC. So far as the petitioner no. 2 is concerned, there is no iota of material either under section 498A or under section 323 IPC. Learned counsel sought to impress that the allegations in the FIR and the statement of witnesses indicate that on and from 2005 the petitioner no. 1, the complainant and their daughter were residing separately from the petitioner no. 2 though she had her residence in the same building. It is canvassed that the alleged presence of the petitioner no. 2 on 23/10/2012 in the flat of the complainant at or around the time when she was allegedly assaulted by the petitioner no. 1 does not characterize her as an abettor within the meaning of section 107 IPC. To fortify his argument learned counsel for the petitioners placed reliance upon Satish Mehra versus State (NCT of Delhi) and Another reported in, 2012 13 SCC 614, Geeta Mehrotra and another versus State of Uttar Pradesh and another reported in, 2012 10 SCC 741, Varala Bharath Kumar and another versus State of Telangana and another reported in, 2017 3 SCC(Cri) 740 and Century Spinning & Manufacturing Co. Ltd. versus State of Maharashtra reported in, 1972 AIR(SC) 545. Reference has also been made to the case of State of U.P. versus Dr. Sanjay Singh and another reported in, 1994 SCC(Cri) 1701 and State Anti Corruption Bureau Hyderabad and another versus P. Suryaprakasam reported in, 1999 SCC(Cri) 373.