KAMATCHI versus LAKSHMI NARAYANAN on 13 April 2022

1. Leave granted.

2. This appeal challenges the final judgment and order dated16.03.2020 passed by the High Court[1] in Crl. O.P. No. 28924 of 2018.

3. The present proceedings arise out of an application preferredby the appellant under Section 12 of the Protection of Women fromDomestic Violence Act, 2005 (hereinafter referred to as ‘the Act’), whichwas numbered as D.V.C. No.21 of 2018 in the Court of JudicialMagistrate, Ambattur, Chennai. The application was filed seekingappropriate protection in terms of Sections 17 and 18 of the Act and waspreferred against the respondent-husband as well as the father-in-lawand sister-in-law of the appellant. The Protection Officer vide hisDomestic Inspection Report dated 21.08.2018 tabulated the incidents ofdomestic violence as under:- C

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FThe basic allegations as culled out from the Report of the ProtectionOfficer were:- “My name Kamakshi. Marriage solemnized in between me andmy husband on 07.09.2007. The dowry, which was given to mymarriage, 60 sovereign gold, 4 ½ kg silver, Rs.50,000/- and otherGhousehold things placed at my Husband’s House. My parents spentRs. 15 lakhs for marriage. Before the marriage, my husband familymembers came to our home for give invitation and gave mentalstress and stated that jewel and dowry are not enough. My fatherborrowed loan and conducted marriage with intention of marriageshould be go in smooth manner. After next day of marriage, they H

spoke in disrespectful manner towards me and my parents statingthat no sufficient jewel and household things were given. Theydid many tricks for I would not go with my husband to Londonand they tortured me. I gave birth to a male child on 06.09.2008.My husband family members came for Punyathanam functionand spoke disrespectful as this is not our heir and refused to acceptthe child. I preferred many cases for to living together with myhusband. I went to my husband home with the High Court order.Rajeshwari has not allowed me and my child and spokedisrespectful manner and drove us out and told me to go and diesomewhere.”

4. Soon thereafter, father-in-law and sister-in-law of the appellantfiled Crl.O.P.No.27097 of 2018 under Section 482 of the Code of CriminalProcedure, 1973 (‘the Code’, for short) before the High Court seekingquashing of the proceedings under the Act. Crl.O.P. No.28924 of 2018was filed by the respondent-husband seeking identical relief under Section482 of the Code. The main grounds taken by the respondent in saidOriginal Petition were: - “E. It is submitted that the Petitioners are forced to face the ordealof trial on no material or even probabilities or a real instance, thus,the impugned proceedings in D.V. No. 21 of 2018 against thePetitioner is illegal, unwarranted and it is nothing but an abuse ofprocess of law and therefore it is liable to be quashed.

F. The Petitioner submits that a matrimonial dispute is sought tobe given a criminal colour at the instance of the Respondent. Theallegations against the petitioner is unsustainable in law and allowingthe proceedings further would serve no purpose so far as thePetitioner is concerned. Therefore, on that ground, the proceedingsagainst the Petitioner/Respondent in D.V. No.21 of 2018 on thefile of the learned Judicial Magistrate, Ambattur, is liable to bequashed.”

5. Both the Original Petitions came up before the High Court on16.03.2020.

A. The Petition filed by the father-in-law and the sister-in-lawwas allowed and the proceedings against them were quashed. It wasobserved by the High Court :- A

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A“5. In view of the above, this Court is inclined to quash theproceedings in D.V. No.21 of 2018, on the file of the JudicialMagistrate, Ambattur, insofar as the petitioners herein areconcerned, on condition that, they shall ensure that the A1/husbandof the respondent shall deposit a sum of Rs.5,000(Rupees FiveThousand only) before 5[th] of every English Calendar month to theBcredit of D.V. No.21 of 2018, on the file of the Judicial Magistrate,Ambattur, as ad-interim maintenance, without prejudice to boththe parties, failing which this order shall stand automaticallycancelled. On such deposit being made, the respondent is entitledto withdraw the same.

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6. Insofar as A1/husband of the respondent is concerned, sincethe impugned proceedings in D.V.No.21 of 2018 is pending fromthe year 2018 onwards, it would be appropriate to direct the TrialCourt to complete the trial within a period of six months from thedate of receipt of copy of this order. A1/husband of the respondentDis directed to appear before the Trial Court on the next hearingdate, failing which, the respondent is at liberty to approach thisCourt.”

B. However, with regard to the petition filed by the respondent,the High Court took the view that the application ought to have beenEfiled within one year of the incident and since the appellant had left thematrimonial home in the year 2008, the application was abuse of processof the court. The relevant observations made were :- “5. The only point for consideration is limitation. In this regard, itis relevant to rely upon the judgment in the case of Inderjit SinghFGrewal vs. State of Punjab & Anr., reported in 2012 Crl.L.J.309. Sections 28 and 32 of the Protection of Women fromDomestic Violence Act, 2005 r/w Rule 15(6) of the Protection ofWomen from Domestic Violence Rules 2006, makes the provisionsof Criminal Procedure Code applicable. Therefore, the respondentought to have filed the complaint within a period of one year fromGthe date of the incident.

6. In the case on hand, the respondent left the matrimonial homein the year 2008 itself, thereafter, there are so many proceedingspending against the petitioner and the respondent herein, in respectto their family disputes. The petitioner was directed to pay a sum H

of Rs.30,000/- to the respondent herein and a sum of Rs.15,000/-to the minor son as maintenance in MC No.261 of 2013 and it isunder challenge before this Court in Crl.R.C.No.567 of 2018 andthe petitioner herein has been continuously paying the maintenanceto the respondent.

7. Therefore, on the ground of limitation, the entire complaint isnothing but a clear abuse of process of Court and it cannot besustained as against the petitioner.”

6. In these circumstances, the instant appeal is preferred by theappellant against the order allowing the Petition filed by the respondent.

7. We have heard Mr. Sharath Chandran, learned Advocate insupport of the appeal and Mr. Siddhartha Dave, learned Senior Advocatefor the respondent.

8. Mr. Sharath Chandran, learned Advocate submits: -

a) The limitation prescribed under Section 468 of the Codepostulates inter alia that no cognizance be taken by the Courtmore than a year after the commission of offence. Thus, thelimitation is to be reckoned from the date of commission ofoffence.

b) Section 12 of the Act speaks of filing of an application seekingone or more reliefs under the Act, whereafter the relevant materialis considered by the Magistrate including any Domestic IncidentReport. The matter is then heard in terms of Sub-Section (4) andfinally an order may be made on the application.

c) As laid down in Section 31 of the Act, any breach of an orderpassed inter alia under Section 12 of the Act is punishable withimprisonment of either description for a term which may extendto one year, or with fine, or with both. Thus, the offence underSection 31 of the Act will be said to have been committed onlyafter the breach of an order passed under Section 12 of the Act,occurs.

d) There is no limitation under the Code or under the provisions ofthe Act for filing of an application and as such, the High Courtwas not right in observing that the proceedings were barred bylimitation.

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e) The Judgments relied upon by the High Court were completelydistinguishable. Reliance was placed on the decision of the SingleJudge of the High Court in Dr. P. Padmanathan & Ors. v. Tmt.V. Monica & Anr.[2].

9. Mr. Siddhartha Dave, learned Senior Advocate for theBrespondent submits: -

i) The tabular chart prepared by the Protection Officer in hisReport indicates that after 16.09.2008 for almost 10 years nothingwas alleged against the respondent or the father-in-law or sister-in-law.

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ii) The parties had been living separately for last several yearsand the application was nothing but a desperate attempt to filesomething against the respondent in a court of law; and was clearlyan abuse of process of court.

iii) Going by the dictum of this Court in Sarah Mathew v. Instituteof Cardio Vascular Diseases[3], the starting point for reckoningthe period of limitation ought to be from the date of applicationand as such, the High Court was justified in observing that theaction was barred by time.

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In the written submissions, it is also submitted that: -E

“This Hon’ble Court in Adalat Prasad v. Rooplal Jindal[4]held that if a Magistrate takes cognizance of an offence, issuesprocess without there being any allegation against the accused, orany material implicating the accused, or in contravention ofprovisions of Sections 200 and 202, the order of the MagistrateFmay be vitiated. However, the relief an aggrieved accused canobtain at that stage is not by invoking Section 203 of the Code,because the Code does not contemplate a review of an order.Hence in the absence of any review power, or inherent powerwith the subordinate criminal courts, the remedy lies in invokingSection 482 of the Code.”G

10. Before we consider the rival submissions, the relevantprovisions, namely Sections 12, 28, 31 and 32 of the Act may be extracted:- 2 2021 SCC Online Mad 8731.3 (2014) 2 SCC 62.H4 (2004) 7 SCC 338.

“12. Application to Magistrate. —

(1) An aggrieved person or a Protection Officer or any other personon behalf of the aggrieved person may present an application tothe Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, theMagistrate shall take into consideration any domestic incidentreport received by him from the Protection Officer or the serviceprovider.

(2) The relief sought for under sub-section (1) may include a relieffor issuance of an order for payment of compensation or damageswithout prejudice to the right of such person to institute a suit forcompensation or damages for the injuries caused by the acts ofdomestic violence committed by the respondent:

Provided that where a decree for any amount as compensation ordamages has been passed by any court in favour of the aggrievedperson, the amount, if any, paid or payable in pursuance of theorder made by the Magistrate under this Act shall be set off againstthe amount payable under such decree and the decree shall,notwithstanding anything contained in the Code of Civil Procedure,1908 (5 of 1908), or any other law for the time being in force, beexecutable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such formand contain such particulars as may be prescribed or as nearly aspossible thereto.

(4) The Magistrate shall fix the first date of hearing, which shallnot ordinarily be beyond three days from the date of receipt of theapplication by the court.

(5) The Magistrate shall endeavor to dispose of every applicationmade under sub-section (1) within a period of sixty days from thedate of its first hearing.

28. Procedure. —

(1) Save as otherwise provided in this Act, all proceedings undersections 12, 18, 19, 20, 21, 22 and 23 and offences under section31 shall be governed by the provisions of the Code of CriminalProcedure, 1973 (2 of 1974).

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(2) Nothing in sub-section (1) shall prevent the court from layingdown its own procedure for disposal of an application under section12 or under sub-section (2) of section 23.

31. Penalty for breach of protection order by respondent.—

(1) A breach of protection order, or of an interim protection order,Bby the respondent shall be an offence under this Act and shall bepunishable with imprisonment of either description for a term whichmay extend to one year, or with fine which may extend to twentythousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicableCbe tried by the Magistrate who had passed the order, the breachof which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistratesmay also frame charges under section 498A of the Indian PenalCode (45 of 1860) or any other provision of that Code or theDDowry Prohibition Act, 1961 (28 of 1961), as the case may be, ifthe facts disclose the commission of an offence under thoseprovisions.

32. Cognizance and proof. —

(1) Notwithstanding anything contained in the Code of CriminalEProcedure, 1973 (2 of 1974), the offence under sub-section (1) ofsection 31 shall be cognizable and non-bailable.

(2) Upon the sole testimony of the aggrieved person, the courtmay conclude that an offence under sub-section (1) of section 31has been committed by the accused.”

F11. Similarly, Section 468 of the Code is also set out for facility: - “468.Bar to taking cognizance after lapse of the period oflimitation: -

(1) Except as otherwise provided elsewhere in this Code, no Courtshall take cognizance of an offence of the category specified inGsub- 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 imprisonmentHfor a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonmentfor term exceeding one year but not exceeding three years.

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

12. In terms of Section 468 of the Code, the cognizance of anoffence of the categories specified in Sub Section 2 can not to be takenafter the expiry of the period specified therein.

In following cases, the complaints alleging commission of anoffence were filed well in time so that cognizance could have been takenwithin the prescribed period, but the matters were considered by theMagistrate after the expiry of the prescribed period, and as such thecognizance in each of the cases was taken after the expiry of the periodprescribed.

(A) A bench of three Judges of this Court in Krishna Pillai v.T.A. Rajendran & Anr.[5], while dealing with Section 9 of the ChildMarriage Restraint Act, 1929, which mandates that no Court shouldtake cognizance of an offence after the expiry of one year from the daywhen the offence was allegedly committed, observed: - “3. It is not disputed that cognizance has been taken by the courtmore than a year after the offence was committed. Counsel forthe respondents has stated that since the complaint had been filedwithin a year from the commission of the offence it must be takenthat the court has taken cognizance on the date when the complaintwas filed. In that view of the matter there would be no limitation.

4. Taking cognizance has assumed a special meaning in ourcriminal jurisprudence. We may refer to the view taken by a fiveJudge bench of this Court in A.R. Antulay v. Ramdas SriniwasNayak[6]. At p. 530 (para 31) of the reports this Court indicated:

“When a private complaint is filed, the court has to examine thecomplainant on oath save in the cases set out in the proviso toSection 200 Cr.P.C. After examining the complainant on oath andexamining the witnesses present, if any, meaning thereby that the 5 1990 (Supp.) SCC 121.

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Awitnesses not present need not be examined, it would be open tothe court to judicially determine whether a case is made out forissuing process. When it is said that court issued process, it meansthe court has taken cognizance of the offence and has decided toinitiate the proceedings and a visible manifestation of takingcognizance process is issued which means that the accused isBcalled upon to appear before the court.””

(B) In Bharat Damodar Kale & Anr. v. State of AndhraPradesh[7] a complaint was lodged within one year but the cognizancewas taken after the period of one year was over. The complainant hadapproached within time and the delay was because of an act of court,Cover which the prosecuting agency or the complainant had no control. Abench of two Judges of this Court observed that “Limitation for takingcognizance of certain offences” must be reckoned from the day whenthe complaint was filed or proceedings were initiated. The discussion onthe point was: -D“

“10. On facts of this case and based on the arguments advancedbefore us, we consider it appropriate to decide the questionwhether the provisions of Chapter XXXVI of the Code apply tothe delay in instituting the prosecution or to the delay in takingcognizance. As noted above, according to the learned counsel forEthe appellants, the limitation prescribed under the above Chapterapplies to taking of cognizance by the court concerned, thereforeeven if a complaint is filed within the period of limitation mentionedin the said Chapter of the Code, if the cognizance is not takenwithin the period of limitation the same gets barred by limitation.This argument seems to be inspired by the chapter heading ofFChapter XXXVI of the Code which reads thus: “Limitation fortaking cognizance of certain offences”. It is primarily based onthe above language of the heading of the Chapter, the argument isaddressed on behalf of the appellants that the limitation prescribedby the said Chapter applies to taking of cognizance and not filingGof complaint or initiation of the prosecution. We cannot acceptsuch argument because a cumulative reading of various provisionsof the said Chapter clearly indicates that the limitation prescribedtherein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibitsthe court from taking cognizance of an offence where thecomplaint is filed before the court after the expiry of the periodmentioned in the said Chapter. This is clear from Section 469 ofthe Code found in the said Chapter which specifically says thatthe period of limitation in relation to an offence shall commenceeither from the date of the offence or from the date when theoffence is detected. Section 470 indicates that while computingthe period of limitation, time taken during which the case wasbeing diligently prosecuted in another court or in appeal or inrevision against the offender should be excluded. The said sectionalso provides in the Explanation that in computing the time requiredfor obtaining the consent or sanction of the Government or anyother authority should be excluded. Similarly, the period duringwhich the court was closed will also have to be excluded. Allthese provisions indicate that the court taking cognizance can takecognizance of an offence the complaint of which is filed before itwithin the period of limitation prescribed and if need be, afterexcluding such time which is legally excludable. This in our opinionclearly indicates that the limitation prescribed is not for takingcognizance within the period of limitation, but for taking cognizanceof an offence in regard to which a complaint is filed or prosecutionis initiated beyond the period of limitation prescribed under theCode. Apart from the statutory indication of this view of ours, wefind support for this view from the fact that taking of cognizanceis an act of the court over which the prosecuting agency or thecomplainant has no control. Therefore, a complaint filed withinthe period of limitation under the Code cannot be made infructuousby an act of court.The legal phrase “actus curiae neminemgravabit” which means an act of the court shall prejudice no man,or by a delay on the part of the court neither party should suffer,also supports the view that the legislature could not have intendedto put a period of limitation on the act of the court of takingcognizance of an offence so as to defeat the case of thecomplainant. This view of ours is also in conformity with the earlierdecision of this Court in the case of Rashmi Kumar v. MaheshKumar Bhada[8] .

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A11. If this interpretation of Chapter XXXVI of the Code is to beapplied to the facts of the case, then we notice that the offencewas detected on 5-3-1999 and the complaint was filed before thecourt on 3-3-2000 which was well within the period of limitation,therefore, the fact that the court took cognizance of the offenceonly on 25-3-2000, about 25 days after it was filed, would notBmake the complaint barred by limitation.

12. In view of our above finding, we do not think it is necessaryfor us to go to the next question argued on behalf of the appellantsthat the court below was in error in invoking Section 473 of theCode for extending the period of limitation nor is it necessary forCus to discuss the case of State of Himachal Pradesh v. TaraDutt & Anr.[9] relied on by the appellants.”

(Emphasis added)

(C) In Japani Sahoo v. Chandra Sekhar Mohanty[10] the offenceDwas allegedly committed on 2.2.1996 and the complaint was filed on5.2.1996 but the cognizance of the offence was taken on 8.8.1997 whenthe period of limitation under Section 468 of the Code for the concernedoffence was only six months. After considering the relevant cases onthe point including Bharat Damodar Kale[7], a bench of two Judges ofthis Court observed:E

“48. So far as the complainant is concerned, as soon as he files acomplaint in a competent court of law, he has done everythingwhich is required to be done by him at that stage. Thereafter, it isfor the Magistrate to consider the matter, to apply his mind and totake an appropriate decision of taking cognizance, issuing processFor any other action which the law contemplates. The complainanthas no control over those proceedings.

49. Because of several reasons (some of them have been referredto in the aforesaid decisions, which are merely illustrative casesand not exhaustive in nature), it may not be possible for the courtGor the Magistrate to issue process or take cognizance. But acomplainant cannot be penalized for such delay on the part of thecourt nor can he be non-suited because of failure or omission by 9 (2000) 1 SCC 230 : 2000 SCC (Cri) 125H10 (2007) 7 SCC 394.

the Magistrate in taking appropriate action under the Code. Nocriminal proceeding can be abruptly terminated when a complainantapproaches the court well within the time prescribed by law. Insuch cases, the doctrine ‘actus curiae neminem gravabit’ (an actof court shall prejudice none) would indeed apply. (vide AlexanderRodger v. Comptoir D’ Escompte.[11] One of the first and highestduties of all courts is to take care that an act of court does noharm to suitors.

50. The Code imposes an obligation on the aggrieved party totake recourse to appropriate forum within the period provided bylaw and once he takes such action, it would be wholly unreasonableand inequitable if he is told that his grievance would not be ventilatedas the court had not taken an action within the period of limitation.Such interpretation of law, instead of promoting justice would leadto perpetuate injustice and defeat the primary object of procedurallaw.

51. The matter can be looked at from different angle also. Onceit is accepted (and there is no dispute about it) that it is not withinthe domain of the complainant or prosecuting agency to takecognizance of an offence or to issue process and the only thingthe former can do is to file a complaint or initiate proceedings inaccordance with law, if that action of initiation of proceedings hasbeen taken within the period of limitation, the complainant is notresponsible for any delay on the part of the court or Magistrate inissuing process or taking cognizance of an offence.Now, if he issought to be penalized because of the omission, default or inactionon the part of the court or Magistrate, the provision of law mayhave to be tested on the touchstone of Article 14 of theConstitution. It can possibly be urged that such a provision is totallyarbitrary, irrational and unreasonable. It is settled law that a courtof law would interpret a provision which would help sustainingthe validity of law by applying the doctrine of reasonableconstruction rather than making it vulnerable and unconstitutionalby adopting rule of litera legis. Connecting the provision oflimitation in Section 468 of the Code with issuing of process ortaking of cognizance by the court may make it unsustainable andultra vires Article 14 of the Constitution.

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A52. In view of the above, we hold that for the purpose of computingthe period of limitation, the relevant date must be considered asthe date of filing of complaint or initiating criminal proceedingsand not the date of taking cognizance by a Magistrate or issuanceof process by a court.We, therefore, overrule all decisions inwhich it has been held that the crucial date for computing theBperiod of limitation is taking of cognizance by the Magistrate/courtand not of filing of complaint or initiation of criminal proceedings.

53. In the instant case, the complaint was filed within a period ofthree days from the date of alleged offence. The complaint,therefore, must be held to be filed within the period of limitationCeven though cognizance was taken by the learned Magistrate aftera period of one year. Since the criminal proceedings have beenquashed by the High Court, the order deserves to be set aside andis accordingly set aside by directing the Magistrate to proceedwith the case and pass an appropriate order in accordance withDlaw, as expeditiously as possible.”

(Emphasis added)

(D) In Sarah Mathew v. Institute of Cardio Vascular Diseasesetc. and others[12], a bench of two Judges of this Court noted the facts ofthe case as under: -E

“1. Mr. K. Swami, learned counsel appearing for the appellant,submitted that the High Court [Institute of Cardio VascularDiseases v. Sarah Mathew, Criminal OP No. 12001 of 1997,decided on 17-7-2002 (Mad)] was clearly wrong in holding thatthe proceeding against the respondents was barred by limitation,Fas provided under Section 468(2)(c) of the Code of CriminalProcedure, 1973, because the order issuing summons against theaccused was passed by the Magistrate after three years from thedate of the occurrence, even though the complaint was admittedlyfiled within the period of limitation. In support of the contention,Ghe relies upon a two-Judge Bench decision of this Court in BharatDamodar Kale[7] in which, on an examination of the provisionscontained in Chapter XXXVI of the Code of Criminal Procedure,it was held that the Court can take cognizance of an offence, thecomplaint of which is filed before it, within the period of limitation H12 (2014) 2 SCC 102

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prescribed and, if need be, after excluding such time which islegally excludable. It further held that the limitation prescribed isnot for taking cognizance within the period of limitation, but fortaking cognizance of an offence in regard to which a complaint isfiled or prosecution is initiated beyond the period of limitationprescribed under the Code of Criminal Procedure. The decisionin Bharat Damodar Kale[7] is followed in another two-Judge Benchdecision of this Court in Japani Sahoo v. Chandra SekharMohanty[10]. In para 52 of the decision in Japani Sahoo[10], it wasreiterated that for the purpose of computing the period of limitation,the relevant date must be considered as the date of filing ofcomplaint or initiating criminal proceedings and not the date oftaking cognizance by a Magistrate or issuance of process by acourt.”

Thereafter, noticing the conflict in the view taken in BharatDamodar Kale[7] and Japani Sahoo[10] as against that in Krishna Pillai[5],the matter was referred to a three Judge bench, which in turn referred[13]the matter to a larger Bench. While doing so, the three-Judge Benchobserved:

“……The three-Judge Bench in Krishna Pillai[5] has not advertedto diverse aspects including the aspects that inaction on the partof the court by not taking cognizance swiftly or within limitation,although the complaint has been filed within time or the prosecutionhas been instituted within time, should not act prejudicial to theprosecution or the complainant.”

(E) A Constitution Bench of this Court in Sarah Mathew v.Institute of Cardio Vascular Diseases etc. and others[3] framed thequestions for its consideration as under:

“3. No specific questions have been referred to us. But, inour opinion, the following questions arise for our consideration:

3.1. (i) Whether for the purposes of computing the periodof limitation under Section 468 CrPC the relevant date is the dateof filing of the complaint or the date of institution of the prosecutionor whether the relevant date is the date on which a Magistratetakes cognizance of the offence?

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A3.2. (ii) Which of the two cases i.e. KrishnaPillai[5] or Bharat Kale[7] (which is followed in Japani Sahoo[10],lays down the correct law?”

After noticing the 42[nd] Law Commission’s Report and the relevantprovisions and scheme of Chapter XXXVI of the Code, the ConstitutionBBench stated:

“37. We are inclined to take this view also because there has tobe some amount of certainty or definiteness in matters of limitationrelating to criminal offences. If, as stated by this Court, takingcognizance is application of mind by the Magistrate to the suspectedCoffence, the subjective element comes in. Whether a Magistratehas taken cognizance or not will depend on facts andcircumstances of each case. A diligent complainant or theprosecuting agency which promptly files the complaint or initiatesprosecution would be severely prejudiced if it is held that therelevant point for computing limitation would be the date on whichDthe Magistrate takes cognizance. The complainant or theprosecuting agency would be entirely left at the mercy of theMagistrate, who may take cognizance after the limitation periodbecause of several reasons; systemic or otherwise. It cannot bethe intention of the legislature to throw a diligent complainant outEof the court in this manner. Besides, it must be noted that thecomplainant approaches the court for redressal of his grievance.He wants action to be taken against the perpetrators of crime.The courts functioning under the criminal justice system are createdfor this purpose. It would be unreasonable to take a view thatdelay caused by the court in taking cognizance of a case wouldFdeny justice to a diligent complainant. Such an interpretation ofSection 468 CrPC would be unsustainable and would render itunconstitutional. It is well settled that a court of law would interpreta provision which would help sustaining the validity of the law byapplying the doctrine of reasonable construction rather thanGapplying a doctrine which would make the provision unsustainableand ultra vires the Constitution. (U.P. Power Corpn.Ltd. v. Ayodhya Prasad Mishra[14])

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41. There can be no dispute about the rules of interpretation citedby the counsel. It is true that there is no ambiguity in the relevantprovisions. But, it must be borne in mind that the word “cognizance”has not been defined in CrPC. This Court had to therefore interpretthis word. We have adverted to that interpretation. In fact, wehave proceeded to answer this reference on the basis of thatinterpretation and keeping in mind that special connotation acquiredby the word “cognizance”. Once that interpretation is accepted,Chapter XXXVI along with the heading has to be understood inthat light. The rule of purposive construction can be applied insuch a situation. A purposive construction of an enactment is onewhich gives effect to the legislative purpose by following the literalmeaning of the enactment where that meaning is in accordancewith the legislative purpose or by applying a strained meaningwhere the literal meaning is not in accordance with the legislativepurpose (see Francis Bennion on Statutory Interpretation).After noticing this definition given by FrancisBennion in National Insurance Co. Ltd. v. Laxmi NarainDhut[15] , this Court noted that : (SCC p. 718, para 35)

“35. More often than not, literal interpretation of a statuteor a provision of a statute results in absurdity. Therefore, whileinterpreting statutory provisions, the courts should keep in mindthe objectives or purpose for which statute has been enacted.”

In the light of this observation, we are of the opinion that if in theinstant case literal interpretation appears to be in any way in conflictwith the legislative intent or is leading to absurdity, purposiveinterpretation will have to be adopted.

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49. It is true that penal statutes must be strictly construed. Thereare, however, cases where this Court has having regard to thenature of the crimes involved, refused to adopt any narrow andpedantic, literal and lexical construction of penal statutes.(See Murlidhar Meghraj Loya v. State of Maharashtra[16]and Kisan Trimbak Kothula v. State of Maharashtra.[17] In this 15 (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142

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case, looking to the legislative intent, we have harmoniouslyconstrued the provisions of Chapter XXXVI so as to strike abalance between the right of the complainant and the right of theaccused. Besides, we must bear in mind that Chapter XXXVI ispart of the Criminal Procedure Code, which is a procedural lawand it is well settled that procedural laws must be liberally construedto serve as handmaid of justice and not as its mistress. (See SardarAmarjit Singh Kalra (D) by Lrs. & Ors. v. Pramod Gupta (D) byLrs. & Ors.[18], N. Balaji v. Virendra Singh[19] and Kailash v. Nankhu& Ors.[20]"

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Finally, it was concluded in paragraphs 50 and 51 as under:

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“50. Having considered the questions which arise in this referencein the light of legislative intent, authoritative pronouncements ofthis Court and established legal principles, we are of the opinionthat Krishna Pillai[5] will have to be restricted to its own factsand it is not the authority for deciding the question as to what isDthe relevant date for the purpose of computing the period oflimitation under Section 468 CrPC, primarily because in that case,this Court was dealing with Section 9 of the Child MarriageRestraint Act, 1929 which is a special Act. It specifically statedthat no court shall take cognizance of any offence under the saidEAct after the expiry of one year from the date on which offenceis alleged to have been committed. There is no reference either toSection 468 or Section 473 CrPC in that judgment. It does notrefer to Sections 4 and 5 CrPC which carve out exceptions forthe special Acts. This Court has not adverted to diverse aspectsincluding the aspect that inaction on the part of the court in takingFcognizance within limitation, though the complaint is filed withintime may work great injustice on the complainant. Moreover,reliance placed on Antulay ‘1984’ case[6], in our opinion, was notapt. In Antulay ‘1984’ case[6] this Court was dealing inter aliawith the contention that a private complaint is not maintainable inGthe Court of the Special Judge set up under Section 6 of the CriminalLaw (Amendment) Act, 1952 (“the 1952 Act”). It was urged thatthe object underlying the 1952 Act was to provide for a more D

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speedy trial of offences of corruption by a public servant. It wasargued that if it is assumed that a private complaint is maintainablethen before taking cognizance, a Special Judge will have to examinethe complainant and all the witnesses as per Section 200 CrPC.He will have to postpone issue of process against the accusedand either inquire into the case himself or direct an investigationto be made by a police officer and in cases under the Preventionof Corruption Act, 1947 by police officers of designated rank forthe purpose of deciding whether or not there is sufficient groundfor proceeding. It was submitted that this would thwart the objectof the 1952 Act which is to provide for a speedy trial. Thiscontention was rejected by this Court holding that it is not acondition precedent to the issue of process that the court ofnecessity must hold the inquiry as envisaged by Section 202 CrPCor direct investigation as therein contemplated. That is matter ofdiscretion of the court. Thus, the questions which arise in thisreference were not involved in Antulay ‘1984’ case[6]: since there,this Court was not dealing with the question of bar of limitationreflected in Section 468 CrPC at all, in our opinion, the saidjudgment could not have been usefully referred to in KrishnaPillai[5] while construing provisions of Chapter XXXVI CrPC. Forall these reasons, we are unable to endorse the view takenin Krishna Pillai[5].

51. In view of the above, we hold that for the purpose of computingthe period of limitation under Section 468 CrPC the relevant dateis the date of filing of the complaint or the date of institution ofprosecution and not the date on which the Magistrate takescognizance. We further hold that Bharat Kale[7] which is followedin Japani Sahoo[10], lays down the correct law. Krishna Pillai[5] willhave to be restricted to its own facts and it is not the authority fordeciding the question as to what is the relevant date for the purposeof computing the period of limitation under Section 468 CrPC.”

13. It is, thus, clear that though Section 468 of the Code mandatesthat ‘cognizance’ ought to be taken within the specified period from thecommission of offence, by invoking the principles of purposiveconstruction, this Court ruled that a complainant should not be put toprejudice, if for reasons beyond the control of the prosecuting agency orthe complainant, the cognizance was taken after the period of limitation.It was observed by the Constitution Bench that if the filing of the complaint A

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Aor initiation of proceedings was within the prescribed period from thedate of commission of an offence, the Court would be entitled to takecognizance even after the prescribed period was over.

14. The dictum in Sarah Mathew[3] has to be understood in light ofthe situations which were dealt with by the Constitution Bench. If aBcomplaint was filed within the period prescribed under Section 468 ofthe Code from the commission of the offence but the cognizance wastaken after the expiry of such period, the terminal point for the prescribedperiod for the purposes of Section 468, was shifted from the date oftaking cognizance to the filing of the complaint or initiation of proceedingsso that a complaint ought not to be discarded for reasons beyond theCcontrol of the complainant or the prosecution.

15. Let us now consider the applicability of these principles tocases under the Act. The provisions of the Act contemplate filing of anapplication under Section 12 to initiate the proceedings before theconcerned Magistrate. After hearing both sides and after taking intoDaccount the material on record, the Magistrate may pass an appropriateorder under Section 12 of the Act. It is only the breach of such orderwhich 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 theAct, the limitation prescribed under Section 468 of the Code will applyEfrom the date of commission of such offence. By the time an applicationis preferred under Section 12 of the Act, there is no offence committedin terms of the provisions of the Act and as such there would never be astarting point for limitation from the date of application under Section 12of the Act. Such a starting point for limitation would arise only and onlyafter there is a breach of an order passed under Section 12 of the Act.F16. We may now deal with the case on which reliance was placedby the High Court.

Inderjit Singh Grewal v. State of Punjab and another[21] was acase where the marriage between the parties was dissolved by judgmentand decree dated 20.03.2008. Thereafter, the wife preferred an applicationGunder the provisions of the Act on 4.5.2009 alleging that the decree ofdivorce was sham and that even after the divorce the parties were livingtogether as husband and wife; and that she was thereafter forced toleave the matrimonial home. It was, in these circumstances, that an H21 (2011) 12 SCC 588

application under Section 482 of the Code was filed by the husbandseeking quashing of the proceedings under the Act. It was observed thata suit filed by the wife to declare the judgment and decree of divorce asa nullity was still pending consideration before the competent court. Theeffect of the proceedings culminating in decree for divorce wasconsidered by this Court as under:- “16. The question does arise as to whether the reliefs sought inthe complaint can be granted by the criminal court so long as thejudgment and decree of the civil court dated 20-3-2008 subsists.Respondent 2 has prayed as under:

“It is therefore prayed that Respondent 1 be directed to handover the custody of the minor child Gurarjit Singh Grewalforthwith. It is also prayed that Respondent 1 be directed topay to her a sum of Rs 15,000 per month by way of rent of thepremises to be hired by her at Ludhiana for her residence. It isalso prayed that all the respondents be directed to restore toher all the dowry articles as detailed in Annexures A to C or inthe alternative they be directed to pay to her a sum ofRs.22,95,000 as the price of the dowry articles. Affidavitattached.”

Thus, the reliefs sought have been threefold: (a) custody of theminor son; (b) the right of residence; and (c) restoration of dowryarticles.

17. It is a settled legal proposition that where a person gets anorder/office by making misrepresentation or playing fraud uponthe competent authority, such order cannot be sustained in theeye of the law as fraud unravels everything. “Equity is alwaysknown to defend the law from crafty evasions and new subtletiesinvented to evade law.” It is trite that “fraud and justice neverdwell together” (fraus et jus nunquam cohabitant). Fraud is anact of deliberate deception with a design to secure something,which is otherwise not due. Fraud and deception are synonymous.“Fraud is anathema to all equitable principles and any affair taintedwith fraud cannot be perpetuated or saved by the application ofany equitable doctrine.” An act of fraud on court is always viewedseriously. (Vide Meghmala v. G. Narasimha Reddy[22] )

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A18. However, the question does arise as to whether it is permissiblefor a party to treat the judgment and order as null and void withoutgetting it set aside from the competent court. The issue is nomore res integra and stands settled by a catena of decisions ofthis Court. For setting aside such an order, even if void, the partyhas to approach the appropriate forum. [Vide State of Kerala v.BM.K. Kunhikannan Nambiar ManjeriManikoth[23] and Tayabbhai M. Bagasarwalla v. Hind RubberIndustries (P) Ltd.[24]]”

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The plea based on the issue of limitation was then considered inparagraphs 32 and 33 and it was observed: -C“32. Submissions made by Shri Ranjit Kumar on the issue oflimitation, in view of the provisions of Section 468 CrPC, that thecomplaint could be filed only within a period of one year from thedate of the incident seem to be preponderous in view of theprovisions of Sections 28 and 32 of the 2005 Act read with Rule15(6) of the Protection of Women from Domestic Violence Rules,D2006 which make the provisions of CrPC applicable and standfortified by the judgments of this Court in Japani Sahoo v. ChandraSekhar Mohanty 10 and NOIDA Entrepreneurs Assn. v.NOIDA[25].

33. In view of the above, we are of the considered opinion thatEpermitting the Magistrate to proceed further with the complaintunder the provisions of the 2005 Act is not compatible and inconsonance with the decree of divorce which still subsists andthus, the process amounts to abuse of the process of the court.Undoubtedly, for quashing a complaint, the court has to take itscontents on its face value and in case the same discloses anFoffence, the court generally does not interfere with the same.However, in the backdrop of the factual matrix of this case,permitting the court to proceed with the complaint would be travestyof justice. Thus, interest of justice warrants quashing of the same.”

17. Another case on which reliance was placed during the hearingGwas Krishna Bhattacharjee v. Sarathi Choudhary[26]. In that case, a decree for judicial separation was passed by a competent court.

23 (1996) 1 SCC 43524 (1997) 3 SCC 44325 (2011) 6 SCC 508H26 (2016) 2 SCC 705

Thereafter, an application under Section 12 of the Act was preferred bythe wife seeking return of Stridhan articles and allied reliefs. A pleawas taken by the husband that the proceedings under the Act werebarred by time. The Magistrate held that as a result of decree for judicialseparation, the parties ceased to be in domestic relationship and as such,no relief could be granted. The appeal arising therefrom was dismissedby the lower appellate court and finally revision preferred by the wifewas also dismissed by the High Court. In light of these facts, the issue oflimitation was considered by this Court as under: -

“32. Regard being had to the aforesaid statement of law, we haveto see whether retention of stridhan by the husband or any otherfamily members is a continuing offence or not. There can be nodispute that wife can file a suit for realization of the stridhan butit does not debar her to lodge a criminal complaint for criminalbreach of trust. We must state that was the situation before the2005 Act came into force. In the 2005 Act, the definition of“aggrieved person” clearly postulates about the status of anywoman who has been subjected to domestic violence as definedunder Section 3 of the said Act. “Economic abuse” as it has beendefined in Section 3(iv) of the said Act has a large canvass. Section12, relevant portion of which has been reproduced hereinbefore,provides for procedure for obtaining orders of reliefs. It has beenheld in Inderjit Singh Grewal[21] that Section 468 of the Code ofCriminal Procedure applies to the said case under the 2005 Actas envisaged under Sections 28 and 32 of the said Act read withRule 15(6) of the Protection of Women from Domestic ViolenceRules, 2006. We need not advert to the same as we are of theconsidered opinion that as long as the status of the aggrievedperson remains and stridhan remains in the custody of the husband,the wife can always put forth her claim under Section 12 of the2005 Act. We are disposed to think so as the status between theparties is not severed because of the decree of dissolution ofmarriage. The concept of “continuing offence” gets attracted fromthe date of deprivation of stridhan, for neither the husband norany other family members can have any right over the stridhanand they remain the custodians. For the purpose of the 2005 Act,she can submit an application to the Protection Officer for one ormore of the reliefs under the 2005 Act.

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A33. In the present case, the wife had submitted the application on22-5-2010 and the said authority had forwarded the same on 1-6-2010. In the application, the wife had mentioned that the husbandhad stopped payment of monthly maintenance from January 2010and, therefore, she had been compelled to file the application forstridhan. Regard being had to the said concept of “continuingBoffence” and the demands made, we are disposed to think thatthe application was not barred by limitation and the courts belowas well as the High Court had fallen into a grave error by dismissingthe application being barred by limitation.”

18. Inderjit Singh Grewal[21 ]was decided before the decision ofCthis Court in Sara Mathew[3]. Rather than the issue of limitation, whatreally weighed with this Court in Inderjit Singh Grewal[21] was the factthat the domestic violence was alleged after the decree for divorce,when any relationship between the parties had ceased to exist. It is truethat the plea based on Section 468 of the Code was noted in paragraphD32 of said decision but the effect and interplay of Sections 12 and 31 ofthe Act was not noticed. In Krishna Bhattarcharjee[26 ]as is evidentfrom paragraph 33 of the said decision, the plea of limitation was rejectedas the offence was found to be continuing one and as such there was noterminal point from which date the limitation could be reckoned.

EThus, none of these decisions is material for the purposes of theinstant matter.

19. The special features with regard to an application under Section12 of the Act were noticed by a Single Judge of the High Court in Dr. P.Padmanathan & Ors.[2] as under:F“

“19. In the first instance, it is, therefore, necessary to examinethe areas where the D.V. Act or the D.V. Rules have specificallyset out the procedure thereby excluding the operation of Cr.P.C.as contemplated under Section 28(1) of the Act. This takes us tothe D.V. Rules. At the outset, it may be noticed that a “complaint”Gas contemplated under the D.V. Act and the D.V. Rules is not thesame as a “complaint” under Cr.P.C. A complaint under Rule2(b) of the D.V. Rules is defined as an allegation made orally or inwriting by any person to a Protection Officer. On the other hand,a complaint, under Section 2(d) of the Cr.P.C. is any allegationmade orally or in writing to a Magistrate, with a view to his taking H

action under the Code, that some person, whether known orunknown has committed an offence. However, the Magistratedealing with an application under Section 12 of the Act is notcalled upon to take action for the commission of an offence. Hence,what is contemplated is not a complaint but an application to aMagistrate as set out in Rule 6(1) of the D.V. Rules. A complaintunder the D.V. Rules is made only to a Protection Officer ascontemplated under Rule 4(1) of the D.V. Rules.

20. Rule 6(1) sets out that an application under Section 12 of theAct shall be as per Form II appended to the Act. Thus, anapplication under Section 12 not being a complaint as defined underSection 2(d) of the Cr.P.C, the procedure for cognizance set outunder Section 190(1)(a) of the Code followed by the procedureset out in Chapter XV of the Code for taking cognizance willhave no application to a proceeding under the D.V. Act. Toreiterate, Section 190(1)(a) of the Code and the procedure set outin the subsequent Chapter XV of the Code will apply only in casesof complaints, under Section 2(d) of Cr.P.C, given to a Magistrateand not to an application under Section 12 of the Act.”

20. It is thus clear that the High Court wrongly equated filing ofan application under Section 12 of the Act to lodging of a complaint orinitiation of prosecution. In our considered view, the High Court was inerror in observing that the application under Section 12 of the Act oughtto have been filed within a period of one year of the alleged acts ofdomestic violence.

21. It is, however, true that as noted by the Protection Officer inhis Domestic Inspection Report dated 2.08.2018, there appears to be aperiod of almost 10 years after 16.09.2008, when nothing was allegedby the appellant against the husband. But that is a matter which willcertainly be considered by the Magistrate after response is receivedfrom the husband and the rival contentions are considered. That is anexercise which has to be undertaken by the Magistrate after consideringall the factual aspects presented before him, including whether theallegations constitute a continuing wrong.

22. Lastly, we deal with the submission based on the decision inAdalat Prasad[4]. The ratio in that case applies when a Magistrate takescognizance of an offence and issues process, in which event instead of AB

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Agoing back to the Magistrate, the remedy lies in filing petition underSection 482 of the Code. The scope of notice under Section 12 of theAct is to call for a response from the respondent in terms of the Statuteso that after considering rival submissions, appropriate order can beissued. Thus, the matter stands on a different footing and the dictum inAdalat Prasad[4 ]would not get attracted at a stage when a notice isBissued under Section 12 of the Act.

23. We, therefore, allow this appeal and set aside the view takenby the High Court. Crl. O.P. No.28924 of 2018 is accordingly, dismissed.The husband shall file his response before the Magistrate within twoweeks and the matter shall thereafter be considered by the MagistrateCin terms of the provisions of the Act.

24. We must clarify that we have considered the instant matterfrom the perspective whether the application preferred under Section12 of the Act was rightly considered by the High Court for reckoning theperiod of limitation. We have not and shall not be taken to have expressedDany view on merits of the matter which shall be gone into independentlyat every stage.

25. The appeal is, thus, allowed. No order as to costs.

EBibhuti Bhushan Bose(Assisted by : Rakhi, LCRA)

Appeal allowed.

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