1. This revisional application filed by the petitioners is aimed at quashing of proceeding in complaint case No. C-23/03 pending before the learned Judicial Magistrate, 4th Court, Asansol and orders passed therein including orders dated 17.1.03 and 21.1.03
2. Mr. Sekhar Basu, learned Senior Advocate for the petitioner submitted that the opposite party No. 2 filed the complaint case against the petitioner and others alleging commission of offence under Section 406 of Indian Penal Code (IPC). The complaint was filed on 17.1.03 in the Court of the learned Additional Chief Judicial Magistrate (in short ACJM), Asansol and the learned ACJM transferred the case to the learned Judicial Magistrate, 4th Court, Asansol for disposal. The learned Judicial Magistrate by order dated 21.1.03 issued process against this petitioner under Section 406 of I.P.C and refused to issue process against others who were arrayed as accused in the said complaint. The complainant also prayed for issue of search warrant for recovery of cash and other articles mentioned in the list separately. The learned Magistrate in the second part of his order dated 21.1.03 rejected the prayer for issuing search warrant observing that the goods as alleged were entrusted in 1987 and complainant was driven away as alleged from house of accused in 1990 and after 13 years there was no ground for issuing search warrant. If the learned Magistrate found that the complaint was lodged 13 years after; taking of cognizance of offence under Section 406 of I.P.C was bad in law. The learned Magistrate did not consider that the complaint was barred by limitation and the learned Magistrate was not empowered to take cognizance of offence. Section 406 of I.P.C is not a continuing offence and complaint was barred under Section 468 of Cr. P.C In support of his contention Mr. Basu referred to the decisions Dinabandhu Banerjee v. Nandini Mukherjee reported in 1993 (II) CHN 292, Abhijit Sen v. State of West Bengal reported in 2003 C. Cr. LR (Cal) 639 and Arun Vyas v. Anita Vyas reported in 1999 SCC (Cri) 629.
3. Mr. S.S Roy, learned Advocate appearing for the State submitted that elements of offence under Section 406 of I.P.C was made out against the husband-petitioner. Only question is limitation and, whether the learned Magistrate was right in taking cognizance. Under Section 473 of Cr. P.C the learned Magistrate can consider whether delay has been properly explained and extend period of limitation.
4. Mr. S. Sanyal, learned Advocate for O.P No. 2 submitted that under Section 473 of Cr. P.C there is a duty upon the Court to consider whether delay has been properly explained and in proper cases the Court may extend period of limitation. If a learned Magistrate is satisfied on facts and in the circumstances of the case that delay has been properly explained or, that it is necessary so to do in the interest of justice, the learned Magistrate is empowered to extend period of limitation and can take cognizance. In support of his contention Mr. Sanyal cited the decision in Arun Vyas (supra) and Paragraph 14 of the decision.
5. Considering the submissions of the leaned Advocates of the parties and perusing the revisional application and materials-on-record I find that the marriage between petitioner No. 1 and opposite party No. 2 was solemnised on 22.1.87 Thereafter, O.P No. 2 filed an application under Section 10 of the Hindu Marriage Act (H.M Act.) for judicial separation and in MAT Suit No. 111/90 the learned Additional District Judge, Asansol by order dated 17.4.93 allowed the prayer and passed decree for judicial separation. Since the decree for judicial separation there was no resumption of cohabitation between the husband and wife. Subsequently, the husband, the petitioner No. 1 filed an application under Section 13 of the H.M Act for divorce and in MAT Suit No. 48/94 the petitioner No. 1 got a decree of divorce on 6.1.01 Thereafter, the petitioner No. 1 married for the second time in February, 2002. The O.P No. 2, the erstwhile wife of petitioner thereafter filed the instant complaint against the husband and others and the learned Magistrate by order dated 21.1.03 took cognizance of offence under Section 406 of I.P.C against the husband-petitioner. The O.P No. 2 also prayed for issuing search warrant for the recovery of cash and other articles. The learned Magistrate in the later part of the impugned order rejected the prayer for issue of search warrant. The certified copy of the order dated 21.1.03 containing observation of learned Magistrate runs as follows:—
“It is the fact that the goods were entrusted in the year 1987 and admittedly the complainant was driven away from the house of accused in the year 1990. I do not find any urgency for issuing search warrant after lapse of 13 years. In my view the complainant has not come before the Court with clean hands and there is no immediate necessity of issuing search warrant.”
6. The observation of the learned Magistrate in the order dated 21.1.03 makes it clear that the learned Magistrate did not find sufficient grounds for issuing search warrant after a lapse of 13 years. He also came to the decision that the complainant came to Court not with clean hands. The findings of the learned Magistrate is sufficient to Indicate that on the facts and circumstances of the case the learned Magistrate did not condone delay and in the instant case delay was not properly explained. The order of the learned Magistrate does not reveal that he came to the decision that it is necessary in the interest of justice to condone the delay and to take cognizance extending period of limitation.
7. In Dinabandhu Banerjee (supra) a learned Single Judge of this Court observed that, “The petition of complaint was filed long after expiry of three years from March, 1988. The Court below took cognizance thereon without any prayer under Section 473 Cr. P.C for extension of the period of limitation or without recording that he was satisfied on the facts and circumstances of the case that the delay had been properly explained or that it was necessary so to do in the interest of justice. In the circumstances cognizance taken is bad in law on ground of limitation………… I have, therefore, no hesitation to hold that the offence of dishonest misappropriation defined in Section 403 or the offence of criminal breach of trust defined in Section 405 of I.P.C is not a continuing offence because such offence, by definition, takes place where an act is committed once and for all.” In Arun Vyas (supra) the complaint under Sections 406 and 498A of I.P.C was filed on 18.10.95 which was treated as FIR and after investigation police submitted charge-sheet under Section 498A of I.P.C on 22.12.95 Onthe basis of submission of report by police the learned Magistrate took cognizance of offence under Sections 498A and 406 of I.P.C and issued summons. The case was thereafter reached the stage of framing charge and on that date the learned Magistrate found that complaint was barred by limitation as limitation period for the offences commenced on 13.10.88 and ended on 12.10.91 and discharged the appellants. The High Court set aside the order of the learned Magistrate and directed the Magistrate to proceed with the case. Thereafter, the matter reached the Hon'ble Supreme Court and the Hon'ble Supreme Court observed that the complaint was clearly barred by limitation and there was no explanation for the inordinate delay. In regard to Section 406 of I.P.C the Magistrate rightly held the complaint to be barred by limitation. But regarding offence under Section 498A the Magistrate did not advert to the second limb of the second part in Section 473 of Cr. P.C Accordingly, in that decision the Supreme Court observed that offence under Section 498A of I.P.C is a continuing offence but not the offence under Section 406 of I.P.C
8. The principles of law as enunciated by this Court and the highest Court of India is squarely applicable in the instant case. The marriage between the parties was solemnised on 22.1.87 and articles including stridhan, if any, were given on that day. The complaint was filed on 17.1.03 i.e almost 16 years after alleged entrustment of goods or properties. Even if it was accepted that wife was driven out in 1990, the complaint was filed almost 13 years thereafter. There was no application before the learned Magistrate for condonation of delay in taking cognizance and the order of the learned Magistrate does not reveal that the learned Magistrate considering the facts and circumstances of the case or for interest of the justice condoned the delay. Punishment under Section 406 of I.P.C is three years and according to Section 468 of Cr. P.C the period of limitation for taking cognizance is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. In the instant case the complaint was not filed within three years and it was filed almost 13 years after the incident. Section 406 of I.P.C is not a continuing offence and it does not renew fresh period of limitation at every point of incident. The complaint was hopelessly barred by limitation and taking of cognizance by the learned Magistrate was bad in law. Continuation of the criminal proceeding would be an abuse of the process of Court and being so, the said proceeding is liable to be quashed.
9. In view of the aforesaid discussion the criminal proceeding being complaint case No. C-23 of 2003 now pending before the learned Judicial Magistrate, 4th Court, Asansol is hereby quashed. Revisional application is accordingly allowed and disposed of as indicated above.
10. Send a copy of this order to the learned Judicial Magistrate, 4th Court, Asansol for information and necessary action.
11. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.
S.K.G