Section 468 of the CrPC is not applicable to continued cause of action: Chhattisgarh High Court.

Page AFRHIGH COURT OF CHHATTISGARH BILASPURCRMP No. 5421Order Reserved on : 18.06.2021Order Delivered on : 30.06.20211.Mohd. Fahim Shekhani Aged About 32 YearsS o Hazi Mohd. Aslam Shekhani.2.Hazi Mohd. Aslam Shekhani Aged About 54 YearsS o Late Ishak Shekhani.3.Khairun Nisha Aged About 49 Years W o Hazi Mohd. AslamShekhani.All R o M s Nurani Steel Kadrapara Raipur Road Bemetaraand Aslam Hardware Bazarpara Bemetara Tahsil and Thana District BemetaraPetitionersVersus Amrin Bano Aged About 25 Years W o Fahim Shekhani D o LateAbdul Jabbar Memon By Caste Muslaman R o Civil Line Dharamjaygarh Tahsil Dharamjaygarh District RaigarhRespondent For Petitioners: Mr. Parag Kotecha Advocate.Hon ble Shri Justice Narendra Kumar VyasCAV Order1.The petitioners have filed present petition under Section 482of the Cr.P.C. against order dated 02.02.2021 passed byJudicial Magistrate First Class Dharamjaigarh District Raigarhfor quashing of the complaint filed byrespondent under Section 12 of Protection of Woman FromDomestic Violence Act 2005whois wife of petitioner No. 1. 2.The brief facts as projected by the petitioners are thatpetitioner No. 1 and the respondent is husband and wife andher marriage was solemnized as per Muslim Law on22.01.2015. The petitioners have harassed her and committed Page cruelty against the respondent therefore she has filed acomplaint under Section 498A of I.P.C. before learned JudicialMagistrate First Class Dharamjaigarh District Raigarhof the Act 2005 defines aggrieved persons which means any woman who is or has been in a domesticrelationship with the respondent and who alleges to havebeen subjected to any act of domestic violence by therespondent. Section 3 defines domestic violence. Chapter IVdeals with procedure for obtaining orders of reliefs. Section 121(2011) 12 SCC 588 Page deals with procedure for filing of application to Magistrate.Section 17 deals with right to reside in a shared household.Section 18 deals with protection orders. Section 19 deals withresidence orders. Section 20 deals with monetary reliefs tomeet the expenses incurred and losses suffered by theaggrieved persons and any child of the aggrieved person as aresult of domestic violence. Section 21 deals with custodyorders which provides notwithstanding anything contained inany other law for the time being in force the Magistrate may at any stage of hearing of the application for protection orderor for any other relief under this Act grant temporary custodyof any child or children to the aggrieved person or the personmaking an application on her behalf and specify if necessary the arrangements for visit of such child or children by therespondent. Section 22 deals with compensation order inaddition to other reliefs as may be granted under this Act theMagistrate may on an application being made by theaggrieved person pass an order directing the respondent topay compensation and damages for the injuries includingmental torture and emotional distress caused by the acts ofdomestic violence committed by that respondent. Section 28of Act deals with the procedure to be followed while hearingcomplainant as per this Section Sections 12 18 19 21 2223 & 31 shall be governed by the procedure of the Code ofCriminal Procedure 1973. 9.The Central Government exercising its power conferred u s37 of the Act has framed Rules “the Protection of Womenfrom Domestic Violence Rules 2006of the Rules provides that when charges areframed under section 31 or in respect of offences undersection 498A of Indian Penal Code 1860 or any other offencenot summarily triable the court may separate the procdingsfrom such offences to be tried in the manner prescribed undercode of Criminal Procedure 1973 and proceed to summarily Page try the offence of the breach of protection order under section31 in accordance with the procedure of XXI of the Code ofCriminal Procedure 1973.10.Learned counsel for the petitioners submits that as perSection 468 of the Cr.P.C. cognizance on the complaint afterperiod of one year cannot be taken by the Judicial MagistrateFirst Class as punishment has been provided in this Act isless than one year therefore the complaint is barred bylimitation and the same is liable to be rejected. He wouldfurther submit that since the respondent has left thematrimonial house on 04.04.2017 thereafter she has filed thecomplaint under Section 12 of the Act 2005 on 27.10.2018 itis barred by limitation as per Section 468 of the Cr.P.C. whichreads as under: “468. Bar to taking cognizance after lapse of theperiod of limitation. Except as otherwiseprovided elsewhere in this Code no Court shalltake cognizance of an offence of the categoryspecified in sub sectionafter the expiry of theperiod of limitation.(2)The period of limitation shall bewhich reads as under: “32.Submissions made by Shri Ranjit Kumar onthe issue of limitation in view of the provisions ofSection 468 Cr.P.C. that the complaint could be Page filed only within a period of one year from thedate of the incident seem to be preponderous inview of the provisions of Section 28 and 32 of theAct 2005 read with Rule 15(6) of The Protectionof Women from Domestic Violence Rules 2006which make the provisions of Cr.P.C. applicableand stand fortified by the judgments of this courtin Japani Sahoo v. Chandra Sekhar Mohanty AIR 2007 SC 2762 and Noida EntrepreneursAssociation v. Noida & Ors. 6 SCC 508.” 12.Before considering the submission made by learned counselfor the petitioners it is necessary to examine the concept ofcontinued cause of action. It is pertinent to mention that theword continued offence is not defined in the Act 2005 but itis a subject matter of interpretation by the Supreme Court invarious judgments. The Supreme Court in Bhagirath Kanoria& others Vs. State of M.P.2 held as under: “10. It is impossible to accept Shri Bobde s con tention. The expression continuing offence isnot defined in the Code but that is because ex pressions which do not have a fixed connotationor a static import are difficult to define. How diffi cult it is to put the concept of a continuing of fence in a strait jacket is illustrated by the deci sion of this Court in State of Bihar Vs. DeokaranNenshi and Another . In that case respondentswho were owners of a stone quarry in Bombaywere required to forward certain annual returnsin respect of the preceding year on or beforeJanuary 21 in each year. Failure to forward thereturns as required is punishable with fine u s 66of the Mines Act 1952. The respondents havingfailed to furnish the returns by the due date which was January 21 1960 a complaint wasfiled against them in a Court at Dhanbad on April12 1961. One of the contentions of the respon dents was that the complaint was barred by limi tation u s 79 of the Mines Act which provided thatno Court shall take cognizance of an offence un der that Act unless the complaint was filed withinsix months of the date of the offence. The Expla nation to Section 79 provided that if the offencein question was a continuing offence the periodof limitation shall be computed with reference toevery part of the time during which the said of fence continued. It was held by this Court that2(1984) 4 SCC 222 Page the infringement which occurred on January 21of the relevant year was complete when theowner failed to furnish the annual returns on thatdate. Since the Regulation did not lay down thatthe owner would be guilty of an offence if he con tinued to work the mine without furnishing the re turns the offence was non continuing and there fore the complaint was time barred. While dis cussing the question as to when an offencecould be said to be a continuing offence theCourt made the following observations :A continuing offence is one which is sus ceptible of continuance and is distinguishablefrom the one which is committed once and for all.It is one of those offences which arises out of afailure to obey or comply with a rule or its re quirement and which involves a penalty the lia bility for which continues until the rule or its re quirement is obeyed or complied with. On everyoccasion that such disobedience or non compli ance occurs and recurs there is the offencecommitted. The distinction between the twokinds of offences is between an act or omissionwhich constitutes an offence once and for all andan act or omission which continues and there fore constitutes a fresh offence every time or oc casion on which it continues. In the case of acontinuing offence there is thus the ingredient ofcontinuance of the offence which is absent in thecase of an offence which takes place when anact or omission is committed once and for all.in para 15.The same is extracted below: “15.In the instant case as has been indicatedearlier the courts below as well as the HighCourt have referred to the decision in InderjitSingh Grewalofthe Act and judgment in Savitaben SomabhaiBhatiya Vs. State of Gujarat and Others and dis tinguished the said judgments as those cases re lated to live in relationship without marriage. TheCourt analyzing the earlier judgments opinedthat the couple must hold themselves out to soci 3(2016) 2 SCC 705 Page ety as being akin to spouses in addition to fulfill ing all other requisite conditions for a valid mar riage. The said judgments were distinguished onfacts as those cases related to live in relation ship without marriage. The Court opined that theparties therein had got married and the decree ofthe civil court for divorce subsisted and that aparta suit to declare the said judgment and decreeas a nullity was still pending consideration beforethe competent court.31.Thereafter the Court referred to the authoritiesand adverted to Deokaran Nenshiand even tually held:“19.The question whether a particular of fence is a continuing offence must necessarily de pend upon the language of the statute which createsthat offence the nature of the offence and above all the purpose which is intended to be achieved byconstituting the particular act as an offence.”32. Regard being had to the aforesaid statement oflaw we have to see whether retention of stridhan bythe husband or any other family members is a con tinuing offence or not. There can be no dispute thatwife can file a suit for realization of the stridhan but itdoes not debar her to lodge a criminal complaint forcriminal breach of trust. We must state that was thesituation before the 2005 Act came into force. In the2005 Act the definition of "aggrieved person" clearlypostulates about the status of any woman who hasbeen subjected to domestic violence as defined Un der Section 3 of the said Act. "Economic abuse" as ithas been defined in Section 3(iv) of the said Act hasa large canvass. Section 12 relevant portion ofwhich have been reproduced hereinbefore providesfor procedure for obtaining orders of reliefs. It hasbeen held in Inderjit Singh Grewalthat Sec tion 498 of the Code of Criminal Procedure applies tothe said case under the 2005 Act as envisaged Un der Sections 28 and 32 of the said Act read with Rule15(6) of the Protection of Women from Domestic Vio lence Rules 2006. We need not advert to the sameas we are of the considered opinion that as long asthe status of the aggrieved person remains and strid han remains in the custody of the husband the wifecan always put forth her claim Under Section 12 ofthe 2005 Act. We are disposed to think so as the sta tus between the parties is not severed because ofthe decree of dissolution of marriage. The concept of"continuing offence" gets attracted from the date ofdeprivation of stridhan for neither the husband norany other family members can have any right overthe stridhan and they remain the custodians. For thepurpose of the 2005 Act she can submit an applica Page 1tion to the Protection Officer for one or more of thereliefs under the 2005 Act.33. In the present case the wife had submitted theapplication on 22.05.2010 and the said authority hadforwarded the same on 01.06.2010. In the applica tion the wife had mentioned that the husband hadstopped payment of monthly maintenance fromJauary 2010 and therefore she had been compelledto file the application for stridhan. Regard being hadto the said concept of "continuing offence" and thedemands made we are disposed to think that theapplication was not barred by limitation and thecourts below as well as the High Court had fallen intoa grave error by dismissing the application beingbarred by limitation.34. Consequently the appeal is allowed and the or ders passed by the High Court and the courts beloware set aside. The matter is remitted to the learnedMagistrate to proceed with the application UnderSection 12 of the 2005 Act on merits.14.From the above law laid down by the Hon’ble Supreme Courtas well as scheme of Act 2005 it is quite clear that the reliefssought by the respondent is of continued in nature as shehas prayed for restraining petitioners from repetition ofdomestic violence her entrance into matrimonial housewhere she was residing with respondent monetary relief custody of child and for grant of Compensation as such the learned Judicial Magistrate First Class has not committedany irregularity or illegality in rejecting the objection raised bythe petitioners as well as issuance of process which warrantsinterference of this Court exercising power under Section 482of the Cr.P.C.15.Accordingly the instant petition being devoid of merits isliable to be and is hereby dismissed at motion stage itself.Sd (Narendra Kumar Vyas)JudgeArun 

Summary: The limitation to take cognizance on a complaint after a period of one year asper Section 486 of the CrPC is not applicable to complaints of continued cause of action. This was decreed by the High Court of Chhattisgarh by the Hon’ble Shri Justice Narendra Kumar Vyas in the case of Mohd. Fahim Shekhani and Ors. Vs. Amrin Bano [CRMP No. 549 of 2021] on the 30th of June 2021. The brief facts of the case are, the petitioner and respondent got married on 22.01.2015 asper the Muslim Law. The respondent was harassed and was meted with cruelty by the petitioners and thus, the respondent filed a complaint under Section 498A of the Indian Penal Code. In 2018, she filed a complaint stating that she was suffering from domestic violence by the petitioners and claimed for a restraining order, monetary relief and custody of the child. The magistrate took cognizance of the offence and issued a notice to the petitioners. The petitioners however, filed an application under Section 203 of the Cr.P.C. for dismissal of the complaint as it is barred by limitation mainly contending that the respondent has deserted matrimonial house of the petitioners on 04.04.2017, whereas she has filed present complaint on 27.10.2018 i.e., after lapse of one year and six months, therefore, it is barred by limitation as per Section 468 of the Cr.P.C. The respondent replied to this application contending that it is a continued cause of action and thus Section 468 will not apply. The trial court dismissed the application on the grounds contended by the respondent. This was challenged by the petitioners in the present petition filed before the hon’ble court. The learned counsel for the petitioner submitted that trial court has committed irregularity and illegality in passing the impugned order, which is liable to be quashed by this Court exercising inherent power under Section 482 of Cr.P.C. As per this section, cognizance on the complaint after period of one year cannot be taken by the Judicial Magistrate as punishment has been provided in this Act is less than one year, therefore, the complaint is barred by limitation and the same is liable to be rejected. However, the counsel for the respondents contended that this was a ‘continued offence’ and thus the period of limitation of one year, would not be effective in the current case. The learned Judge heard the submissions of both the parties and proceeded to analyze the word ‘continued offence’ relying on the judgement by the Supreme Court in the case, Bhagirath Kanoria &amp; others Vs. State of M.P (1984) 4 SCC 222 wherein, “A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and there- fore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”